Exhibit 10.5.1


 




 





 


FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT


 


made by


 


GENERAC ACQUISITION CORP.


 


GPS CCMP MERGER CORP.


 


and certain Subsidiaries of GPS CCMP MERGER CORP.


 


in favor of


 


GOLDMAN SACHS CREDIT PARTNERS L.P., as Administrative
Agent


 


Dated as of November 10, 2006


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINED
  TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Definitions

  	
  1

  
	
  1.2.

  	
  Other Definitional
  Provisions

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  GUARANTEE

  	
  10

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Guarantee

  	
  10

  
	
  2.2.

  	
  Rights of
  Reimbursement, Contribution and Subrogation

  	
  11

  
	
  2.3.

  	
  Amendments, etc. with
  respect to the Borrower Obligations

  	
  13

  
	
  2.4.

  	
  Guarantee Absolute and
  Unconditional

  	
  13

  
	
  2.5.

  	
  Reinstatement

  	
  14

  
	
  2.6.

  	
  Payments

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  GRANT
  OF SECURITY INTEREST;  CONTINUING
  LIABILITY UNDER COLLATERAL

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  16

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Representations in
  First Lien Credit Agreement

  	
  17

  
	
  4.2.

  	
  Title; No Other Liens

  	
  17

  
	
  4.3.

  	
  Perfected First
  Priority Liens

  	
  17

  
	
  4.4.

  	
  Name; Jurisdiction of
  Organization, etc.

  	
  17

  
	
  4.5.

  	
  Inventory and Equipment

  	
  18

  
	
  4.6.

  	
  Farm Products

  	
  18

  
	
  4.7.

  	
  Investment Property

  	
  18

  
	
  4.8.

  	
  Receivables

  	
  19

  
	
  4.9.

  	
  Intellectual Property

  	
  19

  
	
  4.10.

  	
  Letters of Credit and
  Letter of Credit Rights

  	
  21

  
	
  4.11.

  	
  Commercial Tort Claims

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  COVENANTS

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Covenants in First Lien
  Credit Agreement

  	
  22

  
	
  5.2.

  	
  Delivery and Control of
  Certain Collateral

  	
  22

  
	
  5.3.

  	
  Maintenance of
  Insurance

  	
  23

  
	
  5.4.

  	
  Maintenance of
  Perfected Security Interest; Further Documentation

  	
  23

  
	
  5.5.

  	
  Changes in Locations,
  Name, Jurisdiction of Incorporation, etc.

  	
  24

  
	
  5.6.

  	
  Investment Property

  	
  24

  
	
  5.7.

  	
  Intellectual Property

  	
  26

  
	
  5.8.

  	
  Commercial Tort Claims

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  REMEDIAL
  PROVISIONS

  	
  29

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Certain Matters
  Relating to Receivables

  	
  29

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.2.

  	
  Communications with
  Obligors; Grantors Remain Liable

  	
  30

  
	
  6.3.

  	
  Pledged Collateral

  	
  30

  
	
  6.4.

  	
  Proceeds to be Turned
  Over To Administrative Agent

  	
  31

  
	
  6.5.

  	
  Application of Proceeds

  	
  31

  
	
  6.6.

  	
  Code and Other Remedies

  	
  32

  
	
  6.7.

  	
  Registration Rights

  	
  34

  
	
  6.8.

  	
  Deficiency

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  THE
  ADMINISTRATIVE AGENT

  	
  35

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Administrative Agent’s
  Appointment as Attorney-in-Fact, etc.

  	
  35

  
	
  7.2.

  	
  Duty of Administrative
  Agent

  	
  37

  
	
  7.3.

  	
  Execution of Financing
  Statements

  	
  37

  
	
  7.4.

  	
  Authority of
  Administrative Agent

  	
  37

  
	
  7.5.

  	
  Appointment of
  Co-Collateral Agents

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  MISCELLANEOUS

  	
  38

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Amendments in Writing

  	
  38

  
	
  8.2.

  	
  Notices

  	
  38

  
	
  8.3.

  	
  No Waiver by Course of
  Conduct; Cumulative Remedies

  	
  38

  
	
  8.4.

  	
  Enforcement Expenses;
  Indemnification

  	
  38

  
	
  8.5.

  	
  Successors and Assigns

  	
  39

  
	
  8.6.

  	
  Set-Off

  	
  39

  
	
  8.7.

  	
  Counterparts

  	
  39

  
	
  8.8.

  	
  Severability

  	
  40

  
	
  8.9.

  	
  Section Headings

  	
  40

  
	
  8.10.

  	
  Integration

  	
  40

  
	
  8.11.

  	
  APPLICABLE LAW

  	
  40

  
	
  8.12.

  	
  Submission to
  Jurisdiction; Waivers

  	
  40

  
	
  8.13.

  	
  Acknowledgments

  	
  41

  
	
  8.14.

  	
  Additional Grantors

  	
  41

  
	
  8.15.

  	
  Releases

  	
  41

  
	
  8.16.

  	
  WAIVER OF JURY TRIAL

  	
  42

  



 


ii

















 


	
  SCHEDULE 4.3 — FILINGS;
  OTHER ACTIONS

  
	
   

  
	
  SCHEDULE 4.4 — NAME;
  JURISDICTION OF ORGANIZATION, ETC

  
	
   

  
	
  SCHEDULE 4.5 —
  INVENTORY AND EQUIPMENT

  
	
   

  
	
  SCHEDULE 4.7 —
  INVESTMENT PROPERTY

  
	
   

  
	
  SCHEDULE 4.9 —
  INTELLECTUAL PROPERTY

  
	
   

  
	
  SCHEDULE 4.10 — LETTERS
  OF CREDIT AND LETTERS OF CREDIT RIGHTS

  
	
   

  
	
  SCHEDULE 4.11 —
  COMMERCIAL TORT CLAIMS

  
	
   

  
	
  SCHEDULE 8.2 — NOTICES

  
	
   

  
	
  EXHIBIT A —
  ACKNOWLEDGEMENT AND CONSENT

  
	
   

  
	
  EXHIBIT B-1 —
  INTELLECTUAL PROPERTY SECURITY AGREEMENT

  
	
   

  
	
  EXHIBIT B-2 —
  AFTER-ACQUIRED INTELLECTUAL PROPERTY SECURITY AGREEMENT

  
	
   

  
	
  EXHIBIT C — CONTROL
  AGREEMENT (UNCERTIFICATED SECURITIES)

  
	
   

  
	
  EXHIBIT
  D — ASSUMPTION AGREEMENT

  



 


i

















 


FIRST
LIEN GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 10, 2006,
made by each of the signatories hereto (other than GSCP, but together with any
other entity that may become a party hereto as provided herein, the “Grantors”),
in favor of GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as
administrative agent (in such capacity and together with its successors, the “Administrative
Agent”) for (i) the banks and other financial institutions or entities
(the “Lenders”) from time to time parties to the Credit Agreement, dated
as of November 10, 2006 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “First Lien Credit
Agreement”), among Generac Acquisition Corp., a Delaware corporation (“Holdings”),
GPS CCMP Merger Corp., a Wisconsin corporation (the “Borrower”), the
Lenders party thereto, J.P. Morgan Securities Inc. and GSCP, as joint
bookrunners and joint lead arrangers (in each such capacity, the “Joint Lead
Arrangers”), JPMorgan Chase Bank, N.A. as syndication agent (in such
capacity, the “Syndication Agent”), and Barclays Bank PLC, as
Documentation Agent (in such capacity and together with its successors, the “Documentation
Agent”), and (ii) the other Secured Parties (as hereinafter defined).


 


W I T N E S S E T H:


 


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


 


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


 


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


 


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


 


WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
respective extensions of credit to the Borrower under the First Lien Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent for the ratable benefit of the Secured Parties;


 


NOW,
THEREFORE, in consideration of the premises and to induce the Joint Lead
Arrangers, the Administrative Agent and the Lenders to enter into the First
Lien Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees
with the Administrative Agent, for the ratable benefit of the Secured Parties,
as follows:


 


SECTION 1.   DEFINED TERMS


 


1.1. Definitions.  (a)  
Unless otherwise defined herein, terms defined in the First Lien Credit
Agreement and used herein shall have the meanings given to them in the First


 

















 


Lien Credit Agreement,
and the following terms are used herein as defined in the New York UCC (and if
defined in more than one Article of the New York UCC, such terms shall
have the meanings given in Article 9 thereof): Accounts, Account Debtor,
Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account,
Commodity Contract, Commodity Intermediary, Documents, Deposit Account,
Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures,
Goods, Instruments, Inventory, Letter of Credit, Letter of Credit Rights,
Money, Payment Intangibles, Securities Account, Securities Intermediary,
Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper
and Uncertificated Security.


 


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


 


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


 


“After-Acquired
Intellectual Property” shall have the meaning assigned to such term in Section 5.9(k).


 


“Agreement”
shall mean this First Lien Guarantee and Collateral Agreement, as the same may
be amended, amended and restated, restated, supplemented or otherwise modified
from time to time.


 


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


 


“Borrower
Obligations” shall mean the collective reference to the unpaid principal of
and interest on (including interest accruing after the maturity of the Loans
and reimbursement obligations in respect of amounts drawn under Letters of
Credit and interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any Grantor, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of (x) the Borrower to the Joint Lead Arrangers, to any Agent,
Lender, Issuing Bank or other Secured Party, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with the First Lien
Credit Agreement, any other Loan Document, or the Letters of Credit or any
other document made, delivered or given in connection herewith or therewith,
and (y) any Grantor to any Lender Counterparty, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with under
any Specified Hedge Agreement, any Cash Management Agreement or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Joint Lead Arrangers, to any Agent or to any Lender that are
required to be paid by any Grantor pursuant to the First Lien Credit Agreement
or any other Loan Document) or otherwise; provided, that (i) obligations
of the Borrower or any other Loan Party under any Specified Hedge Agreement or
Cash Management Agreement shall be secured and guaranteed pursuant to the
Security Documents only to the extent that, and for so long as the obligations
referred to in clause (x) above are so secured and guaranteed, (ii) any
release of collateral or guarantors effected in the manner permitted by the
First Lien Credit


 


2

















 


Agreement or any other Loan Document shall not require
the consent of holders of obligations under Specified Hedge Agreements or Cash
Management Agreements and (iii) the amount of secured obligations under
any Specified Hedge Agreements shall not exceed the net amount, including any
net termination payments, that would be required to be paid to the counterparty
to such Specified Hedge Agreement on the date of termination of such Specified
Hedge Agreement.


 


“Cash
Management Agreement” shall mean any agreement evidencing Cash Management
Obligations entered into by any Loan Party.


 


“Co-Documentation
Agents” shall have the meaning assigned to such term in the preamble.


 


“Collateral”
shall have the meaning assigned to such term in Section 3.


 


“Collateral
Account” shall mean (i) any collateral account established by the
Administrative Agent as provided in Section 6.1 or Section 6.4 or (ii) any
cash collateral account established as provided in Section 2.05(j) of
the First Lien Credit Agreement.


 


“Collateral
Account Funds” shall mean, collectively, the following:  all funds (including all trust monies) and
investments (including all cash equivalents) credited to, or purchased with
funds from, any Collateral Account and all certificates and instruments from
time to time representing or evidencing such investments; all Money, notes,
certificates of deposit, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Administrative Agent for
or on behalf of any Grantor in substitution for, or in addition to, any or all
of the Collateral; and all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the items constituting Collateral.


 


 “Contracts” shall mean all contracts
and agreements between any Grantor and any other person (in each case, whether
written or oral, or third party or intercompany) as the same may be amended,
assigned, extended, restated, supplemented, replaced or otherwise modified from
time to time including (i) all rights of any Grantor to receive moneys due
and to become due to it thereunder or in connection therewith, (ii) all
rights of any Grantor to receive proceeds of any insurance, indemnity, warranty
or guaranty with respect thereto, (iii) all rights of any Grantor to
damages arising thereunder and (iv) all rights of any Grantor to terminate
and to perform and compel performance of, such Contracts and to exercise all
remedies thereunder.


 


“Copyright
Licenses” shall mean any agreement, whether written or oral, naming any
Grantor as licensor or licensee (including those listed in Schedule 4.9(a) (as
such schedule may be amended or supplemented from time to time)), granting any
right in, to or under any Copyright, including the grant of rights to
manufacture, print, publish, copy, import, export, distribute, exploit and sell
materials derived from any Copyright.


 


“Copyrights”  shall mean (i) all copyrights arising
under the laws of the United States, any other country, or union of countries,
or any political subdivision of any of the foregoing, whether registered or
unregistered and whether published or unpublished (including those listed in
Schedule 4.9(a) (as such schedule may be amended or supplemented from time
to time)), all registrations and recordings thereof, and all applications in
connection therewith and


 


3

















 


rights corresponding thereto throughout the world,
including all registrations, recordings and applications in the United States
Copyright Office, and all Mask Works (as defined in 17 USC 901), (ii) the
right to, and to obtain, all extensions and renewals thereof, and the
right to sue for past, present and future infringements of any of the
foregoing, (iii) all proceeds of the foregoing, including license,
royalties, income, payments, claims, damages, and proceeds of suit and (iv) all
other rights of any kind whatsoever accruing thereunder or pertaining thereto.


 


“dollars”
or “$” shall mean lawful money of the United States of America.


 


“Excluded
Assets” shall mean: (i) the Excluded Foreign Subsidiary Equity
Interests; (ii) any Equity Interests if, and to the extent that, and for
so long as doing so would violate applicable law or, other than in the case of
Wholly-Owned Subsidiaries, a contractual obligation binding on such Equity
Interests; (iii) any assets acquired after the Closing Date, to the extent
that, and for so long as, taking such actions would violate a contractual
obligation binding on such assets that existed at the time of the acquisition
thereof and was not created or made binding on such assets in contemplation or
in connection with the acquisition of such assets (except in the case of assets
acquired with Indebtedness permitted pursuant to Section 6.01(h) of
the First Lien Credit Agreement that is secured by a Lien permitted pursuant to
Section 6.02(i) of the First Lien Credit Agreement); (iv) any
lease, license, contract, property right or agreement to which any Grantor is a
party or any of its rights or interests thereunder if and only for so long as
the grant of a security interest hereunder shall constitute or result in a
breach, termination or default under any such lease, license, contract,
property right or agreement (other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409
of the UCC of any relevant jurisdiction or any other applicable law or
principles of equity); provided, however, that such security
interest shall attach immediately to any portion of such lease, license,
contract, property rights or agreement that does not result in any of the
consequences specified above, (v) any property subject to a Lien permitted
under Section 6.02(i) or 6.02(j) of the First Lien Credit
Agreement, (vi) Deposit Accounts, Securities Accounts and all cash, cash
equivalents and assets on deposit therein, (vii) vehicles and (viii) those
assets with respect to which the Administrative Agent reasonably determines
that the costs of obtaining security interests in which are excessive in
relation to the value of the security afforded thereby.


 


“Excluded
Foreign Subsidiary Equity Interests” shall mean (A) Equity Interests
of any “first tier” Foreign Subsidiary owned by any Grantor in excess of 65% of
the issued and outstanding Equity Interests of such Foreign subsidiary and (B) any
issued and outstanding Equity Interests of any Foreign Subsidiary that is not a
“first tier” Foreign Subsidiary owned by any Grantor.


 


“Excluded
Perfection Assets” shall mean (i) Collateral for which the perfection
of Liens thereon requires filings in or other actions under the laws of
jurisdictions outside of the United States of America, any State, territory or
dependency thereof or the District of Columbia, (ii) goods included in
Collateral received by any Person from any Grantor for “sale or return” within
the meaning of Section 2-326 of the Uniform Commercial Code of the
applicable jurisdiction, to the extent of claims of creditors of such Person, (iii) Equipment
constituting Fixtures, (iv) Collateral as to which actions required for
perfection are permitted not to be taken pursuant to Section 5.02 hereof
or Section 5.09(g) of the First Lien Credit Agreement and (v)


 


4

















 


Deposit Accounts, Securities Accounts (other than the
filing of a financing statement with respect thereto) and vehicles that are
subject to the certificate of title laws in any state.


 


“First
Lien Credit Agreement” shall have the meaning assigned to such term in the
preamble.


 


“General
Intangibles” shall mean all “general intangibles” as such term is defined
in Section 9-102(a)(42) of the New York UCC and, in any event, including
with respect to any Grantor, all rights of such Grantor to receive any tax
refunds, all Swap Agreements and all contracts, agreements, instruments and
indentures and all licenses, permits, concessions, franchises and
authorizations issued by Governmental Authorities in any form, and portions
thereof, to which such Grantor is a party or under which such Grantor has any
right, title or interest or to which such Grantor or any property of such
Grantor is subject, as the same may from time to time be amended, supplemented,
replaced or otherwise modified, including (i) all rights of such Grantor
to receive moneys due and to become due to it under or in connection with any
such general intangibles, (ii) all rights of such Grantor to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect to any
such general intangibles, (iii) all rights of such Grantor to damages
arising under or in connection with any such general intangibles and (iv) all
rights of such Grantor to terminate and to perform and compel performance and
to exercise all remedies under any such general intangibles.


 


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


 


“Guarantor
Obligations” shall mean with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with (a) this
Agreement (including Section 2) or any other Loan Document to which such
Guarantor is a party to any Secured Party, (b) any Specified Hedging
Agreement to any Lender Counterparty or (c) any Cash Management Agreement
to any Lender Counterparty, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all fees and disbursements of counsel to any Secured Party
that are required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document); provided, that (i) obligations
of the Guarantor under any Specified Hedge Agreement or Cash Management
Agreement shall be secured and guaranteed pursuant to the Security Documents
only to the extent that, and for so long as the obligations referred to above
are so secured and guaranteed, (ii) any release of collateral or
guarantors effected in the manner permitted by the First Lien Credit Agreement
or any other Loan Document shall not require the consent of holders of
obligations under Specified Hedge Agreements or Cash Management Agreements and (iii) the
amount of secured obligations under any Specified Hedge Agreements shall not
exceed the net amount, including any net termination payments, that would be
required to be paid to the counterparty to such Specified Hedge Agreement on
the date of termination of such Specified Hedge Agreement..


 


“Guarantors”
shall mean the collective reference to each Grantor other than the Borrower.


 


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


 


5

















 


“Insurance” shall mean (i) all insurance
policies covering any or all of the Collateral (regardless of whether the
Administrative Agent is the loss payee thereof)  and (ii) any key man life insurance policies.


 


“Intellectual
Property” shall mean the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including the Copyrights,
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all
rights to sue at law or in equity for any past, present and future infringement
or other impairment thereof, including the right to receive all proceeds and
damages therefrom.


 


“Intercompany
Note” shall mean any promissory note evidencing loans made by any Grantor
to Holdings, the Borrower or any of the Subsidiaries, including the Global
Intercompany Note.


 


“Investment
Property” shall mean the collective reference to (i) all “investment
property” as such term is defined in Section 9-102(a)(49) of the New York
UCC (other than any such investment property which is an Excluded Asset)
including all Certificated Securities and Uncertificated Securities, all
Security Entitlements, all Securities Accounts, all Commodity Contracts and all
Commodity Accounts, (ii) security entitlements, in the case of any United
States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2,
or, in the case of any United States federal agency book-entry securities, as
defined in the corresponding United States federal regulations governing such
book-entry securities, and (iii) whether or not otherwise constituting “investment
property,” all Pledged Notes, all Pledged Equity Interests, all Pledged
Security Entitlements and all Pledged Commodity Contracts.


 


“Issuers”
shall mean the collective reference to each issuer of Pledged Collateral that
is a Subsidiary.


 


“Joint
Lead Arrangers” shall have the meaning assigned to such term in the
preamble.


 


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


 


“Licensed
Intellectual Property” shall have the meaning assigned to such term in Section 4.9(a).


 


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


 


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


 


“Owned
Intellectual Property” shall have the meaning assigned to such term in Section 4.9(a).


 


6














 


“Patent
License” shall mean all agreements, whether written or oral, providing for
the grant by or to any Grantor of any right to manufacture, use, import,
export, distribute or sell any invention covered in whole or in part by a
Patent, including any of the foregoing listed in Schedule 4.9(a) (as such
schedule may be amended or supplemented from time to time).


 


“Patents”
shall mean  (i) all letters of
patent of the United States, any other country, union of countries or any
political subdivision of any of the foregoing, all reissues and extensions
thereof and all goodwill associated therewith, including any of the foregoing
listed in Schedule 4.9(a) (as such schedule may be amended or supplemented
from time to time), (ii) all applications for letters of patent of the
United States or any other country or union of countries or any political
subdivision of any of the foregoing and all divisions, continuations and
continuations-in-part thereof, all improvements thereof, including any of the
foregoing listed in Schedule 4.9(a) (as such schedule may be amended or
supplemented from time to time), (iii) all rights to, and to obtain, any
reissues or extensions of the foregoing and (iv) all proceeds of the
foregoing, including licenses, royalties, income, payments, claims, damages and
proceeds of suit.


 


“Pledged Alternative Equity Interests” shall
mean all interests (other than any such interests that are Excluded Assets) of
any Grantor in participation or other interests in any equity or profits of any
business entity and the certificates, if any, representing such interests and
all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such interests and any other warrant, right or option to acquire any of the
foregoing; provided, however, that Pledged Alternative Equity
Interests shall not include any Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests or Pledged Trust Interests.


 


“Pledged
Collateral” shall mean the collective reference to the Pledged Debt
Securities, the Pledged Notes and the Pledged Equity Interests.


 


“Pledged
Commodity Contracts” shall mean all commodity contracts listed on
Schedule 4.7(c) (as such schedule may be amended from time to time)
and all other commodity contracts to which any Grantor is party from time to
time.


 


“Pledged
Debt Securities” shall mean all debt securities now owned or hereafter
acquired by any Grantor, (other than any such debt securities that are Excluded
Assets), including the debt securities listed on Schedule 4.7(b), (as such
schedule may be amended or supplemented from time to time), together with any
other certificates, options, rights or security entitlements of any nature
whatsoever in respect of the debt securities of any person that may be issued
or granted to, or held by, any Grantor while this Agreement is in effect.


 


“Pledged
Equity Interests”  shall mean
all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests,
Pledged Trust Interests and Pledged Alternative Equity Interests.


 


“Pledged LLC Interests” shall mean all
interests of any Grantor now owned or hereafter acquired in any limited
liability company (other than any such interests that are Excluded Assets),
including all limited liability company interests listed on Schedule 4.7(a) hereto
under the heading “Pledged LLC Interests” (as such schedule may be amended or


 


7

















 


supplemented from time to
time) and the certificates, if any, representing such limited liability company
interests and any interest of such Grantor on the books and records of such
limited liability company and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such limited liability company interests and any
other warrant, right or option to acquire any of the foregoing.


 


“Pledged
Notes” shall mean all promissory notes now owned or hereafter acquired by
any Grantor (other than any such promissory notes that are Excluded Assets),
including those listed on Schedule 4.7(b) (as such schedule may be amended
or supplemented from time to time) and all Intercompany Notes at any time
issued to or held by any Grantor.


 


“Pledged Partnership Interests”  shall mean all interests of any Grantor
now owned or hereafter acquired in any general partnership, limited
partnership, limited liability partnership or other partnership (other than any
such interests that are Excluded Assets), including all partnership interests
listed on Schedule 4.7(a) hereto under the heading “Pledged Partnership
Interests” (as such schedule may be amended or supplemented from time to time)
and the certificates, if any, representing such partnership interests and any
interest of such Grantor on the books and records of such partnership and all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such partnership interests and any other warrant, right or option to acquire
any of the foregoing.


 


“Pledged
Security Entitlements” shall mean all security entitlements with respect to
the financial assets listed on Schedule 4.7(c) (as such schedule may
be amended from time to time) and all other security entitlements of any
Grantor.


 


“Pledged Stock” shall mean all shares of
capital stock (other than any such shares that are Excluded Assets) now owned
or hereafter acquired by any Grantor, including all shares of capital stock
listed on Schedule 4.7(a) hereto under the heading “Pledged Stock” (as
such schedule may be amended or supplemented from time to time), and the
certificates, if any, representing such shares and any interest of such Grantor
in the entries on the books of the issuer of such shares and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares and any
other warrant, right or option to acquire any of the foregoing.


 


“Pledged
Trust Interests”  shall mean
all interests of any Grantor now owned or hereafter acquired in a Delaware
business trust or other trust (other than any such interests that are Excluded
Assets), including all trust interests listed on Schedule 4.7(a) hereto
under the heading “Pledged Trust Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such
trust interests and any interest of such Grantor on the books and records of
such trust or on the books and records of any securities intermediary
pertaining to such interest and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such trust interests and any other warrant, right or
option to acquire any of the foregoing.


 


8

















 


“Proceeds”
shall mean all “proceeds” as such term is defined in Section 9-102(a)(64)
of the New York UCC and, in any event, shall include all dividends or other
income from the Investment Property, collections thereon or distributions or
payments with respect thereto.


 


“Receivable”
shall mean all Accounts and any other right to payment for goods or other
property sold, leased, licensed or otherwise disposed of or for services
rendered, whether or not such right is evidenced by an Instrument or Chattel
Paper or classified as a Payment Intangible and whether or not it has been
earned by performance.  References
herein to Receivables shall include any Supporting Obligation or collateral
securing such Receivable.


 


“Secured
Parties” shall mean, collectively, the Joint Lead Arrangers, the
Administrative Agent, the Lenders, the Issuing Banks and, with respect to any
Specified Hedge Agreement or Cash Management Agreement, any Lender
Counterparty.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 


“Specified
Hedge Agreement” shall mean any Swap Agreement entered into by (i) the
Borrower or any of the Subsidiaries and (ii) a Lender Counterparty.


 


“Syndication
Agent” shall have the meaning assigned to such term in the preamble.


 


“Trademark
License” shall mean any agreement, whether written or oral, providing for
the grant by or to any Grantor of any right in, to or under any Trademark,
including any of the foregoing referred to in Schedule 4.9(a) (as such
schedule may be amended or supplemented from time to time).


 


“Trademarks”
shall mean (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in
the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country, union of
countries, or any political subdivision of any of the foregoing, or otherwise,
and all common-law rights related thereto, including any of the foregoing
listed in Schedule 4.9(a) (as such schedule may be amended or supplemented
from time to time), (ii) the right to, and to obtain, all renewals
thereof, (iii) the goodwill of the business symbolized by the foregoing, (iv) other
source or business identifiers, designs and general intangibles of a like
nature and (v) the right to sue for past, present and future infringements
or dilution of any of the foregoing or for any injury to goodwill, and all
proceeds of the foregoing, including royalties, income, payments, claims,
damages and proceeds of suit.


 


“Trade
Secret License” shall mean any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right in, to or under any
Trade Secret.


 


“Trade
Secrets” shall mean all trade secrets and all other confidential or
proprietary information and know-how (all of the foregoing being collectively
called a “Trade


 


9

















 


Secret”), whether or not reduced to a writing or other
tangible form, including all documents and things embodying, incorporating or
describing such Trade Secret, the right to sue for past, present and
future infringements of any Trade Secret and all proceeds of the foregoing,
including royalties, income, payments, claims, damages and proceeds of suit.


 


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


 


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


 


(c)   Where the context requires, terms relating to
the Collateral or any part thereof, when used in relation to a Grantor, shall
refer to the property or assets such Grantor has granted as Collateral or the
relevant part thereof.


 


(d)   The expressions “payment in full,” “paid in
full” and any other similar terms or phrases when used herein with respect to
the Borrower Obligations or the Guarantor Obligations shall mean the payment in
full, in immediately available funds, of all of the Borrower Obligations or the
Guarantor Obligations, as the case may be, in each case, unless otherwise
specified, other than indemnification and other contingent obligations not then
due and payable.


 


(e)   The words “include,” “includes” and “including,”
and words of similar import, shall not be limiting and shall be deemed to be
followed by the phrase “without limitation.”


 


SECTION 2.  GUARANTEE


 


2.1. Guarantee.


 


(a)   Each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantees to the
Administrative Agent, for the ratable benefit of the Secured Parties and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Borrower Obligations.


 


(b)   If and to the extent required in order
for the Obligations of any Guarantor to be enforceable under applicable
federal, state and other laws relating to the insolvency of debtors, the
maximum liability of such Guarantor hereunder shall be limited to the greatest
amount which can lawfully be guaranteed by such Guarantor under such laws,
after giving effect to any rights of contribution, reimbursement and
subrogation arising under Section 2.2. 
Each Guarantor acknowledges and agrees that, to the extent not prohibited
by applicable law, (i) such Guarantor (as opposed to its creditors,
representatives of creditors or bankruptcy trustee, including such Guarantor in
its capacity as debtor in possession exercising any powers of a bankruptcy
trustee) has no personal right under such


 


10

















 


laws to reduce, or
request any judicial relief that has the effect of reducing, the amount of its
liability under this Agreement, (ii) such Guarantor (as opposed to its
creditors, representatives of creditors or bankruptcy trustee, including such
Guarantor in its capacity as debtor in possession exercising any powers of a
bankruptcy trustee) has no personal right to enforce the limitation set forth
in this Section 2.1(b) or to reduce, or request judicial relief
reducing, the amount of its liability under this Agreement, and (iii) the
limitation set forth in this Section 2.1(b) may be enforced only to
the extent required under such laws in order for the obligations of such
Guarantor under this Agreement to be enforceable under such laws and only by or
for the benefit of a creditor, representative of creditors or bankruptcy
trustee of such Guarantor or other person entitled, under such laws, to enforce
the provisions thereof.


 


(c)   Each Guarantor agrees that the Borrower
Obligations may at any time and from time to time be incurred or permitted in
an amount exceeding the maximum liability of such Guarantor under Section 2.1(b) without,
to the extent permitted by applicable law, impairing the guarantee contained in
this Section 2 or affecting the rights and remedies of any Secured Party
hereunder.


 


(d)   The guarantee contained in this Section 2
shall remain in full force and effect until payment in full of the Obligations,
notwithstanding that from time to time during the term of the First Lien Credit
Agreement the Borrower may be free from any Borrower Obligations.


 


(e)   No payment made by the Borrower, any of
the Guarantors, any other guarantor or any other person or received or
collected by any Secured Party from the Borrower, any of the Guarantors, any
other guarantor or any other person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations (other
than Obligations in respect of any Specified Hedge Agreement or Cash Management
Agreement)  are paid in full, no letter of credit
shall be outstanding under the First Lien Credit Agreement and all commitments
to extend credit under the First Lien Credit Agreement shall have been
terminated or have expired.


 


2.2. Rights of Reimbursement, Contribution and Subrogation. 
In case any payment is made on account of the Obligations by any Grantor
or is received or collected on account of the Obligations from any Grantor or
its property:


 


(a)   If such payment is made by the Borrower or
from its property, then, if and to the extent such payment is made on account
of Obligations arising from or relating to a Loan or other extension of credit
made to the Borrower or a Letter of Credit issued for the account of the
Borrower, the Borrower shall not be entitled (i) to demand or enforce
reimbursement or contribution in respect of such payment from any other Grantor
or (ii) to


 


11

















 


be subrogated to any
claim, interest, right or remedy of any Secured Party against any other person,
including any other Grantor or its property.


 


(b)   If such payment is made by a Guarantor or
from its property, such Guarantor shall be entitled, subject to and upon payment
in full of the Obligations, (i) to demand and enforce reimbursement for
the full amount of such payment from the Borrower and (ii) to demand and
enforce contribution in respect of such payment from each other Guarantor that
has not paid its fair share of such payment, as necessary to ensure that (after
giving effect to any enforcement of reimbursement rights provided hereby) each
Guarantor pays its fair share of the unreimbursed portion of such payment. For
this purpose, the fair share of each Guarantor as to any unreimbursed payment
shall be determined based on an equitable apportionment of such unreimbursed
payment among all Guarantors based on the relative value of their assets and
any other equitable considerations deemed appropriate by a court of competent
jurisdiction.


 


(c)   Until all amounts owing to the Administrative
Agent by the Borrower on account of the Obligations are paid in full, no Letter
of Credit shall be outstanding and the Commitments are terminated,
notwithstanding Sections 2.2(a) and 2.2(b), no Grantor shall be entitled,
to be subrogated (equally and ratably with all other Grantors entitled to
reimbursement or contribution from any other Grantor as set forth in this Section 2.2)
to any security interest that may then be held by the Administrative Agent upon
any Collateral granted to it in this Agreement nor shall any Grantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Grantor in respect of payments made by any Grantor hereunder.  Such right of subrogation shall be
enforceable solely against the Grantors, and not against the Secured Parties,
and neither the Administrative Agent nor any other Secured Party shall have any
duty whatsoever to warrant, ensure or protect any such right of subrogation or
to obtain, perfect, maintain, hold, enforce or retain any Collateral for any
purpose related to any such right of subrogation.  If subrogation is demanded by any Grantor,
then (and only after payment in full of the Obligations) the Administrative
Agent shall deliver to the Grantors making such demand, or to a representative
of such Grantors or of the Grantors generally, an instrument reasonably
satisfactory to the Administrative Agent transferring, on a quitclaim basis
without any recourse, representation, warranty or obligation whatsoever,
whatever security interest the Administrative Agent then may hold in whatever
Collateral may then exist that was not previously released or disposed of by
the Administrative Agent.


 


(d)   All rights and claims arising under this Section 2.2
or based upon or relating to any other right of reimbursement, indemnification,
contribution or subrogation that may at any time arise or exist in favor of any
Grantor as to any payment on account of the Obligations made by it or received
or collected from its property shall be fully subordinated in all respects to
the prior payment in full of all of the Obligations.  Until payment in full of the Obligations, no
Grantor shall demand or receive any collateral security, payment or
distribution whatsoever (whether in cash, property or securities or otherwise)
on account of any such right or claim. 
If any such payment or distribution is made or becomes available to any
Grantor in any bankruptcy case or receivership, insolvency or liquidation
proceeding, such payment or distribution shall be delivered by the person
making such payment or distribution directly to the Administrative Agent, for


 


12

















 


application to the
payment of the Obligations.  If any such
payment or distribution is received by any Grantor, it shall be held by such
Grantor in trust, as trustee of an express trust for the benefit of the Secured
Parties, and shall forthwith be transferred and delivered by such Grantor to the
Administrative Agent, in the exact form received and, if necessary, duly
endorsed.


 


(e)   The obligations of the Grantors under the
Loan Documents, including their liability for the Obligations and the
enforceability of the security interests granted thereby, are not contingent
upon the validity, legality, enforceability, collectibility or sufficiency of
any right of reimbursement, contribution or subrogation arising under this Section 2.2
and the provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Guarantor to the Administrative Agent and
Secured Parties, and each Guarantor shall remain liable to the Administrative
Agent and the Secured Parties for the full amount guaranteed by such Guarantor
hereunder.  The invalidity,
insufficiency, unenforceability or uncollectibility of any such right shall not
in any respect diminish, affect or impair any such obligation or any other
claim, interest, right or remedy at any time held by any Secured Party against
any Guarantor or its property.  The
Secured Parties make no representations or warranties in respect of any such
right and shall have no duty to assure, protect, enforce or ensure any such
right or otherwise relating to any such right.


 


(f)   Each Grantor reserves any and all other
rights of reimbursement, contribution or subrogation at any time available to
it as against any other Grantor, but (i) the exercise and enforcement of
such rights shall be subject to Section 2.2(d) and (ii) neither
the Administrative Agent nor any other Secured Party shall ever have any duty
or liability whatsoever in respect of any such right, except as provided in the
last sentence of Section 2.2(c).


 


2.3. Amendments, etc. with respect to the
Borrower Obligations.  Each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand
for payment of any of the Borrower Obligations made by any Secured Party may be
rescinded by such Secured Party and any of the Borrower Obligations continued,
and the Borrower Obligations, or the liability of any other person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, increased, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by any Secured Party, and the First Lien Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the parties thereto may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by any Secured Party for the payment of the Borrower Obligations may
be sold, exchanged, waived, surrendered or released.  No Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Borrower Obligations or for the guarantee contained in this Section 2
or any property subject thereto.


 


2.4. Guarantee Absolute and Unconditional.  Each Guarantor waives, to the extent
permitted by applicable law, any and all notice of the creation, renewal,
extension or accrual of any of the Borrower Obligations and notice of or proof
of reliance by any Secured Party upon the


 


13

















 


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


 


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


 


2.6. Payments.  Each Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars in immediately available funds at the office of the
Administrative Agent as specified in the First Lien Credit Agreement.


 


14

















 


SECTION 3.  GRANT OF SECURITY INTEREST;


CONTINUING LIABILITY UNDER COLLATERAL


 


(a)   Each Grantor hereby assigns and transfers to
the Administrative Agent, and hereby grants to the Administrative Agent, for
the ratable benefit of the Secured Parties, a security interest in all of the
personal property of such Grantor, including the following property, in each
case, wherever located and now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Collateral”),
as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of such
Grantor’s Obligations:


 


(i)            all Accounts;


 


(ii)           all Chattel Paper;


 


(iii)          all Collateral Accounts and all
Collateral Account Funds;


 


(iv)          all Commercial Tort Claims from time to
time specifically described on Schedule 4.11;


 


(v)           all Contracts;


 


(vi)          all Documents;


 


(vii)         all Equipment;


 


(viii)        all Fixtures


 


(ix)           all General Intangibles;


 


(x)            all Goods


 


(xi)           all Instruments;


 


(xii)          all Insurance;


 


(xiii)         all Intellectual Property;


 


(xiv)        all Inventory;


 


(xv)         all Investment Property;


 


(xvi)        all Letters of Credit and Letter of
Credit Rights;


 


(xvii)       all Money;


 


(xviii)      all books, records, ledger
cards, files, correspondence, customer lists, blueprints, technical
specifications, manuals, computer software, computer


 


15

















 


printouts,
tapes, disks and other electronic storage media and related data processing
software and similar items that at any time pertain to or evidence or contain
information relating to any of the Collateral or are otherwise necessary or
helpful in the collection thereof or realization thereupon; and


 


(xix)         to the extent not otherwise included, all
other personal property, whether tangible or intangible, of the Grantor and all
Proceeds, products, accessions, rents and profits of any and all of the
foregoing and all collateral security, Supporting Obligations and guarantees
given by any person with respect to any of the foregoing;


 


provided that, notwithstanding any other provision set forth
in this Section 3, Collateral shall not include, and this Agreement shall
not, at any time, constitute a grant of a security interest in any property
that is, at such time, an Excluded Asset.


 


(b)   Notwithstanding anything herein to the
contrary, (i) each  Grantor
shall remain liable for all obligations under and in respect of the Collateral
and nothing contained herein is intended or shall be a delegation of duties to
the Administrative Agent or any other Secured Party, (ii) each Grantor
shall remain liable under and each of the agreements included in the
Collateral, including any Receivables, any Contracts and any agreements
relating to Pledged Partnership Interests or Pledged LLC Interests, to perform
all of the obligations undertaken by it thereunder all in accordance with and
pursuant to the terms and provisions thereof and neither the Administrative
Agent nor any other Secured Party shall have any obligation or liability under
any of such agreements by reason of or arising out of this Agreement or any
other document related hereto nor shall the Administrative Agent nor any other
Secured Party have any obligation to make any inquiry as to the nature or
sufficiency of any payment received by it or have any obligation to take any
action to collect or enforce any rights under any agreement included in the
Collateral, including any agreements relating to any Receivables, any Contracts
or any agreements relating to Pledged Partnership Interests or Pledged LLC
Interests and (iii) the exercise by the Administrative Agent of any of its
rights hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral,
including any agreements relating to any Receivables, any Contracts and any
agreements relating to Pledged Partnership Interests or Pledged LLC Interests.


 


SECTION 4.  REPRESENTATIONS AND
WARRANTIES


 


To induce
the Joint Lead Arrangers, the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Lenders to enter into the First Lien Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and warrants
to the Secured Parties that:


 


16














 


4.1. Representations
in First Lien Credit Agreement.  In
the case of each Guarantor (other than Holdings), the representations and
warranties set forth in Article III of the First Lien Credit Agreement as
they relate to such Guarantor or to the Loan Documents to which such Guarantor
is a party, each of which is hereby incorporated herein by reference, are true
and correct as of the date hereof in all material respects, and the Secured
Parties shall be entitled to rely on each of them as if they were fully set
forth herein.


 


4.2. Title;
No Other Liens.  Such Grantor owns
each item of the Collateral free and clear of any and all Liens, including
Liens arising as a result of such Grantor becoming bound (as a result of merger
or otherwise) as grantor under a security agreement entered into by another
person, except for Liens permitted by Section 6.02 of the First Lien
Credit Agreement.


 


4.3. Perfected
First Priority Liens.  The security
interests (other than security interests in Excluded Perfection Assets) granted
pursuant to this Agreement (a) upon completion of the filings and other
actions specified on Schedule 4.3 (all of which, in the case of all filings and
other documents referred to on such Schedule have been delivered to the
Administrative Agent in duly completed and duly executed form, as applicable,
and may be filed by the Administrative Agent at any time) and payment of all
filing fees, will constitute valid fully perfected security interests in all of
the Collateral in favor of the Administrative Agent, for the ratable benefit of
the Secured Parties, as collateral security for such Grantor’s Obligations and (b) are
prior to all other Liens on the Collateral, except for Liens expressly
permitted by Section 6.02 of the First Lien Credit Agreement.  Without limiting the foregoing, each  Grantor has taken all actions necessary
(except with respect to Excluded Perfection Assets), including those specified
in Section 5.2 to (i) establish the Administrative Agent’s “control”
(within the meanings of Sections 8-106 and 9-106 of the New York UCC) over
any portion of the Investment Property constituting Certificated Securities,
Uncertificated Securities, Securities Entitlements or Commodity Accounts (each
as defined in the New York UCC), (ii) establish the Administrative Agent’s
“control” (within the meaning of Section 9-107 of the New York UCC) over
all Letter of Credit Rights, (iii) establish the Administrative Agent’s
control (within the meaning of Section 9-105 of the New York UCC) over all
Electronic Chattel Paper and (iv) establish the Administrative Agent’s “control”
(within the meaning of Section 16 of the Uniform Electronic Transaction
Act as in effect in the applicable jurisdiction “UETA”) over all “transferable
records” (as defined in UETA).


 


4.4. Name;
Jurisdiction of Organization, etc. 
On the date hereof, such Grantor’s exact legal name (as indicated on the
public record of such Grantor’s jurisdiction of formation or organization),
jurisdiction of organization, organizational identification number, if any, and
the location of such Grantor’s chief executive office or sole place of business
are specified on Schedule 4.4.  On the
date hereof, each Grantor is organized solely under the law of the jurisdiction
so specified and has not filed any certificates of domestication, transfer or
continuance in any other jurisdiction. 
On the date hereof, except as specified on Schedule 4.4, no such Grantor
has changed its name, jurisdiction of organization, chief executive office or
sole place of business in any way (e.g. by merger, consolidation, change in
corporate form or otherwise) within the past five years and has not within the
last five years become bound (whether as a result of merger or otherwise) as a
grantor under a security agreement (other than in respect of a Lien permitted
by Section 6.02 of the First Lien Credit Agreement) entered into by
another person, which has not heretofore been terminated.


 


17

















 


4.5. Inventory and
Equipment.  None of the Inventory or
Equipment that is included in the Collateral is in the possession of an issuer
of a negotiable document (as defined in Section 7-104 of the New York UCC)
therefor or is otherwise in the possession of any bailee or warehouseman.


 


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


 


4.7. Investment
Property.  (a)  Schedule
4.7(a) hereto (as such schedule may be amended or supplemented from time
to time by notice from one or more Grantors to the Administrative Agent) sets
forth under the headings “Pledged Stock,” “Pledged LLC Interests,” “Pledged
Partnership Interests” and “Pledged Trust Interests,” respectively, all of the
Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged
Trust Interests owned by any Grantor and such Pledged Equity Interests
constitute the percentage of issued and outstanding shares of stock, percentage
of membership interests, percentage of partnership interests or percentage of
beneficial interest of the respective issuers thereof indicated on such
schedule.  Schedule 4.7(b) (as such
schedule may be amended or supplemented from time to time by notice from one or
more Grantors to the Administrative Agent) sets forth under the heading “Pledged
Debt Securities” or “Pledged Notes” all of the Pledged Debt Securities and
Pledged Notes owned by any Grantor, and except as set forth on Schedule 4.7(b) (as
such schedule may be amended or supplemented from time to time by notice from
one or more Grantors to the Administrative Agent) all of such Pledged Debt
Securities and Pledged Notes have been duly authorized, authenticated or
issued, and delivered and is the legal, valid and binding obligation of the
issuers thereof enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law and
constitutes all of the issued and outstanding inter-company indebtedness
evidenced by an instrument or certificated security of the respective issuers
thereof owing to such Grantor; provided, however, that representations set
forth in this sentence shall be limited in the case of Pledged Equity Interests
or Pledged Debt Securities not issued by Loan Parties to the knowledge of such
Grantor.  Schedule 4.7(c) hereto (as
such schedule may be amended from time to time by notice from one or more
Grantors to the Administrative Agent) sets forth under the heading “Commodities
Accounts” all of the “Commodities Accounts” in which each  Grantor has an interest and in which the
value of each such account is in excess of $1,000,000.  Each  Grantor
is the sole entitlement holder or customer of each such account, and no Grantor
has consented to or is otherwise aware of any person having “control” (within
the meanings of Sections 8-106, 9-106 and 9-104 of the New York UCC) over, or
any other interest in, Commodity Account, in each case in which such Grantor has
an interest, or any commodities or other property credited thereto.


 


(b)  The shares of Pledged Equity Interests
pledged by such Grantor hereunder constitute all of the issued and outstanding
shares of all classes of Equity Interests in each Issuer owned by such Grantor
(other than any Equity Interests that are Excluded Assets).


 


18

















 


(c)  The Pledged Equity Interests issued by any
Subsidiary have been duly and validly issued and are fully paid and nonassessable
(except for shares of any unlimited liability company which are assessable in
certain circumstances).


 


(d)  None of the terms of any uncertificated
Pledged LLC Interests and Pledged Partnership Interests expressly provide that
they are securities governed by Article 8 of the Uniform Commercial Code
in effect from time to time in the “issuer’s jurisdiction” of each Issuer
thereof (as such term is defined in the Uniform Commercial Code in effect in
such jurisdiction).


 


(e)  All other certificated Pledged LLC Interests
and Pledged Partnership Interests, if any, do not expressly provide that they
are “securities” for purposes of Section 8-103(c) of the Uniform
Commercial Code as in effect in any relevant jurisdiction.


 


(f)  Such Grantor is the record and beneficial
owner of, and has good and marketable title to, the Investment Property pledged
by it hereunder, free of any and all Liens or options in favor of, or claims
of, any other person, except Liens permitted by Section 6.02 of the First
Lien Credit Agreement, and
there are no outstanding warrants, options or other rights to purchase, or
shareholder, voting trust or similar agreements outstanding with respect to, or
property that is convertible into, or that requires the issuance or sale of,
any Pledged Equity Interests.


 


(g)  Each Issuer that is not a Grantor hereunder
has executed and delivered to the Administrative Agent an Acknowledgment and
Consent, in substantially the form of Exhibit A, to the pledge of the
Pledged Collateral pursuant to this Agreement.


 


4.8. Receivables.  No
amount payable to such Grantor under or in connection with any Receivable that
is included in the Collateral is evidenced by any Instrument or Tangible
Chattel Paper with a value in excess of $1,000,000 which has not been delivered
to the Administrative Agent or
constitutes Electronic Chattel Paper that has not been subjected to the control
(within the meaning of Section 9-105 of the New York UCC) of the
Administrative Agent.


 


4.9. Intellectual
Property.  (a)  Schedule
4.9(a) lists all material Intellectual Property which is registered with a
Governmental Authority or is the subject of an application for registration and
all material unregistered Intellectual Property (other than unregistered
Copyrights), in each case which is owned by such Grantor in its own name on the
date hereof (collectively, the “Owned Intellectual Property”).  Except as set forth in Schedule 4.9(a) and
except as would not reasonably be expected to have a Material Adverse Effect,
such Grantor is the exclusive owner of the entire and unencumbered right, title
and interest in and to all such Owned Intellectual Property and is otherwise
entitled to use, and grant to others the right to use, all such Owned
Intellectual Property subject only to the license terms of the licensing or
franchise agreements referred to in paragraph (c) below.  Such Grantor has the right to use all
Intellectual Property which it uses in its business, but does not own
(collectively, the “Licensed Intellectual Property”).


 


19

















 


(b)  On the date hereof, all Owned Intellectual
Property and, to such Grantor’s knowledge, all Licensed Intellectual Property
(collectively, the “Material Intellectual Property”), is subsisting,
unexpired and has not been abandoned, except as would not reasonably be
expected to have a Material Adverse Effect. 
Neither the
operation of such Grantor’s business as currently conducted or as contemplated
to be conducted nor the use of the Intellectual Property in connection therewith
conflicts with, infringes, misappropriates, dilutes, misuses or otherwise
violates the intellectual property rights of any other person, except in each
case as would not reasonably be expected to have a Material Adverse Effect.


 


(c)  Except as set forth in Schedule 4.9(c), on
the date hereof (i) none of the Material Intellectual Property is the
subject of any licensing or franchise agreement pursuant to which such Grantor
is the licensor or franchisor and (ii) there are no other agreements,
obligations, orders or judgments which materially affect the use of any
Material Intellectual Property.


 


(d)  The rights of such Grantor in or to the
Material Intellectual Property do not conflict with or infringe upon the rights
of any third party, and no claim has been asserted that the use of such
Intellectual Property does or may infringe upon the rights of any third party
except in each case as would not reasonably be expected to have a Material
Adverse Effect.


 


(e)  No action or proceeding is pending, or, to such
Grantor’s knowledge, threatened, on the date hereof (i) seeking to limit,
cancel or question any Owned Intellectual Property, (ii) alleging that any
services provided by, processes used by, or products manufactured or sold by
such Grantor infringe any patent, trademark, copyright, or any other right of
any other person or (iii) alleging that any Material Intellectual Property
is being licensed, sublicensed or used in violation of any intellectual
property or any other right of any other person, in each case, which would
reasonably be expected to have a material adverse effect on the value of the
Collateral, taken as a whole.  On the
date hereof, to such Grantor’s knowledge, except as set forth on Schedule 4.9(f) no
person is engaging in any activity that infringes upon, or is otherwise an
unauthorized use of, any Material Intellectual Property or upon the rights of
such Grantor therein.  Except as set
forth in Schedule 4.9(f) as of the date hereof, such Grantor has not
granted any license, release, covenant not to sue, non-assertion assurance, or
other right to any person with respect to any part of the Material Intellectual
Property.  The consummation of the
transactions contemplated by this Agreement (including the enforcement of
remedies) will not result in the termination or impairment of any of the
Material Intellectual Property the loss of which would be reasonably likely to
have a Material Adverse Effect.


 


(f)  To such Grantor’s knowledge, with respect to
each Copyright License, Trademark License, Trade Secret License and Patent
License which relates to Material Intellectual Property or the loss of which
could otherwise have a Material Adverse Effect: 
(i) such license is in full force and effect and represents the
entire agreement between the respective licensor and licensee with respect to
the subject matter of such license; (ii) such license will not cease to be
valid and binding and in full force and effect on terms identical to those
currently in effect as a result of the rights and interests granted herein, nor
will the


 


20

















 


grant of such rights and interests constitute a breach
or default under such license or otherwise give the licensor or licensee a
right to terminate such license; (iii) such Grantor has not received any
notice of termination or cancellation under such license; (iv) such
Grantor has not received any notice of a breach or default under such license,
which breach or default has not been cured; (v) such Grantor has not
granted to any other person any rights, adverse or otherwise, under such
license; and (vi) such Grantor is not in breach or default in any material
respect, and no event has occurred that, with notice and/or lapse of time,
would constitute such a breach or default or permit termination, modification
or acceleration under such license, except in each case as would not have a
material adverse effect on the value of the Collateral, taken as a whole.


 


(g)  Except in each case as would not reasonably
be expected to have a Material Adverse Effect, (i) none of the Trade
Secrets of such Grantor that are material to its business have been used,
divulged, disclosed or appropriated to the detriment of such Grantor for the
benefit of any other person; (ii) no employee, independent contractor or
agent of such Grantor has misappropriated any trade secrets of any other person
in the course of the performance of his or her duties as an employee,
independent contractor or agent of such Grantor; and (iii) no employee,
independent contractor or agent of such Grantor is in default or breach of any
term of any employment agreement, non-disclosure agreement, assignment of
inventions agreement or similar agreement or contract relating in any way to
the protection, ownership, development, use or transfer of such Grantor’s
Intellectual Property.


 


(h)  Such Grantor has made all filings and
recordations necessary to adequately protect (in its reasonable business
judgment) its interest in its Material Intellectual Property, including
recordation of its interests in the Patents and Trademarks with the United
States Patent and Trademark Office and in corresponding national and
international patent offices, and recordation of any of its interests in the
Copyrights with the United States Copyright Office and in corresponding
national and international copyright offices.


 


(i)  Except as would not reasonably be expected to
have a Material Adverse Effect, such Grantor has taken all commercially
reasonable steps to use consistent standards of quality in the manufacture,
distribution and sale of all products sold and provision of all services
provided under or in connection with any item of Intellectual Property and has
taken all reasonable steps to ensure that all licensed users of any kind of
Intellectual Property use such consistent standards of quality.


 


(j)  Except as would not reasonably be expected to
have a Material Adverse Effect, no Grantor is subject to any settlement or
consents, judgment, injunction, order, decree, covenants not to sue,
non-assertion assurances or releases that would impair the validity or
enforceability of, or such Grantor’s rights in, any Material Intellectual
Property.


 


4.10.     Letters
of Credit and Letter of Credit Rights. 
No Grantor is a beneficiary or assignee under any letter of credit with
a face amount in excess of $1,000,000 (including any “Letter of Credit”) other
than the letters of credit described on Schedule 4.10 (as such schedule may be
amended or supplemented from time to time). 
With respect to any letters of credit in


 


21

















 


excess of $1,000,000 in face amount that are by their
terms transferable, each Grantor has caused (or, in the case of the letters of
credit that are specified on Schedule 4.10 on the date hereof in excess of
$1,000,000 in face amount, will use commercially reasonable efforts to cause)
all issuers and nominated persons under letters of credit in which the Grantor
is the beneficiary or assignee to consent to the assignment of such letter of
credit to the Administrative Agent and has agreed that upon the occurrence of
an Event of Default it shall cause all payments thereunder to be made to the
Collateral Account.  With respect to any
letters of credit in excess of $1,000,000 in face amount that are not transferable,
each Grantor shall obtain (or, in the case of the letters of credit that are
specified on Schedule 4.10 on the date hereof in excess of $1,000,000 in face
amount, use commercially reasonable efforts to obtain) the consent of the
issuer thereof and any nominated person thereon to the assignment of the
proceeds of the released letter of credit to the Administrative Agent in
accordance with Section 5-114(c) of the New York UCC.


 


4.11.     Commercial
Tort Claims.  No Grantor has any
Commercial Tort Claims as of the date hereof in excess of $1,000,000 and,
except as specifically described on Schedule 4.11 (as such schedule may be
amended or supplemented from time to time), no Grantor has any Commercial Tort
Claims after the date hereof in excess of $1,000,000.


 


SECTION 5.  COVENANTS


 


Each
Grantor covenants and agrees with the Secured Parties that, from and after the
date of this Agreement until the Obligations shall have been paid in full, and
all commitments to extend credit under the First Lien Credit Agreement shall
have expired or been terminated:


 


5.1. Covenants
in First Lien Credit Agreement.  Each
Grantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Grantor or any of its Subsidiaries.


 


5.2. Delivery and
Control of Certain Collateral.  (a)  If
any of the Collateral is or shall become evidenced or represented by any
Certificated Security or Tangible Chattel Paper, such Certificated Security or
Tangible Chattel Paper shall be delivered promptly to the Administrative Agent,
duly endorsed, if applicable, in a manner reasonably satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement, and
all of such property owned by any Grantor as of the Closing Date shall be
delivered on the Closing Date.  Any
Pledged Collateral evidenced or represented by any Instrument or Negotiable
Document shall be delivered promptly to the Administrative Agent, duly
endorsed, if applicable, in a manner reasonably satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement, and
all of such property owned by any Grantor as of the Closing Date shall be
delivered on the Closing Date. Notwithstanding the foregoing, no Instrument,
Tangible Chattel Paper, Pledged Debt Security constituting a Certificated
Security or Negotiable Document shall be required to be delivered to the
Administrative Agent pursuant to this clause (a) if the value thereof is
less than $1,000,000 individually or $5,000,000 in the aggregate.


 


22

















 


(b)  If any of the Collateral is or shall constitute
“Electronic Chattel Paper” (under Article 9 of the UCC) such Grantor shall
ensure (to the Administrative Agent’s reasonable satisfaction) that (i) a
single authoritative copy exists which is unique, identifiable, unalterable
(except as provided in clauses (iii), (iv) and (v) of this
paragraph), (ii) such authoritative copy identifies the Administrative
Agent as the assignee and is communicated to and maintained by the
Administrative Agent or its designee, (iii) copies or revisions that add
or change the assignee of the authoritative copy can only be made with the
participation of the Administrative Agent, (iv) each copy of the
authoritative copy and any copy of a copy is readily identifiable as a copy and
not the authoritative copy and (v) any revision of the authoritative copy
is readily identifiable as an authorized or unauthorized revision; provided
that such actions shall not be required to be taken until the aggregate face
amount of the Electronic Chattel Paper included in the Collateral exceeds $1,000,000.


 


(c)  If any Collateral with a value in excess of
$1,000,000 shall become evidenced or represented by an Uncertificated Security,
such Grantor shall cause the Issuer thereof either (i) to register the
Administrative Agent as the registered owner of such Uncertificated Security,
upon original issue or registration of transfer or (ii) to agree in
writing with such Grantor and the Administrative Agent that such Issuer will
comply with instructions with respect to such Uncertificated Security originated
by the Administrative Agent without further consent of such Grantor, such
agreement to be in substantially the form of Exhibit C, or such other form
as may be reasonably agreed to by the Administrative Agent, and such actions
shall be taken on or prior to the Closing Date with respect to any
Uncertificated Securities owned as of the Closing Date by any Grantor.


 


(d)  If any of the Collateral is or shall become
evidenced or represented by a Commodity Contract, such Grantor shall cause the
Commodity Intermediary with respect to such Commodity Contract to agree in
writing with such Grantor and the Administrative Agent that such Commodity
Intermediary will apply any value distributed on account of such Commodity
Contract as directed by the Administrative Agent without further consent of
such Grantor, such agreement to be in the form reasonably agreed to by the
Administrative Agent.


 


(e)  In the case of any transferable letters of
credit with a face amount in excess of $1,000,000, such Grantor shall use
commercially reasonable efforts to obtain the consent of any issuer thereof to
the transfer of such letter of credit to the Administrative Agent.  In the case of any other letter of credit
rights in excess of $1,000,000 such Grantor shall use commercially reasonable
efforts to obtain the consent of the issuer thereof and any nominated person
thereon to the assignment of the proceeds of the related letter of credit in
accordance with Section 5-114(c) of the New York UCC.


 


5.3. Maintenance of
Insurance.   Such Grantor will
maintain insurance on all its property in compliance with Section 5.02 of
the First Lien Credit Agreement.


 


5.4. Maintenance of
Perfected Security Interest; Further Documentation.  Such Grantor shall maintain each of the
security interests created by this Agreement as a security interest having at
least the perfection and priority described in Section 4.3 and shall
defend


 


23

















 


such security interest against the claims and demands
of all persons whomsoever except as otherwise permitted by Section 6.02 of
the First Lien Credit Agreement, subject to the provisions of Section 8.15.


 


(b)  At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole expense of such Grantor,
such Grantor shall promptly and duly authorize, execute and deliver, and have
recorded, such further instruments and documents and take such further actions
as the Administrative Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, (i) the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and (ii) in
the case of Investment Property subject to the requirements of Section 5.2
and any other relevant Collateral, taking any actions necessary to enable the
Administrative Agent to obtain “control” (within the meaning of the applicable
Uniform Commercial Code) with respect thereto.


 


5.5. Changes
in Locations, Name, Jurisdiction of Incorporation, etc.  Such Grantor shall give 10 days’ written
notice to the Administrative Agent and delivery to the Administrative Agent of
duly authorized and, where required, executed copies of all additional
financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for herein after any of the following:


 


(i)            a change in its legal name,
jurisdiction of organization or the location of its chief executive office or
sole place of business from that referred to in Section 4.4; or


 


(i)            a change in its legal name, identity
or structure to such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would become misleading.


 


5.6. Investment
Property.  (a)  If such
Grantor shall become entitled to receive or shall receive any stock or other
ownership certificate (including any certificate representing a stock dividend
or a distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights in respect of the Equity Interests in any
issuer, whether in addition to, in substitution of, as a conversion of, or in
exchange for, any shares of or other ownership interests in the Pledged Equity
Interests, or otherwise in respect thereof, such Grantor shall accept the same
as the agent of the Secured Parties, hold the same in trust for the Secured
Parties and deliver the same forthwith to the Administrative Agent in the exact
form received, duly endorsed by such Grantor to the Administrative Agent, if
required, together with an undated stock power or similar instrument of
transfer covering such certificate duly executed in blank by such Grantor and
with, if the Administrative Agent so requests, signature guaranteed, to be held
by the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Obligations. 
If an Event of Default shall occur and be continuing, (i) any sums
paid upon or in respect of the Pledged Equity Interests upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be


 


24

















 


held by it hereunder as additional collateral security
for the Obligations and (ii) in case any distribution of capital shall be
made on or in respect of the Pledged Equity Interests or any property shall be
distributed upon or with respect to the Pledged Equity Interests pursuant to
the recapitalization or reclassification of the capital of any issuer thereof
or pursuant to the reorganization thereof, the property so distributed shall,
unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations.  If any sums of money or property so paid or
distributed in respect of the Pledged Equity Interests shall be received by
such Grantor, such Grantor shall, until such money, to the extent required pursuant
to (i) above, or property is paid or delivered to the Administrative
Agent, hold such money or property in trust for the Secured Parties, segregated
from other funds of such Grantor, as additional collateral security for the
Obligations.


 


(b)  Without the prior written consent of the
Administrative Agent, such Grantor shall not (i) vote to enable, or take
any other action to permit, any issuer of Pledged Equity Interests to issue any
stock, partnership interests, limited liability company interests or other
equity securities of any nature or to issue any other securities convertible
into or granting the right to purchase or exchange for any stock, partnership
interests, limited liability company interests or other equity securities of
any nature of any such issuer (except, in each case, pursuant to a transaction
expressly permitted by the First Lien Credit Agreement), (ii) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, any of the Investment Property constituting Collateral or Proceeds
thereof or any interest therein (except, in each case, pursuant to a
transaction permitted by the First Lien Credit Agreement), (iii) create,
incur or permit to exist any Lien or option in favor of, or any claim of any
person with respect to, any of the Investment Property or Proceeds thereof, or
any interest therein, except for the security interests created by this
Agreement or any Lien permitted thereon pursuant to Section 6.02 of the
First Lien Credit Agreement, (iv) enter into any agreement or undertaking
restricting the right or ability of such Grantor or the Administrative Agent to
sell, assign or transfer any of the Investment Property or Proceeds thereof or
any interest therein or except as permitted by the First Lien Credit Agreement,
or (v) cause or permit any Issuer of any Pledged Partnership Interests or
Pledged LLC Interests which are not securities (for purposes of the New York
UCC) on the date hereof to elect or otherwise take any action to cause such
Pledged Partnership Interests or Pledged LLC Interests to be treated as
securities for purposes of the New York UCC; provided, however,
notwithstanding the foregoing, if any Issuer of any Pledged Partnership
Interests or Pledged LLC Interests takes any such action in violation of the
provisions in this clause (v), such Grantor shall promptly notify the
Administrative Agent in writing of any such election or action and, in such
event, shall take all steps necessary or advisable to establish the
Administrative Agent’s “control” thereof.


 


(c)  In the case of each Grantor which is an
Issuer, such Issuer agrees that (i) it shall be bound by the terms of this
Agreement relating to the Pledged Collateral issued by it and shall comply with
such terms insofar as such terms are applicable to it, (ii) it shall
notify the Administrative Agent concurrently with delivery of the financial
statements required under Section 5.04(b) of the First Lien Credit
Agreement in writing of the occurrence of any of the events described in Section 5.7(a) with
respect to the Pledged


 


25

















 


Collateral issued by it and (iii) the terms of
Sections 6.3(c) and 6.7 shall apply to it, mutatis  mutandis,
with respect to all actions that may be required of it pursuant to Section 6.3(c) or
6.7 with respect to the Pledged Collateral issued by it.  In addition, each Grantor which is either an
Issuer or an owner of any Pledged Collateral hereby consents to the grant by
each other Grantor of the security interest hereunder in favor of the
Administrative Agent and to the transfer of any Pledged Collateral to the
Administrative Agent or
its nominee following an Event of Default and to the substitution of the
Administrative Agent or its nominee as a partner, member or shareholder of the
Issuer of the related Pledged Collateral.


 


5.7. Intellectual
Property. Except as would not reasonably be expected to have a Material
Adverse Effect (a)  Such Grantor (either itself or through licensees)
shall (i) to the extent commercially reasonable, continue to use each
Trademark material to its business on each and every trademark class of goods
applicable to its current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full force free from any
claim of abandonment for non-use, (ii) maintain as in the past the quality
of products and services offered under such Trademark and take all necessary
steps to ensure that all licensed users of such Trademark maintain as in the
past such quality, (iii) use such Trademark with the appropriate notice of
registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any mark which is confusingly
similar or a colorable imitation of such Trademark unless the Administrative
Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected
security interest in such mark pursuant to this Agreement and the Intellectual
Property Security Agreement, and (v) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark could reasonably be expected to become invalidated or impaired in any
way.


 


(b)  Such Grantor (either itself or through
licensees) shall not do any act, or omit to do any act, whereby any Patent
owned by such Grantor material to its business could reasonably be expected to
become forfeited, abandoned or dedicated to the public.


 


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


 


(d)  Such Grantor (either itself or through
licensees) shall not knowingly do any act that uses any Material Intellectual
Property to infringe, misappropriate or violate the intellectual property
rights of any other person in any material respect.


 


(e)  Such Grantor (either itself or through
licensees) shall use proper statutory notice in connection with the use of the
Material Intellectual Property.


 


(f)  Such Grantor shall notify the Administrative
Agent promptly if it knows, or has reason to know, that any application or
registration relating to any Material


 


26

















 


Intellectual Property may become forfeited, abandoned
or dedicated to the public, or of any material adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark
Office, the United States Copyright Office or any court or tribunal in any
country) regarding such Grantor’s ownership of, or the validity of, any
Material Intellectual Property or such Grantor’s right to register the same or
to own and maintain the same.


 


(g)  Promptly upon such Grantor’s acquisition or creation of any
copyrightable work, invention, trademark or other similar property that is
material to the business of such Grantor, apply for registration thereof with
the United States Copyright Office, the United States Patent and Trademark
Office and any other appropriate office. 
Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property that is material to the business of such Grantor
with the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency in any other country or any political
subdivision thereof, such Grantor shall report such filing to the
Administrative Agent within 45 days after the last day of the fiscal quarter in
which such filing occurs (or 110 days if such filing occurs in the fourth
fiscal quarter of a fiscal year).  Upon
request of the Administrative Agent, such Grantor shall execute and deliver,
and have recorded, any and all agreements, instruments, documents, and papers
as the Administrative Agent may reasonably request to evidence the Secured
Parties’ security interest in any Copyright, Patent, Trademark or other
Intellectual Property of such Grantor and the goodwill and general intangibles
of such Grantor relating thereto or represented thereby.


 


(h)  Such Grantor shall take all reasonable and
necessary steps, including in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to
maintain and pursue each application (and to obtain the relevant registration)
and to maintain each registration of Intellectual Property material to its
business, including the payment of required fees and taxes, the filing of
responses to office actions issued by the United States Patent and Trademark
Office and the United States Copyright Office, the filing of applications for
renewal or extension, the filing of affidavits of use and affidavits of
incontestability, the filing of divisional, continuation, continuation-in-part,
reissue, and renewal applications or extensions, the payment of maintenance
fees, and the participation in interference, reexamination, opposition,
cancellation, infringement and misappropriation proceedings.


 


(i)  Such Grantor (either itself or through
licensees) shall not, without the prior written consent of the Administrative
Agent, discontinue use of or otherwise abandon any of its Intellectual
Property, or abandon any application or any right to file an application for
letters patent, trademark, or copyright, unless such Grantor shall have
previously determined that such use or the pursuit or maintenance of such
Intellectual Property is no longer desirable in the conduct of such Grantor’s
business and that the loss thereof could not reasonably be expected to have a
Material Adverse Effect and, in which case, such Grantor shall give prompt
notice of any such abandonment to the Administrative Agent in accordance
herewith.


 


27

















 


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


 


(k)  Such Grantor agrees that, should it obtain an
ownership interest in any item of intellectual property which is not, as of the
Closing Date, a part of the Intellectual Property Collateral (the “After-Acquired
Intellectual Property”), (i) the provisions of Section 3 shall
automatically apply thereto, (ii) any such After-Acquired Intellectual
Property, and in the case of trademarks, the goodwill of the business connected
therewith or symbolized thereby, shall automatically become part of the
Intellectual Property Collateral, (iii) it shall give, within 45 days
after the last day of the fiscal quarter in which such Grantor acquires such
ownership interest (or 110 days if such filing occurs in the fourth fiscal
quarter of a fiscal year), written notice thereof to the Administrative Agent
in accordance herewith, and (iv) it shall provide the Administrative Agent
within 45 days after the last day of the fiscal quarter in which such Grantor
acquires such ownership interest (or 90 days if such filing occurs in the
fourth fiscal quarter of a fiscal year) with an amended Schedule 4.9(a) and
take the actions specified in 5.8(m).


 


(l)  Such Grantor agrees to execute an
Intellectual Property Security Agreement with respect to its Intellectual
Property in substantially the form of Exhibit B-1 in order to record the
security interest granted herein to the Administrative Agent for the ratable
benefit of the Secured Parties with the United States Patent and Trademark
Office, the United States Copyright Office, and any other applicable
Governmental Authority.


 


(m)  Such Grantor agrees to execute an
After-Acquired Intellectual Property Security Agreement with respect to its
After-Acquired Intellectual Property in substantially the form of Exhibit B-2
in order to record the security interest granted herein to the Administrative
Agent for the ratable benefit of the Secured Parties with the United States
Patent and Trademark Office, the United States Copyright Office and any other
applicable Governmental Authority.


 


(n) 
Such Grantor shall take all steps reasonably necessary to protect the
secrecy of all Trade Secrets material to its business, including entering into
confidentiality agreements with employees and labeling and restricting access
to secret information and documents.


 


5.8. Commercial
Tort Claims.  Such Grantor shall
advise the Administrative Agent concurrently with delivery of the financial
statements required under Section 5.04(b) of the First Lien Credit
Agreement of any Commercial Tort Claim held by such Grantor in excess of
$1,000,000 and shall promptly execute a supplement to this Agreement in form
and substance reasonably satisfactory to the Administrative Agent to grant a
security interest in such


 


28

















 


Commercial Tort Claim to the Administrative Agent for
the ratable benefit of the Secured Parties.


 


SECTION 6.  REMEDIAL PROVISIONS


 


6.1. Certain Matters
Relating to Receivables.  (a)  Upon
the occurrence and during the continuance of any Event of Default, the
Administrative Agent shall have the right (but shall in no way be obligated) to
make test verifications of the Receivables that are included in the Collateral
in any manner and through any medium that it reasonably considers advisable,
and each Grantor shall furnish all such assistance and information as the
Administrative Agent may reasonably require in connection with such test
verifications.  At any time and from time
to time following the occurrence and during the continuance of any Event of
Default, upon the Administrative Agent’s request and at the expense of the
relevant Grantor, such Grantor shall cause independent public accountants or
others reasonably satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.


 


(b)  The Administrative Agent hereby authorizes
each Grantor to collect such Grantor’s Receivables, subject to the
Administrative Agent’s direction and control, and each Grantor hereby agrees to continue to
collect all amounts due or to become due to such Grantor under the Receivables
and any Supporting Obligation and diligently exercise each material right it
may have under any Receivable and any Supporting Obligation, in each case, at
its own expense; provided, however, that the
Administrative Agent may curtail or terminate said authority at any time after
the occurrence and during the continuance of an Event of Default.  If required by the Administrative Agent at
any time after the occurrence and during the continuance of an Event of
Default, any payments of Receivables, when collected by any Grantor, (i) shall
be forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly endorsed by such Grantor to the
Administrative Agent if required, in a Collateral Account maintained under the
sole dominion and control of the Administrative Agent, subject to withdrawal by
the Administrative Agent for the account of the Secured Parties only as
provided in Section 6.5, and (ii) until so turned over, shall be held
by such Grantor in trust for the Secured Parties, segregated from other funds
of such Grantor.  Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the
deposit.


 


(c)  At the Administrative Agent’s reasonable
request after the occurrence and during the continuance of any Event of Default,
each Grantor shall deliver to the Administrative Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Receivables that are included in the Collateral, including all
original orders, invoices and shipping receipts.


 


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6.2. Communications
with Obligors; Grantors Remain Liable.


 


(a)  The Administrative Agent in its own name or
in the name of others may at any time after the occurrence and during the
continuance of an Event of Default communicate with obligors under the
Receivables and parties to the Contracts to verify with them to the
Administrative Agent’s satisfaction the existence, amount and terms of any
Receivables or Contracts.


 


(b)  At any time after the occurrence and during
the continuance of any Event of Default, the Administrative Agent may at any
time notify, or require any Grantor to so notify, the Account Debtor or
counterparty on any Receivable or Contract of the security interest of the
Administrative Agent therein.  In
addition, after the occurrence and during the continuance of an Event of
Default, the Administrative Agent may upon written notice to the applicable
Grantor, notify, or require any Grantor to notify, the Account Debtor or
counterparty to make all payments under the Receivables and/or Contracts
directly to the Administrative Agent;


 


(c)  Anything herein to the contrary
notwithstanding, each Grantor shall remain liable under each of the Receivables
and Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise thereto.  No
Secured Party shall have any obligation or liability under any Receivable (or
any agreement giving rise thereto) or Contract by reason of or arising out of
this Agreement or the receipt by any Secured Party of any payment relating
thereto, nor shall any Secured Party be obligated in any manner to perform any
of the obligations of any Grantor under or pursuant to any Receivable (or any
agreement giving rise thereto) or Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.


 


6.3. Pledged
Collateral.  (a)  Unless an
Event of Default shall have occurred and be continuing and the Administrative
Agent shall have given notice to the relevant Grantor of the Administrative
Agent’s intent to exercise its corresponding rights pursuant to Section 6.3(b),
each Grantor shall be permitted to receive all cash dividends paid in respect
of the Pledged Equity Interests and all payments made in respect of the Pledged
Notes, to the extent permitted in the First Lien Credit Agreement, and to
exercise all voting and corporate rights with respect to the Pledged
Collateral.


 


(b)  If an Event of Default shall occur and be
continuing and the Administrative Agent shall have given notice to the relevant
Grantor of the Administrative Agent’s intent to exercise its rights pursuant to
this Section 6.3(b):  (i)  all
rights of each  Grantor to exercise
or refrain from exercising the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant hereto shall cease and all
such rights shall thereupon become vested in the Administrative Agent who shall
thereupon have the sole right, but shall be under no obligation, to exercise or
refrain from exercising such voting and other consensual rights, (ii) the
Administrative Agent shall have the right, without notice to any Grantor, to
transfer all or any portion of the Investment Property to its name or the name
of its nominee or agent and (iii) the Administrative Agent shall have the


 


30

















 


right to receive any and all cash dividends, payments
or other Proceeds paid in respect of the Investment Property and make
application thereof to the Obligations in such order as the Administrative
Agent may determine.  In addition, the
Administrative Agent shall have the right at any time after the occurrence and
during the continuance of any Event of Default, without notice to any Grantor,
to exchange any certificates or instruments representing any Investment
Property for certificates or instruments of smaller or larger denominations.  In order to permit the Administrative Agent to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant hereto after
the occurrence and during the continuance of any Event of Default and to receive all dividends and other
distributions which it may be entitled to receive hereunder each  Grantor shall promptly execute and deliver
(or cause to be executed and delivered) to the Administrative Agent all
proxies, dividend payment orders and other instruments as the Administrative
Agent may from time to time reasonably request and each  Grantor acknowledges that the
Administrative Agent may utilize the power of attorney set forth herein.


 


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


 


6.4. Proceeds
to be Turned Over To Administrative Agent. 
In addition to the rights of the Secured Parties specified in Section 6.1
with respect to payments of Receivables, if an Event of Default shall occur and
be continuing, all Proceeds received by any Grantor consisting of cash, cash
equivalents, checks and other near-cash items shall be held by such Grantor in
trust for the Secured Parties, segregated from other funds of such Grantor, and
shall, forthwith upon demand, be turned over to the Administrative Agent in the
exact form received by such Grantor (duly endorsed by such Grantor to the
Administrative Agent, if required).  All
Proceeds received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Collateral Account maintained under its sole dominion
and control.  All Proceeds while held by
the Administrative Agent in a Collateral Account (or by such Grantor in trust
for the Secured Parties) shall continue to be held as collateral security for
all the Obligations and shall not constitute payment thereof until applied as
provided in Section 6.5.


 


6.5. Application
of Proceeds.  At such intervals as
may be agreed upon by the Borrower and the Administrative Agent, or, if an
Event of Default shall have occurred and be continuing, at any time at the
Administrative Agent’s election, the Administrative Agent may apply all or any
part of the net Proceeds (after deducting fees and expenses as provided in Section 6.6)
constituting Collateral realized through the exercise by the Administrative
Agent of its remedies hereunder, whether or not held in any Collateral Account,
and any proceeds of the guarantee set forth in Section 2, in payment of
the Obligations in the following order:


 


31














 


First, to the Administrative Agent,
to pay incurred and unpaid fees and expenses of the Secured Parties under the
Loan Documents;


 


Second, to the Administrative Agent,
for application by it towards payment of amounts then due and owing and
remaining unpaid in respect of the Obligations, pro rata
among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;


 


Third, to the Administrative Agent,
for application by it towards prepayment of the Obligations, pro rata
among the Secured Parties according to the amounts of the Obligations then held
by the Secured Parties; and


 


Fourth, any balance of such Proceeds
remaining after the Obligations shall have been paid in full, no letters of
credit issued under the First Lien Credit Agreement shall be outstanding and
the Commitments under the First Lien Credit Agreement shall have terminated or
expired shall be paid over to the Borrower or to whomsoever may be lawfully
entitled to receive the same.


 


6.6. Code and Other
Remedies.  (a)  If an Event
of Default shall occur and be continuing, the Administrative Agent, on behalf
of the Secured Parties, may exercise, in addition to all other rights and
remedies granted to them in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the New York UCC (whether or not the New York
UCC applies to the affected Collateral) or its rights under any other applicable
law or in equity.  Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon any
Grantor or any other person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, license, assign, give option or
options to purchase, or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels
at public or private sale or sales, at any exchange, broker’s board or office
of any Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk.  Each Secured Party shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in any Grantor, which right
or equity is hereby waived and released. 
Each purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on the part of any Grantor, and each  Grantor hereby waives (to the extent
permitted by applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of
law or statute now existing or hereafter enacted.  Each  Grantor
agrees that, to the extent notice of sale shall be required by law, at least
ten days notice to such Grantor of the time and place of any public sale or the
time after which any private sale is to be made shall, to the extent permitted
by law, constitute reasonable notification. 
The Administrative Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having


 


32

















 


been given.  The
Administrative Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.  The Administrative Agent may
sell the Collateral without giving any warranties as to the Collateral.  The Administrative Agent may specifically
disclaim or modify any warranties of title or the like.  This procedure will not be considered to
adversely effect the commercial reasonableness of any sale of the Collateral.  Each  Grantor
agrees that it would not be commercially unreasonable for the Administrative
Agent to dispose of the Collateral or any portion thereof by using Internet
sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capability of doing so, or that match
buyers and sellers of assets.  Each  Grantor hereby waives any claims against
the Administrative Agent arising by reason of the fact that the price at which
any Collateral may have been sold at such a private sale was less than the
price which might have been obtained at a public sale, even if the
Administrative Agent accepts the first offer received and does not offer such
Collateral to more than one offeree. 
Each Grantor further agrees, at the Administrative Agent’s request, to
assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at such
Grantor’s premises or elsewhere upon the occurrence and during the continuance
of any Event of Default.  The Administrative Agent shall have the right
to enter onto the property where any Collateral is located and take possession
thereof with or without judicial process.


 


(b)  The Administrative Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 6.6, after
deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Secured Parties hereunder, including reasonable attorneys’ fees and
disbursements to the extent required to be paid in accordance with the First
Lien Credit Agreement, to the payment in whole or in part of the Obligations
and only after such application and after the payment by the Administrative
Agent of any other  required by any
provision of law, including Section 9-615(a) of the New York UCC,
need the Administrative Agent account for the surplus, if any, to any
Grantor.  If the Administrative Agent
sells any of the Collateral upon credit, the Grantor will be credited only with
payments actually made by the purchaser and received by the Administrative
Agent and applied to indebtedness of the purchaser.  In the event the purchaser fails to pay for
the Collateral, the Administrative Agent may resell the Collateral and the
Grantor shall be credited with proceeds of the sale.  To the extent permitted by applicable law,
each Grantor waives all claims, damages and demands it may acquire against any
Secured Party arising out of the exercise by them of any rights hereunder.


 


(c)  Upon the occurrence and during the
continuance of any Event of Default, in the event of any disposition of any of
the Intellectual Property, the goodwill of the business connected with and
symbolized by any Trademarks subject to such disposition shall be included, and
the applicable Grantor shall supply the Administrative Agent or its designee
with such Grantor’s know-how and expertise, and with documents and things
embodying the same, relating to the manufacture, distribution, advertising and
sale of products or the provision of services relating to any Intellectual
Property subject to such disposition, and such Grantor’s customer lists and
other records and documents relating to


 


33

















 


such Intellectual Property and to the manufacture,
distribution, advertising and sale of such products and services.


 


6.7. Registration
Rights.  (a)  If the
Administrative Agent shall determine to exercise its right to sell any or all
of the Pledged Equity Interests or the Pledged Debt Securities pursuant to Section 6.6,
and if in the opinion of the Administrative Agent it is necessary or advisable
to have the Pledged Equity Interests or the Pledged Debt Securities, or that
portion thereof to be sold, registered under the provisions of the Securities
Act, the relevant Grantor shall use commercially reasonable efforts to cause
the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
reasonable opinion of the Administrative Agent, necessary or advisable to
register the Pledged Equity Interests or the Pledged Debt Securities, or that
portion thereof to be sold, under the provisions of the Securities Act, (ii) cause
the registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Equity Interests or the Pledged Debt Securities, or that portion
thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Administrative Agent, are
reasonably necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the SEC applicable
thereto.  Each Grantor agrees to use
commercially reasonable efforts to cause such Issuer to comply with the
provisions of the securities or “Blue Sky” laws of any and all jurisdictions
which the Administrative Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.


 


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


 


(c)  Each Grantor agrees to use its commercially
reasonable efforts to do or cause to be done all such other acts as may be
necessary to make such sale or sales of all or any portion of the Pledged
Equity Interests or the Pledged Debt Securities pursuant to this Section 6.7
valid and binding and in compliance with any and all other applicable
Requirements of Law.  Each Grantor
further agrees that a breach of any of the covenants contained in this Section 6.7
will cause irreparable injury to the Secured Parties, that the


 


34

















 


Secured Parties have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 6.7 shall be specifically enforceable against
such Grantor, and such Grantor hereby waives and agrees, to the extent
permitted by applicable law, not to assert any defenses against an action for
specific performance of such covenants except for a defense that no Event of
Default has occurred and is continuing under the First Lien Credit Agreement or
a defense of payment.


 


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


 


SECTION 7.  THE ADMINISTRATIVE AGENT


 


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


 


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


 


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


 


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


 


(iv)       execute, in connection with any sale
provided for in Section 6.7 or 6.8, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral; and


 


35

















 


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


 


Anything
in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that, except as provided in Section 7.1(b), it
will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless
an Event of Default shall have occurred and be continuing.


 


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


 


(c)  The expenses of the Administrative Agent
incurred in connection with actions undertaken as provided in this Section 7.1,
together with interest thereon at a rate per annum equal to the rate per annum
at which interest would then be payable on past due Revolving Loans that are
ABR Loans under the First Lien Credit Agreement, from the date of payment by
the Administrative Agent to the date reimbursed by the relevant Grantor, shall
be payable by such Grantor to the Administrative Agent on demand; provided,
however, that unless an Event of Default has occurred and is continuing,
the Administrative Agent shall not exercise this power without first making
demand on such Grantor and the Grantor failing to immediately comply therewith.


 


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


 


7.2. Duty
of Administrative Agent.  The
Administrative Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the New York UCC or otherwise, shall be to deal with it in the same manner
as the Administrative Agent deals with similar property for its own
account.  Neither the Administrative
Agent, nor any other Secured Party nor any of their respective officers,
directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other person or to take any other action
whatsoever with regard to the Collateral or any part thereof.  The powers conferred on the Secured Parties
hereunder are solely to protect the Secured Parties’ interests in the
Collateral and shall not impose any duty upon any Secured Party to exercise any
such powers.  The Secured Parties shall
be accountable only for amounts that they actually receive as a result of the exercise
of such powers, and neither they nor any of their officers, directors,
partners, employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates shall be responsible to any Grantor for any act or failure to act
hereunder, except to the extent that any such act or failure to act is found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted primarily from their own gross negligence or willful misconduct in
breach of a duty owed to such Grantor.


 


7.3. Execution
of Financing Statements.  Each
Grantor acknowledges that pursuant to Section 9-509(b) of the New
York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing or continuation statements,
and amendments thereto, and other filing or recording documents or instruments
with respect to the Collateral, in such form and in such offices as the
Administrative Agent reasonably determines appropriate to perfect or maintain
the perfection of the security interests of the Administrative Agent under this
Agreement.  Each Grantor agrees that such
financing statements may describe the collateral in the same manner as
described in the Security Documents or as “all assets” or “all personal
property,” whether now owned or hereafter existing or acquired or such other
description as the Administrative Agent, in its sole judgment, determines is
necessary or advisable.  A photographic
or other reproduction of this Agreement shall be sufficient as a financing statement
or other filing or recording document or instrument for filing or recording in
any jurisdiction.


 


7.4. Authority
of Administrative Agent.  Each
Grantor acknowledges that the rights and responsibilities of the Administrative
Agent under this Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative
Agent of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Agreement shall, as
between the Administrative Agent and the other Secured Parties, be governed by
the First Lien Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or


 


37

















 


refrain from acting, and no Grantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.


 


7.5. Appointment
of Co-Collateral Agents.  At any time or from time to time, in order to
comply with any applicable requirement of law, the Administrative Agent may
appoint another bank or trust company or one of more other persons, either to
act as co-agent or agents on behalf of the Secured Parties with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and which may be specified in the instrument of appointment (which may,
in the discretion of the Administrative Agent, include provisions for
indemnification and similar protections of such co-agent or separate agent).


 


SECTION 8.  MISCELLANEOUS


 


8.1. Amendments
in Writing.  None of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by each affected Grantor and
the Administrative Agent, subject to any consents required under Section 9.08
of the First Lien Credit Agreement; provided that any provision of this
Agreement imposing obligations on any Grantor may be waived by the
Administrative Agent in a written instrument executed by the Administrative
Agent.


 


8.2. Notices.  All notices, requests and demands to or upon
the Administrative Agent or any Grantor hereunder shall be effected in the
manner provided for in Section 9.01 of the First Lien Credit Agreement; provided
that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on Schedule 8.2.


 


8.3. No
Waiver by Course of Conduct; Cumulative Remedies.  No Secured Party shall by any act (except by
a written instrument pursuant to Section 8.1), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. 
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party, any right, power or privilege hereunder shall operate as a
waiver thereof.  No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.  A waiver by any Secured Party
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which such Secured Party would otherwise have on
any future occasion.  The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.


 


8.4. Enforcement
Expenses; Indemnification.  (a)  Each
Grantor agrees to pay or reimburse each Secured Party for all its reasonable
costs and expenses incurred in collecting against such Grantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which such Grantor
is a party, including the fees and disbursements of counsel to each Secured
Party and of counsel to the Administrative Agent.


 


38

















 


(b)  Each Grantor agrees to pay, and to hold the
Secured Parties harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to, or resulting from any delay
in paying, any and all stamp, excise, sales or other taxes which may be payable
or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.


 


(c)  Each Grantor agrees to pay, and to hold the
Secured Parties harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to Section 9.05 of the First
Lien Credit Agreement.


 


(d)  The agreements in this Section shall
survive repayment of the Obligations and all other amounts payable under the
First Lien Credit Agreement and the other Loan Documents.


 


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


 


8.6. Set-Off.  Each Grantor hereby irrevocably authorizes
each Secured Party at any time and from time to time while an Event of Default
shall have occurred and be continuing, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Secured Party to or for the credit or the account of such
Grantor, or any part thereof in such amounts as such Secured Party may elect,
against and on account of the obligations and liabilities of such Grantor to
such Secured Party hereunder and claims of every nature and description of such
Secured Party against such Grantor, in any currency, whether arising hereunder,
under the First Lien Credit Agreement, any other Loan Document or otherwise, as
such Secured Party may elect, whether or not any Secured Party has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured.  Each Secured
Party shall notify such Grantor promptly of any such set-off and the
application made by such Secured Party of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.  The rights of
each Secured Party under this Section are in addition to other rights and
remedies (including other rights of set-off) which such Secured Party may have.


 


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


 


39

















 


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


 


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


 


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


 


8.11.     APPLICABLE LAW.  THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


8.12.     Submission
to Jurisdiction; Waivers.  Each
Grantor and the Administrative Agent hereby irrevocably and unconditionally:


 


(a)  submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement shall affect any right that any Lender, the
Administrative Agent or any Issuing Bank may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against
Holdings, the Borrower or any Loan Party or their properties in the courts of
any jurisdiction;


 


(b)  waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or the other Loan Documents in any New York State or federal
court.  Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court; and


 


40

















 


(c)  agrees that service of all process in any
such proceeding  in any such court may be
made by registered or certified mail, return receipt requested at its address
provided in Section 9.01 agrees that service as so provided in is
sufficient to confer personal jurisdiction over the applicable credit party in
any such proceeding in any such court, and otherwise constitutes effective and
binding service in every respect; and agrees that agents and lenders retain the
right to serve process in any other manner permitted by law or to bring
proceedings against any credit party in the courts of any other jurisdiction.


 


8.13.     Acknowledgments.  Each Grantor hereby acknowledges that:


 


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


 


(b)  no Secured Party has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Secured Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and


 


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


 


8.14.     Additional
Grantors.  Each Subsidiary of the
Borrower that is required to become a party to this Agreement pursuant to Section 5.09
of the First Lien Credit Agreement shall become a Grantor for all purposes of
this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Exhibit D hereto.


 


8.15.     Releases.  (a)  At such time as the Loans and the
other Obligations (other than contingent reimbursement or indemnification
obligations) shall have been paid in full, the commitments under the First Lien
Credit Agreement have been terminated or expired and no letter of credit issued
under the First Lien Credit Agreement shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall automatically
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors.  At the request and sole expense of any Grantor
following any such termination, the Administrative Agent shall deliver to such
Grantor any Collateral held by the Administrative Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.


 


(b)  The obligations of Guarantors that are
Subsidiaries and the security interests created hereunder shall be subject to
release in accordance with Section 9.17 of the First Lien Credit
Agreement.


 


(c)  Each Grantor acknowledges that it is not
authorized to file any financing statement or amendment or termination statement
with respect to any financing


 


41

















 


statement originally filed in connection herewith
without the prior written consent of the Administrative Agent, subject to such
Grantor’s rights under Section 9-509(d)(2) of the New York UCC.


 


8.16.     WAIVER OF JURY TRIAL.  EACH GRANTOR AND THE
ADMINISTRATIVE AGENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER
ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP
THAT IS BEING ESTABLISHED.  THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.  EACH
PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. 
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 8.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER.  IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


[Remainder of page intentionally
left blank]


 


42

















 


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


 


 


	
   

  	
  GENERAC
  ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
  Name: Aaron P. Jagdfeld

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GPS CCMP MERGER
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
  Name: Aaron P. Jagdfeld

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  



 


43

















 


	
   

  	
  GOLDMAN SACHS CREDIT
  PARTNERS L.P.

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  [ILLEGIBLE]

  
	
   

  	
   

  	
   Authorized Signatory

  



 


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