Exhibit 10.52


 




 


 





SECURITY
AGREEMENT


 


by


 


HERBALIFE
INTERNATIONAL, INC.,


 


HERBALIFE
LTD.,

WH INTERMEDIATE HOLDINGS LTD.,

HBL LTD.,

WH LUXEMBOURG HOLDINGS S.à.R.L.,

HLF LUXEMBOURG HOLDINGS S.à R.L.,

WH CAPITAL CORPORATION,

WH LUXEMBOURG INTERMEDIATE HOLDINGS S.à.R.L.,

THE SUBSIDIARY GUARANTORS,

as Pledgors



in favor of



MORGAN STANLEY & CO. INCORPORATED,

as Collateral Agent





Dated as of December 21, 2004




 


 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I
  Definitions and Interpretation; Perfection Certificate

  	
   

  	 

	
   

  	
  SECTION 1.01.

  	
  Definitions.

  	
   

  
	
   

  	
  SECTION 1.02.

  	
  Interpretation

  	
   

  
	
   

  	
  SECTION 1.03.

  	
  Perfection Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II
  Grant of Security and Secured Obligations

  	
   

  
	
   

  	
  SECTION 2.01.

  	
  Pledge

  	
   

  
	
   

  	
  SECTION 2.02.

  	
  Certain Limited Exclusions

  	
   

  
	
   

  	
  SECTION 2.03.

  	
  Secured Obligations; Continuing
  Liability.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III
  Perfection; Supplements; Further Assurances; Use of Security Agreement
  Collateral

  	
   

  
	
   

  	
  SECTION 3.01.

  	
  Delivery of Certificated Securities
  Collateral

  	
   

  
	
   

  	
  SECTION 3.02.

  	
  Perfection of Uncertificated
  Securities Collateral

  	
   

  
	
   

  	
  SECTION 3.03.

  	
  Financing Statements and Other
  Filings

  	
   

  
	
   

  	
  SECTION 3.04.

  	
  Other Actions

  	
   

  
	
   

  	
  SECTION 3.05.

  	
  Supplements; Further Assurances.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  Representations, Warranties and Covenants

  	
   

  
	
   

  	
  SECTION 4.01.

  	
  Title

  	
   

  
	
   

  	
  SECTION 4.02.

  	
  Organization; Authority;
  Enforceability

  	
   

  
	
   

  	
  SECTION 4.03.

  	
  Authorizations and Approvals

  	
   

  
	
   

  	
  SECTION 4.04.

  	
  Perfected First-Priority Liens

  	
   

  
	
   

  	
  SECTION 4.05.

  	
  Limitation on Liens

  	
   

  
	
   

  	
  SECTION 4.06.

  	
  Other Financing Statements

  	
   

  
	
   

  	
  SECTION 4.07.

  	
  Chief Executive Office; Change of
  Name; Jurisdiction of Organization.

  	
   

  
	
   

  	
  SECTION 4.08.

  	
  Certain Provisions Concerning
  Securities Collateral.

  	
   

  
	
   

  	
  SECTION 4.09.

  	
  Certain Provisions Concerning
  Intellectual Property.

  	
   

  
	
   

  	
  SECTION 4.10.

  	
  Inspection and Verification

  	
   

  
	
   

  	
  SECTION 4.11.

  	
  Payment of Taxes; Contesting Liens;
  Claims

  	
   

  
	
   

  	
  SECTION 4.12.

  	
  Transfers and Other Liens

  	
   

  
	
   

  	
  SECTION 4.13.

  	
  Insurance

  	
   

  
	
   

  	
  SECTION 4.14.

  	
  Legend

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  Remedies

  	
   

  
	
   

  	
  SECTION 5.01.

  	
  Remedies

  	
   

  
	
   

  	
  SECTION 5.02.

  	
  Notice of Sale

  	
   

  
	
   

  	
  SECTION 5.03.

  	
  Waiver of Notice and Claims

  	
   

  
	
   

  	
  SECTION 5.04.

  	
  Certain Sales of Security Agreement
  Collateral

  	
   

  
	
   

  	
  SECTION 5.05.

  	
  No Waiver; Cumulative Remedies.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI
  Obligations Absolute; Waivers

  	
   

  
	
   

  	
  SECTION 6.01.

  	
  Liability of the Pledgors Absolute

  	
   

  
	
   

  	
  SECTION 6.02.

  	
  General Waivers

  	
   

  
	
   

  	
  SECTION 6.03.

  	
  California Waivers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII
  Miscellaneous

  	
   

  
	
   

  	
  SECTION 7.01.

  	
  Concerning Collateral Agent.

  	
   

  
							



 


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  SECTION 7.02.

  	
  Collateral Agent May Perform;
  Collateral Agent Appointed Attorney-in-Fact

  	
   

  
	
   

  	
  SECTION 7.03.

  	
  Expenses

  	
   

  
	
   

  	
  SECTION 7.04.

  	
  Indemnity.

  	
   

  
	
   

  	
  SECTION 7.05.

  	
  Continuing Security Interest;
  Assignment

  	
   

  
	
   

  	
  SECTION 7.06.

  	
  Termination; Release

  	
   

  
	
   

  	
  SECTION 7.07.

  	
  Modification in Writing

  	
   

  
	
   

  	
  SECTION 7.08.

  	
  Notices

  	
   

  
	
   

  	
  SECTION 7.09.

  	
  Governing Law; Jurisdiction; Consent
  to Service of Process.

  	
   

  
	
   

  	
  SECTION 7.10.

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
  SECTION 7.11.

  	
  Severability of Provisions

  	
   

  
	
   

  	
  SECTION 7.12.

  	
  Execution in Counterparts

  	
   

  
	
   

  	
  SECTION 7.13.

  	
  Business Days

  	
   

  
	
   

  	
  SECTION 7.14.

  	
  No Credit for Payment of Taxes or
  Imposition

  	
   

  
	
   

  	
  SECTION 7.15.

  	
  No Claims Against Collateral Agent

  	
   

  
	
   

  	
  SECTION 7.16.

  	
  No Release Under Agreements; No
  Liability of Collateral Agent or Secured Parties

  	
   

  
	
   

  	
  SECTION 7.17.

  	
  Obligations Absolute

  	
   

  
	
   

  	
  SECTION 7.18.

  	
  Marshaling; Payments Set Aside

  	
   

  
	
   

  	
  SECTION 7.19.

  	
  Release of Pledgors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Issuer Acknowledgment

  	
   

  
					



 


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SECURITY
AGREEMENT


 


This SECURITY AGREEMENT (as amended,
restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of December 21,
2004, is made by HERBALIFE INTERNATIONAL, INC., a Nevada corporation (“Borrower”); HERBALIFE LTD., a Cayman
Islands exempted company with limited liability (formerly known as WH Holdings
(Cayman Islands) Ltd.) (“Holdings”);
WH INTERMEDIATE HOLDINGS LTD., a Cayman Islands exempted company with limited
liability and a direct, wholly-owned subsidiary of Holdings (“Parent”); HBL LTD., a Cayman Islands
exempted company with limited liability and a direct, wholly-owned subsidiary
of Parent (“Cayman III”); WH
LUXEMBOURG HOLDINGS S.à.R.L., a Luxembourg corporation and a direct,
wholly-owned subsidiary of Parent (“Luxembourg
Holdings”); HLF LUXEMBOURG HOLDINGS, S.à.R.L., a Luxembourg
corporation and a direct, wholly-owned subsidiary of Luxembourg Holdings (“New Lux”); WH CAPITAL CORPORATION, a Nevada
corporation and a direct, wholly-owned subsidiary of New Lux (“WH Capital”); WH LUXEMBOURG INTERMEDIATE
HOLDINGS S.à.R.L., a Luxembourg corporation and a direct, wholly-owned
subsidiary of WH Capital (“Luxembourg
Intermediate Holdings”); EACH OF THE SUBSIDIARY GUARANTORS LISTED ON
THE SIGNATURE PAGES HERETO OR FROM TIME TO TIME BECOMING A PARTY HERETO BY
EXECUTION OF A JOINDER AGREEMENT (together with Holdings, Parent, Cayman III,
Luxembourg Holdings, New Lux, WH Capital and Luxembourg Intermediate Holdings,
the “Guarantors”), as pledgors and
collateral assignors (Borrower, together with the Guarantors, in such
capacities and together with any successors in such capacities, the “Pledgors”), in favor of MORGAN STANLEY &
CO. INCORPORATED (“Morgan Stanley”),
in its capacity as collateral agent for the lending institutions from time to
time party to the Credit Agreement (defined below) (such lending institutions,
collectively, the “Lenders”), as
pledgee, collateral assignee and secured party (in such capacities and together
with any successors in such capacities, “Collateral
Agent”).


 


WITNESSETH:


 


WHEREAS, simultaneously herewith, Borrower,
certain of the Guarantors, the Lenders and Morgan Stanley, as Administrative Agent,
have entered into that certain Credit Agreement, dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), whereby
the Lenders have agreed to make certain Loans and to issue certain Credit
Agreement L/Cs (defined below) to or for the account of Borrower;


 


WHEREAS, in accordance with the Credit
Agreement, it is contemplated that one or more of the Pledgors may enter into
one or more Hedging Agreements with one or more of the Lenders or their
respective Affiliates;


 


WHEREAS, in accordance with the Credit
Agreement, each Guarantor has, among other things, guaranteed the obligations
of Borrower under the Credit Agreement and the other Loan Documents (the “Guarantees”);


 


WHEREAS, each Guarantor will receive
substantial benefits from the execution, delivery and performance of the Loan
Documents and each is, therefore, willing to enter into this Agreement;


 


WHEREAS, each Pledgor is or will be the legal
or beneficial owner of the rights in the Security Agreement Collateral (defined
below) to be pledged by it hereunder;


 





















 


WHEREAS, it is a condition precedent to the
obligations of the Lenders to make Loans under the Credit Agreement or to enter
into Hedging Agreements, and of the Issuing Bank to issue Credit Agreement L/Cs
thereunder, that each Pledgor execute and deliver the applicable Loan
Documents, including this Agreement; and


 


WHEREAS, this Agreement is given by each
Pledgor in favor of Collateral Agent for its benefit and the benefit of the
Lenders and any of their respective Affiliates party to any Hedging Agreement
(collectively, the “Secured Parties”)
to secure the payment and performance of all of the Secured Obligations
(defined below).


 


NOW THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Pledgors and Collateral Agent hereby
agree as follows:


 


ARTICLE I



Definitions and Interpretation; Perfection Certificate


 


SECTION 1.01.                                                           Definitions.


 


(a)                                  The following
capitalized terms have the meanings assigned to them in the UCC:


 


“Account,” “Bank,” “Certificate of Title,”
“Chattel Paper,” “Commercial
Tort Claim,” “Commodity Account,”
“Commodity Contract,” “Commodity Intermediary,” “Contract,”
“Document,” “Electronic
Chattel Paper,” “Entitlement Holder,”
“Entitlement Order,” “Equipment,” “Financial Asset,”
“Fixtures,” “General
Intangible,” “Goods,” “Inventory,” “Investment Property,”
“Letter-of-Credit Right,” “Letter of Credit,” “Money,” “Proceeds,” “Record,” “Securities Entitlement,” “Securities
Intermediary,” “Supporting
Obligation,” and “Tangible Chattel Paper.”


 


(b)                                 Capitalized terms used
in this Agreement (including the preamble and recitals hereof) but not
otherwise defined herein have the meanings assigned to such terms in the Credit
Agreement.  In this Agreement:


 


“Agreement”
has the meaning assigned to such term in the preamble hereof.


 


“Borrower”
has the meaning assigned to such term in the preamble hereof.


 


“Charges”
mean any and all property and other taxes, assessments and special assessments,
levies, fees and all governmental charges imposed on or assessed against, and
all claims (including landlords’, carriers’, mechanics’, workmen’s, repairmen’s,
laborers’, materialmen’s, suppliers’ and warehousemen’s Liens and other claims
arising by operation of law) against, all or any portion of the Security
Agreement Collateral.


 


“Collateral
Account” shall mean account number 0-27-SBAAN-3 in
the name of “MSCO as Pledgee of Herbalife International, Inc., Collateral
Account” maintained at Citibank, N.A. and any successor or sub-account
established and maintained at Citibank N.A. (or a Lender that agrees to be an
administrative sub-agent for the Collateral Agent) in accordance with Article IX
of the Credit Agreement, and all funds from time to time on deposit in such


 


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account, including all Cash Equivalents, and all certificates and
instruments from time to time representing or evidencing such Cash Equivalents.


 


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


 


“Collateral
Records” means books, records, ledger cards, files, correspondence,
customer lists, blueprints, technical specifications, manuals, computer
software, computer printouts, tapes, disks and related data processing software
and similar items that at any time evidence or contain information relating to
any of the Security Agreement Collateral or are otherwise necessary or helpful
in the collection thereof or realization thereupon.


 


“Collateral
Support” means all property (real or personal) assigned,
hypothecated or otherwise securing any Security Agreement Collateral, including
any security agreement or other agreement granting a lien or security interest
in such real or personal property.


 


“Control
Agreement” means an agreement in form and substance satisfactory to
Collateral Agent sufficient to establish control over any applicable Investment
Property (including any Securities Account or Commodity Account) or Deposit
Account.


 


“Copyrights”
mean, collectively, with respect to each Pledgor, all copyrights (whether
statutory or common law and whether established or registered in the United
States or any other country) now owned or hereafter created or acquired by or
assigned to such Pledgor, whether published or unpublished, and all copyright
registrations and applications made by such Pledgor, including the copyrights,
registrations and applications listed in Section II.I of the Perfection
Certificate, together with any and all (a) rights and privileges arising
under applicable law with respect to such Pledgor’s use of any copyrights, (b) reissues,
renewals, continuations and extensions thereof, (c) income, fees,
royalties, damages, claims and payments now or hereafter due or payable with
respect thereto, including damages and payments for past, present or future
infringements thereof, (d) rights corresponding thereto throughout the
world and (e) rights to sue for past, present or future infringements
thereof.


 


“Credit
Agreement” has the meaning assigned to such term in the recitals
hereof.


 


“Credit
Agreement L/C” has the meaning assigned to the term “Letter of
Credit” in the Credit Agreement.


 


“Deposit
Account” means, collectively, with respect to each Pledgor, (a) all
“deposit accounts” as such term is defined in the UCC and in any event shall
include the L/C Sub-Account and all accounts and sub-accounts relating to any
of the foregoing accounts, and (b) all cash, funds, checks, notes and any
instruments from time to time on deposit in any of the accounts or sub-accounts
described in clause (a) of this definition.


 


“Distributions”
mean, collectively, with respect to each Pledgor, all dividends, cash, options,
warrants, rights, instruments, distributions, returns of capital or principal,
income, interest, profits and other property, interests (debt or equity) or
proceeds, including as a result of a split, revision, reclassification or other
like change of the Pledged Equity Interests, from time to time received,
receivable or otherwise distributed to such Pledgor in respect of or in
exchange for any or all of the Pledged Equity Interests or Pledged Intercompany
Debt.


 


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“Documents
Evidencing Goods” means all Documents evidencing, representing or
issued in connection with Goods.


 


“Guarantee”
has the meaning assigned to such term in the recitals hereof.


 


“Guarantor”
has the meaning assigned to such term in the preamble hereof.


 


“Indemnified
Liabilities” has the meaning assigned to such term in Section 7.04(a).


 


“Indemnitees”
has the meaning assigned to such term in Section 7.04(a).


 


“Instruments”
mean, collectively, with respect to each Pledgor, all “instruments,” as such
term is defined in Article 9, rather than Article 3, of the UCC to
the extent such instruments evidence any amounts payable under or in connection
with any item of Security Agreement Collateral or Mortgaged Real Property or
such instruments constitute Proceeds of any item of Security Agreement
Collateral or Mortgaged Real Property, and in any event shall include all
promissory notes, drafts, bills of exchange or acceptances.


 


“Insurance”
means all insurance policies covering any or all of the Security Agreement
Collateral (regardless of whether Collateral Agent is the loss payee thereof),
and all key-man life insurance policies.


 


“Intellectual
Property” means, collectively, with respect to each Pledgor, (a) all
Patents, (b) all Trademarks, (c) all Copyrights, (d) all
Licenses and (e) the goodwill connected with such Pledgor’s business
including (i) all goodwill connected with the use of and symbolized by any
of the Intellectual Property in which such Pledgor has any interest and (ii) all
know-how, trade secrets, customer and supplier lists, proprietary information,
inventions, methods, procedures, formulae, descriptions, compositions,
technical data, drawings, specifications, name plates, catalogs, confidential
information and the right to limit the use or disclosure thereof by any person
or entity, pricing and cost information, business and marketing plans and
proposals, consulting agreements, engineering contracts and such other assets
that relate to such goodwill.


 


“Intercompany
Indebtedness” means Indebtedness (whether or not evidenced by a writing)
of any Company (including any Pledgor) payable to a Pledgor.


 


“Issuer”
means any issuer of any Pledged Equity Interests.


 


“Lenders”
has the meaning assigned to such term in the preamble hereof.


 


“Licenses”
mean, collectively, with respect to each Pledgor, all license and distribution
agreements, covenants not to sue or any other agreement with any other party
with respect to any Patent, Trademark or Copyright, whether such Pledgor is a
licensor or licensee, distributor or distributee under any such license or
distribution agreement, including the license and distribution agreements
listed in Section II.I of the Perfection Certificate, together with any
and all (a) renewals, extensions, supplements and continuations thereof; (b) income,
fees, royalties, damages, claims and payments now and hereafter due or payable
thereunder and with respect thereto, including damages and payments for past,
present or future infringements or violations thereof; (c) rights to sue
for past, present and future infringements or violations thereof; and (d) any
other rights to use, exploit or practice any or all of the Patents, Trademarks
or Copyrights.


 


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“Material
Contract” means any Contract or other arrangement that any Pledgor
is a party to and for which breach, nonperformance, cancellation or failure to
renew could reasonably be expected to have a Material Adverse Effect.  Notwithstanding the foregoing, each agreement
set forth in Schedule 3.08 of the Credit Agreement shall constitute a
Material Contract.


 


“Non-payment
Contract” means any Contract or agreement to which any Pledgor is a
party other than a contract whereby the account debtor’s principal obligation
is a monetary obligation; provided that,
Non-payment Contracts shall not include Receivables.


 


“Operative
Agreement” means (a) in the case of any limited liability
company or partnership or other noncorporate entity, any membership or
partnership agreement or other organizational agreement or document thereof and
(b) in the case of any corporation, any charter or certificate of
incorporation and bylaws thereof.


 


“Patents”
mean, collectively, with respect to each Pledgor, all patents issued or
assigned to and all patent applications made by such Pledgor (whether established
or registered or recorded in the United States or any other country), including
the patents, patent applications and recordings listed in Section II.I of
the Perfection Certificate, together with any and all (a) rights and
privileges arising under applicable law with respect to such Pledgor’s use of
any patents; (b) inventions and improvements described and claimed
therein; (c) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof; (d) income, fees, royalties, damages,
claims and payments now or hereafter due or payable thereunder and with respect
thereto including damages and payments for past, present or future
infringements thereof; (e) rights corresponding thereto throughout the
world; and (f) rights to sue for past, present or future infringements
thereof.


 


“Pledged
Equity Interests” mean, collectively, with respect to each Pledgor, (a) the
issued and outstanding Equity Interests of each person, including all those
listed in Section II.D of the Perfection Certificate; and (b) all
rights, privileges, authority and powers of such Pledgor in and to each such
person or under the Operative Agreements of each such person, and the
certificates, instruments and agreements representing the Pledged Equity
Interests and any and all interest of such Pledgor in the entries on the books
of any financial intermediary pertaining to the Pledged Equity Interests, it
being understood that, subject to Section 5.11 of the Credit Agreement,
Pledged Equity Interests do not include any Equity Interests in excess of 66.0%
of the Equity Interests of any Non-Guarantor Subsidiary, provided that, such Non-Guarantor
Subsidiary is also a Foreign Subsidiary.


 


“Pledged
Intercompany Debt” means, with respect to each Pledgor, all
Intercompany Indebtedness payable to such Pledgor by any Company, including all
Intercompany Indebtedness described in Section II.H of the Perfection
Certificate (and each other intercompany note hereafter acquired by such
Pledgor) and all Intercompany Notes, certificates, Instruments or agreements
evidencing such Intercompany Indebtedness, and all assignments, amendments,
restatements, supplements, extensions, renewals, replacements or modifications
thereof.


 


“Pledgor”
has the meaning assigned to such term in the preamble hereof.


 


“Receivables”
means all rights to payment, whether or not earned by performance, for Goods or
other property sold, leased, licensed, assigned or otherwise disposed of, or
services rendered or to be rendered, including all such rights constituting or
evidenced by any Account, Chattel Paper, Instrument, General Intangible or
Investment Related Property, together with all rights, if any, in any Goods or
other property giving rise to such right to payment


 


5





















 


and all Collateral Support and Supporting Obligations related thereto
and all Accounts, Chattel Paper, General Intangibles, Instruments and
Receivables Records.


 


“Receivables
Records” means (a) all original copies of all documents,
instruments or other writings or electronic records or other Records evidencing
the Receivables; (b) all books, correspondence, credit or other files,
Records, ledger sheets or cards, invoices, and other papers relating to
Receivables, including all tapes, cards, computer tapes, computer discs,
computer runs, record keeping systems and other papers and documents relating
to the Receivables, whether in the possession or under the control of the
Company or any computer bureau or agent from time to time acting for the
Company or otherwise; (c) all evidences of the filing of financing
statements and the registration of other instruments in connection therewith,
and amendments, supplements or other modifications thereto, notices to other
creditors or secured parties, and certificates, acknowledgments, or other
writings, including lien-search reports, from filing or other registration
officers; (d) all credit information, reports and memoranda relating
thereto; and (e) all other written or nonwritten forms of information
related in any way to the foregoing.


 


“Secured
Obligations” mean all obligations (whether or not constituting
future advances, obligatory or otherwise) of Borrower and all of the Guarantors
from time to time arising under or in respect of this Agreement, the Credit
Agreement, the Notes (if any), the Guarantee, the Credit Agreement L/Cs, the
other Loan Documents and all Hedging Agreements entered into with any Lender
(including the obligations to pay principal, interest and all other charges,
fees, expenses, commissions, reimbursements, premiums, indemnities and other
payments related to or in respect of the obligations contained in this
Agreement, the Credit Agreement, the Notes (if any), the Guarantee, the Credit
Agreement L/Cs, the other Loan Documents and all Hedging Agreements entered
into with any Lender), in each case whether (a) such obligations are
direct or indirect, secured or unsecured, joint or several, absolute or
contingent, reduced to judgment or not, liquidated or unliquidated, disputed or
undisputed, legal or equitable, due or to become due whether at stated
maturity, by acceleration or otherwise; (b) arising in the regular course
of business or otherwise; (c) for payment or performance; (d) discharged,
stayed or otherwise affected by any bankruptcy, insolvency, reorganization or
similar proceeding with respect to any Loan Party or any other person; or (e) now
existing or hereafter arising (including interest and other obligations arising
or accruing after the commencement of any bankruptcy, insolvency, reorganization
or similar proceeding with respect to any Loan Party or any other person, or
that would have arisen or accrued but for the commencement of such proceeding,
even if such obligation or the claim therefor is not enforceable or allowable
in such proceeding).


 


“Secured
Parties” has the meaning assigned to such term in the recitals
hereof.


 


“Securities
Account” has the meaning assigned to such term in the UCC; provided that, the Collateral Account
shall be treated as a Securities Account.


 


“Securities
Collateral” means, collectively, the Pledged Equity Interests, the
Pledged Intercompany Debt and the Distributions.


 


“Security
Agreement Collateral” has the meaning assigned to such term in Section 2.01.


 


“Software
Embedded in Goods” means, with respect to any Goods, any computer
program embedded in such Goods and any supporting information provided in


 


6





















 


connection with a transaction relating to such program if (a) the
program is customarily considered part of such Goods or (b) by becoming
the owner of such Goods a person acquires a right to use such program in
connection therewith.


 


“Trademarks”
mean, collectively, with respect to each Pledgor, all trademarks (including
service marks), slogans, logos, certification marks, domain names, trade dress,
corporate names and trade names, whether registered or unregistered, owned by
or assigned to such Pledgor and all registrations and applications for the
foregoing (whether statutory or common law and whether established or
registered in the United States or any other country) including the
registrations and applications listed in Section II.I of the Perfection
Certificate, together with any and all (a) rights and privileges arising
under applicable law with respect to such Pledgor’s use of any trademarks; (b) reissues,
continuations, extensions and renewals thereof; (c) income, fees,
royalties, damages and payments now and hereafter due or payable thereunder and
with respect thereto, including damages, claims and payments for past, present
or future infringements thereof; (d) rights corresponding thereto
throughout the world; and (e) rights to sue for past, present and future
infringements thereof.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that, if by
reason of mandatory provisions of law, the perfection or the effect of
perfection or nonperfection of the security interest in any item or portion of
the Security Agreement Collateral is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the State of New York, “UCC” also means the Uniform Commercial Code
as in effect in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or effect of perfection or nonperfection.


 


SECTION 1.02.                                    Interpretation.  The rules of interpretation specified in
the Credit Agreement, including Sections 1.03 and 11.11 thereof, shall be
applicable to this Agreement.  If any
conflict or inconsistency exists between this Agreement and the Credit
Agreement, the Credit Agreement shall govern.


 


SECTION 1.03.                                    Perfection Certificate.  Collateral Agent and each Loan
Party agree that the Perfection Certificate and all descriptions of Security
Agreement Collateral, schedules, amendments and supplements thereto are and
shall at all times remain a part of this Agreement.


 


ARTICLE II


 


Grant of
Security and Secured Obligations


 


SECTION 2.01.                                    Pledge. 
As collateral security for the payment and performance in full of all
the Secured Obligations, each Pledgor hereby grants to Collateral Agent, for
its benefit and for the benefit of the Secured Parties, a security interest in
and continuing lien on all personal property of such Pledgor, including all of
such Pledgor’s right, title and interest in, to and under all of the following
property, wherever located, whether now owned or existing, or hereafter arising
or acquired from time to time (collectively, the “Security Agreement Collateral”):


 


(i)                                        all
Accounts;


 


(ii)                                     all
Chattel Paper;


 


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(iii)                                  all
Commercial Tort Claims;


 


(iv)                                 all
Deposit Accounts;


 


(v)                                    all
Documents;


 


(vi)                                 all
General Intangibles;


 


(vii)                              all
Goods (including, in any event, Equipment, Fixtures, Inventory, Documents
Evidencing Goods and Software Embedded in Goods);


 


(viii)                           all
Instruments;


 


(ix)                                   all
Insurance;


 


(x)                                      all
Intellectual Property;


 


(xi)                                   all
Investment Property and Financial Assets;


 


(xii)                                all
Letters of Credit and Letter-of-Credit Rights;


 


(xiii)                             all
Material Contracts and Non-payment Contracts;


 


(xiv)                            all
Money;


 


(xv)                               all
Receivables;


 


(xvi)                            all
Securities Collateral;


 


(xvii)                         all books
and Records relating to any and/or all of the foregoing;


 


(xviii)                      to the
extent not otherwise included above, all Collateral Records, Collateral Support
and Supporting Obligations relating to any and/or all of the foregoing; and


 


(xix)                              to
the extent not otherwise included above, all other personal property and all
Proceeds and products of, accessions and additions to, profits and rents from, and
replacements for or in respect of any of the foregoing;


 


it being understood that, subject to the other provisions hereof and of
the Credit Agreement, the foregoing grant of a security interest shall not
diminish any Pledgor’s exclusive right and license to use, or grant to other
persons license or sublicenses in, the Intellectual Property.


 


SECTION 2.02.                                    Certain Limited Exclusions. 
Notwithstanding anything herein to the contrary, in no event shall the
security interest granted under Section 2.01(a) attach to, and
the Security Agreement Collateral shall not include:


 


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(a)                                  any agreement to
which any Pledgor is a party to the extent that the collateral assignment
thereof or the creation of a security interest therein would constitute a
breach of the terms of such agreement, or would permit any party to such
agreement to terminate such agreement, in each case as entered into by the
applicable Pledgor; provided
that, any of the agreements excluded in accordance with the foregoing shall
cease to be so excluded (x) to the extent such term is, or would be (in the
case of after-acquired property or changes to applicable law), rendered
ineffective under Sections 9-406, 9-407, 9-408 or 9-409
of the UCC of any relevant jurisdiction (or any successor provision) or any
other applicable law (including the Bankruptcy Code) or principles of equity;
or (y) if the applicable Pledgor has obtained all of the consents of the other
parties to such agreement necessary for the collateral assignment of, or
creation of a security interest in, such agreement;


 


(b)                                 any property or asset
hereafter acquired by any Pledgor that is subject to a Lien permitted to be
incurred pursuant to Sections 6.02(g), (h), (i) and (k) of the Credit
Agreement, solely to the extent that the documents evidencing such Lien
prohibit the grant of a security interest in or Lien on such property or asset;
provided that, upon such property
or asset no longer being subject to such Lien or prohibition, such property or
asset shall (without any act or delivery by any person) constitute Security
Agreement Collateral hereunder;


 


(c)                                  subject to Section 5.11
of the Credit Agreement, no more than 66.0% of the Equity Interests of Parent,
Cayman III, Luxembourg Holdings, HIL or any Non-Guarantor Subsidiary, provided that, such Non-Guarantor
Subsidiary is also a Foreign Subsidiary; or


 


(d)                                 the Equity Interests
of the Designated Subsidiaries.


 


Collateral Agent agrees that, at any Pledgor’s reasonable request and
expense, it will provide such Pledgor confirmation that the assets described in
this Section 2.02 are in fact excluded from the Security Agreement
Collateral.


 


SECTION 2.03.                                    Secured
Obligations; Continuing Liability.


 


(a)                                  Security for Obligations.  This Agreement secures, and the Security
Agreement Collateral is collateral security for, the payment and performance in
full when due of all the Secured Obligations.


 


(b)                                 Continuing Liability under Security Agreement
Collateral. 
Notwithstanding anything herein to the contrary, (i) each Pledgor
shall remain liable under each of the obligations and agreements included in
the Security Agreement Collateral, including any obligations or agreements
relating to any Pledged Equity Interests, to perform all of the obligations
undertaken by it thereunder, all in accordance with the terms and provisions
thereof, and neither Collateral Agent nor any Secured Party shall have any
obligation or liability (x) under any of such agreements by reason of this
Agreement or any other document relating hereto, or (y) to make any inquiry
regarding 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 Security Agreement Collateral, including any
agreements relating to any Pledged Equity Interests; (ii) the exercise by
Collateral Agent of any of its rights hereunder shall not release any Pledgor
from any of its duties or obligations under the contracts and agreements
included in the Security Agreement Collateral; and (iii) nothing herein is
intended to or shall be a delegation of duties to Collateral Agent or any other
Secured Party.


 


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ARTICLE III


 


Perfection;
Supplements; Further Assurances; Use of Security Agreement Collateral


 


SECTION 3.01.                                    Delivery of Certificated Securities Collateral.  All certificates, agreements or instruments
representing or evidencing the Securities Collateral, to the extent not
previously delivered to Collateral Agent, shall promptly upon receipt thereof
by any Pledgor be delivered to and held by or on behalf of Collateral Agent
pursuant hereto.  All certificated
Securities Collateral shall be in suitable form for transfer by delivery or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to Collateral Agent.  Collateral Agent shall have the right, at any
time upon the occurrence and during the continuance of any Event of Default, to
endorse, assign or otherwise transfer to or to register in the name of
Collateral Agent or any of its nominees or endorse for negotiation any or all
of the Securities Collateral, without any indication that such Securities
Collateral is subject to the security interest hereunder.  In addition, Collateral Agent shall have the
right, at any time upon the occurrence and during the continuance of any Event
of Default, to exchange certificates representing or evidencing Securities
Collateral for certificates of smaller or larger denominations.


 


SECTION 3.02.                                    Perfection of Uncertificated Securities Collateral.  If any Issuer of Pledged Equity Interests is
organized in a jurisdiction that does not permit the use of certificates to
evidence equity ownership, or if any of the Pledged Equity Interests are at any
time not evidenced by certificates of ownership, then each applicable Pledgor
shall, to the extent permitted by applicable law, record such pledge on the
equityholder register or the books of the Issuer, cause the Issuer to execute
and deliver to Collateral Agent an acknowledgment of the pledge of such Pledged
Equity Interests substantially in the form of Exhibit A annexed
hereto and, upon Collateral Agent’s request therefor, execute any customary
pledge forms or other documents necessary or appropriate to complete the pledge
and give Collateral Agent the right to transfer such Pledged Equity Interests
under the terms hereof and provide to Collateral Agent an opinion of counsel,
in form and substance satisfactory to Collateral Agent, confirming such pledge
and perfection thereof.


 


SECTION 3.03.                                    Financing Statements and Other Filings.  Each Pledgor represents and warrants to
Collateral Agent that the only filings, registrations and recordings necessary
and appropriate to create, preserve, protect, publish notice of and perfect the
security interest granted by each Pledgor to Collateral Agent (for the benefit
of the Secured Parties) pursuant to this Agreement in respect of the Security
Agreement Collateral are listed in Section III.B of the Perfection
Certificate.  Each Pledgor agrees that at
any time and from time to time, at the sole cost and expense of the Pledgors,
it will execute and file and refile (in accordance with Section 3.04),
or permit Collateral Agent to file and refile, such financing statements,
continuation statements and other documents (including this Agreement), in form
acceptable to Collateral Agent, in such offices (including the United States
Patent and Trademark Office and the United States Copyright Office) as
Collateral Agent may deem necessary or appropriate, wherever required by law to
perfect, continue and maintain a valid, enforceable, first-priority security
interest in the Security Agreement Collateral as provided herein and to
preserve the other rights and interests granted to Collateral Agent hereunder,
as against third parties, with respect to any Security Agreement Collateral.


 


SECTION 3.04.                                    Other Actions.  To
further ensure the attachment, perfection and priority of, and the ability of
Collateral Agent to enforce, Collateral Agent’s


 


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security interest in the Security Agreement
Collateral, each Pledgor acknowledges and agrees as follows:


 


(a)                                  UCC Financing Statements.  Each Pledgor hereby irrevocably authorizes
Collateral Agent at any time and from time to time to file in any relevant
jurisdiction any financing statements (including fixture filings), continuation
statements, and amendments thereto that contain the information required by Article 9
of the UCC of each applicable jurisdiction for the filing of any financing
statement or amendment, including (i) whether the Pledgor is an
organization, the type of organization and any organizational identification
number issued to such Pledgor and (ii) in the case of a financing
statement filed as a fixture filing, a sufficient description of the real
property to which such Security Agreement Collateral relates.  The Pledgor agrees to provide such
information to Collateral Agent promptly upon request.  Such financing statements or amendments may
describe the Security Agreement Collateral as “all assets” or “all personal
property, whether now owned or hereafter acquired,” or in any other manner that
Collateral Agent, in its sole discretion, deems necessary, advisable or prudent
to ensure the perfection of the security interests granted hereunder.  Each Pledgor hereby ratifies its
authorization for Collateral Agent to file in any relevant jurisdiction any
financing statements or amendments thereto if filed prior to the date hereof.


 


(b)                                 Intellectual Property Filings.  Each Pledgor hereby irrevocably authorizes
Collateral Agent to file documents with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) for the purpose of perfecting, confirming,
continuing, enforcing or protecting the security interest granted by each
Pledgor hereunder and naming any Pledgor or the Pledgors as debtors and
Collateral Agent for its benefit and the benefit of the Lenders as secured
party.


 


(c)                                  Instruments and Tangible Chattel Paper.  If any amount payable under or in connection
with any of the Security Agreement Collateral shall be evidenced by any
Instrument or Tangible Chattel Paper, the Pledgor acquiring such Instrument or
Tangible Chattel Paper shall forthwith endorse, assign and deliver the same to
Collateral Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as Collateral Agent may from time to time specify.


 


(d)                                 Deposit Accounts.  Each Pledgor shall notify Collateral Agent of
any Deposit Account such Pledgor has opened no later than 30 days after such
Deposit Account is opened and (unless waived in writing by Collateral Agent in
its sole discretion) either (i) pursuant to a Control Agreement cause the
depository Bank to agree to comply at any time with instructions from
Collateral Agent to such depository Bank directing the disposition of funds
from time to time credited to such Deposit Account, without further consent of
such Pledgor or any other person, or (ii) arrange for Collateral Agent to
become the customer of the Bank with respect to the Deposit Account, with the
Pledgor being permitted, so long as no Default or Event of Default exists and
is continuing, to exercise rights to withdraw funds from such Deposit Account
pursuant to an agreement in form and substance satisfactory to Collateral
Agent.  The preceding sentence shall not
apply to Deposit Accounts for which Collateral Agent is the depository.  Each Pledgor represents and warrants to
Collateral Agent that, as of the date hereof, it maintains no Deposit Accounts
other than (i) those set forth in Section II.F of the Perfection
Certificate or (ii) those for which the applicable Pledgor has provided
notice thereof to Collateral Agent pursuant to the preceding sentence.  Each such Deposit Account is subject to a
Control Agreement that is in full force and effect.


 


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(e)                                  Investment
Property.


 


(i)             If any Pledgor shall
at any time hold or acquire any certificated securities constituting Investment
Property, such Pledgor shall promptly endorse, assign and deliver the same to
Collateral Agent, accompanied by such instruments of transfer or assignment duly
executed in blank, all in form and substance satisfactory to Collateral
Agent.  If any securities now or
hereafter acquired by any Pledgor constituting Investment Property are
uncertificated and are issued to such Pledgor or its nominee directly by the issuer
thereof, such Pledgor shall promptly notify Collateral Agent thereof and such
Pledgor shall either (A) pursuant to a Control Agreement cause the issuer
to agree to comply with instructions from Collateral Agent as to such
securities, without further consent of any Pledgor, such nominee or any other
person, or (B) arrange for Collateral Agent to become the registered owner
of the securities.  If any securities
constituting Investment Property, whether certificated or uncertificated, or
other Investment Property now or hereafter acquired by any Pledgor is held by
such Pledgor or its nominee through a Securities Intermediary or Commodity
Intermediary, such Pledgor shall promptly notify Collateral Agent thereof and,
unless waived in writing by Collateral Agent in its sole discretion, either (A) pursuant
to a Control Agreement cause such Securities Intermediary or Commodity
Intermediary, as the case may be, to agree to comply with Entitlement Orders or
other instructions from Collateral Agent to such Securities Intermediary as to
such securities or other Investment Property, or to apply any value distributed
on account of any Commodity Contract as directed by Collateral Agent to such
Commodity Intermediary, as the case may be, in each case without further consent
of any Pledgor, such nominee or any other person, or (B) in the case of
Financial Assets constituting Investment Property or other Investment Property
held through a Securities Intermediary, arrange for Collateral Agent to become
the Entitlement Holder with respect to such Investment Property, with the
Pledgor being permitted, so long as no Default or Event of Default has occurred
and is continuing, to exercise rights to withdraw or otherwise deal with such
Investment Property pursuant to an agreement in form and substance satisfactory
to Collateral Agent.  The preceding
sentence shall not apply to any Financial Assets credited to a Securities
Account for which Collateral Agent is the Securities Intermediary.  Each Pledgor represents and warrants to Collateral
Agent that, as of the date hereof, such Pledgor maintains no Securities
Accounts or Commodity Accounts with any Securities Intermediary or Commodity
Intermediary other than (i) as set forth in Section II.E of the
Perfection Certificate or (ii) those for which the applicable Pledgor has
provided notice thereof to Collateral Agent pursuant to the preceding
sentence.  Subject to the provisions of
this Section 3.04(e)(i), each such Securities Account or
Commodities Account is subject to a Control Agreement that is in full force and
effect.


 


(ii)          As between Collateral
Agent and the Pledgors, the Pledgors shall bear the investment risk with
respect to the Investment Property, and the risk of loss of, damage to, or the
destruction of the Investment Property, whether in the possession of, or
maintained as a Security Entitlement by, or subject to the control of,
Collateral Agent, a Securities Intermediary, Commodities Intermediary, the
Pledgor or any other person; provided
that, nothing contained in this Section 3.04(e)(ii) shall
release or relieve any Securities


 


12





















 


Intermediary or Commodities Intermediary of
its duties and obligations to the Pledgors or any other person under any
Control Agreement or under applicable law. 
Each Pledgor shall promptly pay all Charges and fees of whatever kind or
nature with respect to the Investment Property pledged by it or this
Agreement.  In the event any Pledgor
shall fail to make such payment contemplated in the immediately preceding
sentence, Collateral Agent may do so for the account of such Pledgor and the
Pledgors shall promptly reimburse and indemnify Collateral Agent from all costs
and expenses incurred by Collateral Agent under this Section 3.04(e)(ii) in
accordance with Section 7.03.


 


(f)                                    Electronic Chattel Paper and Transferable Records.  If any amount payable under or in connection
with any of the Security Agreement Collateral shall be evidenced by any
Electronic Chattel Paper or any “transferable record,” as that term is defined
in Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act
as in effect in any relevant jurisdiction, the Pledgor acquiring such
Electronic Chattel Paper or transferable record shall promptly notify
Collateral Agent thereof and, at the request of Collateral Agent, shall take
such action as Collateral Agent may request to vest in Collateral Agent control
under UCC Section 9-105 of such Electronic Chattel Paper or control
under Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or, as the case may be, Section 16 of the Uniform
Electronic Transactions Act, as so in effect in such jurisdiction, of such
transferable record.  Collateral Agent
agrees with such Pledgor that Collateral Agent will arrange, pursuant to
procedures satisfactory to Collateral Agent and so long as such procedures will
not result in Collateral Agent’s loss of control, for the Pledgor to make
alterations to the Electronic Chattel Paper or transferable record permitted
under UCC Section 9-105 or, as the case may be, Section 201 of
the Federal Electronic Signatures in Global and National Commerce Act of Section 16
of the Uniform Electronic Transactions Act for a party in control to allow
without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such Pledgor
with respect to such Electronic Chattel Paper or transferable record.


 


(g)                                 Letter-of-Credit Rights.  If any Pledgor is at any time a beneficiary
under a Letter of Credit in excess of $1.0 million now or hereafter issued in
favor of such Pledgor, such Pledgor shall promptly notify Collateral Agent
thereof and, at the request of Collateral Agent, such Pledgor shall, pursuant
to an agreement in form and substance satisfactory to Collateral Agent, either (i) arrange
for the issuer and any confirmer of such Letter of Credit to consent to an
assignment to Collateral Agent of the proceeds of any drawing under the Letter
of Credit or (ii) arrange for Collateral Agent to become the transferee
beneficiary of the Letter of Credit.


 


(h)                                 Commercial Tort Claims.  If any Pledgor shall at any time hold or
acquire a Commercial Tort Claim relating to any of the Security Agreement
Collateral and such Pledgor, in the exercise of its reasonable business
judgment, elects to pursue such commercial tort claim, such Pledgor shall
promptly notify Collateral Agent in writing signed by such Pledgor of the brief
details thereof and grant to Collateral Agent in such writing a security
interest therein and in the Proceeds thereof, all in accordance with this
Agreement, with such writing to be in form and substance satisfactory to
Collateral Agent.


 


(i)                                     Motor Vehicles.  Upon the request of Collateral Agent, each
Pledgor shall deliver to Collateral Agent originals of the Certificates of
Title or certificates of ownership for the motor vehicles (and any other
Equipment covered by Certificates of Title or ownership owned by it) with
Collateral Agent listed as lienholder therein.


 


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SECTION 3.05.                                Supplements;
Further Assurances.


 


(a)                                  The Pledgors shall
cause each person that, from time to time after the date hereof, shall be
required to pledge any assets to Collateral Agent for the benefit of the
Secured Parties pursuant to the provisions of the Credit Agreement, to execute
and deliver to Collateral Agent a Joinder Agreement and, upon such execution
and delivery, such person shall constitute a “Guarantor” and a “Pledgor” for
all purposes hereunder with the same force and effect as if originally named as
a Guarantor and Pledgor herein.  The
execution and delivery of such Joinder Agreement shall not require the consent
of any Pledgor hereunder.  The rights and
obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor and Pledgor as a party to
this Agreement.


 


(b)                                 Upon obtaining any
Pledged Equity Interests or Pledged Intercompany Debt of any person, each
Pledgor shall accept the same in trust for the benefit of Collateral Agent and
forthwith deliver to Collateral Agent a Perfection Certificate Supplement, and
the certificates and other documents required under this Article III
in respect of the additional Pledged Equity Interests, Pledged Intercompany
Debt or other possessory Security Agreement Collateral that is to be pledged
pursuant to this Agreement, and confirming the attachment of the Lien hereby
created on and in respect of such additional Pledged Equity Interests or
Pledged Intercompany Debt.


 


(c)                                  Each Pledgor agrees
to take such further actions, and to execute and deliver to Collateral Agent
such additional assignments, agreements, supplements, powers and instruments,
as Collateral Agent may in its reasonable judgment deem necessary or
appropriate, to perfect, preserve and protect the security interest in the
Security Agreement Collateral as provided herein and the rights and interests
granted to Collateral Agent hereunder, to carry into effect the purposes hereof
or to better assure and confirm unto Collateral Agent or permit Collateral
Agent to exercise and enforce its rights, powers and remedies hereunder with
respect to any Security Agreement Collateral. 
By way of example, such actions may include appearing in and defending
any action or proceeding, at Collateral Agent’s request, that may affect such
Pledgor’s title to or Collateral Agent’s security interest in all or any part
of the Security Agreement Collateral. 
Upon the reasonable request of Collateral Agent, each Pledgor shall
further make, execute, endorse, acknowledge, file or refile or deliver to
Collateral Agent from time to time such lists, descriptions and designations of
the Security Agreement Collateral, copies of warehouse receipts, receipts in
the nature of warehouse receipts, bills of lading, documents of title,
vouchers, invoices, schedules, confirmatory assignments, supplements,
additional security agreements, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments.  If a Default has occurred
and is continuing, Collateral Agent may institute and maintain, in its own name
or in the name of any Pledgor, such suits and proceedings as Collateral Agent
deems necessary or expedient to prevent any impairment of the security interest
in or the perfection thereof in the Security Agreement Collateral.  All of the foregoing shall be at the sole
cost and expense of the Pledgors.


 


(d)                                 For the avoidance of
doubt, the Pledgors and Collateral Agent acknowledge that this Agreement is
intended to grant to Collateral Agent, for the benefit of the Secured Parties,
a security interest in and continuing Lien on the Security Agreement
Collateral, and does not constitute a present assignment of ownership rights, a
transfer of ownership or title to any Security Agreement Collateral, except as
otherwise provided herein following the occurrence and during the continuance
of an Event of Default.  Unless an Event
of Default shall have occurred and be continuing, Collateral Agent agrees from
time to time to deliver, upon written request of any Pledgor and at such
Pledgor’s sole cost and expense (including reasonable


 


14





















 


expenses of counsel to, among other things, review the effect thereof
on Collateral Agent’s security interest granted hereunder), any and all
instruments, certificates or other documents, in a form reasonably requested by
such Pledgor, necessary or appropriate in the reasonable judgment of such
Pledgor to enable such Pledgor to continue to exploit, license, use and protect
the Security Agreement Collateral in accordance with the terms hereof and of
the Credit Agreement.


 


ARTICLE IV


 


Representations,
Warranties and Covenants


 


Each Pledgor represents, warrants and
covenants as follows:


 


SECTION 4.01.                                    Title.  Except for the
security interest granted to Collateral Agent for its benefit and for the
benefit of the Secured Parties pursuant to this Agreement and Permitted Liens,
such Pledgor owns the rights in each item of Security Agreement Collateral
pledged by it hereunder, and with regard to each item of Security Agreement
Collateral now existing or hereafter acquired, will continue to own or have
such rights, in each case free and clear of any and all Liens or claims of
others.  No effective financing statement
or other public notice with respect to all or any part of the Security
Agreement Collateral is on file or of record in any public office, except such
as have been filed in favor of Collateral Agent pursuant to this Agreement, are
permitted by the Credit Agreement, or for which proper termination statements
have been delivered to Collateral Agent for filing.  No person other than Collateral Agent has
control or possession of all or any part of the Security Agreement Collateral,
except as permitted hereby or by the Credit Agreement.


 


SECTION 4.02.                                    Organization; Authority; Enforceability.  Such Pledgor (a) is duly organized or
incorporated and validly existing under the laws of the jurisdiction of its
organization or incorporation, (b) has all requisite power and authority
enter into this Agreement and to carry out the obligations hereunder, and (c) has
duly executed and delivered this Agreement. 
This Agreement and each other document, statement, or instrument
relating hereto, when executed and delivered by such Pledgor, will constitute,
a legal, valid and binding obligation of such Pledgor, enforceable in
accordance with its 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.


 


SECTION 4.03.                                    Authorizations and Approvals.  No authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority is required for
either (i) the pledge or grant by such Pledgor of the Liens purported to
be created in favor of Collateral Agent hereunder, or (ii) the exercise by
Collateral Agent of any rights or remedies in respect of any Security Agreement
Collateral, in each case except for the filings and registrations contemplated
under the Security Documents and as may be required in connection with the
disposition of any Securities Collateral (by laws generally affecting the
offering and sale of securities) or by laws pertaining to Intellectual
Property.


 


SECTION 4.04.                                    Perfected First-Priority Liens.  The security interests granted pursuant to
this Agreement (a) upon completion of the filings specified in Section III.B
of the Perfection Certificate and completion of the actions described in Article III,
will constitute valid perfected security interests in all of the Security
Agreement Collateral located in the United States in favor of Collateral Agent
as collateral security for the Secured Obligations, enforceable


 


15





















 


in accordance with the terms hereof against
all creditors of such Pledgor and any persons purporting to purchase any
Security Agreement Collateral from such Pledgor; and (b) are prior to all
other Liens on the Security Agreement Collateral in existence on the date
hereof except for Permitted Liens that have priority over the Liens on the
Security Agreement Collateral by operation of law.


 


SECTION 4.05.                                    Limitation on Liens. 
Such Pledgor shall, at its own cost and expense, defend title to the
Security Agreement Collateral pledged by it hereunder and the security interest
therein and Lien thereon granted to Collateral Agent and the priority thereof
against all claims and demands of all persons, at its own cost and expense, at
any time claiming (except to the extent related to a Permitted Lien) any
interest therein adverse to Collateral Agent or any other Secured Party.


 


SECTION 4.06.                                    Other Financing Statements. 
So long as any of the Secured Obligations remain unpaid, or the
Commitments of the Lenders to make any Loan or to issue any Credit Agreement
L/Cs shall not have expired or been sooner terminated, such Pledgor shall not
execute, authorize or permit to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to any Security Agreement Collateral,
except, in each case, financing statements filed or to be filed in respect of
and covering the security interests granted by such Pledgor to the holder of
Permitted Liens.


 


SECTION 4.07.                                    Chief
Executive Office; Change of Name; Jurisdiction of Organization.


 


(a)                                  Such Pledgor’s exact
legal name, type and jurisdiction of organization or incorporation, federal
taxpayer and organizational identification numbers of such Pledgor (if
applicable) is set forth in Section I.A of the Perfection Certificate, and
its chief executive office is set forth in Section I.D of the Perfection
Certificate.  Such Pledgor has not done
in the last five years business under any other name (including any trade name
or fictitious business name) except for those names set forth in Sections I.B
and I.C of the Perfection Certificate, and shall not (a) change its
corporate name, (b) establish any other location where Security Agreement
Collateral is maintained, (c) change its identity or type of organization
or corporate structure, or (d) change its federal taxpayer identification
number or organizational identification number (including by merging with or
into any other entity, reorganizing, dissolving, liquidating, reincorporating
or incorporating in any other jurisdiction) unless (A) it shall have given
Collateral Agent not less than 30 days’ prior written notice of its intention
so to do, clearly describing such change and providing such other information
in connection therewith as Collateral Agent may request, and (B) with
respect to such change, such Pledgor shall have taken all action that
Collateral Agent deems necessary or desirable to maintain the perfection and
priority of the security interest of Collateral Agent for the benefit of the
Secured Parties in the Security Agreement Collateral intended to be granted
hereby, including using commercially reasonable efforts to obtain waivers of
landlord’s or warehousemen’s liens with respect to such new location, if
applicable.  Each Pledgor agrees to
promptly provide Collateral Agent with certified organizational documents
reflecting any of the changes described in the preceding sentence.


 


(b)                                 Such Pledgor agrees to
maintain, at its own cost and expense, such complete and accurate records with
respect to the Security Agreement Collateral owned by it as is consistent with
its current practices and in accordance with such prudent and standard
practices used in industries that are the same as or similar to those in which
such Pledgor is engaged, but in


 


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any event to include complete accounting records as required by the
Credit Agreement, and, at such time or times as Collateral Agent may request,
promptly to prepare and deliver to Collateral Agent a duly certified schedule or
schedules in form and detail satisfactory to Collateral Agent showing in
summary form the identity, amount and location of any and all Security
Agreement Collateral (except Security Agreement Collateral in the possession or
control of Collateral Agent).


 


SECTION 4.08.                                Certain
Provisions Concerning Securities Collateral.


 


(a)                                  Such Pledgor has
delivered to Collateral Agent true, correct and complete copies of the
Operative Agreements, which are in full force and effect and have not as of the
date hereof been amended or modified except as permitted by the Credit
Agreement.  Such Pledgor shall deliver to
Collateral Agent a copy of any notice of default given or received by it under
any Operative Agreement within ten days after such Pledgor gives or receives
such notice.


 


(b)                                 Such Pledgor is not in
default in the payment of any portion of any mandatory capital contribution, if
any, required to be made under any agreement to which such Pledgor is a party
relating to the Pledged Equity Interests pledged by it, and such Pledgor is not
in violation of any other provisions of any such agreement to which such
Pledgor is a party, or otherwise in default or violation thereunder, except
where such default or noncompliance, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.  No Securities Collateral pledged by such
Pledgor is subject to any defense, offset or counterclaim, nor have any of the
foregoing been asserted or alleged against such Pledgor by any person with respect
thereto, and as of the date hereof, there are no certificates, instruments,
documents or other writings (other than the Operative Agreements and
certificates, if any, delivered to Collateral Agent) that evidence any Pledged
Equity Interests of such Pledgor.


 


(c)                                  So long as no Event
of Default shall have occurred and be continuing (and Borrower or such Pledgor
has not received written notice relating to such Event of Default from
Collateral Agent):


 


(i)             Such Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Securities Collateral or any part thereof for any purpose not
inconsistent with the terms or purposes hereof, the Credit Agreement, or any
other Loan Document evidencing the Secured Obligations; provided that, such Pledgor shall not in
any event exercise such rights in any manner that would reasonably be expected
to have an adverse effect on the value of the Security Agreement Collateral or
the Lien and security interest intended to be granted to Collateral Agent
hereunder;


 


(ii)          Such Pledgor shall be
entitled to receive and retain, and to utilize free and clear of the Lien
hereof, any and all Distributions, but only if and to the extent made in
accordance with the provisions of the Credit Agreement; provided that, any and all such
Distributions consisting of rights or interests in the form of certificated
securities shall be forthwith delivered to Collateral Agent to hold as Security
Agreement Collateral and shall, if received by such Pledgor, be received in
trust for the benefit of Collateral Agent, be segregated from the other
property or funds of such Pledgor and be promptly delivered to Collateral Agent
as Security Agreement Collateral in the same form as so received (with any
necessary endorsement); and


 


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(iii)       Without further action or
formality, Collateral Agent shall be deemed to have granted to such Pledgor all
necessary consents relating to voting rights and shall, if necessary, upon
written request of such Pledgor and at the sole cost and expense of the
Pledgors, from time to time execute and deliver (or cause to be executed and
delivered) to such Pledgor all such instruments as such Pledgor may reasonably
request to permit such Pledgor to exercise the voting and other rights that it
is entitled to exercise pursuant to Section 4.08(c)(i) and to
receive the Distributions that it is authorized to receive and retain pursuant
to Section 4.08(c)(ii).


 


(d)                                 Upon the occurrence
and during the continuance of any Event of Default (and once Borrower or any
Pledgor has received written notice relating to such Event of Default from
Collateral Agent):


 


(i)             All rights of such
Pledgor to exercise the voting and other consensual rights it would otherwise
be entitled to exercise pursuant to Section 4.08(c)(i) without
any action or the giving of any notice shall cease, and all such rights shall
thereupon become vested in Collateral Agent, which shall thereupon have the
sole right to exercise such voting and other consensual rights; and


 


(ii)          All rights of such
Pledgor to receive Distributions that it would otherwise be authorized to
receive and retain pursuant to Section 4.08(c)(ii) shall cease
and all such rights shall thereupon become vested in Collateral Agent, who
shall thereupon have the sole right to receive and hold as Security Agreement
Collateral such Distributions;


 


provided that, the
rights described in clauses (i) and (ii) above shall revert back to
such Pledgor following the cure or waiver of such Event of Default.


 


(e)                                  Such Pledgor shall,
at its sole cost and expense, from time to time execute and deliver to
Collateral Agent appropriate instruments as Collateral Agent may request to
permit Collateral Agent to exercise the voting and other rights that it may be
entitled to exercise pursuant to Section 4.08(d)(i) and to
receive all Distributions that it may be entitled to receive under Section 4.08(d)(ii).


 


(f)                                    All Distributions
that are received by such Pledgor contrary to the provisions of Section 4.08(d)(ii) shall
be received in trust for the benefit of Collateral Agent, shall be segregated
from other funds of such Pledgor and shall promptly be paid over to Collateral
Agent as Security Agreement Collateral in the same form as so received (with
any necessary endorsement).


 


SECTION 4.09.                                    Certain
Provisions Concerning Intellectual Property.


 


(a)                                  Such Pledgor agrees
that it will not, nor will it knowingly permit or authorize any of its
licensees to, do any act, or omit to do any act, whereby any issued Patent may
become invalidated, dedicated to the public, or unenforceable, and agrees that
it shall continue to mark any products covered by a Patent with the relevant
Patent Number or indication that such product is subject to a pending Patent
application as necessary and sufficient to establish and preserve its maximum
rights under applicable patent laws, except where the failure to so mark would
not be reasonably likely to result in a Material Adverse Effect.


 


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(b)                                 Such Pledgor (either
itself or through its licensees or its sublicensees) will, for each material
Trademark, (i) maintain such Trademark in full force free from any claim
of abandonment or invalidity for nonuse, (ii) not materially diminish the
value of such Trademark or the goodwill associated therewith, (iii) display
such Trademark with notice of federal or foreign registration to the extent
necessary and sufficient to establish and preserve its maximum rights under
applicable law, except where the failure to display with such notice would not
be reasonably likely to result in a Material Adverse Effect, and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.


 


(c)                                  Such Pledgor (either
itself or through licensees) will, for each work covered by a material
Copyright, continue to publish, reproduce, display, adopt and distribute the
work with appropriate copyright notice as necessary and sufficient to establish
and preserve its maximum rights under applicable copyright laws, except where
the failure to include notice would not be reasonably likely to result in a
Material Adverse Effect.


 


(d)                                 Such Pledgor shall
notify Collateral Agent promptly if it knows or has reason to know that any
Intellectual Property may become, or knows of circumstances that would cause
any Intellectual Property to become:  (i) abandoned,
lost or dedicated to the public; (ii) invalid or unenforceable; or (iii) subject
to any adverse determination or development regarding such Pledgor’s ownership
of any Intellectual Property, its right to register the same, or to keep and
maintain the same.


 


(e)                                  Such Pledgor will
take all reasonable steps in the United States Patent and Trademark Office,
United States Copyright Office or any office or agency in any political
subdivision of the United States, Canada or in any other country, to maintain
and pursue each application relating to the Intellectual Property (and to
obtain the relevant grant or registration) and to maintain each issued Patent
and each registration of the Trademarks and Copyrights, including timely
filings of applications for renewal, affidavits of use, affidavits of
incontestability and payment of maintenance fees, and to initiate opposition,
interference and cancellation proceedings against third parties, in each case
where necessary for the operation of such Pledgor’s business as presently
conducted and as contemplated by the Credit Agreement.


 


(f)                                    In the event that
such Pledgor knows that any Security Agreement Collateral consisting of
Intellectual Property material to the conduct of such Pledgor’s business has
been or is about to be infringed, misappropriated or diluted by a third party,
such Pledgor promptly shall notify Collateral Agent and shall promptly sue for
infringement, misappropriation or dilution and to recover any and all damages
for such infringement, misappropriation or dilution, or take such other actions
as are appropriate under the circumstances to protect such Security Agreement
Collateral, except where the failure to so notify or take such actions would
not be reasonably likely to result in a Material Adverse Effect.


 


(g)                                 Upon the occurrence of
an Event of Default, such Pledgor shall use its commercially reasonable efforts
to obtain all requisite consents or approvals by the licensor of each License
to effect the assignment of all of such Pledgor’s right, title and interest
thereunder to the Security Agreement Collateral Agent or its designee.


 


(h)                                 Solely for the purpose
of enabling Collateral Agent to exercise its rights and remedies upon the
occurrence of an Event of Default, such Pledgor hereby grants to Collateral
Agent, to the extent assignable, an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to such Pledgor)
to use, license or sublicense any of the Intellectual Property now owned or
hereafter acquired by such Pledgor, wherever the


 


19





















 


same may be located, including in such license access to all media in which
any of the licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof.


 


(i)                                     It shall promptly
(but in no event more than 45 days after any Pledgor obtains knowledge thereof)
report to Collateral Agent (i) the filing of any application to register
any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office, or any state registry or foreign
counterpart of the foregoing (whether such application is filed by such Pledgor
or through any agent, employee, licensee, or designee thereof); and (ii) the
registration of any Intellectual Property by any such office.


 


(j)                                     It shall, promptly
upon the reasonable request of Collateral Agent, execute and deliver to
Collateral Agent any document required to acknowledge, confirm, register,
record, or perfect Collateral Agent’s security interest granted hereunder in
any part of the Intellectual Property, whether now owned or hereafter acquired.


 


(k)                                  Except with the prior
consent of Collateral Agent or as permitted under the Credit Agreement, such
Pledgor shall not execute any financing statement or other document or
instrument, and there will not be on file in any public office any effective
financing statement or other document or instruments, except financing
statements or other documents or instruments filed or to be filed in favor of
Collateral Agent, and such Pledgor shall not sell, assign, transfer, license,
grant any option in, or create any Lien, claim, security interest or other
encumbrance on or with respect to the Intellectual Property, or suffer to exist
any effective Lien, claim, security interest or other encumbrance on or with
respect to the Intellectual Property, except for the security interest created by
and under this Security Agreement and Permitted Liens as otherwise permitted by
the Credit Agreement.


 


(l)                                     It shall hereafter
use commercially reasonable efforts so as not to permit the inclusion in any
contract to which it hereafter becomes a party of any provision that would
materially impair or prevent the creation of a security interest in, or the
assignment of, such Pledgor’s rights and interests in any property included
within the definitions of any Intellectual Property acquired under such contracts.


 


SECTION 4.10.                                    Inspection and Verification. 
Collateral Agent or any representative designated by Collateral Agent
shall have the same access and inspection rights as granted to the
Administrative Agent by the Companies pursuant to Section 5.07 of the Credit
Agreement; provided that, upon
the occurrence and during the continuance of an Event of Default, Collateral
Agent and its representatives shall at all times have the right to enter any
premises of such Pledgor and inspect any property of such Pledgor where any of
the Security Agreement Collateral of such Pledgor is located for the purpose of
inspecting the same, observing its use, protecting its interests therein, or
otherwise exercising the remedies provided under Article V.  For the avoidance of doubt, in respect of
Accounts or Security Agreement Collateral in the possession of any third
person, upon the occurrence and during the continuance of an Event of Default,
Collateral Agent or any designated representative shall have the right to
contact such account debtors or third persons in possession of such Security
Agreement Collateral for verification purposes. 
Collateral Agent shall have the absolute right to share any information
it gains from such inspection or verification with any other Secured Party.


 


SECTION 4.11.                                    Payment of Taxes; Contesting Liens; Claims.  Such Pledgor represents and warrants that all
Charges imposed on or assessed against the Security Agreement Collateral have
been paid and discharged except to the extent such Charges (a)


 


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constitute a Permitted Lien or a Lien not yet
due and payable or (b) are being contested in good faith by appropriate
proceedings and for which such Pledgor shall have set aside on its books
adequate reserves in accordance with GAAP. 
Notwithstanding the foregoing, such Pledgor may at its own expense
contest the validity, amount or applicability of any Charges so long as the
contest thereof shall satisfy the Contested Collateral Lien Conditions.  Notwithstanding the foregoing provisions of
this Section 4.11, no contest of any such obligation may be pursued
by such Pledgor if such contest would expose Collateral Agent or any other
Secured Party to any possible criminal liability.


 


SECTION 4.12.                                    Transfers and Other Liens. 
Such Pledgor shall not sell, convey, assign or otherwise dispose of, or
grant any option with respect to, any of the Security Agreement Collateral
pledged by it hereunder except as permitted by the Credit Agreement.  Such Pledgor shall not make or permit to be
made an assignment for security, pledge or hypothecation of the Security
Agreement Collateral or shall grant any other Lien in respect of the Security
Agreement Collateral, except as permitted by Section 6.02 of the Credit
Agreement.


 


SECTION 4.13.                                    Insurance.  Such
Pledgor, at its own expense, shall maintain or cause to be maintained,
insurance covering physical loss or damage to the Inventory and Equipment in
accordance with Section 5.04 of the Credit Agreement.  Such Pledgor irrevocably makes, constitutes
and appoints Collateral Agent (and all officers, employees or agents designated
by Collateral Agent) as such Pledgor’s true and lawful agent (and
attorney-in-fact) for the purposes, during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Security
Agreement Collateral under policies of insurance, endorsing the name of such
Pledgor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto.  In the
event that such Pledgor at any time or times fails to obtain or maintain any of
the policies of insurance required hereby or to pay any premium in whole or in
part relating thereto, Collateral Agent may, without waiving or releasing any
obligation or liability of any Pledgor hereunder or any Event of Default, in
its sole discretion, obtain and maintain such policies of insurance and pay
such premium and take any other actions with respect thereto as Collateral
Agent deems advisable.  All sums
disbursed by Collateral Agent in connection with this Section 4.13,
including reasonable attorneys’ fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Pledgors to Collateral
Agent and shall be additional Secured Obligations.


 


SECTION 4.14.                                    Legend.  Such Pledgor
shall legend, in form and manner satisfactory to Collateral Agent, its Chattel
Paper and its books, records, and documents evidencing or pertaining thereto
with an appropriate reference to the fact that such Chattel Paper has been
assigned to Collateral Agent for the benefit of the Secured Parties and that
Collateral Agent has a security interest therein.


 


ARTICLE V



Remedies


 


SECTION 5.01.                                    Remedies.  Upon the
occurrence and during the continuance of any Event of Default, Collateral Agent
may from time to time exercise in respect of the Security Agreement Collateral,
in addition to the other rights and remedies provided for herein or otherwise
available to it:


 


21





















 


(a)                                  Personally, or by
agents or attorneys, immediately take possession of the Security Agreement
Collateral or any part thereof, from any Pledgor or any other person who then
has possession of any part thereof with or without notice or process of law,
and for that purpose may enter on any Pledgor’s premises where any of the
Security Agreement Collateral is located, remove such Security Agreement
Collateral, remain present at such premises to receive copies of all
communications and remittances relating to the Security Agreement Collateral
and use in connection with such removal and possession any and all services,
supplies, aids and other facilities of any Pledgor;


 


(b)                                 Demand, sue for,
collect or receive any money or property at any time payable or receivable in
respect of the Security Agreement Collateral including instructing the obligor
or obligors on any agreement, instrument or other obligation constituting part
of the Security Agreement Collateral to make any payment required by the terms
of such agreement, instrument or other obligation directly to Collateral Agent,
and in connection with any of the foregoing, compromise, settle, extend the
time for payment and make other modifications with respect thereto; provided that, in the event that any such
payments are made directly to any Pledgor, prior to receipt by any such obligor
of such instruction, such Pledgor shall segregate all amounts received pursuant
thereto in trust for the benefit of Collateral Agent and shall promptly (but in
no event later than one Business Day after receipt thereof) pay such amounts
into the Collateral Account;


 


(c)                                  Sell, assign, grant a
license to use or otherwise liquidate, or direct any Pledgor to sell, assign,
grant a license to use or otherwise liquidate, any and all investments made in
whole or in part with the Security Agreement Collateral or any part thereof,
and take possession of the proceeds of any such sale, assignment, license or
liquidation;


 


(d)                                 Take possession of the
Security Agreement Collateral or any part thereof by directing any Pledgor in
writing to deliver the same to Collateral Agent at any place or places so
designated by Collateral Agent, in which event such Pledgor shall at its own
expense:  (i) forthwith cause the
same to be moved to the place or places designated by Collateral Agent and
there delivered to Collateral Agent, (ii) store and keep any Security
Agreement Collateral so delivered to Collateral Agent at such place or places
pending further action by Collateral Agent and (iii) while the Security
Agreement Collateral shall be so stored and kept, provide such security and
maintenance services as shall be necessary to protect the same and to preserve
and maintain them in good condition. 
Each Pledgor’s obligation to deliver the Security Agreement Collateral
as contemplated in this Section 5.01(d) is of the essence
hereof.  Upon application to a court of
equity having jurisdiction, Collateral Agent shall be entitled to a decree
requiring specific performance by any Pledgor of such obligation;


 


(e)                                  Withdraw all moneys,
instruments, securities and other property in any bank, financial securities,
deposit or other account of any Pledgor constituting Security Agreement
Collateral for application to the Secured Obligations as provided in Article IX
of the Credit Agreement;


 


(f)                                    Retain and apply
the Distributions to the Secured Obligations as provided in the Credit
Agreement;


 


(g)                                 Exercise any and all
rights as beneficial and legal owner of the Security Agreement Collateral,
including perfecting assignment of and exercising any and all voting,
consensual and other rights and powers with respect to any Security Agreement
Collateral; and


 


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(h)                                 All the rights and
remedies of a secured party on default under the UCC, and Collateral Agent may
also in its sole discretion, without notice except as specified in Section 5.02,
sell, assign or grant a license to use the Security Agreement Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange,
broker’s board or at any of Collateral Agent’s offices or elsewhere, for cash,
on credit or for future delivery, and at such price or prices and on such other
terms as Collateral Agent deems commercially reasonable.  Collateral Agent or any other Secured Party
or any of their respective Affiliates may be the purchaser, licensee, assignee
or recipient of any or all of the Security Agreement Collateral at any such
sale and shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Security Agreement
Collateral sold, assigned or licensed at such sale, to use and apply any of the
Secured Obligations owed to such person as a credit on account of the purchase
price of any Security Agreement Collateral payable by such person at such
sale.  Each purchaser, assignee, licensee
or recipient at any such sale shall acquire the property sold, assigned or
licensed absolutely free from any claim or right on the part of any Pledgor,
and each Pledgor hereby waives, to the fullest extent permitted by law, all
rights of redemption, stay and appraisal that it now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.  Collateral Agent shall not be
obligated to make any sale of Security Agreement Collateral regardless of
notice of sale having been given. 
Collateral 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.  Each Pledgor hereby waives,
to the fullest extent permitted by law, any claims against Collateral Agent
arising by reason of the fact that the price at which any Security Agreement
Collateral may have been sold, assigned or licensed at such a private sale was
less than the price that might have been obtained at a public sale, even if
Collateral Agent accepts the first offer received and does not offer such Security
Agreement Collateral to more than one offeree.


 


(i)                                     Upon the written
demand of Collateral Agent, each Pledgor shall execute and deliver to
Collateral Agent an assignment or assignments of the registered Intellectual
Property and such other documents as are necessary or appropriate to carry out
the intent and purposes hereof.


 


SECTION 5.02.                                                           Notice of
Sale.  Each Pledgor acknowledges and agrees that, to
the extent notice of sale shall be required by law, ten days’ notice to such
Pledgor of the time and place of any public sale or of the time after which any
private sale or other intended disposition is to take place shall be
commercially reasonable notification of such matters.  No notification need be given to any Pledgor
if it has signed, during the occurrence of an Event of Default, a statement
renouncing or modifying any right to notification of sale or other intended
disposition.


 


SECTION 5.03.                                                           Waiver of Notice and Claims.  Each Pledgor hereby
waives, to the fullest extent permitted by applicable law, notice or judicial
hearing in connection with Collateral Agent’s taking possession or Collateral
Agent’s disposition of any of the Security Agreement Collateral, including any
and all prior notice and hearing for any prejudgment remedy or remedies and any
such right that such Pledgor would otherwise have under law, and each Pledgor
hereby further waives, to the fullest extent permitted by applicable law:  (a) all damages occasioned by such
taking of possession, (b) all other requirements as to the time, place and
terms of sale or other requirements with respect to the enforcement of
Collateral Agent’s rights hereunder and (c) all rights of redemption,
appraisal, valuation, stay, extension and moratorium now or hereafter in force
under any applicable law.  Collateral
Agent shall not be liable for any incorrect or improper payment made pursuant
to this Article V in the absence of gross negligence


 


23





















 


or willful misconduct.  Any sale of, or the grant of options to purchase,
or any other realization on, any Security Agreement Collateral shall operate to
divest all right, title, interest, claim and demand, either at law or in
equity, of the applicable Pledgor therein and thereto, and shall be a perpetual
bar both at law and in equity against such Pledgor and against any and all
persons claiming or attempting to claim the Security Agreement Collateral so
sold, optioned or realized on, or any part thereof, from, through or under such
Pledgor.


 


SECTION 5.04.                                                           Certain Sales of Security Agreement
Collateral.  Each Pledgor recognizes that, by reason of
certain prohibitions contained in the Securities Act, and applicable state
securities laws, Collateral Agent may be compelled, with respect to any sale of
all or any part of the Securities Collateral, to limit purchasers to persons
who will agree, among other things, to acquire such Securities Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof.  Each Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable to Collateral Agent than those obtainable through a public sale
without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act), and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that Collateral Agent shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Securities Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would agree to do so.


 


SECTION 5.05.                                                           No Waiver; Cumulative Remedies.


 


(a)                                  No failure on the
part of Collateral Agent to exercise, no course of dealing with respect to, and
no delay on the part of Collateral Agent in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy; nor shall Collateral Agent be required to look first to, enforce or
exhaust any other security, collateral or guarantees.  The remedies herein provided are cumulative
and are not exclusive of any remedies provided by law.


 


(b)                                 In the event that
Collateral Agent shall have instituted any proceeding to enforce any right,
power or remedy under this Agreement by foreclosure, sale, entry or otherwise,
and such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to Collateral Agent, then and in every
such case, the Pledgors, Collateral Agent and each other Secured Party shall be
restored to their respective former positions and rights hereunder with respect
to the Security Agreement Collateral, and all rights, remedies and powers of
Collateral Agent and the other Secured Parties shall continue as if no such
proceeding had been instituted.


 


ARTICLE VI


 


Obligations
Absolute; Waivers


 


SECTION 6.01.                                                           Liability of the Pledgors Absolute.  Each Pledgor agrees
that its obligations hereunder are irrevocable, absolute, independent,
unconditional, and shall not be affected by any circumstance that constitutes a
legal or equitable discharge of a pledgor or surety, except for payment in full
of the Secured Obligations.  In
furtherance of the foregoing and without limiting the generality thereof, each
Pledgor agrees as follows:


 


24





















 


(a)                                  the obligations of
each Pledgor hereunder are independent of the obligations of each other Pledgor
and each guarantor of the obligations of the Loan Parties, and separate actions
may be brought and prosecuted against such Pledgor whether or not any action is
brought against any other Pledgor or guarantor, and whether or not such other
Pledgor or guarantor is joined in any such actions;


 


(b)                                 payment by any Loan
Party of a portion of the Secured Obligations shall in no way limit, affect,
modify or abridge such Pledgor’s grant hereunder securing any portion of the
Secured Obligations that has not been paid. 
By way of example and without limiting the generality of the foregoing,
if Collateral Agent is awarded a judgment in any suit brought to enforce any
Loan Party’s covenant to pay a portion of the Secured Obligations, such
judgment shall not be deemed to release such Pledgor from its grant hereunder
securing the portion of the Secured Obligations that is not the subject of such
suit, and such judgment shall not, except to the extent satisfied by such
Pledgor, limit, affect, modify or abridge any other Pledgor’s grant hereunder
securing the Secured Obligations;


 


(c)                                  upon such terms as
Collateral Agent deems appropriate, without obligation to give notice or
demand, without affecting the validity or enforceability hereof, and without
giving rise to any reduction, limitation, impairment, discharge or termination
of the security interests granted hereunder or such Pledgor’s liability
hereunder, Collateral Agent may, from time to time, (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place and manner or terms of payment of any of the Secured Obligations in
accordance with the terms of the other Loan Documents; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, any of the Secured Obligations or any
agreement relating thereto, or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other pledges
as security for any of the Secured Obligations, and take and hold security for
the payment hereof or any of the Secured Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment
of any of the Secured Obligations, any guarantees of any of the Secured
Obligations, or any other obligation of any person (including any other
Pledgor) with respect to any of the Secured Obligations; (v) enforce and
apply any security now or hereafter held by it in respect hereof or any of the
Secured Obligations, and direct the order or manner of sale thereof, or
exercise any other right or remedy that it may have against any such security,
including foreclosure on any such security in accordance with one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
economically reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of any Pledgor against any other Loan Party, or any security for any of the
Secured Obligations; and (vi) exercise any other rights available to it
under the Loan Documents; and


 


(d)                                 this Agreement and
such Pledgor’s obligations hereunder shall be valid and enforceable, and shall
not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of all the Secured
Obligations), including the occurrence of any of the following (whether or not
such Pledgor shall have had notice or knowledge of any of them):  (i) any failure or omission to assert or
enforce, any agreement or election not to assert or enforce, or any stay or
enjoining by order of any court, by operation of law or otherwise, of the
exercise or enforcement of any claim or demand, or any right, power or remedy
(whether arising under the Loan Documents, at law, in equity, or otherwise)
with respect to the Secured Obligations or any agreement related thereto, or
with respect to any other guarantee of or security for the payment of the
Secured Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the


 


25





















 


terms or provisions (including provisions relating to events of
default) hereof, any of the other Loan Documents, any agreement or instrument
executed pursuant thereto, or any guarantee or other security for the Secured
Obligations or any agreement relating thereto at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received form any source (other than payments received pursuant to the
other Loan Documents or from the proceeds of any security for the Secured
Obligations, except to the extent such security also serves as collateral for
Indebtedness other than the Secured Obligations); (v) consent of
Collateral Agent or any other Secured Party to the change, reorganization or
termination of the corporate structure or existence of any Loan Party or any
Subsidiary thereof, and to any corresponding restructuring of the Secured
Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral that secures any of the Secured
Obligations; (vii) any defenses, set-offs or counterclaims that any Loan
Party may allege or assert against Collateral Agent or any other Secured Party
in respect of the Secured Obligations, including failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations, accord
and satisfaction, and usury; and (viii) any other act, thing or omission,
or delay to do any other act or thing, that in any manner and to any extent may
vary such Pledgor’s risk as a grantor of security securing the Secured
Obligations.


 


SECTION 6.02.                                                           General Waivers.  Each Pledgor hereby
waives, for the benefit of Collateral Agent and the Secured Parties:  (a) all rights to require Collateral
Agent or any other Secured Party, as a condition to exercising Collateral Agent’s
rights hereunder against the Security Agreement Collateral, to (i) proceed
against any other Loan Party, any other pledgor (including any other Pledgor)
of security securing any of the Secured Obligations, or any other person, (ii) proceed
against or exhaust any security held from any other Loan Party, any such other
pledgor or any other person, (iii) proceed against or have resort to any
balance of any Deposit Account or credit on the books of Collateral Agent or
any other Secured Party in favor of any other Loan Party or any other person,
or (iv) pursue any other remedy whatsoever in the capacity of secured
party; (b) any defense arising by reason of incapacity, lack of authority,
or any disability or other defenses of any other Loan Party, including any
defense based on or arising from the lack of validity or enforceability of any
of the Secured Obligations or any agreement or instrument relating thereto, or
by reason of the cessation of the liability of any other Loan Party from any
cause other than the payment in full of all the Secured Obligations; (c) any
defense based on any statute or rule of law that provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based on
errors or omissions by Collateral Agent or any other Secured Party in the
administration of any of the Secured Obligations, except behavior that amounts
to bad faith, gross negligence or willful misconduct; (e) any principles
or provisions of law, statutory or otherwise, that are or may be in conflict with
the terms hereof, and any legal or equitable discharge of such Pledgor’s
obligations hereunder; (f) the benefit of any statute of limitations
affecting such Pledgor’s counterclaims; (g) promptness, diligence and any
requirement that Collateral Agent or any other Secured Party protect, secure,
perfect or insure any security interest or Lien or any property subject
thereto; (h) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
hereof, notices of default hereunder, notices of any renewal, extension or
modification of any of the Secured Obligations or any agreement related
thereto, notices of any extension of credit to any other Loan party and notices
of any of the matters referred to in Section 6.01, and any right to
consent to any thereof; and (i) any defenses or benefits that may be
derived from or afforded by law that limit the liability of or exonerate
pledgors or sureties, or that may conflict with the terms hereof.


 


SECTION 6.03.                                                           California Waivers.  For purposes of this
Section 6.03 only, references to the “principal” include each Loan
Party and references to the “creditor”


 


26





















 


include each Secured
Party.  In accordance with Section 2856
of the California Civil Code, each Pledgor waives all rights and defenses (i) available
to such Pledgor by reason of Sections 2787 through 2855, 2899, and 3433 of the
California Civil Code, including all rights or defenses such Pledgor may have
by reason of protection afforded to the principal with respect to any of the
Secured Obligations, or to any other person liable for any of the Secured
Obligations, in either case in accordance with the antideficiency or other laws
of the State of California limiting or discharging the principal’s Indebtedness
or such person’s obligations, including Sections 580a, 580b, 580d and 726 of
the California Code of Civil Procedure; and (ii) arising out of an
election of remedies by the creditor, even though such election, such as a
nonjudicial foreclosure with respect to security for any Secured Obligation (or
any obligation of any other person of any of the Secured Obligations), has
destroyed such Pledgor’s right of subrogation and reimbursement against the
principal (or such other person), by operation of Section 580d of the
California Code of Civil Procedure or otherwise.  No other provision of this Agreement shall be
construed as limiting the generality of any of the covenants and waivers set
forth in this Section 6.03. 
As provided below, this Agreement shall be governed by, and shall be
construed and enforced in accordance with the laws of the State of New
York.  This Section 6.03 is
included solely out of an abundance of caution, and shall not be construed to
mean that any of the above-referenced provisions of California law are in any
way applicable to this Agreement or to any of the Secured Obligations.


 


ARTICLE VII


 


Miscellaneous


 


SECTION 7.01.                                                           Concerning Collateral Agent.


 


(a)                                  Collateral Agent has
been appointed as Collateral Agent pursuant to Article X of the Credit
Agreement.  The actions of Collateral
Agent hereunder are subject to the provisions of the Credit Agreement.  Collateral Agent shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including the
release or substitution of the Security Agreement Collateral), in accordance
with this Agreement and the Credit Agreement. 
Collateral Agent may employ agents and attorneys-in-fact in connection
herewith.  Collateral Agent may resign
and a successor Collateral Agent may be appointed in the manner provided in the
Credit Agreement.  Upon the acceptance of
any appointment as Collateral Agent by a successor Collateral Agent, that
successor Collateral Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent
under this Agreement, and the retiring Collateral Agent shall thereupon be
discharged from its duties and obligations under this Agreement.  After any retiring Collateral Agent’s
resignation, the provisions hereof shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement while it was Collateral
Agent.


 


(b)                                 Collateral Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
the Security Agreement Collateral in its possession if such Security Agreement
Collateral is accorded treatment substantially equivalent to that which
Collateral Agent, in its individual capacity, accords its own property
consisting of similar instruments or interests, it being understood that
neither Collateral Agent nor any of the Secured Parties shall have
responsibility for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relating to
any Securities Collateral, whether or not Collateral Agent or any other Secured
Party has or is deemed to have knowledge


 


27





















 


of such matters, or (ii) taking any necessary steps to preserve
rights against any person with respect to any Security Agreement Collateral.


 


(c)                                  Collateral Agent
shall be entitled to rely on any written notice, statement, certificate, order
or other document or any telephone message believed by it to be genuine and
correct and to have been signed, sent or made by the proper person, and, with
respect to all matters pertaining to this Agreement and its duties hereunder,
on advice of counsel selected by it.


 


(d)                                 With respect to any of
its rights and obligations as a Lender, Collateral Agent shall have and may
exercise the same rights and powers hereunder. 
The term “Lenders,” “Lender” or any similar terms shall, unless the
context clearly otherwise indicates, include Collateral Agent in its individual
capacity as a Lender.  Collateral Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with such Pledgor or any Affiliate of such
Pledgor to the same extent as if Collateral Agent were not acting as Collateral
Agent.


 


(e)                                  If any item of
Security Agreement Collateral also constitutes collateral granted to Collateral
Agent under any other deed of trust, mortgage, security agreement, pledge or
instrument of any type, in the event of any conflict between the provisions
hereof and the provisions of such other deed of trust, mortgage, security
agreement, pledge or instrument of any type in respect of such collateral,
Collateral Agent, in its sole discretion, shall select which provision or
provisions shall control.


 


SECTION 7.02.                                                           Collateral Agent May Perform;
Collateral Agent Appointed Attorney-in-Fact.  If an Event of Default shall have occurred
and be continuing, Collateral Agent may (but shall not be obligated to) remedy
or cause to be remedied any such breach, and may expend funds for such purpose;
provided that, Collateral Agent
shall in no event be bound to inquire into the validity of any tax, lien,
imposition or other obligation that such Pledgor fails to pay or perform as and
when required hereby and that such Pledgor does not contest in accordance with
the provision of Section 6.02 of the Credit Agreement.  Any and all amounts so expended by Collateral
Agent shall be paid by the Pledgors in accordance with the provisions of Section 7.03.  Neither the provisions of this Section 7.02
nor any action taken by Collateral Agent pursuant to the provisions of this Section 7.02
shall prevent any such failure by any Pledgor to observe any covenant contained
in this Agreement nor any breach of warranty from constituting an Event of
Default.  Each Pledgor hereby appoints
Collateral Agent its attorney-in-fact, with full authority in the place and
stead of such Pledgor and in the name of such Pledgor, or otherwise, from time
to time during the continuance of an Event of Default in Collateral Agent’s
discretion to take any action and to execute any instrument consistent with the
terms hereof and the other Loan Documents that Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof.  The foregoing grant of authority is an
irrevocable power of attorney coupled with an interest and such appointment
shall be irrevocable for the term hereof. 
Each Pledgor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof.


 


SECTION 7.03.                                                           Expenses.  Each Pledgor will promptly pay to Collateral
Agent the amount of any and all costs and expenses, including the reasonable
fees and expenses of its counsel and the fees and expenses of any experts and
agents, that Collateral Agent may incur in connection with this Agreement,
including all costs and expenses relating to (a) any and all filings and
other actions taken to ensure the attachment, perfection and priority of, and
the ability of Collateral Agent to enforce, Collateral Agent’s security
interest in the Security


 


28





















 


Agreement Collateral; (b) any
action, suit or other proceeding affecting the Security Agreement Collateral or
any part thereof commenced, in which action, suit or proceeding Collateral
Agent is made a party or participates or in which the right to use the Security
Agreement Collateral or any part thereof is threatened, or in which it becomes
necessary in the judgment of Collateral Agent to defend or uphold the Lien
hereof (including any action, suit or proceeding to establish or uphold the
compliance of the Security Agreement Collateral with any requirements of any
Governmental Authority or law); (c) the collection of the Secured
Obligations; (d) the enforcement and administration hereof; (e) the
custody or preservation of, or the sale of, collection from, or other
realization on, any of the Security Agreement Collateral; (f) the exercise
or enforcement of any of the rights of Collateral Agent or any Secured Party
hereunder; or (g) the failure by any Pledgor to perform or observe any of
the provisions hereof.  All amounts
expended by Collateral Agent and payable by any Pledgor under this Section 7.03
shall be due upon demand therefor (together with interest thereon accruing at
the default rate during the period from and including the date on which such
funds were so expended to the date of repayment) and shall be part of the Secured
Obligations.  Each Pledgor’s obligations
under this Section 7.03 shall survive the termination hereof and
the discharge of such Pledgor’s other obligations under this Agreement, the
Credit Agreement and the other Loan Documents.


 


SECTION 7.04.                                                           Indemnity.


 


(a)                                  Indemnity.  Each Pledgor agrees to indemnify, defend and
hold harmless Collateral Agent and each of the other Secured Parties, and the
officers, directors, employees, agents and Affiliates of Collateral Agent and
each of the other Secured Parties (collectively, the “Indemnitees”) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs (including settlement costs), expenses or disbursements of
any kind or nature whatsoever (including the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may be imposed on, incurred by, or
asserted against that Indemnitee, in any manner relating to or arising out of
this Agreement or any other Loan Document (including any misrepresentation by
any Pledgor in this Agreement or any other Loan Document) (the “Indemnified Liabilities”); provided that, no Pledgor shall have any
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities
if it has been determined by a final decision of a court of competent
jurisdiction that such Indemnified Liabilities arose from the gross negligence
or willful misconduct of that Indemnitee. 
To the extent that the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, each Pledgor shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.


 


(b)                                 Survival.  The obligations of the Pledgors contained in
this Section 7.04 shall survive the termination hereof and the
discharge of the Pledgors’ other obligations under this Agreement, any Hedging
Agreement and under the other Loan Documents.


 


(c)                                  Reimbursement.  Any amounts paid by any Indemnitee as to
which such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Security Agreement Collateral.


 


SECTION 7.05.                                                           Continuing Security Interest; Assignment.  This Agreement shall
create a continuing security interest in the Security Agreement Collateral and
shall (a) remain in full force and effect until the payment in full of all
Secured Obligations, (b) be


 


29





















 


binding on the Pledgors,
their respective successors and assigns, and (b) inure, together with the
rights and remedies of the Lender hereunder, to the benefit of Collateral Agent
and the other Secured Parties and each of their respective permitted
successors, transferees and assigns.  No
other persons (including any other creditor of any Pledgor) shall have any
interest herein or any right or benefit with respect hereto.  Without limiting the generality of the
foregoing clause (b), any Secured Party may assign or otherwise transfer any
Indebtedness held by it that is secured by this Agreement to any other person,
and such other person shall thereupon become vested with all the benefits in
respect thereof granted to such Secured Party, herein or otherwise, subject
however, to the provisions of the other Loan Documents and any Hedging
Agreement to which such Secured Party is a party.


 


SECTION 7.06.                                                           Termination; Release.  Upon payment in full
of all the Secured Obligations, or upon any partial release of Security
Agreement Collateral in accordance with the other Loan Documents, the security
interests granted hereby shall terminate hereunder and of record, and all
rights to the Security Agreement Collateral shall revert to the Pledgors, it
being understood that in the case any such partial release, the security interests
granted hereby shall terminate hereunder and of record only with respect to
such Security Agreement Collateral subject to such partial release.  Upon any such termination, Collateral Agent
shall, at the Pledgors’ expense, execute and deliver to the Pledgors such
documents, and take such other actions, as the Pledgors reasonably request to
evidence such termination.


 


SECTION 7.07.                                                           Modification in Writing.  No amendment,
modification, supplement, termination or waiver of or to any provision hereof,
nor consent to any departure by any Pledgor therefrom, shall be effective
unless the same shall be made in accordance with the terms of the Credit
Agreement and unless in writing and signed by Collateral Agent.  Any amendment, modification or supplement of
or to any provision hereof, any waiver of any provision hereof and any consent
to any departure by any Pledgor from the terms of any provision hereof shall be
effective only in the specific instance and for the specific purpose for which
made or given.  Except where notice is
specifically required by this Agreement or any other document evidencing the
Secured Obligations, no notice to or demand on any Pledgor in any case shall
entitle any Pledgor to any other or further notice or demand in similar or
other circumstances.


 


SECTION 7.08.                                                           Notices.  Unless otherwise provided herein or in the
Credit Agreement, any notice or other communication herein required or
permitted to be given shall be given in the manner and become effective as set
forth in the Credit Agreement, if to any Pledgor, addressed to it at the
address of Borrower set forth in the Credit Agreement, and if to Collateral
Agent, addressed to it at the address set forth in the Credit Agreement, or in
each case at such other address as shall be designated by such party in a
written notice to the other party complying as to delivery with the terms of
this Section 7.08.


 


SECTION 7.09.                                                           Governing Law; Jurisdiction; Consent to
Service of Process.


 


(a)                                  THIS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT, IN ACCORDANCE
WITH CHOICE-OF-LAW PRINCIPLES, THAT THE PERFECTION OF THE SECURITY INTERESTS
GRANTED HEREUNDER, OR REMEDIES HEREUNDER IN RESPECT OF


 


30





















 


ANY ITEM OR TYPE OF SECURITY AGREEMENT COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.


 


(b)                                 Each Pledgor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
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 or any other Loan Document shall affect any right that Collateral
Agent or any other Secured Party may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Pledgor or its properties in the courts of any jurisdiction.


 


(c)                                  Each Pledgor hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement in any court referred to in Section 7.09(b).  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.


 


(d)                                 Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 7.08. 
Nothing in this Agreement  will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.


 


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


 


SECTION 7.11.                                                           Severability of Provisions.  Any provision hereof
that 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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.


 


SECTION 7.12.                                                           Execution in Counterparts.  This Agreement and
any amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so


 


31





















 


executed and delivered shall be
deemed to be an original, but all such counterparts together shall constitute
one and the same agreement.


 


SECTION 7.13.                                                           Business Days.  In the event any time period or any date
provided in this Agreement ends or falls on a day other than a Business Day,
then such time period shall be deemed to end and such date shall be deemed to
fall on the next succeeding Business Day, and performance herein may be made on
such Business Day, with the same force and effect as if made on such other day.


 


SECTION 7.14.                                                           No Credit for Payment of Taxes or Imposition.  Each Pledgor shall
not be entitled to any credit against the principal, premium (if any), or
interest payable under the Credit Agreement, and such Pledgor shall not be
entitled to any credit against any other sums that may become payable under the
terms thereof or hereof, by reason of the payment of any Tax on the Security
Agreement Collateral or any part thereof.


 


SECTION 7.15.                                                           No Claims Against Collateral Agent.  Nothing contained in
this Agreement shall constitute any consent or request by Collateral Agent,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Security
Agreement Collateral or any part thereof, nor as giving any Pledgor any right,
power or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion
as would permit the making of any claim against Collateral Agent in respect
thereof or any claim that any Lien based on the performance of such labor or
services or the furnishing of any such materials or other property is prior to
the Lien hereof.


 


SECTION 7.16.                                                           No Release Under Agreements; No Liability of
Collateral Agent or Secured Parties.  Nothing set forth in this Agreement shall
relieve the Pledgor from the performance of any term, covenant, condition or
agreement on the Pledgor’s part to be performed or observed under or in respect
of any of the Security Agreement Collateral, or from any liability to any
person under or in respect of any of the Security Agreement Collateral, or
shall impose any obligation on Collateral Agent or any other Secured Party to
perform or observe any such term, covenant, condition or agreement on the
Pledgor’s part to be so performed or observed, or shall impose any liability on
Collateral Agent or any other Secured Party for any act or omission on the part
of the Pledgor relating thereto or for any breach of any Hedging Agreement, any
representation or warranty on the part of the Pledgor contained in this
Agreement, Credit Agreement or the other Security Documents, or under or in
respect of the Security Agreement Collateral or made in connection herewith or
therewith.  The obligations of the
Pledgor contained in this Section 7.16 shall survive the
termination hereof and the discharge of the Pledgor’s other obligations under
this Agreement, the Credit Agreement, any Hedging Agreement and the other
Security Documents.


 


SECTION 7.17.                                                           Obligations Absolute.  Subject to Section 7.09
of the Credit Agreement, all obligations of each Pledgor hereunder shall be
absolute and unconditional irrespective of:


 


(a)                                  any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of any Pledgor or any other Loan Party;


 


(b)                                 any lack of validity
or enforceability of the Credit Agreement, any Hedging Agreement or any other
Loan Document, or any other agreement or instrument relating thereto;


 


32





















 


(c)                                  any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Secured Obligations, or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document, any Hedging
Agreement or any other agreement or instrument relating thereto;


 


(d)                                 any pledge, exchange,
release or nonperfection of any other collateral, or any release or amendment
or waiver of or consent to any departure from any guarantee, for all or any of
the Secured Obligations, except to the extent that any such amendment, waiver
or consent expressly relieves such Pledgor of any obligations;


 


(e)                                  any exercise,
nonexercise or waiver of any right, remedy, power or privilege under or in
respect hereof, the Credit Agreement, any Hedging Agreement or any other Loan
Document except as specifically set forth in a waiver granted pursuant to the
provisions of Section 5.03; or


 


(f)                                    any other
circumstances that might otherwise constitute a defense available to, or a
discharge of, any Pledgor.


 


SECTION 7.18.                                                           Marshaling; Payments Set Aside.  Collateral Agent
shall not be under any obligation to marshal any assets in favor of any Pledgor
or any other person or against or in payment of ay or all of the Secured
Obligations.


 


SECTION 7.19.                                                           Release of Pledgors.  If any Pledgor is
released from its Guarantee in accordance with the provisions of the Credit
Agreement, then Collateral Agent shall (at the expense of Borrower) take all
action necessary to release its security interest in that portion of the
Security Agreement Collateral owned by such Pledgor, and shall release such
Pledgor from its obligations hereunder (other than obligations intended to
survive the termination hereof), in each case subject to and in accordance with
Section 7.09 of the Credit Agreement.


 


[Signature Pages Follow]


 


33





















 


IN WITNESS WHEREOF, the Pledgors
and Collateral Agent have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the date first above written.


 


 


	
   

  	
  HERBALIFE INTERNATIONAL, INC.,

  
	
   

  	
  a Nevada corporation, as a Pledgor

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: General Counsel & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WH CAPITAL CORPORATION,

  
	
   

  	
  a Nevada corporation, as a Pledgor

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: General Counsel & Secretary

  
					



 





















 


	
   

  	
  HERBALIFE LTD.,

  
	
   

  	
  a Cayman Islands exempted company with
  limited liability,

  
	
   

  	
  as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: General Counsel & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WH INTERMEDIATE HOLDINGS LTD.,

  
	
   

  	
  a Cayman Islands exempted company with
  limited liability,

  
	
   

  	
  as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: General Counsel & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HBL LTD.,

  
	
   

  	
  a Cayman Islands exempted company with
  limited liability,

  
	
   

  	
  as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: General Counsel & Secretary

  



 





















 


	
   

  	
  WH LUXEMBOURG HOLDINGS S.à.R.L.,

  
	
   

  	
  a Luxembourg corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christophe Thomann

  	
   

  
	
   

  	
   

  	
  Name: Christophe Thomann

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HLF LUXEMBOURG HOLDINGS S.à R.L.,

  
	
   

  	
  a Luxembourg corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christophe Thomann

  	
   

  
	
   

  	
   

  	
  Name: Christophe Thomann

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WH LUXEMBOURG INTERMEDIATE HOLDINGS
  S.à.R.L.,

  
	
   

  	
  a Luxembourg corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christophe Thomann

  	
   

  
	
   

  	
   

  	
  Name: Christophe Thomann

  
	
   

  	
   

  	
  Title: Manager

  



 





















 


	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA, INC.,

  
	
   

  	
  a Nevada corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL OF EUROPE, INC.,

  
	
   

  	
  a California corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL COMMUNICATIONS,
  INC.,

  
	
   

  	
  a California corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL DISTRIBUTION, INC.,

  
	
   

  	
  a California corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE TAIWAN, INC.,

  
	
   

  	
  a California corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  



 





















 


	
   

  	
  HERBALIFE INTERNATIONAL (THAILAND), LTD.,

  
	
   

  	
  a California corporation, as a Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett R. Chapman

  	
   

  
	
   

  	
   

  	
  Name: Brett Chapman

  
	
   

  	
   

  	
  Title: Secretary

  



 





















 


	
   

  	
  MORGAN STANLEY & CO. INCORPORATED,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eugene F. Martin

  	
   

  
	
   

  	
   

  	
  Name:  Eugene F. Martin

  
	
   

  	
   

  	
  Title:   Managing Director

  



 





















 


EXHIBIT A


 


Form of


ISSUER ACKNOWLEDGMENT


 


The undersigned hereby (a) acknowledges
receipt of a copy of that certain security agreement (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Security Agreement”; capitalized terms used
but not otherwise defined herein shall have the meanings assigned to such terms
in the Security Agreement), dated as of December [  ], 2004, among Herbalife International, Inc.,
a Nevada corporation (“Borrower”),
the Guarantors (defined therein), and Morgan Stanley & Co.
Incorporated, as collateral agent (in such capacity and together with any
successors in such capacity, “Collateral
Agent”); (b) agrees promptly to note on its books the security
interests granted to Collateral Agent and confirmed under the Security Agreement;
(c) agrees that it will comply with Collateral Agent’s instructions with
respect to the applicable Securities Collateral without further consent by the
applicable Pledgor; (d) agrees to notify Collateral Agent upon obtaining
knowledge of any interest in favor of any person in the applicable Securities
Collateral that is adverse to the interest of Collateral Agent therein; and (e) waives
any right or requirement at any time hereafter to receive a copy of the
Security Agreement in connection with the registration of any Securities
Collateral thereunder in the name of Collateral Agent or its nominee or the
exercise of voting rights by Collateral Agent or its nominee.


 


	
   

  	
  [NAME OF ISSUER]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-1