**Exhibit 4.5(b)**

 

 

GUARANTEE AND COLLATERAL AGREEMENT

 

dated as of

 

June 29, 2007

 

among

 

VWR INVESTORS, INC.,

 

VARIETAL DISTRIBUTION MERGER SUB, INC.(to be merged with and into CDRV INVESTORS, INC. and renamed VWR FUNDING, INC.),

 

the Subsidiaries of CDRV INVESTORS, INC.from time to time party hereto

 

and

 

BANK OF AMERICA, N.A.,as Collateral Agent

 

 

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**TABLE OF CONTENTS**

 
| ** **                                          | ** **     | ** **                                                                 | ** ** | **Page** |
|-----------------------------------------------------|----------------|----------------------------------------------------------------------------|------------|----------|
|                                                |           |                                                                       |       |     |
| ARTICLE I DEFINITIONS                               |           | 1                                                                          |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  1.01. | Credit  Agreement                                                          |       | 1        |
|                                                | SECTION  1.02. | Other  Defined Terms                                                       |       | 2        |
|                                                |           |                                                                       |       |     |
| ARTICLE II GUARANTEE                                |           | 8                                                                          |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  2.01. | Guarantee                                                                  |       | 8        |
|                                                | SECTION  2.02. | Guarantee of  Payment                                                      |       | 9        |
|                                                | SECTION 2.03.  | No Limitations, Etc.                                                       |       | 9        |
|                                                | SECTION 2.04.  | Reinstatement                                                              |       | 10       |
|                                                | SECTION  2.05. | Agreement To  Pay; Subrogation                                             |       | 10       |
|                                                | SECTION  2.06. | Information                                                                |       | 11       |
|                                                |           |                                                                       |       |     |
| ARTICLE III SECURITY INTERESTS IN PERSONAL PROPERTY |           | 11                                                                         |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  3.01. | Security  Interest                                                         |       | 11       |
|                                                | SECTION  3.02. | Representations  and Warranties                                            |       | 13       |
|                                                | SECTION  3.03. | Covenants                                                                  |       | 15       |
|                                                | SECTION  3.04. | Other  Actions                                                             |       | 16       |
|                                                | SECTION  3.05. | Voting  Rights; Dividends and Interest, Etc.                               |       | 16       |
|                                                | SECTION  3.06. | Additional  Covenants Regarding Patent, Trademark and Copyright Collateral |       | 17       |
|                                                |           |                                                                       |       |     |
| ARTICLE IV REMEDIES                                 |           | 18                                                                         |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  4.01. | Pledged  Collateral                                                        |       | 18       |
|                                                | SECTION  4.02. | Uniform  Commercial Code and Other Remedies                                |       | 19       |
|                                                | SECTION  4.03. | Application  of Proceeds                                                   |       | 21       |
|                                                | SECTION  4.04. | Grant of  License to Use Intellectual Property                             |       | 21       |
|                                                | SECTION  4.05. | Securities  Act, Etc.                                                      |       | 22       |
|                                                |           |                                                                       |       |     |
| ARTICLE V INDEMNITY, SUBROGATION AND SUBORDINATION  |           | 23                                                                         |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  5.01. | Indemnity  and Subrogation                                                 |       | 23       |
|                                                | SECTION  5.02. | Contribution  and Subrogation                                              |       | 23       |
|                                                | SECTION  5.03. | Subordination                                                              |       | 23       |
|                                                |           |                                                                       |       |     |
| ARTICLE VI [RESERVED]                               |           | 24                                                                         |
|                                                |           |                                                                       |       |     |
| ARTICLE VII MISCELLANEOUS                           |           | 24                                                                         |
|                                                |           |                                                                       |       |     |
|                                                | SECTION  7.01. | Notices                                                                    |       | 24       |
|                                                | SECTION  7.02. | Survival of  Agreement                                                     |       | 24       |
|                                                     |                |                                                                            |            |          |  |

 

i

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|      | SECTION  7.03. | Binding  Effect; Several Agreement               |   | 24     |
|-----------|----------------|--------------------------------------------------|--------|--------|
|      | SECTION  7.04. | Successors  and Assigns                          |   | 24     |
|      | SECTION  7.05. | Collateral  Agent’s Expenses; Indemnity     |   | 24     |
|      | SECTION  7.06. | Collateral  Agent Appointed Attorney-in-Fact     |   | 25     |
|      | SECTION  7.07. | Applicable  Law                                  |   | 25     |
|      | SECTION  7.08. | Waivers;  Amendment                              |   | 26     |
|      | SECTION  7.09. | WAIVER OF  JURY TRIAL                            |   | 26     |
|      | SECTION  7.10. | Severability                                     |   | 26     |
|      | SECTION  7.11. | Counterparts                                     |   | 27     |
|      | SECTION  7.12. | Headings                                         |   | 27     |
|      | SECTION  7.13. | Jurisdiction;  Consent to Service of Process     |   | 27     |
|      | SECTION  7.14. | Termination  or Release                          |   | 28     |
|      | SECTION  7.15. | [RESERVED]                                       |   | 29     |
|      | SECTION  7.16. | Additional  Subsidiaries                         |   | 29     |
|      | SECTION  7.17. | Security  Interest and Obligations Absolute      |   | 29     |
|      | SECTION  7.18. | Effectiveness  of Merger                         |   | 29     |
|      | SECTION 7.19.  | Obligations  of the Foreign Subsidiary Borrowers |   | 29     |
|      |           |                                             |   |   |
|      |           |                                             |   |   |
| Schedules |           |                                             |   |
|      |           |                                             |   |   |
|      | Schedule I     | Subsidiary  Guarantors                           |   |   |
|      | Schedule II    | Equity  Interests; Pledged Debt Securities       |   |   |
|      | Schedule III   | Intellectual  Property                           |   |   |
|      | Schedule IV    | Offices for  UCC Filings                         |   |   |
|      | Schedule V     | UCC  Information                                 |   |   |
|      |           |                                             |   |   |
| Exhibits  |           |                                             |   |
|      |           |                                             |   |   |
|      | Exhibit A      | Form of  Supplement                              |   |   |

 

ii

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GUARANTEE AND COLLATERALAGREEMENT dated as of June 29, 2007 (this “Agreement”), among VWR INVESTORS,INC., a Delaware corporation (“Intermediate Holdco”), VARIETALDISTRIBUTION MERGER SUB, INC., a Delaware corporation (“Merger Sub”) tobe merged with and into CDRV INVESTORS, INC. (the “Company”), thesubsidiaries of the Parent Borrower (such term and each other capitalized termused but not defined in this introductory paragraph or the preliminarystatement below having the meaning given or ascribed to it in Article I)from time to time party hereto and BANK OF AMERICA, N.A., as collateral agent(in such capacity, the “Collateral Agent”).

 

***PRELIMINARY STATEMENT***

 

Reference is made to the CreditAgreement dated as of June 29, 2007 (as amended, restated, amended andrestated, supplemented or otherwise modified from time to time, the “CreditAgreement”), among the Borrowers, the lenders from time to time partythereto (the “Lenders”) and Bank of America, N.A., as administrativeagent (in such capacity, the “Administrative Agent”) and the CollateralAgent.

 

The Lenders and each IssuingBank have agreed to extend credit to the Borrowers, in each case pursuant to,and upon the terms and conditions specified in, the Credit Agreement.  The Hedge Creditors have agreed (or may inthe future agree) to enter into Hedging Obligations with one or more LoanParties.  The Cash Management Creditorshave agreed (or may in the future agree) to enter into Cash ManagementObligations with one or more Loan Parties. The obligations of the Lenders and each Issuing Bank to extend credit tothe Borrowers, the agreement of the Hedge Creditors to enter into and maintainHedging Obligations with one or more Loan Parties and the agreement of the CashManagement Creditors to enter into and maintain Cash Management Obligationswith one or more Loan Parties are, in each case, conditioned upon, among otherthings, the execution and delivery of this Agreement by each Borrower and eachGuarantor.  Each Guarantor is anaffiliate of the Borrowers, will derive substantial benefits from the extensionof credit to the Borrowers pursuant to the Credit Agreement and from the enteringinto and/or maintaining of such Hedging Obligations and/or maintaining of suchCash Management Obligations and is willing to execute and deliver thisAgreement in order to induce the Lenders and the Issuing Banks to extend suchcredit, the Hedge Creditors to enter into and maintain such Hedging Obligationsand the Cash Management Creditors to enter into and maintain such CashManagement Obligations.  Accordingly, theparties hereto agree as follows:

 

# ARTICLE I

#  

# ***Definitions***

 

## ***SECTION1.01.              ***CreditAgreement

 

### (a)           Capitalized terms used in thisAgreement and not otherwise defined herein have the meanings set forth in theCredit Agreement.  All capitalized termsdefined in the New York UCC (as such term is defined herein) and not defined inthis Agreement have the meanings specified therein.  All references to the Uniform Commercial Codeshall mean the New York UCC unless the context requires otherwise; the term “Instrument”shall have the meaning specified in Article 9 of the New York UCC.

 

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

###  

## ***SECTION1.02.              ***OtherDefined Terms.  As used in this Agreement, the followingterms have the meanings specified below:

 

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

 

“Administrative Agent”shall have the meaning assigned to such term in the preliminary statement.

 

“After-Acquired IntellectualProperty” shall have the meaning assigned to such term in Section3.06(e).

 

“Agreement” shall havethe meaning assigned to such term in the preamble.

 

“Bankruptcy Default”shall mean an Event of Default of the type described in Sections 7.01(g) and(h) of the Credit Agreement.

 

“Cash Collateral Account”shall mean a non-interest bearing cash collateral account maintained with, andin the sole dominion and control of, the Collateral Agent for the benefit ofthe Secured Parties into which shall be deposited cash collateral in respect ofLetters of Credit.

 

“Cash Management Creditor”shall mean, with respect to the Cash Management Obligations of a Loan Party, acounterparty that is the Administrative Agent or a Lender or an Affiliate ofthe Administrative Agent or a Lender as of the Closing Date or at the time suchCash Management Obligation is entered into.

 

“Cash Management Obligations”shall mean, with respect to any Person, the obligations of such Person underany agreement or arrangement to provide cash management services, includingtreasury, depository, overdraft, credit or debit card, electronic fundstransfer and other cash management arrangements; provided that any suchobligations of any Loan Party owing to the Administrative Agent or a Lender oran Affiliate of the Administrative Agent or any Lender shall only constitute “CashManagement Obligations” hereunder at the option of the Parent Borrower.

 

“Claiming Guarantor”shall have the meaning assigned to such term in Section 5.02.

 

“Collateral” shall havethe meaning assigned to such term in Section 3.01.

 

“Collateral Agent” shallhave the meaning assigned to such term in the preamble.

 

“Company” shall have themeaning assigned to such term in the preamble.

 

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“Contributing Guarantor”shall have the meaning assigned to such term in Section 5.02.

 

“Copyright License”shall mean any written agreement, now or hereafter in effect, granting anyright to any third person (other than an agreement with any Person who is anaffiliate or a subsidiary of the Parent Borrower or such Grantor) under anyCopyright now or hereafter owned by any Grantor or that such Grantor otherwisehas the right to license, or granting any right to any Grantor under anycopyright now or hereafter owned by any third party, and all rights of suchGrantor under any such agreement.

 

“Copyrights” shall meanall of the following now owned or hereafter acquired by any Grantor:  (a) all copyright rights in any work subjectto the copyright laws of the United States, whether as author, assignee,transferee or otherwise, (b) all registrations and applications forregistration of any such copyright in the United States, including registrations,recordings, supplemental registrations and pending applications for registrationin the United States Copyright Office (or any successor office), includingthose copyrights listed on Schedule III, and (c) all causes ofaction arising prior to or after the date hereof for infringement of anyCopyright or unfair competition regarding the same.

 

“Credit Agreement” shallhave the meaning assigned to such term in the preliminary statement.

 

“Domain Names” shallmean all Internet domain names and associated URL addresses in or to which anyGrantor now owns or hereafter acquires.

 

“Excluded Collateral”shall mean:

 

(a)           all vehicles the perfection of asecurity interest in which is excluded from the New York UCC in the relevantjurisdiction;

 

(b)           any General Intangible or otherrights arising under contracts, Instruments, licenses, license agreements(including Licenses) or other documents, to the extent (and only to the extent)that the grant of a security interest would (i) constitute a violation of arestriction in favor of a third party on such grant, unless and until anyrequired consents shall have been obtained, (ii) give any other party the rightto terminate its obligations thereunder, or (iii) violate any law, provided,however, that (1) any portion of any such General Intangible or otherright shall cease to constitute Excluded Collateral pursuant to this clause (b)at the time and to the extent that the grant of a security interest thereindoes not result in any of the consequences specified above and (2) the limitationset forth in this clause (b) above shall not affect, limit, restrict or impairthe grant by a Grantor of a security interest pursuant to this Agreement in anysuch General Intangible or other right, to the extent that an otherwiseapplicable prohibition or restriction on such grant is rendered ineffective by anyapplicable law, including the New York UCC;

 

(c)           any Letter of Credit Rights;

 

3

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(d)           in the case of the DomesticObligations, the Hedging Obligations of each Loan Party (other than the HedgingObligations of any Foreign Subsidiary Borrower), the Cash ManagementObligations of each Loan Party (other than the Cash Management Obligations ofany Foreign Subsidiary Borrower), Investment Property consisting of votingEquity Interests of any Foreign Subsidiary in excess of 65% of the EquityInterests representing the total combined voting power of all classes of EquityInterests of such Foreign Subsidiary entitled to vote;

 

(e)           as to which the Collateral Agent andthe Parent Borrower reasonably determine that the costs of obtaining a securityinterest in any specifically identified assets or category of assets (orperfecting the same) are excessive in relation to the benefit to the SecuredParties of the security afforded thereby;

 

(f)            Equipment owned by any Grantor onthe date hereof or hereafter acquired that is subject to a Lien securing a purchasemoney obligation or Capitalized Lease Obligation permitted to be incurredpursuant to the Credit Agreement, for so long as the contract or otheragreement in which such Lien is granted (or the documentation providing forsuch purchase money obligation or Capitalized Lease Obligation) validlyprohibits the creation of any other Lien on such Equipment;

 

(g)           any interest in joint ventures andnon-wholly owned subsidiaries which cannot be pledged without the consent ofone or more third parties;

 

(h)           applications filed in the UnitedStates Patent and Trademark Office to register trademarks or service marks onthe basis of any Grantor’s “intent to use” such trademarks or service marksunless and until the filing of a “Statement of Use” or “Amendment to Allege Use”has been filed and accepted, whereupon such applications shall be automaticallysubject to the Lien granted herein and deemed included in the Collateral;

 

(i)            all assets subject to a certificateof title statute, Farm Products and As-Extracted Collateral;

 

(j)            any property to the extent that suchgrant of a security interest is prohibited by any Requirements of Law of aGovernmental Authority, requires a consent not obtained of any GovernmentalAuthority pursuant to such Requirement of Law or is prohibited by, orconstitutes a breach of default under or results in the termination of orrequires any consent not obtained under, any contract, license, agreement,instrument or other document evidencing or giving rise to such property or, inthe case of any Investment Property or any Pledged Security, any applicableshareholder or similar agreement, except to the extent that such Requirement ofLaw or the term in such contract, license, agreement, instrument or otherdocument or shareholder or similar agreement providing for such prohibition,breach, default or termination or requiring such consent is ineffective underapplicable law;

 

(k)           any commercial tort claim;

 

4

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(l)            any assets to the extent a securityinterest in such assets would result in adverse tax consequences as reasonablydetermined by the Parent Borrower;

 

(m)          Equity Interests in UnrestrictedSubsidiaries, Immaterial Subsidiaries and captive insurance companies; and

 

(n)           any direct Proceeds, substitutions orreplacements of any of the foregoing, but only to the extent such Proceeds,substitutions or replacements would otherwise constitute Excluded Collateral.

 

Furthermore, no term used inthe definition of Collateral (or any component definition thereof) shall bedeemed to include any Excluded Collateral.

 

“Federal Securities Laws”shall have the meaning assigned to such term in Section 4.05.

 

“Fraudulent Conveyance”shall have the meaning assigned to such term in Section 2.01.

 

“Grantors” shall meanthe Borrowers and the Guarantors.

 

“Guarantors” shall meanIntermediate Holdco, the Subsidiary Guarantors and, solely with respect to anyParent Borrower Guaranteed Obligations, the Parent Borrower.

 

“Hedge Creditor” shallmean, with respect to the Hedging Obligations of a Loan Party, a counterpartythat is the Administrative Agent or a Lender or an Affiliate of the AdministrativeAgent or a Lender as of the Closing Date or at the time such Hedging Obligationis entered into (including any Person who is a Lender (and any Affiliatethereof) as of the Closing Date but subsequently, whether before or afterentering into any Hedging Obligations, ceases to be a Lender).

 

“Intellectual Property”shall mean all intellectual and similar property of any Grantor of every kindand nature now owned or hereafter acquired by such Grantor, including all ofthe following that are owned or hereafter acquired by such Grantor (i) Patents,Copyrights, Licenses, Trademarks, (ii) trade secrets, confidential orproprietary technical and business information, know how and databases and allother proprietary information, (iii) Domain Names, and (iv) all improvements toany of the foregoing.

 

“Intermediate Holdco”shall have the meaning assigned to such term in the preamble.

 

“Investment Property”shall mean (a) all “investment property” as such term is defined in the NewYork UCC (other than Excluded Collateral) and (b) whether or not constituting “investmentproperty” as so defined, all Pledged Debt Securities and Pledged Stock.

 

5

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“License” shall mean anyPatent License, Trademark License, Copyright License or other license orsublicense agreement relating to Intellectual Property to which any Grantor isa party.

 

“Loan Document Obligations”shall mean (a) the Domestic Obligations (as defined in the Credit Agreement),and (b) the Foreign Obligations (as defined in the Credit Agreement).

 

“Loan Documents” shallmean the Credit Agreement, each Security Document and each other Loan Documentthat evidences or governs any Obligations.

 

“Loans” shall mean allLoans under, and as defined in, the Credit Agreement.

 

“Merger Sub” shall havethe meaning assigned to such term in the preamble.

 

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

 

“Obligations” shall mean(a) the Loan Document Obligations, (b) the due and punctual payment andperformance of all Hedging Obligations of each Loan Party owing to a HedgeCreditor, and (c) the due and punctual payment and performance of all CashManagement Obligations of each Loan Party owing to a Cash Management Creditor,in each case, whether outstanding on the date hereof or arising from time totime following the date of this Agreement.

 

“Parent Borrower” shallmean (a) prior to the consummation of the Merger, Merger Sub and (b) upon andafter consummation of the Merger, the Company.

 

“Parent Borrower GuaranteedObligations” shall have the meaning assigned to such term in Section 2.01.

 

“Patent License” shallmean any written agreement, now or hereafter in effect, granting to any thirdperson (other than an agreement with any Person who is an affiliate or a subsidiaryof the Borrower or such Grantor) any right to make, use or sell any inventionon which a Patent, now or hereafter owned by any Grantor or that any Grantorotherwise has the right to license, is in existence, or granting to any Grantorany right to make, use or sell any invention on which a patent, now orhereafter owned by any third person, is in existence, and all rights of anyGrantor under any such agreement.

 

“Patents” shall mean allof the following now owned or hereafter acquired by any Grantor:  (a) all letters patent of the United States,all registrations and recordings thereof, and all applications for letterspatent of the United States, including registrations, recordings and pendingapplications in the United States Patent and Trademark Office (or anysuccessor), including those listed on Schedule III, and (b) allreissues, continuations, divisions, continuations-in-part, renewals orextensions thereof, and the inventions disclosed or claimed therein, includingthe right to make, use and/or sell the inventions disclosed or claimed therein.

 

6

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“Permitted Liens” shallmean with respect to the Obligations, all “Permitted Liens” as such term isdefined in the Credit Agreement.

 

“Pledged Collateral”shall mean (a) the Pledged Stock, (b) the Pledged Debt Securities, (c) subjectto Section 3.05, all payments of principal or interest, dividends, cash,instruments and other property from time to time received, receivable or otherwisedistributed in respect of, in exchange for or upon the conversion of, and allother Proceeds received in respect of, the securities referred to in clauses(a) and (b) above, (d) subject to Section 3.05, all rights of suchGrantor with respect to the securities and other property referred to inclauses (a), (b) and (c) above and (e) all Proceeds of any of the foregoing.

 

“Pledged Debt Securities”shall mean (a) the debt securities and promissory notes held by any Grantor onthe date hereof (including all such debt securities and promissory notes listedopposite the name of such Grantor on Schedule II), (b) any debt securities orpromissory notes in the future issued to such Grantor and (c) any otherinstruments evidencing the debt securities described above, if any.

 

“Pledged Securities”shall mean any promissory notes, stock certificates or other securities now orhereafter included in the Pledged Collateral, including all certificates, instrumentsor other documents representing or evidencing any Pledged Collateral.

 

“Pledged Stock”shall mean (a) (i) the Equity Interests owned by any Grantor on the date hereof(including all such Equity Interests listed on Schedule II) and (ii)thereafter, any other Equity Interest obtained in the future by such Grantor,in the case of each of clauses (i) and (ii), to the extent that the same do notconstitute Excluded Collateral, and (b) the certificates, if any, representingall such Equity Interests.

 

“SEC” shall mean theUnited States Securities and Exchange Commission and any successor thereto.

 

“Secured Parties” shallmean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral Agent,(d) the Issuing Banks, (e) each Hedge Creditor, (f) each Cash ManagementCreditor, (g) the beneficiaries of each indemnification obligation undertakenby any Loan Party under any Loan Document and (h) the permitted successors andassigns of each of the foregoing.

 

“Security Interest”shall have the meaning assigned to such term in Section 3.01.

 

“Subsidiary Guarantor”shall mean any of the following:  (a) theSubsidiaries identified on Schedule I hereto as Subsidiary Guarantorsand (b) each other subsidiary that becomes a party to this Agreement as aSubsidiary Guarantor after the Closing Date, excluding (i) any ExcludedSubsidiary and (ii) any Foreign Subsidiary.

 

“Termination Date” shallmean the date upon which all Commitments have terminated, no Letters of Creditare outstanding (or if Letters of Credit remain outstanding, as to which an L/CBackstop exists), and the Loans and L/C Exposure, together with all interest,Fees and other non-contingent Obligations, have been paid in full in cash.

 

7

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“Trademark License”shall mean any written agreement, now or hereafter in effect, granting to anythird person (other than an agreement with any Person who is an affiliate or asubsidiary of the Borrower or such Grantor) any right to use any trademark nowor hereafter owned by any Grantor or that any Grantor otherwise has the rightto license, or granting to any Grantor any right to use any trademark now orhereafter owned by any third person, and all rights of any Grantor under anysuch agreement.

 

“Trademarks” shall meanall of the following now owned or hereafter acquired by any Grantor:  (a) all trademarks, service marks, tradenames, corporate names, company names, business names, fictitious businessnames, trade styles, trade dress, logos, other source or business identifiers,designs and general intangibles of like nature, now existing or hereafteradopted or acquired, all registrations and recordings thereof, and allregistration and recording applications filed in connection therewith,including registrations and registration applications in the United StatesPatent and Trademark Office (or any successor office), and all extensions or renewalsthereof, including those registrations and applications listed on ScheduleIII, (b) all goodwill associated therewith or symbolized thereby, (c) allother assets, rights and interests that uniquely reflect or embody suchgoodwill and (d) all causes of action arising prior to or after the date hereoffor infringement of any trademark or unfair competition regarding the same.

 

# ARTICLE II

#  

# ***Guarantee***

#  

## ***SECTION2.01.***               Guarantee. Each Guarantor absolutely, irrevocably and unconditionally guarantees tothe Secured Parties, jointly with the other Guarantors (other than the ParentBorrower) and severally, as a primary obligor and not merely as a surety, thedue and punctual payment and performance of the Obligations.  Each Guarantor (other than the ParentBorrower) further agrees that the Obligations may be extended or renewed, inwhole or in part, without notice to or further assent from it, and that it willremain bound upon its guarantee notwithstanding any extension or renewal of anyObligation.  Each Guarantor waives (tothe extent permitted by applicable law) presentment to, demand of payment fromand protest to the Borrowers or any other Loan Party of any Obligation, andalso waives notice of acceptance of its guarantee and notice of protest fornonpayment.

 

The Parent Borrower herebyagrees that it is jointly and severally liable for, and, as primary obligor andnot merely as surety, and absolutely and unconditionally guarantees to theSecured Parties, the prompt payment when due and payable, whether at statedmaturity, upon acceleration or otherwise, and at all times thereafter (otherthan Obligations that are expressly the obligations of the Parent Borrowerpursuant to the terms of any Loan Document, Hedge Agreement Obligations or CashManagement Obligations, which Obligations shall continue to be the primaryobligations of the Parent Borrower) (collectively, the “Parent BorrowerGuaranteed Obligations”).  The ParentBorrower further agrees that the Parent Borrower Guaranteed Obligations may beextended or renewed in whole or in part without notice to or further assentfrom it, and that it remains bound upon its guarantee notwithstanding any suchextension or renewal.  The provisions ofthis Agreement shall apply equally to the Parent Borrower as guarantor of theParent Borrower Guaranteed Obligations as to the Guarantors as guarantors ofthe Obligations.

 

8

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Notwithstanding any provisionof this Agreement to the contrary, it is intended that this Agreement, and anyLiens granted hereunder by each Guarantor to secure the obligations andliabilities arising pursuant to this Agreement, not constitute a “FraudulentConveyance” (as defined below). Consequently, each Guarantor agrees that if this Agreement, or any Lienssecuring the obligations and liabilities arising pursuant to this Agreement,would, but for the application of this sentence, constitute a FraudulentConveyance, this Agreement and each such Lien shall be valid and enforceableonly to the maximum extent that would not cause this Agreement or such Lien toconstitute a Fraudulent Conveyance, and this Agreement shall automatically bedeemed to have been amended accordingly at all relevant times.  For purposes hereof, “FraudulentConveyance” means a fraudulent conveyance or fraudulent transfer underSection 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulenttransfer under the provisions of any applicable fraudulent conveyance orfraudulent transfer law or similar law of any state, nation or other governmentalunit, as in effect from time to time.

 

## ***SECTION2.02.***               Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes aguarantee of payment when due and payable and not of collection, and waives anyright (except such as shall be required by applicable law and cannot be waived)to require that any resort be had by the Collateral Agent or any other SecuredParty to any security held for the payment of the Obligations or Parent BorrowerGuaranteed Obligations, as applicable, or to any balance of any Deposit Accountor credit on the books of the Collateral Agent or any other Secured Party infavor of the Borrowers or any other person.

 

## ***SECTION2.03.              ***NoLimitations, Etc.

 

### (a)           Except for termination of a Guarantor’sobligations hereunder as expressly provided in Section 7.14, the obligationsof 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 anydefense or setoff, counterclaim, recoupment or termination whatsoever by reasonof the invalidity, illegality or unenforceability of the Obligations or ParentBorrower Guaranteed Obligations, as applicable, or otherwise.  Without limiting the generality of theforegoing, the obligations of each Guarantor hereunder shall not be dischargedor impaired or otherwise affected by (i) the failure of the Collateral Agent orany other Secured Party to assert any claim or demand or to enforce any rightor remedy under the provisions of any Loan Document or otherwise, (ii) anyrescission, waiver, amendment or modification of, or any release from any ofthe terms or provisions of, any Loan Document (other than pursuant to the termsof a waiver, amendment, modification or release of this Agreement in accordancewith the terms hereof) or any other agreement, including with respect to therelease of any other Guarantor under this Agreement and so long as any suchamendment, modification or waiver of any Loan Document is made in accordancewith Section 9.08 of the Credit Agreement, (iii) the release of, or anyimpairment of or failure to perfect any Lien on or security interest in, anysecurity held by the Collateral Agent or any other Secured Party for the Obligationsor Parent Borrower Guaranteed Obligations, as applicable, or any of them, (iv)any default, failure or delay, willful or otherwise, in the performance of theObligations or Parent Borrower Guaranteed Obligations, as applicable, or (v)any other act or omission that may or might in any manner or to any extent varythe risk of any Guarantor or otherwise operate as a discharge of any Guarantoras a matter of law or equity (other than the occurrence of

 

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### the Termination Date).  Each Guarantor expressly authorizes theCollateral Agent, in accordance with the Credit Agreement and applicable law,to take and hold security for the payment and performance of the Obligations orParent Borrower Guaranteed Obligations, as applicable, to exchange, waive orrelease any or all such security (with or without consideration), to enforce orapply such security and direct the order and manner of any sale thereof in itssole discretion or to release or substitute any one or more other guarantors orobligors upon or in respect of the Obligations (other than the Parent BorrowerGuaranteed Obligations), all without affecting the obligations of any Guarantorhereunder.

###  

### (b)           To the fullest extent permitted byapplicable law, each Guarantor waives any defense (other than payment of theObligations or Parent Borrower Guaranteed Obligations, as applicable (otherthan contingent obligations), in full) based on or arising out of any defenseof either Borrower or any other Loan Party or the unenforceability of theObligations or Parent Borrower Guaranteed Obligations, as applicable, or anypart thereof from any cause, or the cessation from any cause of the liabilityof the Borrowers or any other Loan Party, other than the occurrence of theTermination Date.  The Collateral Agentand the other Secured Parties may, in accordance with the Credit Agreement andapplicable law, at their election, foreclose on any security held by one ormore of them by one or more judicial or nonjudicial sales, accept an assignmentof any such security in lieu of foreclosure, compromise or adjust any part ofthe Obligations or Parent Borrower Guaranteed Obligations, as applicable, makeany other accommodation with either Borrower or any other Loan Party orexercise any other right or remedy available to them against either Borrower orany other Loan Party, without affecting or impairing in any way the liabilityof any Guarantor hereunder except to the extent the Termination Date hasoccurred.  To the fullest extentpermitted by applicable law, each Guarantor waives any defense arising out ofany such election even though such election operates, pursuant to applicablelaw, to impair or to extinguish any right of reimbursement or subrogation orother right or remedy of such Guarantor against either Borrower or any otherLoan Party, as the case may be, or any security.

###  

## ***SECTION2.04.              ***Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to beeffective or be reinstated, as the case may be, if at any time payment, or anypart thereof, of any Obligation or Parent Borrower Guaranteed Obligations, asapplicable, is rescinded or must otherwise be restored by the Collateral Agentor any other Secured Party upon the bankruptcy or reorganization of eitherBorrower, any other Loan Party or otherwise, notwithstanding the occurrence ofthe Termination Date.

 

## ***SECTION2.05.              ***AgreementTo Pay; Subrogation.  In furtherance of the foregoing and not in limitation of anyother right that the Collateral Agent or any other Secured Party has at law orin equity against any Guarantor by virtue hereof, upon the failure of eitherBorrower or any other Loan Party to pay any Obligation or Parent BorrowerGuaranteed Obligation, as applicable, when and as the same shall become due andpayable, whether at maturity, by acceleration, after notice of prepayment or otherwise,each Guarantor hereby promises to and will promptly pay, or cause to be paid,to the Collateral Agent for distribution to the Secured Parties in cash theamount of such unpaid Obligation or Parent Borrower Guaranteed Obligation, asapplicable (in each case, other than payment of any contingent obligations).  Upon payment by any Guarantor of any sums tothe Collateral Agent as provided above, all rights of such Guarantor

 

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## ***against any Borroweror any other Guarantor arising as a result thereof by way of right ofsubrogation, contribution, reimbursement, indemnity or otherwise shall in allrespects be subject to Article VI.***

 

## ***SECTION2.06.              ***Information. Each Guarantor assumes all responsibility for being and keeping itselfreasonably informed of each Borrower’s and each other Loan Party’s financialcondition and assets and of all other circumstances bearing upon the risk ofnonpayment of the Obligations or Parent Borrower Guaranteed Obligations, asapplicable, and the nature, scope and extent of the risks that such Guarantorassumes and incurs hereunder, and agrees that neither the Collateral Agent norany other Secured Party will have any duty to advise such Guarantor ofinformation known to it or any of them regarding such circumstances or risks.

 

# ARTICLE III

#  

# ***Security Interests in Personal Property***

#  

## ***SECTION3.01.              ***SecurityInterest.

 

### (a)           As security for the payment orperformance, as the case may be, in full of the Obligations (other than contingentobligations), each Grantor hereby pledges to the Collateral Agent, itssuccessors and permitted assigns, for the ratable benefit of the SecuredParties, and hereby grants to the Collateral Agent, its successors andpermitted assigns, for the ratable benefit of the Secured Parties, a securityinterest (the “Security Interest”) in all right, title or interest in orto any and all of the following assets and properties now owned or at any timehereafter acquired by such Grantor or in which such Grantor now has or at anytime in the future may acquire any right, title or interest (but excluding anyExcluded Collateral, collectively, the “Collateral”):

###  

##### (i)            allAccounts;

#####  

##### (ii)           the Cash Collateral Account and all cash, securities,Instruments and other property deposited or required to be deposited therein;

#####  

##### (iii)          all Chattel Paper;

#####  

##### (iv)          all Documents;

#####  

##### (v)           all Equipment;

#####  

##### (vi)          all General Intangibles;

#####  

##### (vii)         all Goods;

#####  

##### (viii)        all Instruments;

#####  

##### (ix)           all Inventory;

#####  

##### (x)            all Investment Property;

 

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##### (xi)           all Intellectual Property;

#####  

##### (xii)          all Pledged Collateral;

#####  

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

#####  

##### (xiv)        all Supporting Obligations;

#####  

##### (xv)         all cash and cash equivalents and Deposit Accounts, and

#####  

##### (xvi)        to the extent not otherwise included, all Proceeds andproducts of any and all of the foregoing and all collateral security andguarantees given by any person with respect to any of the foregoing.

#####  

##### Notwithstanding the foregoing, in no eventshall any control agreements be required to be obtained in respect thereof.

#####  

### (b)           Each Grantor hereby authorizes theCollateral Agent at any time and from time to time to file in any relevant jurisdictionany financing statements (including fixture filings) with respect to theCollateral or any part thereof and amendments thereto that (i) indicate theCollateral as “all assets” of such Grantor or words of similar effect, and (ii)contain the information required by Article 9 of the Uniform Commercial Code ofeach applicable jurisdiction for the filing of any financing statement oramendment, including (x) whether such Grantor is an organization, the type oforganization and any organizational identification number issued to suchGrantor and (y) in the case of a financing statement filed as a fixture filing,a sufficient description of the real property to which such Collateralrelates.  Each Grantor agrees to providesuch information to the Collateral Agent promptly upon written request.  The Collateral Agent agrees, upon request bythe Parent Borrower and at its expense, to promptly furnish copies of such filingsto the Parent Borrower.

###  

### (c)           The Collateral Agent is furtherauthorized to file with the United States Patent and Trademark Office or UnitedStates Copyright Office (or any successor office) such documents as may benecessary for the purpose of perfecting, confirming, continuing, enforcing orprotecting the Security Interest granted by each Grantor, without the signatureof any Grantor, and naming any Grantor or the Grantors as debtors and theCollateral Agent as secured party.  TheCollateral Agent agrees, upon request by the Parent Borrower and at itsexpense, to promptly furnish copies of such filings to the Parent Borrower.

###  

### (d)           The Security Interest is granted assecurity only and, except as otherwise required by applicable law, shall notsubject the Collateral Agent or any other Secured Party to, or in any way alteror modify, any obligation or liability of any Grantor with respect to orarising out of the Collateral.  Nothingcontained in this Agreement shall be construed to make the Collateral Agent orany other Secured Party liable as a member of any limited liability company oras a partner of any partnership, neither the Collateral Agent nor any otherSecured Party by virtue of this Agreement or otherwise (except as referred toin the following sentence) shall have any of the duties, obligations orliabilities of a member of any limited liability company or as a partner in anypartnership.  The parties heretoexpressly agree that, unless the Collateral Agent

 

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### shall become the owner ofPledged Collateral consisting of a limited liability company interest or apartnership interest pursuant hereto, this Agreement shall not be construed ascreating a partnership or joint venture among the Collateral Agent, any otherSecured Party, any Grantor and/or any other Person.

###  

## ***SECTION3.02.***               Representationsand Warranties.  Each Grantor represents and warrants to theCollateral Agent and the Secured Parties that:

 

(a)           Each Grantor hasgood and valid rights in and title to the Collateral with respect to which ithas purported to grant a Security Interest hereunder and has full power andauthority to grant to the Collateral Agent, for the ratable benefit of theSecured Parties, the Security Interest in such Collateral pursuant hereto andto execute, deliver and perform its obligations in accordance with the terms ofthis Agreement.

 

(b)           (i)UniformCommercial Code financing statements (including fixture filings, as applicable)or other appropriate filings, recordings or registrations containing adescription of the Collateral have been prepared by the Collateral Agent basedupon the information provided to the Collateral Agent and the Secured Partiesby the Grantors for filing in each governmental, municipal or other officespecified on Schedule IV hereof (or specified by notice from the ParentBorrower to the Collateral Agent after the Closing Date in the case of filings,recordings or registrations required by Section 5.09 of the Credit Agreement),which are all the filings, recordings and registrations (other than filingsrequired to be made in the United States Patent and Trademark Office and theUnited States Copyright Office in order to perfect the Security Interest in theCollateral consisting of United States Patents, Trademarks and Copyrights) thatare necessary as of the Closing Date (or after the Closing Date, in the case offilings, recordings or registrations required by Section 5.09 of the CreditAgreement) to publish notice of and protect the validity of and to establish alegal, valid and perfected security interest in favor of the Collateral Agent(for the ratable benefit of the Secured Parties) in respect of all Collateralin which the Security Interest may be perfected by filing, recording orregistration in the United States (or any political subdivision thereof) andits territories and possessions, and no further or subsequent filing, refiling,recording, rerecording, registration or reregistration is necessary in any suchjurisdiction, except as provided under applicable law with respect to thefiling of continuation statements.  (ii)Notwithstanding the foregoing, each Grantor represents and warrants that afully executed agreement in the form hereof or, alternatively, each applicableshort form security agreement in the form attached to the Credit Agreement asExhibits F-1, F-2 and F-3, and containing a description of all Collateralconsisting of Intellectual Property that is material to the conduct of suchGrantor’s business with respect to United States Patents and United Statesfederally registered Trademarks (and Trademarks for which United States federalregistration applications are pending) and United States federally registeredCopyrights has been or will be delivered to the Collateral Agent for recordingby the United States Patent and Trademark Office and the United StatesCopyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17U.S.C. § 205 and the regulations thereunder, as applicable to protect thevalidity of and to establish a legal, valid and perfected security interest infavor of the Collateral Agent) in respect of all such Collateral in which asecurity interest may be perfected by 

 

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filing, recording or registration in theUnited States, and no further or subsequent filing, refiling, recording,rerecording, registration or reregistration is necessary (other than filingsdescribed in Section 3.02(b)(i), and other than such actions as are necessaryto perfect the Security Interest with respect to any Collateral consisting ofUnited States Patents, United States federally registered Trademarks and UnitedStates federally registered Copyrights (and applications therefor) that arematerial to the conduct of such Grantor’s business and that are acquired ordeveloped after the date hereof).

 

(c)           The SecurityInterest constitutes (i) a legal and valid security interest in all Collateralsecuring the payment and performance of the Obligations, (ii) subject to the filingsdescribed in Section 3.02(b), a perfected security interest in allCollateral in which a security interest may be perfected by filing, recordingor registering a financing statement or analogous document in the United States(or any state thereof) pursuant to the Uniform Commercial Code and (iii)subject to the filings described in Section 3.02(b), a security interestthat shall be perfected in all Collateral in which a security interest may beperfected upon the receipt and recording of this Agreement (or the applicableshort form security agreement) with the United States Patent and TrademarkOffice and the United States Copyright Office, as applicable, within the three(3) month period (commencing as of the date hereof) pursuant to 35 U.S.C. § 261or 15 U.S.C. § 1060 or the one month period (commencing as of the date hereof)pursuant to 17 U.S.C. § 205.  TheSecurity Interest is and shall be prior to any other Lien on any of theCollateral, other than Permitted Liens.

 

(d)           Schedule IIcorrectly sets forth as of the Closing Date the percentage of the issued andoutstanding shares or units of each class of the Equity Interests of the issuerthereof represented by the Pledged Stock and includes all Equity Interests,debt securities and promissory notes required to be pledged hereunder.

 

(e)           The Pledged Stockand Pledged Debt Securities have been duly and validly authorized and issued bythe issuers thereof and (i) in the case of Pledged Stock issued by acorporation, are fully paid and nonassessable and (ii) in the case of PledgedDebt Securities, are legal, valid and binding obligations of the issuersthereof, subject to applicable bankruptcy, insolvency, reorganization,moratorium or other loss affecting creditors’ rights generally and generalprinciples of equity or at law.

 

(f)            Schedule Vcorrectly sets forth as of the Closing Date (i) the exact legal name of eachGrantor, as such name appears in its respective certificate or articles of incorporationor formation, (ii) the jurisdiction of organization of each Grantor, (iii) themailing address of each Grantor, (iv) the organizational identification number,if any, issued by the jurisdiction of organization of each Grantor, (v) theidentity or type of organization of each Grantor and (vi) the Federal TaxpayerIdentification Number, if any, of each Grantor which is a Loan Party.  The Parent Borrower agrees to update the informationrequired pursuant to the preceding sentence as provided in Section 5.06 ofthe Credit Agreement.

 

(g)           The Collateral isowned by the Grantors free and clear of any Lien, except for Permitted Liens.

 

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(h)           Notwithstanding theforegoing or anything else in this Agreement to the contrary, norepresentation, warranty or covenant is made with respect to the creation orperfection of a security interest in (i) Collateral consisting of IntellectualProperty that is not material to the conduct of the Grantor’s business, and(ii) Collateral to the extent such creation or perfection would require(A) any filing other than a filing in the United States or America, anystate thereof and the District of Columbia or (B) other action under thelaws of any jurisdiction other than the United States of America, any statethereof and the District of Columbia.

 

(i)            Each Grantorrepresents and warrants that the Trademarks, Patents and Copyrights listed on ScheduleIII include all United States federal registrations and pendingapplications for Trademarks, Patents and Copyrights, all as in effect as of thedate hereof, that such Grantor owns and that are material to the conduct of itsbusiness as of the date hereof.

 

## ***SECTION3.03.***               Covenants.

** **

### (a)           Subject to Section 3.02(h),each Grantor shall, at its own expense, take all commercially reasonableactions necessary to defend title to the Collateral against all persons and todefend the Security Interest of the Collateral Agent in the Collateral and thepriority thereof against any Lien which does not constitute a Permitted Lien.

###  

### (b)           Subject to Section 3.02(h),each Grantor agrees, upon written request by the Collateral Agent and at itsown expense, to execute, acknowledge, deliver and cause to be duly filed allsuch further instruments and documents and take all such actions as theCollateral Agent may from time to time reasonably deem necessary to obtain, preserve,protect and perfect the Security Interest and the rights and remedies createdhereby, including the payment of any fees and Taxes required in connection withthe execution and delivery of this Agreement, the granting of the SecurityInterest and the filing of any financing or continuation statements (includingfixture filings) or other documents in connection herewith or therewith; providedthat in no event shall any control agreements be required.

###  

### (c)           At its option, but only following 5Business Days’ written notice to each Grantor of its intent to do so, the CollateralAgent may discharge past due Taxes, assessments, charges, fees or Liens at anytime levied or placed on the Collateral which do not constitute a PermittedLien, and may pay for the maintenance and preservation of the Collateral to theextent any Grantor fails to do so as required by the Credit Agreement, and eachGrantor agrees to reimburse the Collateral Agent within 30 days after writtendemand for any reasonable out-of-pocket payment made or any reasonableout-of-pocket expense incurred by the Collateral Agent pursuant to theforegoing authorization; provided, however, that nothing in thisparagraph shall be interpreted as excusing any Grantor from the performance of,or imposing any obligation on the Collateral Agent or any Secured Party to cureor perform, any covenants or other promises of any Grantor with respect toTaxes, assessments, charges, fees or Liens and maintenance as set forth hereinor in the other Loan Documents.

 

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### (d)           Each Grantor shall remain liable toobserve and perform all conditions and obligations to be observed and performedby it under each contract, agreement or instrument relating to the Collateral,all in accordance with the terms and conditions thereof.

###  

## ***SECTION3.04.***               OtherActions.  In order to further ensure the attachment,perfection and priority of, and the ability of the Collateral Agent to enforce,the Security Interest in the Collateral, each Grantor agrees, in each case atsuch Grantor’s own expense, to take the following actions with respect to thefollowing Collateral:

 

(a)           ***Instruments*.**  Upon the occurrence and during thecontinuation of an Event of Default, if any Grantor shall at any time hold oracquire any Instruments in excess of $3,000,000 individually, such Grantorshall promptly endorse, assign and deliver the same to the Collateral Agent,accompanied by such undated instruments of endorsement, transfer or assignmentduly executed in blank as the Collateral Agent may from time to time reasonablyspecify.

 

(b)           ***InvestmentProperty*.**  Subject to theterms hereof, if any Grantor shall at any time hold or acquire any CertificatedSecurities, to the extent the same do not constitute Excluded Collateral, suchGrantor shall promptly endorse, assign and deliver the same to the CollateralAgent, accompanied by such undated instruments of transfer or assignment dulyexecuted in blank as the Collateral Agent may from time to time reasonablyspecify.  Each delivery of PledgedSecurities shall be accompanied by a schedule describing the securities, whichschedule shall be attached hereto as Schedule II and made a part hereofand supplement any prior schedule so delivered; provided that failure toattach any such schedule hereto shall not affect the validity of such pledge ofsuch Pledged Securities and shall not in and of itself result in any Default orEvent of Default.  Each certificaterepresenting an interest in any limited liability company or limitedpartnership controlled by any Grantor and pledged under Section 3.01shall be physically delivered to the Collateral Agent in accordance with theterms of the Credit Agreement and endorsed to the Collateral Agent or endorsedin blank.

 

(c)           ***SecurityInterests in Property of Account Debtors*.**  If at any time any Grantor shall take asecurity interest in any property of an Account Debtor or any other Person thevalue of which equals or exceeds $5,000,000 to secure payment and performanceof an Account, such Grantor shall promptly assign such security interest to theCollateral Agent for the benefit of the Secured Parties.  Such assignment need not be filed of publicrecord unless necessary to continue the perfected status of the securityinterest against creditors of and transferees from the Account Debtor or otherPerson granting the security interest.

 

## ***SECTION3.05.              ***VotingRights; Dividends and Interest, Etc.  Unless and until an Event ofDefault shall have occurred and be continuing and, except in the case of a BankruptcyDefault, the Collateral Agent shall have given the Grantors prior writtennotice of its intent to exercise its rights under this Agreement:

 

(a)           Each Grantor shallbe entitled to exercise any and all voting and/or other consensual rights andpowers inuring to an owner of the Pledged Collateral or any part

 

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thereof for any purpose consistent with theterms of this Agreement, the Credit Agreement and the other Loan Documents andapplicable law and no notice of any such voting or exercise of any consensualrights and powers need be given to the Collateral Agent.

 

(b)           The Collateral Agentshall promptly execute and deliver to each Grantor, or cause to be executed anddelivered to each Grantor, all such proxies, powers of attorney and otherinstruments as such Grantor may reasonably request for the purpose of enablingsuch Grantor to exercise the voting and/or consensual rights and powers it isentitled to exercise pursuant to paragraph (a) above.

 

(c)           Each Grantor shallbe entitled to receive and retain any and all dividends, interest, principaland other distributions paid on or distributed in respect of the PledgedCollateral to the extent and only to the extent that such dividends, interest,principal and other distributions are not prohibited by, and otherwise paid ordistributed in accordance with, the terms and conditions of the CreditAgreement, the other Loan Documents and applicable law; provided thatany noncash dividends, interest, principal or other distributions that wouldconstitute Pledged Collateral shall be and become part of the PledgedCollateral, and, if received by any Grantor, shall be held in trust for thebenefit of the Collateral Agent and the Secured Parties and shall be deliveredto the Collateral Agent in the same form as so received (with any necessaryendorsement reasonably requested by the Collateral Agent) on or prior to thelater to occur of (i) 30 days following the receipt thereof and (ii) theearlier of the date of the required delivery of the Pricing Certificatefollowing the receipt of such items and the date which is 45 days after the endof the most recently ended fiscal quarter (or such longer period as to whichthe Collateral Agent may consent).

 

## ***SECTION3.06.              ***AdditionalCovenants Regarding Patent, Trademark and Copyright Collateral.

 

### (a)           Except as could not reasonably beexpected to have a Material Adverse Effect, each Grantor agrees that it willnot do any act, or omit to do any act, whereby any Patent that is material tothe conduct of such Grantor’s business may become invalidated or dedicated tothe public, other than the expiration of such Patent at the end of its naturalterm, subject to such Grantor’s reasonable business judgment.

###  

### (b)           Except as could not reasonably beexpected to have a Material Adverse Effect, each Grantor (either itself orthrough its licensees or its sublicensees) will, for each registered Trademarkthat is material to the conduct of such Grantor’s business, use commerciallyreasonable efforts to maintain such Trademark registration in full force freefrom any legally binding determination of abandonment or invalidity of suchTrademark registration due to nonuse, subject to such Grantor’s reasonablebusiness judgment.

###  

### (c)           Except to the extent failure to actcould not reasonably be expected to have a Material Adverse Effect, and subjectto each Grantor’s reasonable business judgment, each Grantor will take allreasonable and necessary steps that are consistent with the practice in anyproceeding before the United States Patent and Trademark Office, and the UnitedStates Copyright Office, to maintain and pursue each material application relatingto the Patents,

 

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### Trademarks and/or Copyrights(and to obtain the relevant grant or registration) and to maintain each issuedPatent and each registration of the Trademarks and Copyrights that is materialto the conduct of any Grantor’s business, including timely filings of applicationsfor renewal, affidavits of use, affidavits of incontestability and payment ofmaintenance fees, and, if consistent with good business judgment, to initiateopposition, interference and cancellation proceedings against third parties.

###  

### (d)           Each Grantor agrees that, should itobtain an ownership interest in any Intellectual Property (other than any ExcludedCollateral) after the Closing Date, to the extent that such IntellectualProperty would be a part of the Collateral under the terms of this Agreementhad it been owned by such Grantor as of the Closing Date, (“After-AcquiredIntellectual Property”), (i) the provisions of this Agreement shallautomatically apply thereto, and (ii) any such After-Acquired IntellectualProperty and, in the case of Trademarks, the goodwill symbolized thereby shallautomatically become part of the Collateral, subject to the terms and conditionsof this Agreement.  Within 90 days afterthe end of each calendar year (or such longer period as to which the CollateralAgent may consent), the relevant Grantor shall sign and deliver to the CollateralAgent an appropriate Intellectual Property Security Agreement with respect toall applicable United States federally registered (or application for UnitedStates federally registered) After-Acquired Intellectual Property owned by itas of the last day of applicable fiscal quarter, to the extent that suchIntellectual Property becomes part of the Collateral and to the extent that itis not covered by any previous Intellectual Property Security Agreement sosigned and delivered by it.

 

# ARTICLE IV

#  

# ***Remedies***

#  

## ***SECTION4.01.***               PledgedCollateral.

 

### (a)           Upon the occurrence and during thecontinuance of an Event of Default and with prior written notice to the ParentBorrower, the Collateral Agent, on behalf of the Secured Parties, shall havethe right (in its sole and absolute discretion) to hold the Pledged Securitiesin its own name as pledgee, the name of its nominee (as pledgee or assub-agent) or the name of the applicable Grantor, endorsed or assigned in blankor in favor of the Collateral Agent. Upon the occurrence and during the continuance of an Event of Defaultand with prior written notice to the relevant Grantor, the Collateral Agentshall at all times have the right to exchange the certificates representing anyPledged Securities for certificates of smaller or larger denominations for anypurpose consistent with this Agreement.

###  

### (b)           Upon the occurrence and during thecontinuance of an Event of Default, after the Collateral Agent shall have notifiedthe Parent Borrower in writing of the suspension of their rights underparagraph (c) of Section 3.05, then all rights of any Grantor todividends, interest, principal or other distributions that such Grantor isauthorized to receive pursuant to paragraph (c) of Section 3.05 shallcease, and all such rights shall thereupon become vested in the CollateralAgent, which shall have the sole and exclusive right and authority to receiveand retain such dividends, interest, principal or other distributions.  All dividends, interest, principal or otherdistributions received by any Grantor contrary to the provisions of Section3.05 shall be held in trust for the benefit of the Collateral Agent, shallbe segregated from other property or

 

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### funds of such Grantor and shallbe promptly delivered to the Collateral Agent upon written demand in the sameform as so received (with any necessary endorsement or instrument of assignment).  Any and all money and other property paidover to or received by the Collateral Agent pursuant to the provisions of thisparagraph (b) shall be retained by the Collateral Agent in an account to beestablished by the Collateral Agent upon receipt of such money or other propertyand shall be applied in accordance with the provisions of Section 4.03.  After all Events of Default have been curedor waived, the Collateral Agent shall promptly repay to each applicable Grantor(without interest) all dividends, interest, principal or other distributionsthat such Grantor would otherwise be permitted to retain pursuant to the termsof paragraph (c) of Section 3.05 and that remain in such account.

###  

### (c)           Upon the occurrence and during thecontinuance of an Event of Default and with prior written notice to the ParentBorrower, all rights of any Grantor to exercise the voting and consensualrights and powers it is entitled to exercise pursuant to paragraph (a) of Section3.05, and the obligations of the Collateral Agent under paragraph (b) of Section3.05, shall cease, and all such rights shall thereupon become vested in theCollateral Agent, which shall have the sole and exclusive right and authorityto exercise such voting and consensual rights and powers; provided, however,that, unless otherwise directed by the Required Lenders, the Collateral Agentshall have the right from time to time following and during the continuance ofan Event of Default and the provision of the notice referred to above to permitthe Grantors to exercise such rights.  Tothe extent the notice referred to in the first sentence of this paragraph (c)has been given, after all Events of Default have been cured or waived, eachGrantor shall have the exclusive right to exercise the voting and/or consensualrights and powers that such Grantor would otherwise be entitled to exercisepursuant to the terms of paragraph (a) of Section 3.05, and theCollateral Agent shall again have the obligations under paragraph (b) of Section3.05.

###  

### (d)           Notwithstanding anything to the contrarycontained in this Section 4.01, if a Bankruptcy Default shall have occurredand be continuing, the Collateral Agent shall not be required to give anynotice referred to in Section 3.05 or this Section 4.01 in orderto exercise any of its rights described in said Sections, and the suspension ofthe rights of each of the Grantors under said Sections shall be automatic uponthe occurrence of such Bankruptcy Default.

###  

## ***SECTION4.02.              ***UniformCommercial Code and Other Remedies.  Upon the occurrence and during thecontinuance of an Event of Default, each Grantor agrees to deliver each item ofCollateral to the Collateral Agent on written demand, and it is agreed that theCollateral Agent shall have the right to take any of or all the followingactions at the same or different times: (a) with respect to any Collateral consisting of Intellectual Property,on written demand, to cause the Security Interest to become an assignment,transfer and conveyance of any of or all such Collateral by the applicable Grantor to the Collateral Agent, or tolicense or sublicense, whether general, special or otherwise, and whether on anexclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in suchmanner as the Collateral Agent shall determine (other than in violation of anythen-existing licensing arrangements), (b) to withdraw any and all cash orother Collateral from the Cash Collateral Account and to apply such cash andother Collateral to the payment of any and all Obligations in the mannerprovided in Section 4.03, (c) with or without legal process and with orwithout prior notice or demand for performance, to take possession of theCollateral without breach of the

 

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## ***peace, and subjectto the terms of any related lease agreement, to enter any premises wherethe  Collateral may be located for the purposeof taking possession of or removing the Collateral, and (d) generally, toexercise any and all rights afforded to a secured party under the Uniform CommercialCode or other applicable law.  Withoutlimiting the generality of the foregoing, each Grantor agrees that theCollateral Agent shall have the right, subject to the mandatory requirements ofapplicable law, to sell or otherwise dispose of all or any part of the Collateralat a public or private sale or at any broker’s board or on any securitiesexchange upon such commercially reasonable terms and conditions as it may deemnecessary, for cash, upon credit or for future delivery as the Collateral Agentshall deem appropriate.  The CollateralAgent shall be authorized at any such sale (if it deems it necessary to do so)to restrict the prospective bidders or purchasers to persons who will representand agree that they are purchasing the Collateral for their own account forinvestment and not with a view to the distribution or sale thereof, and uponconsummation of any such sale the Collateral Agent shall have the right toassign, transfer and deliver to the purchaser or purchasers thereof theCollateral so sold.  Each such purchaserat any such sale shall hold the property sold absolutely, free from any claimor right on the part of any Grantor, and each Grantor hereby waives (to theextent permitted by law) all rights of redemption, stay and appraisal whichsuch Grantor now has or may at any time in the future have under any rule oflaw or statute now existing or hereafter enacted.***

 

The Collateral Agent shall giveeach applicable Grantor 10 days’ written notice (which each Grantor agrees isreasonable notice within the meaning of Section 9-611 of the New York UCC orits equivalent in other jurisdictions) of the Collateral Agent’s intention tomake any sale of Collateral.  Suchnotice, in the case of a public sale, shall state the time and place for suchsale 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 dayon which the Collateral, or portion thereof, will first be offered for sale atsuch board or exchange.  Any such publicsale shall be held at such time or times within ordinary business hours and atsuch 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 portion thereof, to be sold may be sold in one lot as an entiretyor in separate parcels, as the Collateral Agent may (in its sole and absolutediscretion) determine.  The CollateralAgent shall not be obligated to make any sale of any Collateral if it shalldetermine not to do so, regardless of the fact that notice of sale of such Collateralshall have been given.  The CollateralAgent may, without notice or publication, adjourn any public or private sale orcause the same to be adjourned from time to time by announcement at the timeand place fixed for sale, and such sale may, without further notice, be made atthe time and place to which the same was so adjourned.  In case any sale of all or any part of theCollateral is made on credit or for future delivery, the Collateral so sold maybe retained by the Collateral Agent until the sale price is paid by the purchaseror purchasers thereof, but the Collateral Agent shall not incur any liabilityin case any such purchaser or purchasers shall fail to take up and pay for theCollateral so sold and, in case of any such failure, such Collateral may besold again upon like notice.  At any public(or, to the extent permitted by law, private) sale made pursuant to thisAgreement, any Secured Party may bid for or purchase, free (to the extentpermitted by applicable law) from any right of redemption, stay, valuation or appraisalon the part of any Grantor (all said rights being also hereby waived andreleased to the extent permitted by applicable law), the Collateral or any partthereof offered for sale and may make payment on account thereof by using anyclaim then due and payable to such Secured Party from any Grantor as a creditagainst the purchase price, and such Secured

 

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Party may,upon compliance with the terms of sale, hold, retain and dispose of suchproperty without further accountability to any Grantor therefor.  For purposes hereof, a written agreement topurchase the Collateral or any portion thereof shall be treated as a salethereof; the Collateral Agent shall be free to carry out such sale pursuant tosuch agreement and no Grantor shall be entitled to the return of the Collateralor any portion thereof subject thereto, notwithstanding the fact that after theCollateral Agent shall have entered into such an agreement all Events ofDefault shall have been remedied and the Obligations (other than contingentobligations) paid in full.  As analternative to exercising the power of sale herein conferred upon it, theCollateral Agent may proceed by a suit or suits at law or in equity toforeclose this Agreement and to sell the Collateral or any portion thereofpursuant to a judgment or decree of a court or courts having competent jurisdictionor pursuant to a proceeding by a court-appointed receiver.

 

Until the Termination Date,each Grantor irrevocably makes, constitutes and appoints the Collateral Agent(and all officers, employees or agents designated in writing by the CollateralAgent) as such Grantor’s true and lawful agent (and attorney-in-fact) for thepurpose, upon the occurrence and during the continuance of an Event of Default,of making, settling and adjusting claims in respect of Collateral underpolicies of insurance, endorsing the name of such Grantor on any check, draft,instrument or other item of payment for the proceeds of such policies of insuranceand for making all determinations and decisions with respect thereto.  Upon the occurrence and during thecontinuance of an Event of Default, in the event that any Grantor at any timeor times shall fail to obtain or maintain any of the policies of insurancerequired under the Credit Agreement or to pay any premium in whole or partrelating thereto, the Collateral Agent may upon prior written notice to suchGrantor, without waiving or releasing any obligation or liability of anyGrantor hereunder or any Default or Event of Default, in its sole discretion, obtainand maintain such policies of insurance and pay such premium and take any otheractions with respect thereto as the Collateral Agent deems necessary.  All sums disbursed by the Collateral Agent inconnection with this paragraph, including attorneys’ fees, court costs, expensesand other charges relating thereto, shall be payable, upon written demand asprovided in Section 9.05 of the Credit Agreement, by the Grantors to theCollateral Agent and shall be additional Obligations secured hereby.

 

## ***SECTION4.03.              ***Applicationof Proceeds.  If an Event of Default shall have occurredand be continuing the Collateral Agent shall apply the proceeds of any collection,sale, foreclosure or other realization upon any Collateral in accordance withSection 2.17 of the Credit Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuantto a power of sale granted by statute or under a judicial proceeding), thereceipt of the Collateral Agent or of the officer making the sale shall be asufficient discharge to the purchaser or purchasers of the Collateral so soldand such purchaser or purchasers shall not be obligated to see to the applicationof any part of the purchase money paid over to the Collateral Agent or suchofficer or be answerable in any way for the misapplication thereof.

 

## ***SECTION4.04.              ***Grantof License to Use Intellectual Property.  For the purpose ofenabling the Collateral Agent to exercise its rights and remedies in thisArticle IV at such time as the Collateral Agent shall be lawfully entitled toexercise such rights and remedies, each Grantor hereby grants to the CollateralAgent (until the termination of this Agreement and subject to Section 7.14) anirrevocable nonexclusive license (exercisable without payment of royalty

 

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## ***or othercompensation to the Grantors), subject in all respects to any Licenses to use,license or sublicense any of the Collateral consisting of know how, Patents,Copyrights and Trademarks, now owned or hereafter acquired by such Grantor, andwherever the same may be located, and including in such license access to allmedia in which any of the licensed items may be recorded or stored and to allcomputer software and programs used for the compilation or printoutthereof.  The use of such license by theCollateral Agent may be exercised, at the option of the Collateral Agent, onlyupon the occurrence and during the continuation of an Event of Default; provided,however, that any license or sublicense entered into by the CollateralAgent with a third party in accordance with this Section 4.04 shall be bindingupon each Grantor notwithstanding any subsequent cure of an Event of Default,except to the extent that such license or sublicense would invalidate or renderunenforceable any such Grantor’s Intellectual Property.***

 

## ***SECTION4.05.              ***SecuritiesAct, Etc.  In view of the position of the Grantors inrelation to the Pledged Collateral, or because of other current or futurecircumstances, a question may arise under the U.S. Securities Act of 1933, asnow or hereafter in effect, or any similar statute hereafter enacted analogousin purpose or effect (such Act and any such similar statute as from time totime in effect being called the “Federal Securities Laws”) with respectto any disposition of the Pledged Collateral permitted hereunder.  Each Grantor understands that compliance withthe Federal Securities Laws might very strictly limit the course of conduct ofthe Collateral Agent if the Collateral Agent were to attempt to dispose of allor any part of the Pledged Collateral, and might also limit the extent to whichor the manner in which any subsequent transferee of any Pledged Collateralcould dispose of the same.  Similarly,there may be other legal restrictions or limitations affecting the CollateralAgent in any attempt to dispose of all or part of the Pledged Collateral underapplicable “blue sky” or other state securities laws or similar laws analogousin purpose or effect.  Each Grantor recognizesthat to the extent such restrictions and limitations apply to any proposed saleof Pledged Collateral, the Collateral Agent may, with respect to any sale ofsuch Pledged Collateral, limit the purchasers to those who will agree, amongother things, to acquire such Pledged Collateral for their own account, forinvestment, and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that tothe extent such restrictions and limitations apply to any proposed sale ofPledged Collateral, the Collateral Agent, in its sole and absolute discretion(a) may proceed to make such a sale whether or not a registration statement forthe purpose of registering such Pledged Collateral or part thereof shall havebeen filed under the Federal Securities Laws and (b) may approach and negotiatewith a limited number of potential purchasers (including a single potentialpurchaser) to effect such sale.  EachGrantor acknowledges and agrees that any such sale might result in prices andother terms less favorable to the seller than if such sale were a public salewithout such restrictions. In the event of any such sale, the Collateral Agentshall incur no responsibility or liability for selling all or any part of thePledged Collateral at a price that the Collateral Agent, in its sole andabsolute discretion, may in good faith deem reasonable under the circumstances,notwithstanding the possibility that a substantially higher price might havebeen realized if the sale were deferred until after registration as aforesaidor if more than a limited number of purchasers (or a single purchaser) were approached.  The provisions of this Section 4.05will apply notwithstanding the existence of a public or private market uponwhich the quotations or sales prices may exceed substantially the price atwhich the Collateral Agent sells.

 

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# ARTICLE V

#  

# ***Indemnity, Subrogation and Subordination***

#  

## ***SECTION5.01.              ***Indemnityand Subrogation.  In addition to all such rights of indemnityand subrogation as the Guarantors may have under applicable law (but subject toSection 5.03), the applicable Borrowers agree that (a) in the event apayment shall be made by any Guarantor under this Agreement, the applicableBorrowers shall indemnify such Guarantor for the full amount of such paymentand such Guarantor shall be subrogated to the rights of the person to whom suchpayment shall have been made to the extent of such payment and (b) in the eventany assets of any Guarantor shall be sold pursuant to this Agreement or anyother Security Document to satisfy in whole or in part a claim of any Secured Party,the Borrowers shall indemnify such Guarantor in an amount equal to the greaterof the book value or the fair market value of the assets so sold.

 

## ***SECTION5.02.              ***Contributionand Subrogation.  Each Guarantor (a “Contributing Guarantor”)agrees (subject to Section 5.03) that, in the event a payment shall bemade by any other Guarantor hereunder in respect of any Obligation or ParentBorrower Guaranteed Obligations, as applicable, or assets of any otherGuarantor shall be sold pursuant to any Security Document to satisfy any Obligationor Parent Borrower Guaranteed Obligations, as applicable, owed to any SecuredParty, and such other Guarantor (the “Claiming Guarantor”) shall nothave been fully indemnified by a Borrower as provided in Section 5.01,the Contributing Guarantor shall indemnify the Claiming Guarantor in an amountequal to (i) the amount of such payment or (ii) the greater of the book valueor the fair market value of such assets, as the case may be, in each casemultiplied by a fraction of which the numerator shall be the net worth of theContributing Guarantor on the date hereof and the denominator shall be theaggregate net worth of all the Guarantors on the date hereof (or, in the caseof any Guarantor becoming a party hereto pursuant to Section 7.16, thedate of the supplement hereto executed and delivered by such Guarantor).  Any Contributing Guarantor making any paymentto a Claiming Guarantor pursuant to this Section 5.02 shall besubrogated to the rights of such Claiming Guarantor under Section 5.01to the extent of such payment.

 

## ***SECTION5.03.              ***Subordination. Notwithstanding any provision of this Agreement to the contrary, allrights of the Guarantors under Sections 5.01 and 5.02 and allother rights of indemnity, contribution or subrogation under applicable law orotherwise shall be fully subordinated to the Loan Document Obligations untilthe Termination Date; provided, that if any amount shall be paid to suchGrantor on account of such subrogation rights at any time prior to the TerminationDate, such amount shall be held in trust for the benefit of the Secured Partiesand shall promptly be paid to the Collateral Agent to be credited and appliedagainst the Obligations or Parent Borrower Guaranteed Obligations, asapplicable, whether matured or unmatured, in accordance with Section 4.03.  No failure on the part of a Borrower or anyGuarantor to make the payments required by Sections 5.01 and 5.02(or any other payments required under applicable law or otherwise) shall in anyrespect limit the obligations and liabilities of any Guarantor with respect toits obligations hereunder, and each Guarantor shall remain liable for the fullamount of its obligations hereunder.

 

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# ARTICLE VI

#  

# ***[RESERVED]***

#  

# ARTICLE VII

#  

# ***Miscellaneous***

#  

## ***SECTION7.01.              ***Notices. All communications and notices hereunder shall (except as otherwiseexpressly permitted herein) be in writing and given as provided in Section 9.01of the Credit Agreement.  All communicationsand notices hereunder to any Subsidiary Guarantor shall be given to it in careof the Parent Borrower as provided in Section 9.01 of the Credit Agreement.

 

## ***SECTION7.02.              ***Survivalof Agreement.  All covenants, agreements, representationsand warranties made by the Loan Parties herein or any other Loan Document shallbe considered to have been relied upon by the Lenders and the Issuing Banks andshall survive the making by the Lenders of any Loans and issuance of anyLetters of Credit by each Issuing Bank, regardless of any investigation made byany Lender or Issuing Bank or on their behalf and notwithstanding that theCollateral Agent, any Issuing Bank or any Lender may have had notice or actualknowledge of any Default at the time of any Credit Event, and shall continue infull force and effect until the Termination Date.

 

## ***SECTION7.03.              ***BindingEffect; Several Agreement.  This Agreement shall become effective when itshall have been executed by the Loan Parties and the Collateral Agent and when theCollateral Agent shall have received counterparts hereof which, when takentogether, bear the signatures of each of the other parties hereto.  This Agreement shall be construed as aseparate agreement with respect to each Loan Party and may be amended,modified, supplemented, waived or released with respect to any Loan Partywithout the approval of any other Loan Party and without affecting the obligationsof any other Loan Party hereunder.

 

## ***SECTION7.04.              ***Successorsand Assigns.  Whenever inthis Agreement any of the parties hereto is referred to, such reference shallbe deemed to include the permitted successors and assigns of such party; andall covenants, promises and agreements by or on behalf of any Grantor or the CollateralAgent that are contained in this Agreement shall bind and inure to the benefitof their respective successors and assigns.

 

## ***SECTION7.05.              ***CollateralAgent’s Expenses; Indemnity.

 

### (a)           The parties hereto agree that theCollateral Agent shall be entitled to reimbursement of its reasonableout-of-pocket expenses incurred hereunder as provided in Section 9.05 ofthe Credit Agreement.

###  

### (b)           Without limitation of itsindemnification obligations under the other Loan Documents, each Grantor agreesto indemnify the Collateral Agent and the other Indemnitees as provided inSection 9.05 of the Credit Agreement.

 

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### (c)           Any such amounts payable as providedhereunder shall be additional Obligations secured hereby and by the otherSecurity Documents.  The provisions ofthis Section 7.05 shall survive the Termination Date.

###  

## ***SECTION7.06.              ***CollateralAgent Appointed Attorney-in-Fact.  Until the Termination Date,each Grantor hereby appoints the Collateral Agent as the attorney-in-fact ofsuch Grantor for the purpose of, upon the occurrence and during the continuanceof an Event of Default, carrying out the provisions of this Agreement andtaking any action and executing any instrument that the Collateral Agent maydeem necessary to accomplish the purposes hereof, which appointment isirrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agentshall have the right, upon the occurrence and during the continuance of anEvent of Default, with full power of substitution either in the CollateralAgent’s name or in the name of such Grantor (a) to receive, endorse, assignand/or deliver any and all notes, acceptances, checks, drafts, money orders orother evidences of payment relating to the Collateral or any part thereof, (b)to demand, collect, receive payment of, give receipt for and give dischargesand releases of all or any of the Collateral, (c) to sign the name of anyGrantor on any invoice or bill of lading relating to any of the Collateral, (d)to send verifications of Accounts to any Account Debtor, (e) to commence andprosecute any and all suits, actions or proceedings at law or in equity in anycourt of competent jurisdiction to collect or otherwise realize on all or anyof the Collateral or to enforce any rights in respect of any Collateral, (f) tosettle, compromise, compound, adjust or defend any actions, suits orproceedings relating to all or any of the Collateral, (g) to notify, or torequire any Grantor to notify, Account Debtors to make payment directly to theCollateral Agent or the Cash Collateral Account, and (h) to use, sell, assign,transfer, pledge, make any agreement with respect to or otherwise deal with allor any of the Collateral, and to do all other acts and things necessary to carryout the purposes of this Agreement in accordance with its terms, as fully andcompletely as though the Collateral Agent were the absolute owner of the Collateralfor all purposes; provided, however, that nothing hereincontained shall be construed as requiring or obligating the Collateral Agent tomake any commitment or to make any inquiry as to the nature or sufficiency ofany payment received by the Collateral Agent, or to present or file any claimor notice, or to take any action with respect to the Collateral or any partthereof or the moneys due or to become due in respect thereof or any propertycovered thereby.  The Collateral Agentand the Secured Parties shall be accountable only for amounts actually receivedas a result of the exercise of the powers granted to them herein, and neitherthey nor their officers, directors, employees or agents shall be responsible toany Grantor for any act or failure to act hereunder, except for their own grossnegligence, willful misconduct, fraud or bad faith.  The foregoing powers of attorney beingcoupled with an interest, are irrevocable until the Security Interest shallhave terminated in accordance with the terms hereof.

 

## ***SECTION7.07.              ***ApplicableLaw.  THIS AGREEMENT (OTHER THAN LETTERS OF CREDITAND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED INACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  EACH LETTER OF CREDIT SHALL BE GOVERNED BY,AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCHLETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORMCUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT,ON THE DATE

 

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## ***SUCH LETTER OFCREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORMCUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWSOF THE STATE OF NEW YORK.***

 

## ***SECTION 7.08.***              Waivers; Amendment.

 

### (a)           No failure or delay by the CollateralAgent, the Administrative Agent, any Issuing Bank or any Lender in exercisingany right or power hereunder or under any other Loan Document shall operate asa waiver hereof or thereof, nor shall any single or partial exercise of anysuch right or power, or any abandonment or discontinuance of steps to enforcesuch a right or power, preclude any other or further exercise thereof or theexercise of any other right or power. The rights and remedies of the Collateral Agent, the AdministrativeAgent, the Issuing Banks and the Lenders hereunder and under the other LoanDocuments are cumulative and are not exclusive of any rights or remedies thatthey would otherwise have.  No waiver ofthis Agreement or any other Loan Document or consent to any departure by anyLoan Party therefrom shall in any event be effective unless the same shall bepermitted by paragraph (b) of this Section 7.08, and then such waiver orconsent shall be effective only in the specific instance and for the purposefor which given.  Without limiting thegenerality of the foregoing, the making of a Loan or issuance of a Letter ofCredit shall not be construed as a waiver of any Default, regardless of whetherthe Collateral Agent, any Lender or any Issuing Bank may have had notice orknowledge of such Default at the time. Except as otherwise provided herein, no notice or demand on any LoanParty in any case shall entitle any Loan Party to any other or further noticeor demand in similar or other circumstances.

###  

### (b)           Neither this Agreement nor anyprovision hereof may be waived, amended or modified except pursuant to anagreement or agreements in writing entered into by the Collateral Agent and theLoan Parties that are party thereto and are affected by such waiver, amendmentor modification, subject to Section 9.08 of the Credit Agreement.

###  

## ***SECTION7.09.              ***WAIVEROF JURY TRIAL.  EACH PARTY HERETO (AND EACH OTHER SECUREDPARTY BY ITS ACCEPTANCE OF THE BENEFITS HEREOF) HEREBY WAIVES, TO THE FULLESTEXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY INRESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR INCONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTYHERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHERPARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGESTHAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THISAGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.09.

 

## ***SECTION7.10.              ***Severability. In the event any one or more of the provisions contained in thisAgreement or in any other Loan Document should be held invalid, illegal orunenforceable in any respect, the validity, legality and enforceability of theremaining provisions contained herein and therein shall not in any way beaffected or impaired thereby (it being understood

 

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## ***that the invalidityof a particular provision in a particular jurisdiction shall not in and ofitself affect the validity of such provision in any other jurisdiction). Theparties shall endeavor in good-faith negotiations to replace the invalid,illegal or unenforceable provisions with valid provisions the economic effectof which comes as close as possible to that of the invalid, illegal orunenforceable provisions.***

 

## ***SECTION7.11.              ***Counterparts. This Agreement may be executed in counterparts (and by different partieshereto on different counterparts), each of which shall constitute an originalbut all of which when taken together shall constitute a single contract, andshall become effective as provided in Section 7.03.  Delivery of an executed signature page tothis Agreement by facsimile, pdf or other electronic transmission shall be aseffective as delivery of a manually signed counterpart of this Agreement.

 

## ***SECTION7.12.              ***Headings.  Article andSection headings and the Table of Contents used herein are for convenience ofreference only, are not part of this Agreement and are not to affect theconstruction of, or to be taken into consideration in interpreting, this Agreement.

 

## ***SECTION 7.13.             Jurisdiction; Consent to Service ofProcess.***

** **

### (a)           Each of the parties and the SecuredParties, by their acceptance of the benefits of this Agreement hereby irrevocablyand unconditionally submits, for itself and its property, to the nonexclusivejurisdiction of any New York State court or Federal court of the United Statesof 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 theother Loan Documents, or for recognition or enforcement of any judgment, and eachof the parties hereto and the Secured Parties, by their acceptance of thebenefits of this Agreement hereby irrevocably and unconditionally agrees thatall claims in respect of any such action or proceeding may be heard anddetermined in such New York State or, to the extent permitted by law, in suchFederal court.  Each of the partieshereto and the Secured Parties, by their acceptance of the benefits of thisAgreement agrees that a final judgment in any such action or proceeding shallbe conclusive and may be enforced in other jurisdictions by suit on thejudgment or in any other manner provided by law.  Nothing in this Agreement shall affect anyright that the Collateral Agent, the Administrative Agent, the Issuing Banks orany Lender may otherwise have to bring any action or proceeding relating tothis Agreement or the other Loan Documents against any Grantor or itsproperties in the courts of any jurisdiction.

###  

### (b)           Each of the parties hereto and theSecured Parties, by their acceptance of the benefits of this Agreement herebyirrevocably and unconditionally waives, to the fullest extent it may legallyand effectively do so, any objection which it may now or hereafter have to thelaying of venue of any suit, action or proceeding arising out of or relating tothis Agreement or the other Loan Documents in any New York State or Federalcourt.  Each of the parties hereto andthe Secured Parties, by their acceptance of the benefits of this Agreementhereby irrevocably waives, to the fullest extent permitted by law, the defenseof an inconvenient forum to the maintenance of such action or proceeding in anysuch court.

 

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### (c)           Each party hereto and the SecuredParties, by their acceptance of the benefits of this Agreement irrevocably consentsto service of process in the manner provided for notices in Section 8.01.  Nothing in this Agreement will affect theright of any party to this Agreement to serve process in any other mannerpermitted by law.

###  

## ***SECTION7.14.              ***Terminationor Release.

** **

### (a)           This Agreement, the Guarantees madeherein, the Security Interest, the pledge of the Pledged Collateral and allother security interests granted hereby (including, without limitation, thelicenses granted by the Grantors and the Collateral Agents pursuant to Section4.04) shall automatically terminate on the Termination Date (other than to theextent any funds are on deposit in the Cash Collateral Account in respect ofany L/C Backstop, in which case, the Security Interest in such Cash CollateralAccount shall continue until released by the relevant Issuing Bank).

###  

### (b)           Any Guarantor shall automatically bereleased from its obligations hereunder and the Security Interests createdhereunder in the Collateral of such Guarantor shall be automatically releasedupon the consummation of any transaction permitted by the Credit Agreement(including, without limitation, in connection with the Foreign SubsidiaryReorganization) as a result of which such Guarantor ceases to be a Loan Party.

###  

### (c)           Upon any sale or other transfer byany Grantor of any Collateral that is permitted under the Credit Agreement (including,without limitation, in connection with the Foreign Subsidiary Reorganization)to any person that is not a Borrower or a Grantor, or, upon the effectivenessof any written consent to the release of the Security Interest granted herebyin any Collateral pursuant to Section 9.08 of the Credit Agreement, theSecurity Interest in such Collateral shall be automatically released, and thelicenses granted by the Grantors and the Collateral Agent pursuant to Section4.04 shall be automatically terminated.

###  

### (d)           In connection with any termination orrelease pursuant to paragraph (a), (b) or (c) above, the Collateral Agent shallpromptly execute and deliver to any Grantor, at such Grantor’s expense, allUniform Commercial Code termination statements and similar documents that suchGrantor shall reasonably request to evidence such termination or release.  Any execution and delivery of documents pursuantto this Section 7.14 shall be without recourse to or representation orwarranty by the Collateral Agent (other than any representation and warrantythat the Collateral Agent has the authority to execute and deliver such documents)or any Secured Party.  Without limitingthe provisions of Section 7.05, the Borrowers shall reimburse theCollateral Agent upon written demand for all reasonable out-of-pocket costs andexpenses, including the fees, charges and expenses of counsel, incurred by itin connection with any action contemplated by this Section 7.14 asprovided in Section 9.05 of the Credit Agreement.

###  

### (e)           At any time that the respectiveGrantor desires that the Collateral Agent take any action described in precedingparagraph (d) above, it shall, upon the reasonable request of the CollateralAgent, deliver to the Collateral Agent an officer’s certificate certifying thatthe release of the respective Collateral is permitted pursuant to paragraph(a), (b) or (c).  The Collateral Agentshall have no liability whatsoever to any Secured Party as the result of anyrelease of

 

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### Collateral by it as permitted(or which the Collateral Agent in good faith believes to be permitted) by this Section7.14.

###  

## ***SECTION7.15.              ***[RESERVED].

** **

## ***SECTION7.16.              ***AdditionalSubsidiaries.  Pursuant to Section 5.09 of the CreditAgreement, each wholly owned Restricted Subsidiary (other than a ForeignSubsidiary, an Excluded Subsidiary, or a Domestic Subsidiary that is adisregarded entity for United States federal income tax purposes owned by anon-disregarded non-United States entity) that was not in existence or not asubsidiary on the Closing Date is required to enter into this Agreement as aSubsidiary Guarantor and a Grantor upon becoming such a subsidiary.  Upon execution and delivery by the CollateralAgent and such subsidiary of a supplement in the form of Exhibit Ahereto, such subsidiary shall become a Subsidiary Guarantor and a Grantorhereunder with the same force and effect as if originally named as a SubsidiaryGuarantor and a Grantor herein.  Theexecution and delivery of any such instrument shall not require the consent ofany other Loan Party hereunder.  Therights and obligations of each Loan Party hereunder shall remain in full forceand effect notwithstanding the addition of any new Loan Party as a party tothis Agreement.

 

## ***SECTION7.17.              ***SecurityInterest and Obligations Absolute

## *** ***

**.**  Subject to Section 7.14 hereof, allrights of the Collateral Agent hereunder, the Security Interest, the grant of asecurity interest in the Pledged Collateral and all obligations of each Grantorhereunder shall be absolute and unconditional irrespective of (a) any lack ofvalidity or enforceability of the Credit Agreement, any other Loan Document,any agreement with respect to any of the Obligations or any other agreement orinstrument relating to any of the foregoing, (b) any change in the time, manneror place of payment of, or in any other term of, all or any of the Obligations,or any other amendment or waiver of or any consent to any departure from theCredit Agreement, any other Loan Document, or any other agreement or instrument(so long as the same are made in accordance with the terms of Section 9.08 ofthe Credit Agreement), (c) any exchange, release or non-perfection of any Lienon other collateral, or any release or amendment or waiver of or consent underor departure from any guarantee, securing or guaranteeing all or any of theObligations or (d) any other circumstance that might otherwise constitute adefense available to, or a discharge of, any Grantor in respect of theObligations or this Agreement.

 

## ***SECTION7.18.***               Effectivenessof Merger.  Upon the consummation of the Merger, theCompany shall succeed to all the rights and obligations of Merger Sub underthis Agreement, without any further action by any Person.

 

## ***SECTION7.19.              ***Obligationsof the Foreign Subsidiary Borrowers.  Notwithstanding anythingcontained herein or in the other Loan Documents to the contrary, none of theForeign Subsidiary Borrowers shall be liable for any Domestic Obligations, andnone of the Collateral pledged by any Foreign Subsidiary Borrower shall secureany Domestic Obligations.  In addition,any insurance proceeds from any Collateral pledged by any Foreign SubsidiaryBorrower shall not be available to secure any Domestic Obligations.

 

[Remainder of page intentionally left blank]

 

29

----

 

IN WITNESS WHEREOF, the partieshereto have duly executed this Agreement as of the day and year first abovewritten.

 
| ** ** | **VWR INVESTORS, INC.**                     |
|------------|---------------------------------------------|
| ** ** | ** **                                  |
| ** ** | ** **                                  |
|       | By:                                         |   |   |
|       |                                        | Name: |
|       |                                        | Title: |
|       |                                        |   |
|       |                                        |   |
| ** ** | **VARIETAL DISTRIBUTION MERGER SUB,  INC.** |
| ** ** | ** **                                  |
| ** ** | ** **                                  |
|       | By:                                         |   |   |
|       |                                        | Name: |
|       |                                        | Title: |

 

 

CDRV INVESTORS, INC.HEREBY ABSOLUTELY, IRREVOCABLYAND UNCONDITIONALLY ASSUMES ALLOBLIGATIONS OF VARIETALDISTRIBUTION MERGER SUB, INC.UNDER THIS AGREEMENT.

 
| **CDRV  INVESTORS, INC.** |
|---------------------------|
| ** **                |
| ** **                |
| By:                       |   |   |
|                      | Name: |   |
|                      | Title: |   |

 

[SIGNATURE PAGE TO GUARANTEE AND COLLATERAL AGREEMENT]

 

----

 
| ** ** | **VWR INTERNATIONAL, INC.**                         |
|------------|-----------------------------------------------------|
| ** ** | ** **                                          |
| ** ** | ** **                                          |
|       | By:                                                 |   |   |
|       |                                                | Name: |
|       |                                                | Title: |
|       |                                                |   |
| ** ** | ** **                                          |
| ** ** | **VWR MANAGEMENT SERVICES LLC**                     |
| ** ** | ** **                                          |
| ** ** | ** **                                          |
|       | By:                                                 | VWR International, Inc. |   |
|       | Its: Sole Member                                    |
|       |                                                |
| ** ** | ** **                                          |
|       | By:                                                 |   |   |
|       |                                                | Name: |
|       |                                                | Title: |
| ** ** | ** **                                          |
| ** ** | ** **                                          |
| ** ** | **VWR, INC.**                                       |
| ** ** | ** **                                          |
| ** ** | ** **                                          |
|       | By:                                                 |   |   |
|       |                                                | Name: |
|       |                                                | Title: |
|       |                                                |   |
| ** ** | ** **                                          |
| ** ** | **WARD’S NATURAL SCIENCE  ESTABLISHMENT, LLC** |
| ** ** | ** **                                          |
| ** ** | ** **                                          |
|       | By:                                                 |   |   |
|       |                                                | Name: |
|       |                                                | Title: |
|       |                                                |   |
|       |                                                |   |
| ** ** | **SCIENCE KIT, LLC**                                |
| ** ** | ** **                                          |
| ** ** | ** **                                          |
|       | By:                                                 |   |   |
|       |                                                | Name: |
|       |                                                | Title: |
|            |                                                     |  |  |  |

 

----

 
| ** ** | BANK OF AMERICA, N.A., as Collateral Agent |
|------------|--------------------------------------------|
| ** ** | ** **                                 |
| ** ** | ** **                                 |
|       | By:                                        |   |   |
|       |                                       | Name: |
|       |                                       | Title: |

 

----

 

Schedule I to theGuarantee andCollateral Agreement

 

SUBSIDIARY GUARANTORS

 

----

 

Schedule II to theGuarantee andCollateral Agreement

 

EQUITY INTERESTS

 
| **Issuer** | ** ** | **Number of  Certificate** | ** ** | **Registered  Owner** | ** ** | **Number and  Class of  Equity Interest** | ** ** | **Percentage  of Equity  Interests** | ** ** |
|------------|------------|----------------------------|------------|-----------------------|------------|-------------------------------------------|------------|--------------------------------------|------------|
|       |       |                       |       |                  |       |                                      |       |                                 |       |
|       |       |                       |       |                  |       |                                      |       |                                 |       |
|       |       |                       |       |                  |       |                                      |       |                                 |       |

 

PLEDGED DEBT SECURITIES

 
| **Issuer** | ** ** | **Principal Amount** | ** ** | **Date of Note** | ** ** | **Maturity Date** | ** ** |
|------------|------------|----------------------|------------|------------------|------------|-------------------|------------|
|       |       |                 |       |             |       |              |       |
|       |       |                 |       |             |       |              |       |
|       |       |                 |       |             |       |              |       |

 

----

 

Schedule III to theGuarantee andCollateral Agreement

 

U.S. COPYRIGHTS OWNED BY GRANTOR

 

*U.S. Copyright Registrations*

 
| **Title** | ** ** | **Reg. No.** | ** ** | **Author** | ** ** |
|-----------|------------|--------------|------------|------------|------------|
|      |       |         |       |       |       |
|      |       |         |       |       |       |
|      |       |         |       |       |       |

 

*Pending U.S. Copyright Applications for Registration*

 
| **Title** | ** ** | **Author** | ** ** | **Class** | ** ** | **Date Filed** | ** ** |
|-----------|------------|------------|------------|-----------|------------|----------------|------------|
|      |       |       |       |      |       |           |       |
|      |       |       |       |      |       |           |       |
|      |       |       |       |      |       |           |       |

 

III-1

----

 

PATENTS OWNED BY GRANTORS

 

*U.S. Patents*

 
| **Patent No.** | ** ** | **Issue Date** | ** ** |
|----------------|------------|----------------|------------|
|           |       |           |       |
|           |       |           |       |
|           |       |           |       |

 

*U.S. Patent Applications*

 
| **Patent Application No.** | ** ** | **Filing Date** | ** ** |
|----------------------------|------------|-----------------|------------|
|                       |       |            |       |
|                       |       |            |       |
|                       |       |            |       |

 

III-2

----

 

TRADEMARK/TRADE NAMES OWNED BY GRANTORS

 

*U.S. Trademark Registrations*

 
| **Mark** | ** ** | **Reg. Date** | ** ** | **Reg. No.** | ** ** |
|----------|------------|---------------|------------|--------------|------------|
|     |       |          |       |         |       |
|     |       |          |       |         |       |
|     |       |          |       |         |       |

 

*U.S. Trademark Applications*

 
| **Mark** | ** ** | **Filing Date** | ** ** | **Application No.** | ** ** |
|----------|------------|-----------------|------------|---------------------|------------|
|     |       |            |       |                |       |
|     |       |            |       |                |       |
|     |       |            |       |                |       |

 

III-3

----

 

Schedule IV to theGuarantee andCollateral Agreement

 

UCC FILING OFFICES

 

----

 

Schedule V to theGuarantee andCollateral Agreement

 

SCHEDULE V

 

UCC INFORMATION

 

----

 

Exhibit A to theGuarantee andCollateral Agreement

 

SUPPLEMENT NO. [•] (this “Supplement”)dated as of [•], tothe Guarantee and Collateral Agreement dated as of June 29, 2007 (the “Guaranteeand Collateral Agreement”), among VWR INVESTORS, INC., a Delaware corporation(“Intermediate Holdco”), VARIETAL DISTRIBUTION MERGER SUB., INC., aDelaware corporation (“Merger Sub”) to be merged with and into CDRV INVESTORS,INC. (the “Company”), each subsidiary of the Parent Borrower from timeto time party thereto (each such subsidiary individually a “SubsidiaryGuarantor” and collectively, the “Subsidiary Guarantors”; theSubsidiary Guarantors, the Borrowers and Intermediate Holdco are referred tocollectively herein as the “Grantors”) and BANK OF AMERICA, N.A., ascollateral agent (in such capacity, the “Collateral Agent”) for theSecured Parties (as defined therein).

 

A.            Reference is made to the Credit Agreement dated as ofJune 29, 2007 (as amended, restated, amended and restated, supplemented orotherwise modified from time to time, the “Credit Agreement”), among theBorrowers, the lenders from time to time party thereto (the “Lenders”),and Bank of America, N.A., as administrative agent for the Lenders and as CollateralAgent.

 

B.            Capitalized terms used herein and not otherwise definedherein shall have the meanings assigned to such terms in the Credit Agreementor the Guarantee and Collateral Agreement referred to therein, as applicable.

 

C.            The Grantors have entered into the Guarantee andCollateral Agreement in order to induce the Lenders to make Loans and theIssuing Banks to issue Letters of Credit. Section 7.16 of the Guarantee and Collateral Agreement providesthat certain additional Restricted Subsidiaries of the Borrowers may becomeSubsidiary Guarantors and Grantors under the Guarantee and Collateral Agreementby execution and delivery of an instrument in the form of this Supplement.  The undersigned subsidiary (the “NewSubsidiary”) is executing this Supplement in accordance with therequirements of the Credit Agreement to become a Subsidiary Guarantor and aGrantor under the Guarantee and Collateral Agreement in order to induce theLenders to make additional Loans and the Issuing Banks to issue additionalLetters of Credit as consideration for Loans previously made and Letters ofCredit previously issued, to induce the Hedge Creditors to enter into and/ormaintain Hedging Obligations and to induce the Cash Management Creditors toenter into and/or maintain Cash Management Obligations with one or more LoanParties with one or more Loan Parties.

 

Accordingly, the CollateralAgent and the New Subsidiary agree as follows:

 

----

 

SECTION 1.  In accordance with Section 7.16 of theGuarantee and Collateral Agreement, the New Subsidiary by its signature belowbecomes a Grantor and Subsidiary Guarantor under the Guarantee and CollateralAgreement with the same force and effect as if originally named therein as aGrantor and Subsidiary Guarantor and the New Subsidiary hereby (a) agrees toall the terms and provisions of the Guarantee and Collateral Agreementapplicable to it as a Grantor and Subsidiary Guarantor thereunder and (b)represents and warrants that the representations and warranties made by it as aGrantor and Subsidiary Guarantor thereunder are true and correct in allmaterial respects on and as of the date hereof (for this purpose, as thoughreferences therein to the Closing Date were to the date hereof).  In furtherance of the foregoing, the NewSubsidiary, as security for the payment and performance in full of theObligations (as defined in the Guarantee and Collateral Agreement), does herebycreate and grant to the Collateral Agent, its successors and permitted assigns,for the ratable benefit of the Secured Parties, their successors and permittedassigns, a security interest in and lien on all of the New Subsidiary’s right,title and interest in and to the Collateral (as defined in the Guarantee andCollateral Agreement) of the New Subsidiary. Each reference to a “Grantor” or a “Subsidiary Guarantor” in theGuarantee and Collateral Agreement shall be deemed to include the NewSubsidiary.  The Guarantee and CollateralAgreement is hereby incorporated herein by reference.

 

SECTION 2.  The New Subsidiary represents and warrants tothe Collateral Agent and the other Secured Parties that this Supplement hasbeen duly authorized, executed and delivered by it and constitutes its legal,valid and binding obligation, enforceable against it in accordance with itsterms except as the enforceability thereof may be limited by bankruptcy, insolvencyor other similar laws relating to the enforcement of creditors’ rightsgenerally and by general equitable principles.

 

SECTION 3.  This Supplement may be executed incounterparts (and by different parties hereto on different counterparts), eachof which shall constitute an original, but all of which when taken togethershall constitute a single contract. This Supplement shall become effective whenthe Collateral Agent shall have received counterparts of this Supplement that,when taken together, bear the signatures of the New Subsidiary and theCollateral Agent.  Delivery of anexecuted signature page to this Supplement by facsimile, pdf or other electronictransmission shall be as effective as delivery of a manually signed counterpartof this Supplement.

 

SECTION 4.  The New Subsidiary hereby represents andwarrants to the Collateral Agent and the Secured Parties that as of the datehereof (a) Schedule I attached hereto correctly sets forth (i) any andall Equity Interests and Pledged Debt Securities now owned by the NewSubsidiary and (ii) any and all Intellectual Property now owned by the NewSubsidiary and (b) set forth under its signature hereto, is the exact legalname (as such name appears on its certificate or articles of incorporation orformation) of the New Subsidiary and its jurisdiction of organization.

 

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

 

**SECTION6.  THIS SUPPLEMENT SHALL BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW**

 

A-2

----

 

**YORK (WITHOUTGIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).**

 

SECTION 7.  In case any one or more of the provisionscontained in this Supplement should be held invalid, illegal or unenforceablein any respect, the validity, legality and enforceability of the remainingprovisions contained herein and in the Guarantee and Collateral Agreement shallnot in any way be affected or impaired thereby (it being understood that theinvalidity of a particular provision in a particular jurisdiction shall not inand of itself affect the validity of such provision in any other jurisdiction).The parties hereto shall endeavor in good-faith negotiations to replace theinvalid, illegal or unenforceable provisions with valid provisions the economiceffect of which comes as close as possible to that of the invalid, illegal orunenforceable provisions.

 

SECTION 8.  All communications and notices hereundershall (except as otherwise expressly permitted by the Guarantee and CollateralAgreement) be in writing and given as provided in Section 9.01 of the CreditAgreement. All communications and notices hereunder to the New Subsidiary shallbe given to it in care of the Borrowers as provided in Section 9.01 of theCredit Agreement.

 

SECTION 9.  The New Subsidiary agrees to reimburse theCollateral Agent for its reasonable out-of-pocket expenses in connection withthis Supplement as provided in Section 9.05 of the Credit Agreement.

 

A-3

----

 

 

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

 
|       | [NAME OF NEW SUBSIDIARY],                   |
|------------|---------------------------------------------|
|       |                                        |
| ** ** | ** **                                  |
|       | By:                                         |   |   |
|       |                                        | Name: |
|       |                                        | Title: |
|       |                                        | Address: |
|       |                                        | Legal Name: |
|       |                                        | Jurisdiction of Formation: |
|       |                                        |   |
|       |                                        |
|       | BANK OF AMERICA, N.A., as Collateral Agent, |
|       |                                        |
| ** ** | ** **                                  |
|       | By:                                         |   |   |
|       |                                        | Name: |
|       |                                        | Title: |
|       |                                        |
| ** ** | ** **                                  |
|       | By:                                         |   |   |
|       |                                        | Name: |
|       |                                        | Title: |
|       |                                        |   |
|            |                                             |  |  |  |

 

A-4

----

 

Schedule I to theSupplement to Guarantee and Collateral Agreement

 

Collateral of the New Subsidiary

 

EQUITY INTERESTS
| **Issuer** | ** ** | **Number of  Certificate** | ** ** | **Registered  Owner** | ** ** | **Number and  Class of  Equity Interest** | ** ** | **Percentage  of Equity  Interests** | ** ** |
|------------|------------|----------------------------|------------|-----------------------|------------|-------------------------------------------|------------|--------------------------------------|------------|
|       |       |                       |       |                  |       |                                      |       |                                 |       |
|       |       |                       |       |                  |       |                                      |       |                                 |       |
|       |       |                       |       |                  |       |                                      |       |                                 |       |

 

PLEDGED DEBT SECURITIES

 
| **Issuer** | ** ** | **Principal Amount** | ** ** | **Date of Note** | ** ** | **Maturity Date** | ** ** |
|------------|------------|----------------------|------------|------------------|------------|-------------------|------------|
|       |       |                 |       |             |       |              |       |
|       |       |                 |       |             |       |              |       |
|       |       |                 |       |             |       |              |       |

 

PLEDGED DEBT SECURITIES

 

[Follow format of Schedule III to theGuarantee and Collateral Agreement.]

 

----