exv10w5






Exhibit 10.5




Execution Version




U.S. PLEDGE AND SECURITY AGREEMENT




dated as of June 1, 2011



between



EACH OF THE GRANTORS PARTY HERETO



and



DEUTSCHE BANK AG NEW YORK BRANCH,



as Collateral Agent



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	SECTION 1. DEFINITIONS; GRANT OF SECURITY
	 	 	1	 
	1.1 General Definitions
	 	 	1	 
	1.2 Definitions; Interpretation
	 	 	6	 
	 
	 	 	 	 
	SECTION 2. GRANT OF SECURITY
	 	 	7	 
	2.1 Pledge and Grant of Security
	 	 	7	 
	2.2 Certain Limited Exclusions
	 	 	8	 
	 
	 	 	 	 
	SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE
	 	 	8	 
	3.1 Security for Obligations
	 	 	8	 
	3.2 Continuing Liability Under Collateral
	 	 	9	 
	 
	 	 	 	 
	SECTION 4. CERTAIN PERFECTION REQUIREMENTS
	 	 	9	 
	4.1 Delivery Requirements
	 	 	9	 
	4.2 Control Requirements
	 	 	9	 
	4.3 Intellectual Property Recording Requirements
	 	 	10	 
	4.4 Other Actions
	 	 	11	 
	4.5 Timing and Notice
	 	 	11	 
	 
	 	 	 	 
	SECTION 5. REPRESENTATIONS AND WARRANTIES
	 	 	12	 
	5.1 Grantor Information & Status
	 	 	12	 
	5.2 Collateral Identification, Special Collateral
	 	 	12	 
	5.3 Ownership of Collateral and Absence of Other Liens
	 	 	13	 
	5.4 Status of Security Interest
	 	 	13	 
	5.5 Goods & Receivables
	 	 	14	 
	5.6 Pledged Equity Interests, Investment Related Property
	 	 	15	 
	 
	 	 	 	 
	SECTION 6. COVENANTS AND AGREEMENTS
	 	 	15	 
	6.1 Grantor Information & Status
	 	 	15	 
	6.2 Collateral Identification; Special Collateral; Defense of Collateral
	 	 	15	 
	6.3 Ownership of Collateral and Absence of Other Liens
	 	 	16	 
	6.4 Status of Security Interest
	 	 	16	 
	6.5 Goods & Receivables
	 	 	16	 
	6.6 Pledged Equity Interests, Investment Related Property
	 	 	18	 
	 
	 	 	 	 
	SECTION 7. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES;
ADDITIONAL GRANTORS
	 	 	19	 
	7.1 Further Assurances
	 	 	19	 
	7.2 Additional Grantors
	 	 	21	 
	 
	 	 	 	 
	SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT
	 	 	21	 
	8.1 Power of Attorney
	 	 	21	 
	8.2 No Duty on the Part of Collateral Agent or Secured Parties
	 	 	22	 
	8.3 Appointment Pursuant to Credit Agreement
	 	 	22	 
	 
	 	 	 	 
	SECTION 9. REMEDIES
	 	 	22	 
	9.1 Generally
	 	 	22	 






 i 









 






	 	 	 	 	 
	 	 	PAGE	 
	9.2 Application of Proceeds
	 	 	23	 
	9.3 Sales on Credit
	 	 	24	 
	9.4 Investment Related Property
	 	 	24	 
	9.5 Grant of Intellectual Property License
	 	 	24	 
	9.6 Intellectual Property
	 	 	25	 
	9.7 Cash Proceeds; Deposit Accounts
	 	 	26	 
	 
	 	 	 	 
	SECTION 10. COLLATERAL AGENT
	 	 	26	 
	 
	 	 	 	 
	SECTION 11. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.
	 	 	27	 
	 
	 	 	 	 
	SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM
	 	 	28	 
	 
	 	 	 	 
	SECTION 13. MISCELLANEOUS.
	 	 	28	 
	 
	 	 	 	 
	SCHEDULE 5.1 — GENERAL INFORMATION
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 5.2 — COLLATERAL IDENTIFICATION
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 5.4 — FINANCING STATEMENTS
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A — PLEDGE SUPPLEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT C — SECURITIES ACCOUNT CONTROL AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT D — DEPOSIT ACCOUNT CONTROL AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT E — TRADEMARK SECURITY AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT F — PATENT SECURITY AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT G — COPYRIGHT SECURITY AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT H — FORM OF NOTICE OF SPECIFIED HEDGE AGREEMENT
	 	 	 	 






 ii 









 






          This U.S. PLEDGE AND SECURITY AGREEMENT, dated as of June 1, 2011 (as it may be amended,
restated, supplemented or otherwise modified from time to time, this “Agreement”), between Grifols
Inc., a Virginia corporation (the “U.S. Borrower”), and each of the subsidiaries of the Parent
party hereto from time to time, whether as an original signatory hereto or as an Additional Grantor
(as herein defined) (other than the Collateral Agent, each, a “Grantor”), and Deutsche Bank AG New
York Branch as collateral agent for the Secured Parties (as herein defined) (in such capacity as
collateral agent, together with its successors and permitted assigns, the “Collateral Agent”).




RECITALS:




     WHEREAS, reference is made to that certain Credit and Guaranty Agreement, dated as of November
23, 2010 (as it may be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among the U.S. Borrower, Grifols, S.A., a sociedad anónima organized
under the laws of the Kingdom of Spain (the “Parent” and in its capacity as a borrower thereunder,
the “Foreign Borrower” and together with the U.S. Borrower, the “Borrowers”), and certain
Subsidiaries of the Parent, as Guarantors, the Lenders party thereto from time to time, and
Deutsche Bank AG New York Branch (“DBNY”), as Administrative Agent (together with its permitted
successors in such capacity, the “Administrative Agent”) and as Collateral Agent (together with its
permitted successors in such capacity, the “Collateral Agent”).



     WHEREAS, subject to the terms and conditions of the Credit Agreement, certain Grantors may
enter into one or more Hedge Agreements, Cash Management Agreements and the Treasury Transactions
with one or more Lender Counterparties;



     WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders and
Lender Counterparties as set forth in the Credit Agreement, the Hedge Agreements, the Cash
Management Agreements and the Treasury Transactions, respectively, each Grantor has agreed to
secure such Grantor’s obligations under the Loan Documents, the Hedge Agreements, the Cash
Management Agreements and the Treasury Transactions as set forth herein; and



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, and for other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each Grantor and the Collateral Agent agree as follows:



SECTION 1. DEFINITIONS; GRANT OF SECURITY.




     1.1 General Definitions. In this Agreement, the following terms shall have the following meanings:



          
“Additional Grantor” shall have the meaning assigned in Section 7.2.



          “Agreement” shall have the meaning set forth in the preamble.




          “Cash Proceeds” shall have the meaning assigned in Section 9.7.




          “Collateral” shall have the meaning assigned in Section 2.1.







 









 








          “Collateral Account” shall mean any account established by the Collateral Agent.




          “Collateral Agent” shall have the meaning set forth in the preamble.




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




          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated or
otherwise securing any Collateral and shall include any security agreement or other agreement
granting a lien or security interest in such real or personal property.




          “Control” shall mean: (i) with respect to any Deposit Accounts, control within the meaning of
Section 9-104 of the UCC, (ii) with respect to any Securities Accounts, Security Entitlements,
Commodity Contract or Commodity Account, control within the meaning of Section 9-106 of the UCC,
(iii) with respect to any Uncertificated Securities, control within the meaning of Section 8-106(c)
of the UCC, (iv) with respect to any Certificated Security, control within the meaning of Section
8-106(a) or (b) of the UCC, (v) with respect to any Electronic Chattel Paper, control within the
meaning of Section 9-105 of the UCC, (vi) with respect to Letter of Credit Rights, control within
the meaning of Section 9-107 of the UCC and (vii) with respect to 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), control within the meaning of 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 the jurisdiction relevant to such transferable record.




          “Controlled Foreign Corporation” shall mean “controlled foreign corporation” as defined in the
Internal Revenue Code.




          “Copyright Licenses” shall mean any and all agreements, licenses and covenants providing for
the granting of any right in or to any Copyright or otherwise providing for a covenant not to sue
for infringement or other violation of any Copyright (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(II)
under the heading “Copyright Licenses” (as such schedule may be amended or supplemented from time
to time).




          “Copyrights” shall mean all United States, and foreign copyrights (whether or not the
underlying works of authorship have been published), including but not limited to copyrights in
software and all rights in and to databases, all designs (including but not limited to industrial
designs, Protected Designs within the meaning of 17 U.S.C. 1301 et. Seq. and Community designs),
and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered
or unregistered, as well as all moral rights, reversionary interests, and termination rights, and,
with respect to any and all of the foregoing: (i) all registrations and applications therefor
including, without limitation, the registrations and applications required to be listed in Schedule
5.2(II) under the heading “Copyrights” (as such schedule may be amended or supplemented from time
to time), (ii) all extensions and renewals thereof, (iii) all rights to sue







2









 







or otherwise recover for any past, present and future infringement or other violation thereof, (iv)
all Proceeds of the foregoing, including, without limitation, license fees, royalties, income,
payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect
thereto, and (v) all other rights of any kind accruing thereunder or pertaining thereto throughout
the world.




          “Credit Agreement” shall have the meaning set forth in the recitals.




          “Event of Default” shall have the meaning set forth in the Credit Agreement.




          “Excluded Asset” shall mean any asset of any Grantor excluded from the security interest
hereunder by virtue of Section 2.2 hereof but only to the extent, and for as long as, so excluded
thereunder.




          “Grantors” shall have the meaning set forth in the preamble.




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




          “Intellectual Property” shall have the meaning set forth in the Credit Agreement.




          “Intellectual Property Security Agreement” shall mean each intellectual property security
agreement executed and delivered by the applicable Grantors, substantially in the form set forth in
Exhibit E, Exhibit F and Exhibit G, as applicable.




          “Investment Accounts” shall mean the Collateral Account, Securities Accounts, Commodity
Accounts and Deposit Accounts.




          “Investment Related Property” shall mean (i) all “investment property” (as such term is
defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as
investment property under the UCC): all Pledged Equity Interests, Pledged Debt, the Investment
Accounts and certificates of deposit.




          “Lender” shall have the meaning set forth in the recitals.




          “Majority Holders” shall have the meaning set forth in Section 10.




          “Material Intellectual Property” shall have the meaning set forth in the Credit Agreement.




          “Patent Licenses” shall mean all agreements, licenses and covenants providing for the granting
of any right in or to any Patent or otherwise providing for a covenant not to sue for infringement
or other violation of any Patent (whether such Grantor is licensee or licensor thereunder)
including, without limitation, each agreement required to be listed in Schedule 5.2(II) under the
heading “Patent Licenses” (as such schedule may be amended or supplemented from time to time).




          “Patents” shall mean all United States and foreign patents and certificates of invention, or
similar industrial property rights, and applications for any of the foregoing,





3









 







including, without limitation: (i) each patent and patent application required to be listed in
Schedule 5.2(II) under the heading “Patents” (as such schedule may be amended or supplemented from
time to time), (ii) all reissues, divisions, continuations, continuations-in-part, extensions,
renewals, and reexaminations thereof, (iii) all patentable inventions and improvements thereto,
(iv) all rights to sue or otherwise recover for any past, present and future infringement or other
violation thereof, (v) all Proceeds of the foregoing, including, without limitation, license fees,
royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or
payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or
pertaining thereto throughout the world.




          “Pledge Supplement” shall mean any supplement to this Agreement in substantially the form of
Exhibit A.




          “Pledged Debt” shall mean all indebtedness for borrowed money owed to such Grantor, whether or
not evidenced by any Instrument, including, without limitation, all indebtedness described on
Schedule 5.2(I) under the heading “Pledged Debt” (as such schedule may be amended or supplemented
from time to time), issued by the obligors named therein, the instruments, if any, evidencing such
any of the foregoing, and all interest, cash, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in exchange for any or all
of the foregoing.




          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and any other participation or interests in any equity or profits of any
business entity including, without limitation, any trust and all management rights relating to any
entity whose equity interests are included as Pledged Equity Interests.




          “Pledged LLC Interests” shall mean all interests in any limited liability company and each
series thereof including, without limitation, all limited liability company interests listed on
Schedule 5.2(I) under the heading “Pledged LLC Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such limited liability
company interests and any interest of such Grantor on the books and records of such limited
liability company or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company interests and all rights
as a member of the related limited liability company.




          “Pledged Partnership Interests” shall mean all interests in any general partnership, limited
partnership, limited liability partnership or other partnership including, without limitation, all
partnership interests listed on Schedule 5.2(I) under the heading “Pledged Partnership Interests”
(as such schedule may be amended or supplemented from time to time) and the certificates, if any,
representing such partnership interests and any interest of such Grantor on the books and records
of such partnership or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such partnership interests and all rights as a partner
of the related partnership.




          “Pledged Stock” shall mean all shares of capital stock owned by such Grantor, including, without
limitation, all shares of capital stock described on Schedule 5.2(I) under the heading “Pledged
Stock” (as such schedule may be amended or supplemented from time to time),




4









 







and the certificates, if any, representing such shares and any interest of such Grantor in the
entries on the books of the issuer of such shares or on the books of any securities intermediary
pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options,
instruments, securities and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such shares.




          “Receivables” shall mean 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, without limitation all such rights constituting or evidenced
by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property,
together with all of Grantor’s rights, if any, in any goods or other property giving rise to such
right to payment and all Collateral Support and Supporting Obligations related thereto and all
Receivables Records.




          “Receivables Records” shall mean (i) all original copies of all documents, instruments or
other writings or electronic records or other Records evidencing the Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, 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 Grantor or any computer bureau or
agent from time to time acting for Grantor or otherwise, (iii) 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, secured parties
or agents thereof, and certificates, acknowledgments, or other writings, including, without
limitation, lien search reports, from filing or other registration officers, (iv) all credit
information, reports and memoranda relating thereto and (v) all other written or non-written forms
of information related in any way to the foregoing or any Receivable.




          “Secured Obligations” shall have the meaning assigned in Section 3.1.




          “Securities” shall mean any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Trademark Licenses” shall mean any and all agreements, licenses and covenants providing for
the granting of any right in or to any Trademark or otherwise providing for a covenant not to sue
for infringement, dilution or other violation of any Trademark or permitting co-existence with
respect to a Trademark (whether such Grantor is licensee or licensor thereunder) including, without
limitation, each agreement required to be listed in Schedule 5.2(II) under the heading “Trademark
Licenses” (as such schedule may be amended or supplemented from time to time).




          “Trademarks” shall mean all United States, and foreign trademarks, trade names, trade dress,
corporate names, company names, business names, fictitious business names, Internet domain names,
service marks, certification marks, collective marks, logos, other source or business identifiers,
designs and general intangibles of a like nature, whether or not registered, and with respect to
any and all of the foregoing: (i) all registrations and applications therefor





5









 







including, without limitation, the registrations and applications required to be listed in Schedule
5.2(II) under the heading “Trademarks”(as such schedule may be amended or supplemented from time to
time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the
business connected with the use of and symbolized by any of the foregoing, (iv) all rights to sue
or otherwise recover for any past, present and future infringement, dilution or other violation of
any of the foregoing or for any injury to the related goodwill, (v) all Proceeds of the foregoing,
including, without limitation, license fees, royalties, income, payments, claims, damages, and
proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other
rights of any kind accruing thereunder or pertaining thereto throughout the world.




          “Trade Secret Licenses” shall mean any and all agreements providing for the granting of any
right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder) including,
without limitation, each agreement required to be listed in Schedule 5.2(II) under the heading
“Trade Secret Licenses” (as such schedule may be amended or supplemented from time to time).




          “Trade Secrets” shall mean all trade secrets and all other confidential or proprietary
information and know-how whether or not the foregoing has been reduced to a writing or other
tangible form, including all documents and things embodying, incorporating, or referring in any way
to the foregoing, and with respect to any and all of the foregoing: (i) all rights to sue or
otherwise recover for any past, present and future misappropriation or other violation thereof,
(ii) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income,
payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect
thereto; and (iii) all other rights of any kind accruing thereunder or pertaining thereto
throughout the world.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of
New York; provided, however, that in the event that, by reason of mandatory provisions of law, any
or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by
the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New
York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or
remedies.




          “United States” shall mean the United States of America.




          “U.S. Borrower” shall have the meaning set forth in the recitals.




     1.2 Definitions; Interpretation.



          (a) In this Agreement, the following capitalized terms shall have the meaning given
to them in the UCC (and, if defined in more than one Article of the UCC, shall have the meaning
given in Article 9 thereof): Account, Account Debtor, As-Extracted Collateral, Bank, Certificated
Security, Chattel Paper, Consignee, Consignment, Consignor, Commercial Tort Claims, Commodity
Account, Commodity Contract, Commodity Intermediary, Deposit Account, Document, Entitlement Order,
Equipment, Electronic Chattel Paper, Farm Products, Fixtures, General Intangibles, Goods,
Health-Care-Insurance Receivable, Instrument, Inventory, Letter of Credit Right, Manufactured Home,
Money, Payment Intangible, Proceeds, Record, Securities Account, Securities Intermediary, Security
Certificate, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and
Uncertificated Security.







6









 








          (b) All other capitalized terms used herein (including the preamble and recitals
hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement. The incorporation by reference of terms defined in the Credit Agreement shall survive
any termination of the Credit Agreement until this Agreement is terminated as provided in Section
11 hereof. Any of the terms defined herein may, unless the context otherwise requires, be used in
the singular or the plural, depending on the reference. References herein to any Section, Appendix,
Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may
be, hereof unless otherwise specifically provided. The use herein of the word “include” or
“including”, when following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth immediately following
such word or to similar items or matters, whether or not non-limiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. The terms lease and license shall include
sub-lease and sub-license, as applicable. If any conflict or inconsistency exists between this
Agreement and the Credit Agreement, the Credit Agreement shall govern. All references herein to
provisions of the UCC shall include all successor provisions under any subsequent version or
amendment to any Article of the UCC.




SECTION 2. GRANT OF SECURITY.




     2.1 Pledge and Grant of Security. Each Grantor hereby grants to the Collateral Agent, for the
benefit of the Secured Parties, a security interest in and continuing lien on all of such Grantor’s
right, title and interest in, to and under all personal property of such Grantor including, but not
limited to the following, in each case whether now or hereafter existing or in which any Grantor
now has or hereafter acquires an interest and wherever the same may be located (all of which, being
subject to Section 2.2, being hereinafter collectively referred to as the “Collateral”):




          (i) Accounts;




          (ii) Chattel Paper;




          (iii) Documents;




          (iv) General Intangibles;




          (v) Goods (including, without limitation, Inventory and Equipment);




          (vi) Instruments;




          (vii) Insurance;




          (viii) Intellectual Property;




          (ix) Investment Related Property (including, without limitation,
Deposit Accounts);




          (x) Letter of Credit Rights;




          (xi) Money;



7









 






          (xii) Receivables and Receivable Records;




          (xiii) Commercial Tort Claims now or hereafter described on Schedule 5.2




          (xiv) to the extent not otherwise included above, all other personal
property of any kind and all Collateral Records, Collateral Support and Supporting
Obligations relating to any of the foregoing; and




          (xv) to the extent not otherwise included above, all Proceeds,
products, accessions, rents and profits of or in respect of any of the foregoing.



     2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event
shall the Collateral include or the security interest granted under Section 2.1 hereof attach to
(i) any lease, license, contract or agreement to which any Grantor is a party, and any of its
rights or interest thereunder, if and to the extent that a security interest is prohibited by or in
violation of (x) any law, rule or regulation applicable to such Grantor, or (y) a term, provision
or condition of any such lease, license, contract or agreement (unless such law, rule, regulation,
term, provision or condition would be rendered ineffective with respect to the creation of the
security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any
successor provision or provisions) of any relevant jurisdiction or any other applicable law
(including the Bankruptcy Code) or principles of equity); provided however that the Collateral
shall include (and such security interest shall attach) immediately at such time as the contractual
or legal prohibition shall no longer be applicable and to the extent severable, shall attach
immediately to any portion of such lease, license, contract or agreement not subject to the
prohibitions specified in (x) or (y) above; provided further that the exclusions referred to in
clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract
or agreement; (ii) any of the outstanding capital stock of a Controlled Foreign Corporation in
excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign
Corporation entitled to vote; provided that immediately upon the amendment of the Internal Revenue
Code to allow the pledge of a greater percentage of the voting power of capital stock in a
Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and
the security interest granted by each Grantor shall attach to, such greater percentage of capital
stock of each Controlled Foreign Corporation; (iii) any “intent-to-use” application for
registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051,
prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an
“Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely
to the extent, if any, that, and solely during the period, if any, in which, the grant of a
security interest therein would impair the validity or enforceability of any registration that
issues from such intent-to-use application under applicable federal law or (iv) any Deposit Account
or Securities Account of a Grantor to the extent exclusively used for payroll, taxes, employee
benefits or other similar fiduciary purposes.



SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.




     3.1 Security for Obligations. This Agreement secures, and the Collateral is collateral
security for, the prompt and complete payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the
payment of amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all
Obligations (the “Secured Obligations”).



8









 





     3.2 Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary,
(i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained
herein is intended or shall be a delegation of duties to the Collateral Agent or any other Secured
Party, (ii) each Grantor shall remain liable under each of the agreements included in the
Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests
or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in
accordance with and pursuant to the terms and provisions thereof and neither the Collateral Agent
nor any Secured Party shall have any obligation or liability under any of such agreements by reason
of or arising out of this Agreement or any other document related thereto nor shall the Collateral
Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency
of any payment received by it or have any obligation to take any action to collect or enforce any
rights under any agreement included in the Collateral (including, without limitation, any
agreements relating to Pledged Partnership Interests or Pledged LLC Interests), and (iii) the
exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from
any of its duties or obligations under the contracts and agreements included in the Collateral.



SECTION 4. CERTAIN PERFECTION REQUIREMENTS




     4.1 Delivery Requirements.



          (a) With respect to any Certificated Securities included in the Collateral, each
Grantor shall deliver to the Collateral Agent the Security Certificates evidencing such
Certificated Securities duly indorsed by an effective indorsement (within the meaning of Section
8-107 of the UCC), or accompanied by share transfer powers or other instruments of transfer duly
endorsed by such an effective endorsement, in each case, to the Collateral Agent or in blank. In
addition, each Grantor shall cause any certificates evidencing any Pledged Equity Interests,
including, without limitation, any Pledged Partnership Interests or Pledged LLC Interests, to be
similarly delivered to the Collateral Agent regardless of whether such Pledged Equity Interests
constitute Certificated Securities.




          (b) With respect to any Instruments or Tangible Chattel Paper included in the
Collateral, each Grantor shall deliver to the Collateral Agent all such Instruments or Tangible
Chattel Paper to the Collateral Agent duly indorsed in blank; provided, however, that such delivery
requirement shall not apply to any Instruments or Tangible Chattel Paper having a face value amount
of less than $4,000,000 individually or $12,000,000 in the aggregate.




     4.2 Control Requirements.



          (a) With respect to any Deposit Accounts, Securities Accounts, Security
Entitlements, Commodity Accounts and Commodity Contracts included in the Collateral, each Grantor
shall ensure that the Collateral Agent has Control thereof; provided, however, that such Control
requirement shall not apply to any Deposit Accounts, Securities Accounts, Security Entitlements,
Commodity Accounts and Commodity Contracts with a value of less than, or having funds or other
assets credited thereto with a value of less than $4,000,000 individually or $12,000,000 in the
aggregate; provided, further, that the foregoing requirements shall not apply to those non-U.S.
jurisdictions in which the Collateral Agent determines, in its reasonable discretion, that the
costs of obtaining such a security interest are excessive in relation to the value of the security
to be afforded thereby. With respect to any such Securities Accounts or Securities Entitlements,
such Control shall be accomplished by the Grantor causing the Securities
Intermediary maintaining such Securities Account or Security Entitlement to enter into an
agreement substantially in the form of Exhibit C hereto (or such other agreement in form and




9









 







substance reasonably satisfactory to the Collateral Agent) pursuant to which the Securities
Intermediary shall agree to comply with the Collateral Agent’s Entitlement Orders without further
consent by such Grantor during the occurrence and continuance of an Event of Default. With respect
to any such Deposit Account, each Grantor shall cause the depositary institution maintaining such
account to enter into an agreement substantially in the form of Exhibit D hereto (or such other
agreement in form and substance reasonably satisfactory to the Collateral Agent), pursuant to which
the Bank shall agree to comply with the Collateral Agent’s instructions with respect to disposition
of funds in the Deposit Account without further consent by such Grantor during the occurrence and
continuance of an Event of Default. With respect to any such Commodity Accounts or Commodity
Contracts each Grantor shall cause Control in favor of the Collateral Agent in a manner reasonably
acceptable to the Collateral Agent.




          (b) With respect to any Uncertificated Security included in the Collateral (other
than any Uncertificated Securities credited to a Securities Account), each Grantor shall cause the
issuer of such Uncertificated Security to either (i) register the Collateral Agent as the
registered owner thereof on the books and records of the issuer or (ii) execute an agreement
substantially in the form of Exhibit B hereto (or such other agreement in form and substance
reasonably satisfactory to the Collateral Agent), pursuant to which such issuer agrees to comply
with the Collateral Agent’s instructions with respect to such Uncertificated Security without
further consent by such Grantor.




          (c) With respect to any Letter of Credit Rights included in the Collateral (other
than any Letter of Credit Rights constituting a Supporting Obligation for a Receivable in which the
Collateral Agent has a valid and perfected security interest) with a value exceeding $4,000,000
individually or $12,000,000 in the aggregate, Grantor shall promptly use commercially reasonable
efforts to obtain the written consent of each issuer of each related letter of credit to the
assignment of the proceeds of such letter of credit to the Collateral Agent.




          (d) With respect any Electronic Chattel Paper or “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) included in the Collateral, Grantor shall ensure that the Collateral Agent has
Control thereof; provided, however, that such Control requirement shall not apply to any Electronic
Chattel Paper or transferable record having a face amount of less than $4,000,000 individually or
$12,000,000 in the aggregate.




     4.3 Intellectual Property Recording Requirements.



          (a) In the case of any Collateral (whether now owned or hereafter acquired)
consisting of issued U.S. Patents and applications therefor, each Grantor shall execute and deliver
to the Collateral Agent a Patent Security Agreement in substantially the form of Exhibit F hereto
(or a supplement thereto) covering all such Patents in appropriate form for recordation with the
U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent.




          (b) In the case of any Collateral (whether now owned or hereafter acquired)
consisting of registered U.S. Trademarks and applications therefor, each Grantor shall execute and
deliver to the Collateral Agent a Trademark Security Agreement in substantially the form of Exhibit
E hereto (or a supplement thereto) covering all such Trademarks in appropriate form for recordation
with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral
Agent.







10









 








          (c) In the case of any Collateral (whether now owned or hereafter acquired)
consisting of registered U.S. Copyrights and exclusive Copyright Licenses in respect of registered
U.S. Copyrights for which any Grantor is the licensee, each Grantor shall execute and deliver to
the Collateral Agent a Copyright Security Agreement in substantially the form of Exhibit G hereto
(or a supplement thereto) covering all such Copyrights and Copyright Licenses in appropriate form
for recordation with the U.S. Copyright Office with respect to the security interest of the
Collateral Agent.




          (d) In the case of any Collateral (whether now owned or hereafter acquired or
created) consisting of foreign, international, or multi-national issued/registered Patents,
registered Trademarks, registered Copyrights, or any applications for any of the foregoing, each
Grantor shall (i) execute, deliver to the Collateral Agent, and record security agreements (or
supplements thereto) covering all such Patents, Trademarks, and Copyrights in appropriate form for
recordation with the applicable foreign, international, or multi-national registers with respect to
the security interest of the Collateral Agent, and (ii) take such additional actions or make such
additional filings or recordings as may be necessary or advisable, under the laws of the applicable
jurisdiction to ensure the validity, perfection and priority of the security interest of the
Collateral Agent; provided, however, that the foregoing requirements shall not apply to those
jurisdictions in which the Collateral Agent determines, in its reasonable discretion, that the
costs of obtaining such a security interest are excessive in relation to the value of the security
to be afforded thereby.




     4.4 Other Actions.



          (a) If any issuer of any Pledged Equity Interest is organized under a jurisdiction
outside of the United States, each Grantor shall take such additional actions, including, without
limitation, causing the issuer to register the pledge on its books and records or making such
filings or recordings, in each case as may be necessary or advisable, under the laws of such
issuer’s jurisdiction to insure the validity, perfection and priority of the security interest of
the Collateral Agent.




          (b) With respect to any Pledged Partnership Interests and Pledged LLC Interests
included in the Collateral, if the Grantors own less than 100% of the equity interests in any
issuer of such Pledged Partnership Interests or Pledged LLC Interests, Grantors shall use their
commercially reasonable efforts to obtain the consent of each other holder of partnership interest
or limited liability company interests in such issuer to the security interest of the Collateral
Agent hereunder and following an Event of Default, the transfer of such Pledged Partnership
Interests and Pledged LLC Interests to the Collateral Agent of its designee, and to the
substitution of the Collateral Agent or its designee as a partner or member with all the rights and
powers related thereto. Each Grantor consents to the grant by each other Grantor of a Lien in all
Investment Related Property to the Collateral Agent and without limiting the generality of the
foregoing consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest
to the Collateral Agent or its designee following an Event of Default and to the substitution of
the Collateral Agent or its designee as a partner in any partnership or as a member in any limited
liability company with all the rights and powers related thereto.




     4.5 Timing and Notice. With respect to any Collateral in existence on the Closing Date, each
Grantor shall comply with the requirements of Section 4 on the date hereof subject to Section
3.01(g) and (h) of the Credit Agreement and except as set forth in Section 5.23 of the Credit
Agreement and, with respect to any Collateral hereafter owned or acquired, such Grantor
shall comply with such requirements within 30 (thirty) days following the Fiscal Quarter most
recently ended during which such Grantor acquired such rights therein (each such date, an



11









 




“Updating Date”); and, with respect to any Collateral of any Loan Party that becomes a Grantor
after the date hereof, promptly upon such Loan Party becoming a Grantor (or such later time as may
be agreed by the Collateral Agent). Each Grantor shall promptly inform the Collateral Agent of its
acquisition of any Collateral for which any action is required by Section 4 hereof (including, for
the avoidance of doubt, the filing of any applications for, or the issuance or registration of, any
Patents, Copyrights or Trademarks) within thirty (30) days following the end of the Fiscal Quarter
during which such acquisition occurred. Notwithstanding anything to the contrary in this Agreement
or any other Loan Document, the requirement that the Grantors take actions necessary to perfect the
Collateral Agent’s security interest in the Collateral shall be subject to Section 3.01(g) and (h)
of the Credit Agreement.




SECTION 5. REPRESENTATIONS AND WARRANTIES.



Each Grantor hereby represents and warrants, on the Closing Date and on each Credit
Date, that:




     5.1 Grantor Information & Status.



          (a) Schedule 5.1(A) & (B) (as such schedule may be amended or supplemented from time
to time with written notice to the Collateral Agent) sets forth under the appropriate headings: (1)
the full legal name of such Grantor, (2) all trade names or other names under which such Grantor
currently conducts business, (3) the type of organization of such Grantor, (4) the jurisdiction of
organization of such Grantor, (5) its organizational identification number, if any, and (6) the
jurisdiction where the chief executive office or its sole place of business (or the principal
residence if such Grantor is a natural person) is located.




          (b) except as provided on Schedule 5.1(C), (as such schedule may be amended or
supplemented from time to time with written notice to the Collateral Agent) it has not changed its
name, jurisdiction of organization, chief executive office or sole place of business (or principal
residence if such Grantor is a natural person) or its corporate structure in any way (e.g., by
merger, consolidation, change in corporate form or otherwise) and has not done business under any
other name, in each case, within the five (5) years preceding the Closings Date or if such Grantor
becomes a Grantor on a date after the Closing Date, five (5) years preceding such date;




          (c) it has not within the last five (5) years become bound (whether as a result of
merger or otherwise) as debtor under a security agreement entered into by another Person, which has
not heretofore been terminated other than the agreements identified on Schedule 5.1(D) hereof (as
such schedule may be amended or supplemented from time to time);



          (d) such Grantor has
been duly organized and is validly existing as an entity of the type as set forth opposite such
Grantor’s name on Schedule 5.1(A) (as such schedule may be amended or supplemented from time to
time with written notice to the Collateral Agent) solely under the laws of the jurisdiction as set
forth opposite such Grantor’s name on Schedule 5.1(A) (as such schedule may be amended or
supplemented from time to time) and remains duly existing as such. Such Grantor has not filed any
certificates of dissolution or liquidation, any certificates of domestication, transfer or
continuance in any other jurisdiction; and




          (e) no Grantor is a “transmitting utility” (as
defined in Section 9-102(a)(80) of the UCC).




     5.2 Collateral Identification, Special Collateral.




12











 





          (a) Schedule 5.2, as of the Closing Date, sets forth under the appropriate headings
all of such Grantor’s: (1) Pledged Equity Interests, (2) Pledged Debt, (3) Securities Accounts
other than any Securities Accounts holding assets with a market value of less than $4,000,000
individually or $12,000,000 in the aggregate, (4) Deposit Accounts other than any Deposit Accounts
holding less than $4,000,000 individually or $12,000,000 in the aggregate, (5) Commodity Contracts
and Commodity Accounts other than any Commodity Contracts and Commodity Accounts, in each case,
holding assets with a market value of less than $4,000,000 individually or $12,000,000 in the
aggregate, (6) United States and foreign registrations and issuances of and applications for
Patents, Trademarks, and Copyrights owned by each Grantor, (7) Patent Licenses, Trademark Licenses,
Trade Secret Licenses and Copyright Licenses constituting Material Intellectual Property, (8)
Commercial Tort Claims other than any Commercial Tort Claims having a value of less than $4,000,000
individually or $12,000,000 in the aggregate, (9) Letter of Credit Rights for letters of credit
other than any Letter of Credit Rights worth less than $4,000,000 individually or $12,000,000 in
the aggregate, (10) the name and address of any warehouseman, bailee or other third party in
possession of any Inventory, Equipment and other tangible personal property other than any
Inventory, Equipment or other tangible person property having a value less than $4,000,000
individually or $12,000,000 in the aggregate and (11) Material Contracts; and




          (b) As of the Closing Date (A) no material portion of the Collateral constitutes or
is the Proceeds of, (1) Farm Products, (2) As-Extracted Collateral, (3) Manufactured Homes, (4)
Health-Care-Insurance Receivables; (5) timber to be cut, or (6) aircraft, aircraft engines,
satellites, ships or railroad rolling stock and (B) no material portion of the Collateral consists
of motor vehicles or other goods subject to a certificate of title statute of any jurisdiction.




     5.3 Ownership of Collateral and Absence of Other Liens.



          (a) it owns the Collateral purported to be owned by it or otherwise has the rights
it purports to have in each item of Collateral and, as to all Collateral whether now existing or
hereafter acquired, developed or created (including by way of lease or license), will continue to
own or have such rights in each item of the Collateral (except as otherwise permitted by the Credit
Agreement), in each case free and clear of any and all Liens, rights or claims of all other
Persons, including, without limitation, liens arising as a result of such Grantor becoming bound
(as a result of merger or otherwise) as debtor under a security agreement entered into by another
Person other than any Permitted Liens; and




          (b) other than any financing statements filed
in favor of the Collateral Agent, no effective financing statement, fixture filing or other
instrument similar in effect under any applicable law covering all or any material part of the
Collateral is on file in any filing or recording office except for (x) financing statements for
which duly authorized proper termination statements have been delivered to the Collateral Agent for
filing and (y) financing statements filed in connection with Permitted Liens. Other than the
Collateral Agent and any automatic control in favor of a Bank, Securities Intermediary or Commodity
Intermediary maintaining a Deposit Account, Securities Account or Commodity Contract, no Person is
in Control of any Collateral other than in connection with Permitted Liens.




     5.4 Status of Security Interest.



          (a) upon the filing of financing statements naming each Grantor as “debtor” and the
Collateral Agent as “secured party” and describing the Collateral in the filing offices set





13









 







forth opposite such Grantor’s name on Schedule 5.4 hereof (as such schedule may be amended or
supplemented from time to time), the security interest of the Collateral Agent in all Collateral
that can be perfected by the filing of a financing statement under the Uniform Commercial Code as
in effect in any jurisdiction will constitute a valid, perfected, first priority Liens subject in
the case of priority only, to any Permitted Liens with respect to Collateral. Each agreement, if
any, purporting to give the Collateral Agent Control over any Collateral is effective to establish
the Collateral Agent’s Control of the Collateral subject thereto;




          (b) to the extent perfection or priority of the security interest therein is not subject
to Article 9 of the UCC, upon recordation of the security interests granted hereunder in Patents,
Trademarks, Copyrights and exclusive Copyright Licenses in the applicable intellectual property
registries, including but not limited to the United States Patent and Trademark Office and the
United States Copyright Office, the security interests granted to the Collateral Agent hereunder
shall constitute valid, perfected, first priority Liens (subject, in the case of priority only, to
Permitted Liens);




          (c) except as have been obtained or made and are in full force and effect, no
authorization, consent, approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body or any other Person is required for either (i) the pledge
or grant by any Grantor of the Liens in material Collateral purported to be created in favor of the
Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in
respect of any material Collateral (whether specifically granted or created hereunder or created or
provided for by applicable law), except (A) for the filings contemplated by clause (a) above and
(B) as may be required, in connection with the disposition of any Investment Related Property, by
laws generally affecting the offering and sale of Securities; and




          (d) each Grantor is in compliance with its obligations under Section 4 hereof.




     5.5 Goods & Receivables.



          (a) To the knowledge of the relevant Grantor, each Receivable which is material to
the Grantors, taken as a whole, (i) is and will be the legal, valid and binding obligation of the
Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor,
(ii) is and will be enforceable in accordance with its terms, (iii) is not and will not be subject
to any credits, rights of recoupment, setoffs, defenses, taxes, counterclaims (except with respect
to refunds, returns and allowances in the ordinary course of business with respect to damaged
merchandise) and (iv) is and will be in compliance with all applicable laws, whether federal,
state, local or foreign;




          (b) None of the Account Debtors in respect of any Receivable in excess of $4,000,000
individually or $12,000,000 in the aggregate is the government of the United States, any agency or
instrumentality thereof, any state or municipality or any foreign sovereign except with respect to
which the relevant Grantor has complied with Section 6.5(b). No Receivable in excess of $4,000,000
individually or $12,000,000 in the aggregate requires the consent of the Account Debtor in respect
thereof in connection with the security interest hereunder, except any consent with respect to
which the relevant Grantor has used commercially reasonable efforts to obtain; and




14









 





          (c) no Goods which are a material portion of the Collateral now or hereafter
produced by any Grantor have been or will be produced in violation of the requirements of the Fair
Labor Standards Act, as amended, or the rules and regulations promulgated thereunder.




     5.6 Pledged Equity Interests, Investment Related Property.



          (a) it is the record and beneficial owner of the Pledged Equity Interests free of
all Liens, rights or claims of other Persons and there are no outstanding warrants, options or
other rights to purchase, or shareholder, voting trust or similar agreements outstanding with
respect to, or property that is convertible into, or that requires the issuance or sale of, any
Pledged Equity Interests;




          (b) except as have been obtained or made and are in full force and effect, no
consent of any Person including any other general or limited partner, any other member of a limited
liability company, any other shareholder or any other trust beneficiary is necessary or desirable
in connection with the creation, perfection or first priority status of the security interest of
the Collateral Agent in any Pledged Equity Interests or the exercise by the Collateral Agent of the
voting or other rights provided for in this Agreement or the exercise of remedies in respect
thereof except such as have been obtained; and




          (c) except as set forth on Schedule 5.2 (I) (as such schedule may be amended or
supplemented from time to time and in any event as of the most recent Updating Date), the Pledged
LLC Interests and Pledged Partnership Interests do not represent interests (i) that by their terms
provide that they are securities governed by the uniform commercial code of an applicable
jurisdiction, (ii) that are dealt in or traded on securities exchanges or markets or (iii) in
issuers that are registered as investment companies




SECTION 6. COVENANTS AND AGREEMENTS.



Each Grantor hereby covenants and agrees that:




     6.1 Grantor Information & Status.


Without limiting any prohibitions or restrictions on mergers or other transactions set forth in the
Credit Agreement, it shall not change such Grantor’s name, corporate structure (e.g. by merger,
consolidation, change in corporate form or otherwise), chief executive office, type of organization
or jurisdiction of organization or establish any trade names unless it shall have (a) notified the
Collateral Agent in writing at least ten (10) days (or such lesser time as the Collateral Agent may
agree) prior to any such change or establishment, identifying such new proposed name, corporate
structure, chief executive office, jurisdiction of organization or trade name and providing such
other information in connection therewith as the Collateral Agent may reasonably request and (b)
taken all actions necessary or advisable to maintain the continuous validity, perfection and the
same or better priority of the Collateral Agent’s security interest in the Collateral granted or
intended to be granted and agreed to hereby, which in the case of any merger or other change in
corporate structure shall include, without limitation, executing and delivering to the Collateral
Agent a completed Pledge Supplement together with all Supplements to Schedules thereto, upon
completion of such merger or other change in corporate structure confirming the grant of the
security interest hereunder.




15









 







     6.2
Collateral Identification; Special Collateral; Defense of Collateral.



          (a) in the event that it hereafter acquires any Collateral of a type described in
Section 5.2(b) hereof, it shall promptly notify the Collateral Agent thereof in writing and take
such actions and execute such documents and make such filings all at Grantor’s expense as the
Collateral Agent may reasonably request in order to ensure that the Collateral Agent has a valid,
perfected, first priority security interest in such Collateral, subject in the case of priority
only, to any Permitted Liens.




          (b) in the event that it hereafter acquires or has any Commercial Tort Claim in
excess of $4,000,000 individually or $12,000,000 in the aggregate it shall deliver to the
Collateral Agent a completed Pledge Supplement together with all Supplements to Schedules thereto,
identifying such new Commercial Tort Claims.




     6.3 Ownership of Collateral and Absence of Other Liens.



          (a) except for the security interest created by this Agreement, it shall not create
or suffer to exist any Lien upon or with respect to any of the Collateral, other than Permitted
Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any
interest therein;




          (b) upon such Grantor or any officer of such Grantor obtaining
knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that may
have a Material Adverse Effect on (i) the value of the Collateral or any portion thereof, (ii) the
ability of any Grantor or the Collateral Agent to dispose of the Collateral or any portion thereof,
or (iii) the rights and remedies of the Collateral Agent in relation thereto, including, without
limitation, the levy of any legal process against the Collateral or any portion thereof; and
(c) it shall not sell, transfer or assign (by operation of law or otherwise) or
exclusively license to another Person any Collateral except as otherwise permitted by the Credit
Agreement.




     6.4 Status of Security Interest.



          (a) Subject to the limitations set forth in subsection (b) of this Section 6.4, each
Grantor shall maintain the security interest of the Collateral Agent hereunder in all Collateral as
valid, perfected, first priority Liens (subject, in the case of priority only, to Permitted Liens).




          (b) Notwithstanding the foregoing, no Grantor shall be required to take any action
to perfect any Collateral that can only be perfected by (i) Control or possession, except as and to
the extent specified in Section 4 hereof, (ii) foreign filings with respect to Intellectual
Property, except as and to the extent specified in Section 4 hereof or (iii) filings with
registrars of motor vehicles or similar governmental authorities with respect to goods covered by a
certificate of title, in each case except as and to the extent specified in Section 4 hereof.




     6.5 Goods & Receivables.



          (a) other than in connection with a disposition permitted by the Credit Agreement,
it shall not deliver any Document evidencing any Equipment and Inventory to any Person other than
the issuer of such Document to claim the Goods evidenced therefor or the Collateral Agent;




16









 





          (b) in the case of each Grantor, such Grantor shall, on each Updating Date, provide
the Collateral Agent with written notice of any Receivable of the type described in Section 5.5(b)
with respect to which compliance with this Section 6.5 is required, entered into since the last
Updating Date and within thirty (30) days of such notice, unless otherwise agreed by the Collateral
Agent, deliver to the Collateral Agent such documentation reasonably necessary to comply with the
Assignment of Claims Act of 1940 or any applicable similar state statute or regulation with respect
to the assignment of the right of payment in respect of such Receivable;




          (c) if any Equipment or Inventory in excess of $4,000,000 individually or
$12,000,000 in the aggregate is in possession or control of any warehouseman, bailee or other third
party (other than a Consignee under a Consignment for which such Grantor is the Consignor), each
Grantor shall join with the Collateral Agent in notifying the third party of the Collateral Agent’s
security interest and use commercially reasonable efforts to obtain an acknowledgment from the
third party that it is holding the Equipment and Inventory for the benefit of the Collateral Agent
and will permit the Collateral Agent to have access to Equipment or Inventory for purposes of
inspecting such Collateral or, following an Event of Default, to remove same from such premises if
the Collateral Agent so elects; and with respect to any Goods in excess of $4,000,000 individually
or $12,000,000 in the aggregate subject to a Consignment for which such Grantor is the Consignor,
Grantor shall file appropriate financing statements against the Consignee and take such other
action as may be necessary to ensure that the Grantor has a first priority perfected security
interest in such Goods;




          (d) it shall keep and maintain at its own cost and expense satisfactory and complete
records of the Receivables, including, but not limited to, the originals of all documentation with
respect to all Receivables and records of all payments received and all credits granted on the
Receivables, all merchandise returned and all other dealings therewith;




          (e) following and during the continuation of an Event of Default, such Grantor shall
not, other than in the ordinary course of business and consistent with past practice, (w) grant any
extension or renewal of the time of payment of any Receivable, (x) compromise or settle any
dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid
balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or
(z) allow any credit or discount thereon; and




          (f) the Collateral Agent shall have the right at any time following the occurrence
and during the continuation of an Event of Default to notify, or require any Grantor to notify, any
Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting
Obligation and, in addition, at any time following the occurrence and during the continuation of an
Event of Default, the Collateral Agent may: (i) direct the Account Debtors under any Receivables to
make payment of all amounts due or to become due to such Grantor thereunder directly to the
Collateral Agent; (ii) notify, or require any Grantor to notify, each Person maintaining a lockbox
or similar arrangement to which Account Debtors under any Receivables have been directed to make
payment to remit all amounts representing collections on checks and other payment items from time
to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent;
and (iii) enforce, at the expense of such Grantor, collection of any such Receivables and to
adjust, settle or compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has
elected to collect the Receivables in accordance with the preceding sentence, any payments of
Receivables received by such Grantor shall be forthwith (and in any
event within two (2) Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Collateral Agent if required, in the Collateral








17









 







Account maintained under the sole dominion and control of the Collateral Agent, and until so turned
over, all amounts and proceeds (including checks and other instruments) received by such Grantor in
respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in
trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of
such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any
Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit
or discount thereon.




     6.6 Pledged Equity Interests, Investment Related Property.



          (a) Dividends. Except as provided in the next sentence, in the event such Grantor
receives any dividends, interest or distributions on any Pledged Equity Interest or other
Investment Related Property, upon the merger, consolidation, liquidation or dissolution of any
issuer of any Pledged Equity Interest or Investment Related Property, then (a) such dividends,
interest or distributions and securities or other property shall be included in the definition of
Collateral without further action and (b) such Grantor shall comply with the requirements of
Section 4 to the extent applicable to such property. Notwithstanding the foregoing, so long as no
Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each
Grantor to retain all cash dividends and distributions and all payments of interest.




          (b) Voting.





          (i) So long as no Event of Default shall have occurred and be continuing,
except as otherwise provided under the covenants and agreements relating to Investment
Related Property in this Agreement or elsewhere herein or in the Credit Agreement, each
Grantor shall be entitled to exercise or refrain from exercising any and all voting and
other consensual rights pertaining to the Investment Related Property or any part thereof
for any purpose not inconsistent with the terms of this Agreement or the Credit Agreement;
provided, that upon the occurrence and during the continuation of an Event of Default, no
Grantor shall exercise or refrain from exercising any such right if the Collateral Agent
shall have notified such Grantor that, in the Collateral Agent’s reasonable judgment, such
action would have a Material Adverse Effect on the value of the Investment Related Property
or any part thereof; and provided further, upon the occurrence and during the continuation
of an Event of Default, such Grantor shall give the Collateral Agent at least five (5)
Business Days prior written notice of the manner in which it intends to exercise, or the
reasons for refraining from exercising, any such right referred to in the first proviso
above; it being understood, however, that neither the voting by such Grantor of any Pledged
Stock for, or such Grantor’s consent to, the election of directors (or similar governing
body) at a regularly scheduled annual or other meeting of stockholders or with respect to
incidental matters at any such meeting, nor such Grantor’s consent to or approval of any
action otherwise permitted under this Agreement and the Credit Agreement, shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the meaning of
this Section 6.6(b)(i)(1) and no notice of any such voting or consent need be given to the
Collateral Agent; and




          (ii) Upon the occurrence and during the continuation of an Event of Default:




	 	(1)	 	subject to clause (b)(i) above, all rights of each Grantor to exercise or
refrain from exercising the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant hereto shall cease and all such rights shall





18









 






	 	 	 	thereupon become vested in the Collateral Agent who shall thereupon have the sole right to
exercise such voting and other consensual rights; and
	 
	 	(2)	 	in order to permit the Collateral Agent to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends
and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall
promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all
proxies, dividend payment orders and other instruments as the Collateral Agent may from time to
time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the
power of attorney set forth in Section 8.1; and





          (c) if any issuer of any Pledged Partnership Interests or Pledged LLC Interests
which are not securities (for purposes of the UCC), on the date hereof elects to or otherwise takes
any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as
securities for purposes of the UCC; such Grantor owning such Pledged Partnership Interests or
Pledged LLC Interests shall promptly notify the Collateral Agent in writing of any such election or
action and, in such event, shall take all steps necessary or advisable to establish the Collateral
Agent’s “control” thereof; and




          (d) except as expressly permitted by the Credit Agreement, without the prior written
consent of the Collateral Agent, it shall not permit any issuer of any Pledged Equity Interest to
merge or consolidate unless (i) such issuer creates a security interest that is perfected by a
filed financing statement (that is not effective solely under section 9-508 of the UCC) in
collateral in which such new debtor has or acquires rights, (ii) all the outstanding capital stock
or other equity interests of the surviving or resulting corporation, limited liability company,
partnership or other entity is, upon such merger or consolidation, pledged hereunder; provided,
that if the surviving or resulting Grantors upon any such merger or consolidation involving an
issuer which is a Controlled Foreign Corporation, then such Grantor shall only be required to
pledge equity interests in accordance with Section 2.2 and (iii) Grantor promptly complies with the
delivery and control requirements of Section 4 hereof.




SECTION 7. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES;
ADDITIONAL GRANTORS.




     7.1 Further Assurances.



          (a) Each Grantor agrees that from time to time, at the expense of such Grantor, that
it shall promptly execute and deliver all further instruments and documents, and take all further
action, that may be necessary, or that the Collateral Agent may reasonably request, in order to
create and/or maintain the validity, perfection or priority of and protect any security interest
granted or purported to be granted hereby subject to the limitations expressly set forth herein or
to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:





          (i) subject to the limitations expressly set forth herein, file such financing or
continuation statements, or amendments thereto, record security interests in Intellectual Property
and execute and deliver such other agreements, instruments, endorsements, powers of attorney or
notices, as may be necessary, or as the Collateral








19









 












Agent may reasonably request, in order to effect, reflect, perfect and preserve the
security interests granted or purported to be granted hereby;




          (ii) subject to the limitations expressly set forth herein, take all actions
necessary to ensure the recordation of appropriate evidence of the liens and security
interest granted hereunder in any Intellectual Property with any intellectual property
registry in which said Intellectual Property is registered or issued or in which an
application for registration or issuance is pending, including, without limitation, the
United States Patent and Trademark Office, the United States Copyright Office, the various
Secretaries of State, and the foreign counterparts on any of the foregoing;




          (iii) if an Event of Default has occurred and is continuing, upon request by the
Collateral Agent, assemble all or part of the Collateral as directed by the Collateral
Agent and make such Collateral available to the Collateral Agent, at a place to be
designated by the Collateral Agent that is reasonably convenient to both parties and allow
inspection of the Collateral by the Collateral Agent, or persons designated by the
Collateral Agent;




          (iv) if an Event of Default has occurred and is continuing, at the Collateral
Agent’s request, appear in and defend any action or proceeding that may affect such
Grantor’s title to or the Collateral Agent’s security interest in all or any material part
of the Collateral; and




          (v) furnish the Collateral Agent with such information regarding the Collateral,
including, without limitation, the location thereof, as the Collateral Agent may reasonably
request from time to time.



          (b) Each Grantor hereby authorizes the Collateral Agent to file a Record or Records,
including, without limitation, financing or continuation statements, Intellectual Property Security
Agreements and amendments and supplements to any of the foregoing, in any jurisdictions and with
any filing offices as the Collateral Agent may determine, in its sole discretion, are necessary to
perfect or otherwise protect the security interest granted to the Collateral Agent herein. Such
financing statements may describe the Collateral in the same manner as described herein or may
contain an indication or description of collateral that describes such property in any other manner
as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent
to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent
herein, including, without limitation, describing such property as “all assets, whether now owned
or hereafter acquired, developed or created” or words of similar effect. Each Grantor shall
furnish to the Collateral Agent from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.




          (c) Each Grantor hereby authorizes the Collateral Agent to modify this Agreement
after obtaining such Grantor’s signature to such modification by amending Schedule 5.2 (as such
schedule may be amended or supplemented from time to time) to include reference to any right, title
or interest in any existing Intellectual Property or any Intellectual Property acquired or
developed by any Grantor after the execution hereof or to delete any reference to any right, title
or interest in any Intellectual Property in which any Grantor no longer has or claims any right,
title or interest.




20









 





     7.2 Additional Grantors. From time to time subsequent to the date hereof, additional Persons
may become parties hereto as additional Grantors (each, an “Additional Grantor”), by executing a
Pledge Supplement. Upon delivery of any such Pledge Supplement to the Collateral Agent, notice of
which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as
fully a party hereto as if Additional Grantor were an original signatory hereto. Each Grantor
expressly agrees that its obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to
cause any Subsidiary of the Parent to become an Additional Grantor hereunder. This Agreement shall
be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any
other Person becomes or fails to become or ceases to be a Grantor hereunder.



SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.




     8.1 Power of Attorney. Each Grantor hereby irrevocably appoints the Collateral Agent (such
appointment being coupled with an interest) as such Grantor’s attorney-in-fact, with full authority
in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or
otherwise, from time to time during the continuance of an Event of Default, in the Collateral
Agent’s discretion to take any action and to execute any instrument that the Collateral Agent may
deem reasonably necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, the following:



          (a) to obtain and adjust insurance required to be maintained by such Grantor or paid
to the Collateral Agent pursuant to the Credit Agreement;




          (b) to ask for, demand, collect, sue for, recover, compound, receive and give
acquittance and receipts for moneys due and to become due under or in respect of any of the
Collateral;




          (c) to receive, endorse and collect any drafts or other instruments, documents and
chattel paper in connection with clause (b) above;




          (d) to file any claims or take any action or institute any proceedings that the
Collateral Agent may deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of the Collateral Agent with respect to any of the Collateral;




          (e) to prepare, sign, and file for recordation in any intellectual property
registry, appropriate evidence of the lien and security interest granted herein in any Intellectual
Property in the name of such Grantor as debtor;




          (f) to take or cause to be taken all actions necessary to perform or comply or cause
performance or compliance with the terms of this Agreement, including, without limitation, access
to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened
against the Collateral, the legality or validity thereof and the amounts necessary to discharge the
same to be determined by the Collateral Agent in its sole discretion, any such payments made by the
Collateral Agent to become obligations of such Grantor to the Collateral Agent, due and payable
immediately without demand; and




          (g) to sell, transfer, lease, license, pledge, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent
were the absolute owner thereof for all purposes, and to do, at the Collateral Agent’s




21









 







option and such Grantor’s expense, at any time or from time to time, all acts and things that the
Collateral Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and
the Collateral Agent’s security interest therein in order to effect the intent of this Agreement,
all as fully and effectively as such Grantor might do.




     8.2 No Duty on the Part of Collateral Agent or Secured Parties. The powers conferred on the
Collateral Agent hereunder are solely to protect the interests of the Secured Parties in the
Collateral and shall not impose any duty (other than a reasonable standard of care pursuant to
Section 12) upon the Collateral Agent or any other Secured Party to exercise any such powers.



     8.3 Appointment Pursuant to Credit Agreement. The Collateral Agent has been appointed as
collateral agent pursuant to the Credit Agreement. The rights, duties, privileges, immunities and
indemnities of the Collateral Agent hereunder are subject to the provisions of the Credit
Agreement.



SECTION 9. REMEDIES.




     9.1 Generally.



          (a) If any Event of Default shall have occurred and be continuing, the Collateral
Agent may exercise in respect of the Collateral, in addition to all other rights and remedies
provided for herein or otherwise available to it at law or in equity, all the rights and remedies
of the Collateral Agent on default under the UCC (whether or not the UCC applies to the affected
Collateral) to collect, enforce or satisfy any Secured Obligations then owing, whether by
acceleration or otherwise, and also may pursue any of the following separately, successively or
simultaneously:





          (i) require any Grantor to, and each Grantor hereby agrees that it shall
at its expense and promptly upon request of the Collateral Agent forthwith, assemble all or part of
the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at
a place to be designated by the Collateral Agent that is reasonably convenient to both parties;




          (ii) enter onto the property where any Collateral is located and take possession thereof
with or without judicial process;




          (iii) prior to the disposition of the Collateral,
store, process, repair or recondition the Collateral or otherwise prepare the Collateral for
disposition in any manner to the extent the Collateral Agent deems appropriate; and




          (iv)
without notice except as specified below or under the UCC, sell, assign, lease, license (on an
exclusive or nonexclusive basis, to the extent the Grantor has the lawful right to do so) or
otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private
sale, at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other terms as may be
commercially reasonable.



          (b) The Collateral Agent or any other Secured Party may be the purchaser of any or
all of the Collateral at any public or private (to the extent to the portion of the Collateral
being privately sold is of a kind that is customarily sold on a recognized market or the subject of




22









 







widely distributed standard price quotations) sale in accordance with the UCC and the Collateral
Agent, as collateral agent for and representative of the Secured Parties, shall be entitled, for
the purpose of bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply
any of the Secured Obligations as a credit on account of the purchase price for any Collateral
payable by the Collateral Agent at such sale. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor
hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days notice to such Grantor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless
of notice of sale having been given. The 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 Grantor agrees
that it would not be commercially unreasonable for the Collateral Agent to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capability of doing so, or that
match buyers and sellers of assets. Each Grantor hereby waives any claims against the Collateral
Agent arising by reason of the fact that the price at which any Collateral may have been sold at
such a private sale was less than the price which might have been obtained at a public sale, even
if the Collateral Agent accepts the first offer received and does not offer such Collateral to more
than one offeree. If the proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Secured Obligations, Grantors shall be liable for the deficiency and
the fees of any attorneys employed by the Collateral Agent to collect such deficiency. Each Grantor
further agrees that a breach of any of the covenants contained in this Section will cause
irreparable injury to the Collateral Agent, that the Collateral Agent has no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and
agrees not to assert any defenses against an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured Obligations becoming
due and payable prior to their stated maturities. Nothing in this Section shall in any way limit
the rights of the Collateral Agent hereunder.




          (c) The Collateral Agent may sell the Collateral without giving any warranties as to
the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or
the like. This procedure will not be considered to adversely affect the commercial reasonableness
of any sale of the Collateral.




          (d) The Collateral Agent shall have no obligation to marshal any of the Collateral.




     9.2 Application of Proceeds. Except as expressly provided elsewhere in this Agreement, all
proceeds received by the Collateral Agent in respect of any sale of, any collection from, or other
realization upon all or any part of the Collateral shall be applied in full or in part by the
Collateral Agent against, the Secured Obligations in the following order of priority: first, to the
payment of all reasonable and documented costs and expenses of such sale, collection or other
realization, including reasonable compensation to the Collateral Agent and its agents and counsel,
and all other expenses, liabilities and advances made or incurred by the Collateral Agent in
connection therewith, and all amounts for which the Collateral Agent is entitled to



23









 




indemnification hereunder (in its capacity as the Collateral Agent and not as a Lender) and all
advances made by the Collateral Agent hereunder for the account of the applicable Grantor, and to
the payment of all reasonable and documented costs and expenses paid or incurred by the Collateral
Agent in connection with the exercise of any right or remedy hereunder or under the Credit
Agreement, all in accordance with the terms hereof or thereof; second, to the extent of any excess
of such proceeds, to the payment of all other Secured Obligations in accordance with Section
2.15(d) of the Credit Agreement; and third, to the extent of any excess of such proceeds, to the
payment to or upon the order of the applicable Grantor or to whosoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.




     9.3 Sales on Credit. If the Collateral Agent sells any of the Collateral upon credit, Grantor
will be credited only with payments actually made by purchaser and received by Collateral Agent and
applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the
Collateral, Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds
of the sale.



     9.4 Investment Related Property. Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state securities laws, the Collateral
Agent may be compelled, with respect to any sale of all or any part of the Investment Related
Property conducted without prior registration or qualification of such Investment Related Property
under the Securities Act and/or such state securities laws, to limit purchasers to those who will
agree, among other things, to acquire the Investment Related Property for their own account, for
investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges
that any such private sale may be at prices and on terms less favorable 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, each
Grantor agrees that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales
and no obligation to delay the sale of any Investment Related Property 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, or should, agree to so register it. If the Collateral Agent determines to exercise
its right to sell any or all of the Investment Related Property, upon written request, each Grantor
shall and shall cause each issuer of any Pledged Stock to be sold hereunder, each partnership and
each limited liability company from time to time to furnish to the Collateral Agent all such
information as the Collateral Agent may request in order to determine the number and nature of
interest, shares or other instruments included in the Investment Related Property which may be sold
by the Collateral Agent in exempt transactions under the Securities Act and the rules and
regulations of the Securities and Exchange Commission thereunder, as the same are from time to time
in effect.



     9.5 Grant of Intellectual Property License. For the purpose of enabling the Collateral Agent,
during the continuance of an Event of Default, to exercise rights and remedies under Section 9
hereof at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, each Grantor hereby grants to the Collateral Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to
quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such
Trademarks, to use, assign, license or sublicense any of the Intellectual Property now owned or
hereafter acquired, developed or created by such Grantor, wherever the same may be located. Such
license shall include access to all media in which any of the licensed



24









 




items may be recorded or stored and to all computer programs used for the compilation or printout
hereof.




     9.6 Intellectual Property.



          (a) Anything contained herein to the contrary notwithstanding, in addition to the
other rights and remedies provided herein, upon the occurrence and during the continuation of an
Event of Default:





          (i) the Collateral Agent shall have the right (but not the obligation)
to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the
Collateral Agent or otherwise, in the Collateral Agent’s sole discretion, to enforce any
Intellectual Property rights of such Grantor, in which event such Grantor shall, at the request of
the Collateral Agent, do any and all lawful acts and execute any and all documents required by the
Collateral Agent in aid of such enforcement, and such Grantor shall promptly, upon demand,
reimburse and indemnify the Collateral Agent as provided in Section 12 hereof in connection with
the exercise of its rights under this Section 9.6, and, to the extent that the Collateral Agent
shall elect not to bring suit to enforce any Intellectual Property rights as provided in this
Section 9.6, each Grantor agrees to use all reasonable measures, whether by action, suit,
proceeding or otherwise, to prevent the infringement, misappropriation, dilution or other violation
of any of such Grantor’s rights in the Intellectual Property by others and for that purpose agrees
to diligently maintain any action, suit or proceeding against any Person so infringing,
misappropriating, diluting or otherwise violating as shall be necessary to prevent such
infringement, misappropriation, dilution or other violation;




          (ii) upon written demand from the Collateral Agent, each Grantor shall grant,
assign, convey or otherwise transfer to the Collateral Agent or such Collateral Agent’s designee
all of such Grantor’s right, title and interest in and to any Intellectual Property included in the
Collateral and shall execute and deliver to the Collateral Agent such documents as are necessary or
appropriate to carry out the intent and purposes of this Agreement;




          (iii) each Grantor agrees that such an assignment and/or recording shall be applied
to reduce the Secured Obligations outstanding only to the extent that the Collateral Agent (or any
other Secured Party) receives cash proceeds in respect of the sale of, or other realization upon,
any such Intellectual Property; and




          (iv) the Collateral Agent shall have the right to notify, or require each Grantor to
notify, any obligors with respect to amounts due or to become due to such Grantor in respect of any
Intellectual Property of such Grantor, of the existence of the security interest created herein, to
direct such obligors to make payment of all such amounts directly to the Collateral Agent, and,
upon such notification and at the expense of such Grantor, to enforce collection of any such
amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and
to the same extent as such Grantor might have done;




	 	(1)	 	all amounts and proceeds (including checks and other instruments) received by
Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion
thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be
segregated from other funds of such Grantor and shall










25









 












	 	 	 	be forthwith paid over or delivered to the Collateral Agent in the same form as so
received (with any necessary endorsement) to be held as cash Collateral and applied as
provided by Section 9.7 hereof; and
	 
	 	(2)	 	without the consent of the Collateral Agent, a Grantor shall not, other
than in the ordinary course of business and consistent with past practice, adjust, settle
or compromise the amount or payment of any such amount or release wholly or partly any
obligor with respect thereto or allow any credit or discount thereon.





          (b) If (i) an Event of Default shall have occurred and, by reason of cure, waiver,
modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall
have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of
any rights, title and interests in and to any Intellectual Property of such Grantor shall have been
previously made and shall have become absolute and effective, and (iv) the Secured Obligations
shall not have become immediately due and payable, upon the written request of any Grantor, the
Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantor’s sole cost
and expense, such assignments or other transfer as may be necessary to reassign to such Grantor any
such rights, title and interests as may have been assigned to the Collateral Agent as aforesaid,
subject to any disposition thereof that may have been made by the Collateral Agent; provided, after
giving effect to such reassignment, the Collateral Agent’s security interest granted pursuant
hereto, as well as all other rights and remedies of the Collateral Agent granted hereunder, shall
continue to be in full force and effect; and provided further, the rights, title and interests so
reassigned shall be free and clear of any other Liens granted by or on behalf of the Collateral
Agent and the Secured Parties.




     9.7 Cash Proceeds; Deposit Accounts. (a) If any Event of Default shall have occurred and be
continuing, in addition to the rights of the Collateral Agent specified in Section 6.5 with respect
to payments of Receivables, all proceeds of any Collateral received by any Grantor consisting of
cash, checks and other near-cash items (collectively, “Cash Proceeds”) shall be held by such
Grantor in trust for the Collateral Agent, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Collateral Agent, if required) and
held by the Collateral Agent in the Collateral Account. Any Cash Proceeds received by the
Collateral Agent (whether from a Grantor or otherwise) may during the occurrence of an Event of
Default, in the sole discretion of the Collateral Agent, (A) be held by the Collateral Agent for
the ratable benefit of the Secured Parties, as collateral security for the Secured Obligations
(whether matured or unmatured) and/or (B) then or at any time thereafter may be applied by the
Collateral Agent against the Secured Obligations then due and owing.



     (b) If any Event of Default shall have occurred and be continuing, the Collateral Agent may
apply the balance from any Deposit Account or instruct the bank at which any Deposit Account is
maintained to pay the balance of any Deposit Account to or for the benefit of the Collateral Agent.



SECTION 10. COLLATERAL AGENT.




     The Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and,
by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall
be obligated, and 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 any action
(including, without limitation, the release or substitution of Collateral), solely in accordance
with



26









 




this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in
full of all Obligations under the Credit Agreement and the other Loan Documents, exercise, or
refrain from exercising, any remedies provided for herein in accordance with the instructions of
the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined
in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in
accordance with its terms, the amount then due and payable (exclusive of expenses and similar
payments but including any early termination payments then due) under such Hedge Agreement) under
all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that
has not been terminated shall be the settlement amount as of the last Business Day of the month
preceding any date of determination and shall be calculated by the appropriate swap counterparties
and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement
amount that is a negative number shall be disregarded for purposes of determining the Majority
Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, by its
acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon
any of the Collateral hereunder, it being understood and agreed by such Secured Party that all
rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of
Secured Parties in accordance with the terms of this Section. The provisions of the Credit
Agreement relating to the Collateral Agent including, without limitation, the provisions relating
to resignation or removal of the Collateral Agent and the powers and duties and immunities of the
Collateral Agent are incorporated herein by this reference and shall survive any termination of the
Credit Agreement.




SECTION 11. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.




     This Agreement shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the payment in full of all Secured Obligations (subject to the U.S.
Borrower’s right pursuant to Section 9.08(d) of the Credit Agreement to request termination of the
security interest upon payment in full of all of the Secured Obligations other than the Hedging
Obligations and contingent indemnification obligations), the cancellation or termination of the
Commitments and the cancellation, expiration, posting of backstop letters of credit or cash
collateralization of all outstanding Letters of Credit satisfactory to the issuer(s) of such
Letters of Credit, be binding upon each Grantor, its successors and assigns, and inure, together
with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral
Agent and its successors, transferees and assigns. Without limiting the generality of the
foregoing, but subject to the terms of the Credit Agreement, any Lender may assign or otherwise
transfer any Loans held by it to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to Lenders herein or otherwise. Upon the
payment in full of all Secured Obligations, the cancellation or termination of the Commitments and
the cancellation, expiration, posting of backstop letters of credit or cash collateralization of
all outstanding Letters of Credit satisfactory to the issuer(s) of such Letters of Credit, the
security interest granted hereby shall automatically terminate hereunder and of record and all
rights to the Collateral shall revert to the Grantors. Upon any such termination the Collateral
Agent shall, at the Grantors’ expense, execute and deliver to the Grantors or otherwise authorize
the filing of such documents as the Grantors shall reasonably request, including financing
statement amendments to evidence such termination. Upon any disposition of property permitted by
the Credit Agreement, the Liens granted herein shall be deemed to be automatically released and
such property shall automatically revert to the applicable Grantor with no further action on the
part of any Person. The Collateral Agent shall, at the applicable Grantor’s expense, execute and
deliver or otherwise authorize the filing of such documents as such Grantor shall reasonably
request, in form and substance reasonably satisfactory to the Collateral Agent, including
financing statement amendments to evidence such release.



27









 





SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.




     The powers conferred on the Collateral Agent hereunder are solely to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its
own property. Neither the Collateral Agent nor any of its directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon all or any material part of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of any Grantor or otherwise. If any Grantor fails to
perform any agreement contained herein, the Collateral Agent may itself perform, or cause
performance of, such agreement, and the reasonable and documented expenses of the Collateral Agent
incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Credit
Agreement.



SECTION 13. MISCELLANEOUS.




     Any notice required or permitted to be given under this Agreement shall be given in accordance
with Section 10.1 of the Credit Agreement. No failure or delay on the part of the Collateral Agent
in the exercise of any power, right or privilege hereunder or under any other Credit Document shall
impair such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement shall be binding upon and inure to the benefit of the Collateral Agent and the Grantors
and their respective successors and assigns. No Grantor shall, without the prior written consent of
the Collateral Agent given in accordance with the Credit Agreement, assign any right, duty or
obligation hereunder. This Agreement and the other Loan Documents embody the entire agreement and
understanding between the Grantors and the Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and thereof. Accordingly,
the Loan Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the parties. This
Agreement may be executed in one or more counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.



          THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL CLAIMS AND
CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER SOUNDING IN CONTRACT LAW, TORT LAW
OR OTHERWISE SHALL BE GOVERNED BY, AND SHALL BE









28









 







CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE STATE OF
NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION
AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).




          THE PROVISIONS OF THE CREDIT AGREEMENT UNDER THE
HEADINGS “CONSENT TO JURISDICTION” AND “WAIVER OF JURY TRIAL” ARE INCORPORATED HEREIN BY THIS
REFERENCE AND SUCH INCORPORATION
SHALL SURVIVE ANY TERMINATION OF THE CREDIT AGREEMENT.




(signature pages follow)









29









 











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



	 	 	 	 	 
	 	GRIFOLS INC.,

as Grantor

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOMAT USA, INC.,

as Grantor

 	 
	 	By:  	/s/ David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GRIFOLS BIOLOGICALS, INC.,

as Grantor

 	 
	 	By:  	/s/ David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TALECRIS BIOTHERAPEUTICS, INC.,

as Grantor

 	 
	 	By:  	/s/ David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TALECRIS PLASMA RESOURCES, INC.,

as Grantor

 	 
	 	By:  	/s/ David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 













 






	 	 	 	 	 



	 	 	 	 	 
	 	GRIFOLS, S.A.

as Grantor

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 














 











	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

as Collateral Agent

 	 
	 	By:  	/s/ Carin Keegan
 	 
	 	 	Name:  	Carin Keegan 	 
	 	 	Title:  	Director 	 
	 	 	 
	 	By:  	                                            /s/ Erin Morrissey
 	 
	 	 	Name:  	Erin Morrissey 	 
	 	 	Title:  	Director 	 
	 
















 








EXHIBIT A

TO PLEDGE AND SECURITY AGREEMENT




PLEDGE SUPPLEMENT




     This PLEDGE SUPPLEMENT, dated [mm/dd/yy], is delivered by [NAME OF GRANTOR] a [NAME OF STATE
OF INCORPORATION] [Corporation] (the “Grantor”) pursuant to the Pledge and Security
Agreement, dated as of [mm/dd/yy] (as it may be from time to time amended, restated, modified or
supplemented, the “Security Agreement”), among Grifols Inc., the other Grantors named
therein, and Deutsche Bank AG New York Branch, as the Collateral Agent. Capitalized terms used
herein not otherwise defined herein shall have the meanings ascribed thereto in the Security
Agreement.



     Grantor hereby confirms the grant to the Collateral Agent set forth in the Security Agreement
of, and does hereby grant to the Collateral Agent, a security interest in all of Grantor’s right,
title and interest in, to and under all Collateral to secure the Secured Obligations, in each case
whether now or hereafter existing or in which Grantor now has or hereafter acquires an interest and
wherever the same may be located. Grantor represents and warrants that the attached Supplements to
Schedules accurately and completely set forth all additional information required to be provided
pursuant to the Security Agreement and hereby agrees that such Supplements to Schedules shall
constitute part of the Schedules to the Security Agreement.



          THIS PLEDGE SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL CLAIMS
AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER SOUNDING IN CONTRACT LAW, TORT
LAW OR OTHERWISE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW
OTHER THAN THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY
PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION
AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).




     IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly
executed and delivered by its duly authorized officer as of [mm/dd/yy].



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT A-1






 









 








SUPPLEMENT TO SCHEDULE 5.1

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




GENERAL INFORMATION





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Chief Executive	 	 
	 	 	 	 	 	 	Office/Sole Place of	 	 
	 	 	 	 	 	 	Business (or	 	 
	Full Legal	 	Type of	 	Jurisdiction of	 	Residence if Grantor	 	 
	Name	 	Organization	 	Organization	 	is a Natural Person)	 	Organization I.D.#
	 

	 	 
	 	 
	 	 
	 	 






	(B)	 	Other Names (including any Trade Name or Fictitious Business Name) under which
each Grantor currently conducts business:





	 	 	 
	Full Legal Name	 	Trade Name or Fictitious Business Name
	 

	 	 






	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past five (5) years:





	 	 	 	 	 
	Grantor	 	Date of Change	 	Description of Change
	 

	 	 
	 	 






	(D)	 	Agreements pursuant to which any Grantor is bound as debtor within past five (5) years:





	 	 	 
	Grantor	 	Description of Agreement
	 

	 	 





EXHIBIT A-2










 









 








SUPPLEMENT TO SCHEDULE 5.2

TO PLEDGE AND SECURITY AGREEMENT




COLLATERAL IDENTIFICATION





	 	 	 I. INVESTMENT RELATED PROPERTY
	 
	(A)	 	Pledged Stock:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	of
	 	 	 	 	 	 	 	 	Stock	 	 	 	No. of	 	Outstanding
	 	 	Stock	 	Class of	 	Certificated	 	Certificate	 	 	 	Pledged	 	Stock of the
	Grantor	 	Issuer	 	Stock	 	(Y/N)	 	No.	 	Par Value	 	Stock	 	Stock Issuer
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 






Pledged LLC Interests:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	 	 	LLC Interests of
	 	 	Limited	 	 	 	 	 	 	 	the Limited
	 	 	Liability	 	Certificated	 	Certificate No.	 	No. of Pledged	 	Liability
	Grantor	 	Company	 	(Y/N)	 	(if any)	 	Units	 	Company
	 

	 	 
	 	 
	 	 
	 	 	 	  






Pledged Partnership Interests:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Type of	 	 	 	 	 	Percentage of
	 	 	 	 	Partnership	 	 	 	 	 	Outstanding
	 	 	 	 	Interests (e.g.,	 	 	 	 	 	Partnership
	 	 	 	 	general or	 	Certificated	 	Certificate No.	 	Interests of the
	Grantor	 	Partnership	 	limited)	 	(Y/N)	 	(if any)	 	Partnership
	 

	 	 
	 	 
	 	 
	 	 
	 	 






Pledged Trust Interests:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	Class of Trust	 	Certificated	 	Certificate No.	 	Trust Interests
	Grantor	 	Trust	 	Interests	 	(Y/N)	 	(if any)	 	of the Trust
	 

	 	 
	 	 
	 	 
	 	 
	 	 






Pledged Debt:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Original	 	Outstanding	 	 	 	 
	 	 	 	 	Principal	 	Principal	 	 	 	 
	Grantor	 	Issuer	 	Amount	 	Balance	 	Issue Date	 	Maturity Date
	 

	 	 
	 	 
	 	 
	 	 
	 	 





EXHIBIT A-3





 









 









Securities Account:



	 	 	 	 	 	 	 
	 	 	Share of Securities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name
	 

	 	 
	 	 
	 	 






Deposit Accounts:



	 	 	 	 	 	 	 
	Grantor	 	Name of Depositary Bank	 	Account Number	 	Account Name
	 

	 	 
	 	 
	 	 






Commodities Accounts:



	 	 	 	 	 	 	 
	 	 	Name of Commodities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name
	 

	 	 
	 	 
	 	 




(B)




	 	 	 	 	 
	Grantor	 	Date of Acquisition	 	Description of Acquisition
	 

	 	 
	 	 





II. INTELLECTUAL PROPERTY





	 	(A)	 	Copyrights





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration Number (if	 	Registration Date
	Grantor	 	Jurisdiction	 	Title of Work	 	any)	 	(if any)
	 

	 	 
	 	 
	 	 
	 	 






	 	(B)	 	Copyright Licenses





	 	 	 	 	 	 	 
	 	 	 	 	Registration Number	 	 
	 	 	 	 	(if any) of	 	 
	 	 	Description of	 	underlying	 	 
	Grantor	 	Copyright License	 	Copyright	 	Name of Licensor
	 

	 	 
	 	 
	 	 






	 	(C)	 	Patents





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Patent	 	 
	 	 	 	 	 	 	Number/(Application	 	 
	Grantor	 	Jurisdiction	 	Title of Patent	 	Number)	 	Issue Date/(Filing Date)
	 

	 	 
	 	 
	 	 
	 	 





EXHIBIT A-4




 









 









	 	(D)	 	Patent Licenses





	 	 	 	 	 	 	 
	 	 	Description of	 	Patent Number of	 	 
	Grantor	 	Patent License	 	underlying Patent	 	Name of Licensor
	 

	 	 
	 	 
	 	 






	 	(E)	 	Trademarks





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registration	 	 
	 	 	 	 	 	 	Number/(Serial	 	Registration
	Grantor	 	Jurisdiction	 	Trademark	 	Number)	 	Date/(Filing Date)
	 

	 	 
	 	 
	 	 
	 	 






	 	(F)	 	Trademark Licenses





	 	 	 	 	 	 	 
	 	 	Description of Trademark	 	Registration Number of	 	 
	Grantor	 	License	 	underlying Trademark	 	Name of Licensor
	 

	 	 
	 	 
	 	 






	 	(G)	 	Trade Secret Licenses





	 	 	 	 	 
	Grantor	 	Description of Trade Secret License	 	Name of Licensor
	 

	 	 
	 	 





III. COMMERCIAL TORT CLAIMS




	 	 	 
	Grantor	 	Commercial Tort Claims
	 

	 	 





EXHIBIT A-5







 









 








IV. LETTER OF CREDIT RIGHTS




	 	 	 
	Grantor	 	Description of Letters of Credit
	 

	 	 





V. WAREHOUSEMAN, BAILEES AND OTHER THIRD PARTIES IN POSSESSION OF COLLATERAL




	 	 	 	 	 
	Grantor	 	Description of Property	 	Name and Address of Third Party
	 

	 	 
	 	 





EXHIBIT A-6






 









 








SUPPLEMENT TO SCHEDULE 5.4 TO

PLEDGE AND SECURITY AGREEMENT



Financing Statements:




	 	 	 
	Grantor	 	Filing Jurisdiction(s)
	 

	 	 





EXHIBIT A-7






 









 








SUPPLEMENT TO SCHEDULE 5.5

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 
	Name of Grantor	 	Location of Equipment and Inventory
	 

	 	 





EXHIBIT A-8





 











 






EXHIBIT B

TO PLEDGE AND SECURITY AGREEMENT




UNCERTIFICATED SECURITIES CONTROL AGREEMENT




     This Uncertificated Securities Control Agreement dated as of [                    ], 20[     ]
among [                              ] (the “Pledgor”), Deutsche Bank AG New York Branch, as collateral
agent for the Secured Parties, (the “Collateral Agent”) and [                   ], a [                                ]
[corporation] (the “Issuer”). Capitalized terms used but not defined herein shall have the
meaning assigned in the Pledge and Security Agreement dated [as of the date hereof], among the
Pledgor, the other Grantors party thereto and the Collateral Agent (the “Security
Agreement”). All references herein to the “UCC” shall mean the Uniform Commercial Code
as in effect in the State of New York.



     Section 1. Registered Ownership of Shares. The Issuer hereby confirms and agrees
that as of the date hereof the Pledgor is the registered owner of
[              ] shares of the
Issuer’s [common] stock (the “Pledged Shares”) and the Issuer shall not change the
registered owner of the Pledged Shares without the prior written consent of the Collateral Agent.



     Section 2. Instructions. If at any time the Issuer shall receive instructions originated by
the Collateral Agent relating to the Pledged Shares, the Issuer shall comply with such instructions
without further consent by the Pledgor or any other person.



     Section 3. Additional Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Collateral Agent:



     (a) It has not entered into, and until the termination of this agreement will not enter into,
any agreement with any other person relating to the Pledged Shares pursuant to which it has agreed
to comply with instructions issued by such other person;



     (b) It has not entered into, and until the termination of this agreement will not enter into,
any agreement with the Pledgor or the Collateral Agent purporting to limit or condition the
obligation of the Issuer to comply with Instructions as set forth in Section 2 hereof;



     (c) Except for the claims and interest of the Collateral Agent and of the Pledgor in the
Pledged Shares, the Issuer does not know of any claim to, or interest in, the Pledged Shares. If
any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the Pledged Shares, the
Issuer will promptly notify the Collateral Agent and the Pledgor thereof; and



     (d) This Uncertificated Securities Control Agreement is the valid and legally binding
obligation of the Issuer.



     Section 4. Choice of Law. This Agreement shall be governed by the laws of the State of New
York.



     Section 5. Conflict with Other Agreements. In the event of any conflict between this Agreement
(or any portion thereof) and any other agreement now existing or hereafter entered into, the terms
of this Agreement shall prevail. No amendment or modification of this Agreement or waiver of any
right hereunder shall be binding on any party hereto unless it is in writing and is signed by all
of the parties hereto.



EXHIBIT B-1









 





     Section 6. Voting Rights. Until such time as the Collateral Agent shall otherwise instruct the
Issuer in writing, the Pledgor shall have the right to vote the Pledged Shares.



     Section 7. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by operation of law. The
Collateral Agent may assign its rights hereunder only with the express written consent of the
Issuer and by sending written notice of such assignment to the Pledgor.



     Section 8. Indemnification of Issuer. The Pledgor and the Collateral Agent hereby agree that
(a) the Issuer is released from any and all liabilities to the Pledgor and the Collateral Agent
arising from the terms of this Agreement and the compliance of the Issuer with the terms hereof,
except to the extent that such liabilities arise from the Issuer’s negligence and (b) the Pledgor,
its successors and assigns shall at all times indemnify and save harmless the Issuer from and
against any and all claims, actions and suits of others arising out of the terms of this Agreement
or the compliance of the Issuer with the terms hereof, except to the extent that such arises from
the Issuer’s negligence, and from and against any and all liabilities, losses, damages, costs,
charges, counsel fees and other reasonable and documented expenses of every nature and character
arising by reason of the same, until the termination of this Agreement.



     Section 9. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and electronic confirmation
of error free receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth below.



	 	 	 

	Pledgor:

	 	[Name and Address of Pledgor]
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]
	 
	 	 
	Collateral Agent:

	 	Deutsche Bank AG New York Branch
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]
	 
	 	 
	Issuer:

	 	[Insert Name and Address of Issuer]
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]






     Any party may change its address for notices in the manner set forth above.



     Section 10. Termination. The obligations of the Issuer to the Collateral Agent pursuant to
this Control Agreement shall continue in effect until the security interests of the Collateral
Agent in the Pledged Shares have been terminated pursuant to the terms of the Security Agreement
and the Collateral Agent has notified the Issuer of such termination in writing. The Collateral
Agent agrees to provide Notice of Termination in substantially the form of Exhibit A hereto to the
Issuer upon the request of the Pledgor on or after the termination of the Collateral Agent’s
security interest in the Pledged Shares pursuant to the terms of the Security Agreement. The
termination of this Control Agreement shall not terminate the Pledged Shares or alter the
obligations of the Issuer to the Pledgor pursuant to any other agreement with respect to the
Pledged Shares.



EXHIBIT B-2









 





     Section 11. Counterparts. This Agreement may be executed in any number of counterparts, all of
which shall constitute one and the same instrument, and any party hereto may execute this Agreement
by signing and delivering one or more counterparts.



	 	 	 	 	 
	 	[NAME OF PLEDGOR],

as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK
BRANCH,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ISSUER],

as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-3









 






	 	 	 	 	 



Exhibit A




[Letterhead of Collateral Agent]




[Date]



[Name and Address of Issuer]

Attention: [                    ]




Re: Termination of Control Agreement




     You are hereby notified that the Uncertificated Securities Control Agreement between you,
[Name of Pledgor] (the “Pledgor”) and the undersigned (a copy of which is attached) is
terminated and you have no further obligations to the undersigned pursuant to such Agreement.
Notwithstanding any previous instructions to you, you are hereby instructed to accept all future
directions with respect to Pledged Shares (as defined in the Uncertificated Control Agreement) from
the Pledgor. This notice terminates any obligations you may have to the undersigned with respect to
the Pledged Shares, however nothing contained in this notice shall alter any obligations which you
may otherwise owe to the Pledgor pursuant to any other agreement.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Pledgor.



	 	 	 	 	 
	 	Very truly yours,

Deutsche Bank AG New York Branch

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-4









 






	 	 	 	 	 



EXHIBIT C

TO PLEDGE AND SECURITY AGREEMENT




SECURITIES ACCOUNT CONTROL AGREEMENT



     This Securities Account Control Agreement dated as of [                    ], 20[       ] (this
“Agreement”) among [                    ] (the “Debtor”), Deutsche Bank AG New York
Branch, as collateral agent for the Secured Parties (together with its successors and assigns, the
“Collateral Agent”) and [                    ], in its capacity as a “securities intermediary” as
defined in Section 8-102 of the UCC (in such capacity, the “Securities Intermediary”).
Capitalized terms used but not defined herein shall have the meaning assigned thereto in the Pledge
and Security Agreement, dated [as of the date hereof], among the Debtor, the other Grantors party
thereto and the Collateral Agent (as amended, restated, supplemented or otherwise modified from
time to time, the “Security Agreement”). All references herein to the “UCC” shall
mean the Uniform Commercial Code as in effect in the State of New York.





     Section 1. Establishment of Securities Account. The Securities Intermediary hereby confirms
and agrees that:



     (a) The Securities Intermediary has established account number [IDENTIFY ACCOUNT NUMBER] in
the name “[IDENTIFY EXACT TITLE OF ACCOUNT]” (such account and any successor account, the
“Securities Account”) and the Securities Intermediary shall not change the name or account
number of the Securities Account without the prior written consent of the Collateral Agent;



     (b) All securities or other property underlying any financial assets credited to the
Securities Account shall be registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account maintained in the
name of the Securities Intermediary and in no case will any financial asset credited to the
Securities Account be registered in the name of the Debtor, payable to the order of the Debtor or
specially indorsed to the Debtor except to the extent the foregoing have been specially indorsed to
the Securities Intermediary or in blank;



     (c) All property delivered to the Securities Intermediary pursuant to the Security Agreement
will be promptly credited to the Securities Account; and



     (d) The Securities Account is a “securities account” within the meaning of Section 8501 of the
UCC.



     Section 2. “Financial Assets” Election. The Securities Intermediary hereby agrees that each
item of property (including, without limitation, any investment property, financial asset,
security, instrument, general intangible or cash) credited to the Securities Account shall be
treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.



     Section 3. Control of the Securities Account. If at any time the Securities Intermediary shall
receive any order from the Collateral Agent directing transfer or redemption of any financial asset
relating to the Securities Account, the Securities Intermediary shall comply with such entitlement
order without further consent by the Debtor or any other person. If the Debtor is otherwise
entitled to issue entitlement orders and such orders conflict with any entitlement order issued by
the Collateral Agent, the Securities Intermediary shall follow the orders issued by the Collateral
Agent.



EXHIBIT C-1









 





     Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the Securities
Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security
interest in the Securities Account or any security entitlement credited thereto, the Securities
Intermediary hereby agrees that such security interest shall be subordinate to the security
interest of the Collateral Agent. The financial assets and other items deposited to the Securities
Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of
any person other than the Collateral Agent (except that the Securities Intermediary may set off (i)
all amounts due to the Securities Intermediary in respect of customary fees and expenses for the
routine maintenance and operation of the Securities Account and (ii) the face amount of any checks
which have been credited to such Securities Account but are subsequently returned unpaid because of
uncollected or insufficient funds).



     Section 5. Choice of Law. This Agreement and the Securities Account shall each be governed by
the laws of the State of New York. Regardless of any provision in any other agreement, for purposes
of the UCC, New York shall be deemed to be the
Securities Intermediary’s jurisdiction (within the meaning of Section 8-110 of the UCC) and
the Securities Account (as well as the securities entitlements related thereto) shall be governed
by the laws of the State of New York.



     Section 6. Conflict with Other Agreements.



     (a) In the event of any conflict between this Agreement (or any portion thereof) and any other
agreement now existing or hereafter entered into, the terms of this Agreement shall prevail;



     (b) No amendment or modification of this Agreement or waiver of any right hereunder shall be
binding on any party hereto unless it is in writing and is signed by all of the parties hereto;



     (c) The Securities Intermediary hereby confirms and agrees that:




     (i) There are no other control agreements entered into between the Securities
Intermediary and the Debtor with respect to the Securities Account;




     (ii) It has not entered into, and until the termination of this Agreement, will not
enter into, any agreement with any other person relating to the Securities Account and/or any
financial assets credited thereto pursuant to which it has agreed to comply with entitlement
orders (as defined in Section 8-102(a)(8) of the UCC) of such other person; and




     (iii) It has not entered into, and until the termination of this Agreement, will not
enter into, any agreement with the Debtor or the Collateral Agent purporting to limit or
condition the obligation of the Securities Intermediary to comply with entitlement orders as
set forth in Section 3 hereof.



     Section 7. Adverse Claims. Except for the claims and interest of the Collateral Agent and of
the Debtor in the Securities Account, the Securities Intermediary does not know of any claim to, or
interest in, the Securities Account or in any “financial asset” (as defined in Section 8-102(a) of
the UCC) credited thereto. If any person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar



EXHIBIT C-2









 




process) against the
Securities Account or in any financial asset carried therein, the Securities Intermediary will
promptly notify the Collateral Agent and the Debtor thereof.




     Section 8. Maintenance of Securities Account. In addition to, and not in lieu of, the
obligation of the Securities Intermediary to honor entitlement orders as agreed in Section 3
hereof, the Securities Intermediary agrees to maintain the Securities Account as follows:



     (a) Notice of Sole Control. If at any time the Collateral Agent delivers to the
Securities Intermediary a Notice of Sole Control in substantially the form set forth in Exhibit A
hereto, the Securities Intermediary agrees that after receipt of such notice, it will take all
instruction with respect to the Securities Account solely from the Collateral Agent.



     (b) Voting Rights. Until such time as the Securities Intermediary receives a Notice of
Sole Control pursuant to subsection (a) of this Section 8, the Debtor shall direct the Securities
Intermediary with respect to the voting of any financial assets credited to the Securities Account.



     (c) Permitted Investments. Until such time as the Securities Intermediary receives a
Notice of Sole Control signed by the Collateral Agent, the Debtor shall direct the Securities
Intermediary with respect to the selection of investments to be made for the Securities Account;
provided, however, that the Securities Intermediary shall not honor any instruction to purchase any
investments other than investments of a type described on Exhibit B hereto.



     (d) Statements and Confirmations. The Securities Intermediary will promptly send
copies of all statements, confirmations and other correspondence concerning the Securities Account
and/or any financial assets credited thereto simultaneously to each of the Debtor and the
Collateral Agent at the address for each set forth in Section 12 of this Agreement.



     (e) Tax Reporting. All items of income, gain, expense and loss recognized in the
Securities Account shall be reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of the Debtor.



     Section 9. Representations, Warranties and Covenants of the Securities Intermediary. The
Securities Intermediary hereby makes the following representations, warranties and covenants:



     (a) The Securities Account has been established as set forth in Section 1 above and such
Securities Account will be maintained in the manner set forth herein until termination of this
Agreement; and



     (b) This Agreement is the valid and legally binding obligation of the Securities Intermediary.



     Section 10 Indemnification of Securities Intermediary. The Debtor and the Collateral Agent
hereby agree that (a) the Securities Intermediary is released from any and all liabilities to the
Debtor and the Collateral Agent arising from the terms of this Agreement and the compliance of the
Securities Intermediary with the terms hereof, except to the extent that such liabilities arise
from the Securities Intermediary’s negligence and (b) the Debtor, its successors and assigns shall
at all times indemnify and save harmless the Securities Intermediary from and against any and all
claims, actions and suits of others arising out of the terms of this Agreement or the compliance of
the Securities Intermediary with the terms hereof, except to the extent that such arises from the
Securities Intermediary’s negligence, and from and against any and all liabilities, losses,



EXHIBIT C-3









 




damages, costs, charges, counsel fees and other reasonable and documented expenses of every nature
and character arising by reason of the same, until the termination of this Agreement.




     Section 11. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by operation of law. The
Collateral Agent may assign its rights hereunder only with the express written consent of the
Securities Intermediary and by sending written notice of such assignment to the Debtor.



     Section 12. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and electronic confirmation
of error free receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth below.



	 	 	 

	Debtor:

	 	[Name and Address of Debtor]
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]
	 
	 	 
	Collateral Agent:

	 	Deutsche Bank AG New York Branch
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]
	 
	 	 
	Securities Intermediary:

	 	[Name and Address of Securities Intermediary]
	 

	 	Attention: [                         ]
	 

	 	Telecopier: [                         ]






     Any party may change its address for notices in the manner set forth above.



     Section 13. Termination. The obligations of the Securities Intermediary to the Collateral
Agent pursuant to this Agreement shall continue in effect until the security interest of the
Collateral Agent in the Securities Account has been terminated pursuant to the terms of the
Security Agreement and the Collateral Agent has notified the Securities Intermediary of such
termination in writing. The Collateral Agent agrees to provide Notice of Termination in
substantially the form of Exhibit C hereto to the Securities Intermediary upon the request of the
Debtor on or after the termination of the Collateral Agent’s security interest in the Securities
Account pursuant to the terms of the Security Agreement. The termination of this Agreement shall
not terminate the Securities Account or alter the obligations of the Securities Intermediary to the
Debtor pursuant to any other agreement with respect to the Securities Account.



     Section 14. Counterparts. This Agreement may be executed in any number of counterparts, all of
which shall constitute one and the same instrument, and any party hereto may execute this Agreement
by signing and delivering one or more counterparts.



EXHIBIT C-4









 





     IN WITNESS WHEREOF, the parties hereto have caused this Securities Account Control Agreement
to be executed as of the date first above written by their respective officers thereunto duly
authorized.



	 	 	 	 	 
	 	[DEBTOR],

as Debtor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF SECURITIES
INTERMEDIARY],

as Securities Intermediary

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




EXHIBIT C-5











 





EXHIBIT A

TO SECURITIES ACCOUNT CONTROL AGREEMENT




[Letterhead of Collateral Agent]




[Date]



[Name and Address of Securities Intermediary]

Attention: [______________]




Re: Notice of Sole Control



Ladies and Gentlemen:




     As referenced in the Securities Account Control Agreement dated as of [_______],
20[____] among [Name of Debtor]
(the “Debtor”), you and the undersigned (a copy of which is
attached), we hereby give you notice of our sole control over securities account number
[___________]
(the “Securities Account”) and all financial assets credited thereto. You are
hereby instructed not to accept any direction, instructions or entitlement orders with respect to
the Securities Account or the financial assets credited thereto from any person other than the
undersigned, unless otherwise ordered by a court of competent jurisdiction.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	Very truly yours,

Deutsche Bank AG New York Branch, 

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


cc: [Name of Debtor]




EXHIBIT C-6







 









 








EXHIBIT B

TO SECURITIES ACCOUNT CONTROL AGREEMENT




Permitted Investments



[TO COME]




EXHIBIT C-7






 









 








EXHIBIT C

TO SECURITIES ACCOUNT CONTROL AGREEMENT




[Letterhead of the Collateral Agent]




[Date]



[Name and Address of Securities Intermediary]

Attention: [______________]




Re: Termination of Securities Account Control Agreement





     You are hereby notified that the Securities Account Control Agreement dated as of
[_______], 20[____] among you, [Name of Debtor] (the “Debtor”) and the undersigned (a copy of
which is attached) is terminated and you have no further obligations to the undersigned pursuant to
such Agreement. Notwithstanding any previous instructions to you, you are hereby instructed
to accept all future directions with respect to account number(s) [___________] from the
Debtor. This notice terminates any obligations you may have to the undersigned with respect to such
account, however nothing contained in this notice shall alter any obligations which you may
otherwise owe to the Debtor pursuant to any other agreement.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	Very truly yours,

Deutsche Bank AG New York Branch, 

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT C-8




 









 








EXHIBIT D

TO PLEDGE AND SECURITY AGREEMENT




DEPOSIT ACCOUNT CONTROL AGREEMENT





     This Deposit Account Control Agreement dated as of [_______], 20[____] (this
“Agreement”) among
[___________] (the “Debtor”), Deutsche Bank AG New York Branch, as
collateral agent for the Secured Parties (together with its
successors and assigns, the “Collateral Agent”)
and [___________], in its capacity as a “bank” as defined in Section 9-102 of the UCC
(in such capacity, the “Financial Institution”). Capitalized terms used but not defined
herein shall have the meaning assigned thereto in the Pledge and Security Agreement, dated [as of
the date hereof], between the Debtor, the other Grantors party thereto and the Collateral Agent (as
amended, restated, supplemented or otherwise modified from time to time, the “Security
Agreement”). All references herein to the “UCC” shall mean the Uniform Commercial Code as in
effect in the State of New York.



     Section 1. Establishment of Deposit Account. The Financial Institution hereby confirms and
agrees that:



     (a) The Financial Institution has established account number [IDENTIFY ACCOUNT
NUMBER] in the name “[IDENTIFY EXACT TITLE OF ACCOUNT]” (such account and any
successor account, the “Deposit Account”) and the Financial Institution shall not change
the name or account number of the Deposit Account without the prior written consent of the
Collateral Agent and, prior to delivery of a Notice of Sole Control in substantially the form set
forth in Exhibit A hereto, the Debtor; and



     (b) The Deposit Account is a “deposit account” within the meaning of Section 9-102(a)(29) of
the UCC.



     Section 2. Control of the Deposit Account. If at any time the Financial Institution shall
receive any instructions originated by the Collateral Agent directing the disposition of funds in
the Deposit Account, the Financial Institution shall comply with such instructions without further
consent by the Debtor or any other person. The Financial Institution hereby acknowledges that it
has received notice of the security interest of the Collateral Agent in the Deposit Account and
hereby acknowledges and consents to such lien. If the Debtor is otherwise entitled to issue
instructions and such instructions conflict with any instructions issued the Collateral Agent, the
Financial Institution shall follow the instructions issued by the Collateral Agent.



     Section 3. Subordination of Lien; Waiver of Set-Off. In the event that the Financial
Institution has or subsequently obtains by agreement, by operation of law or otherwise a security
interest in the Deposit Account or any funds credited thereto, the Financial Institution hereby
agrees that such security interest shall be subordinate to the security interest of the Collateral
Agent. Money and other items credited to the Deposit Account will not be subject to deduction,
set-off, banker’s lien, or any other right in favor of any person other than the Collateral Agent
(except that the Financial Institution may set off (i) all amounts due to the Financial Institution
in respect of customary fees and expenses for the routine maintenance and operation of the Deposit
Account and (ii) the face amount of any checks which have been credited to such Deposit Account but
are subsequently returned unpaid because of uncollected or insufficient funds).



     Section 4. Choice of Law. This Agreement and the Deposit Account shall each be governed by the
laws of the State of New York. Regardless of any provision in any other



EXHIBIT D-1












 









 








agreement, for purposes of the UCC, New York shall be deemed to be the Financial Institution’s
jurisdiction (within the meaning of Section 9-304 of the UCC) and the Deposit Account shall be
governed by the laws of the State of New York.



     Section 5. Conflict with Other Agreements.



     (a) In the event of any conflict between this Agreement (or any portion thereof) and any other
agreement now existing or hereafter entered into, the terms of this Agreement shall prevail;



     (b) No amendment or modification of this Agreement or waiver of any right hereunder shall be
binding on any party hereto unless it is in writing and is signed by all of the parties hereto; and



     (c) The Financial Institution hereby confirms and agrees that:




     (i) There are no other agreements entered into between the Financial Institution and the
Debtor with respect to the Deposit Account [other than ]; and




     (ii) It has not entered into, and until the termination of this Agreement, will not
enter into, any agreement with any other person relating the Deposit Account and/or any funds
credited thereto pursuant to which it has agreed to comply with instructions originated by
such persons as contemplated by Section 9-104 of the UCC.



     Section 6. Adverse Claims. The Financial Institution does not know of any liens, claims or
encumbrances relating to the Deposit Account. If any person asserts any lien, encumbrance or
adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Deposit Account, the Financial Institution will promptly notify the
Collateral Agent and the Debtor thereof.



     Section 7. Maintenance of Deposit Account. In addition to, and not in lieu of, the obligation
of the Financial Institution to honor instructions as set forth in Section 2 hereof, the Financial
Institution agrees to maintain the Deposit Account as follows:



     (a) Notice of Sole Control. If at any time the Collateral Agent delivers to the
Financial Institution, a Notice of Sole Control in substantially the form set forth in Exhibit A
hereto, the Financial Institution agrees that after receipt of such notice, it will take all
instruction with respect to the Deposit Account solely from the Collateral Agent.



     (b) Statements and Confirmations. The Financial Institution will promptly send copies
of all statements, confirmations and other correspondence concerning the Deposit Account
simultaneously to each of the Debtor and the Collateral Agent at the address for each set forth in
Section 11 of this Agreement; and



     (c) Tax Reporting. All interest, if any, relating to the Deposit Account, shall be
reported to the Internal Revenue Service and all state and local taxing authorities under the name
and taxpayer identification number of the Debtor.



     Section 8. Representations, Warranties and Covenants of the Financial Institution.
The Financial Institution hereby makes the following representations, warranties and covenants:



EXHIBIT D-2




 









 








     (a) The Deposit Account has been established as set forth in Section 1 and such Deposit
Account will be maintained in the manner set forth herein until termination of this Agreement; and



     (b) This Agreement is the valid and legally binding obligation of the Financial Institution.



     Section 9. Indemnification of Financial Institution. The Debtor and the Collateral Agent
hereby agree that (a) the Financial Institution is released from any and all liabilities to the
Debtor and the Collateral Agent arising from the terms of this Agreement and the compliance of the
Financial Institution with the terms hereof, except to the extent that such liabilities arise from
the Financial Institution’s negligence and (b) the Debtor, its successors and assigns shall at all
times indemnify and save harmless the Financial Institution from and against any and all claims,
actions and suits of others arising out of the terms of this Agreement or the compliance of the
Financial Institution with the terms hereof, except to the extent that such arises from the
Financial Institution’s negligence, and from and against any and all liabilities, losses, damages,
costs, charges, counsel fees and other reasonable and documented expenses of every nature and
character arising by reason of the same, until the termination of this Agreement.



     Section 10. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by operation of law. The
Collateral Agent may assign its rights hereunder only with the express written consent of the
Financial Institution and by sending written notice of such assignment to the Debtor.



     Section 11 Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and electronic confirmation
of error free receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth below.



	 	 	 

	Debtor:

	 	[Name and Address of Debtor]
	 

	 	Attention: [___________]
	 

	 	Telecopier: [___________]
	 
	 	 
	Collateral Agent:

	 	Deutsche Bank AG New York Branch
	 

	 	Attention: [___________]
	 

	 	Telecopier: [___________]
	 
	 	 
	Financial Institution:

	 	[Name and Address of Financial Institution]
	 

	 	Attention: [___________]
	 

	 	Telecopier: [___________]






     Any party may change its address for notices in the manner set forth above.



     Section 12. Termination. The obligations of the Financial Institution to the Collateral Agent
pursuant to this Agreement shall continue in effect until the security interest of the Collateral
Agent in the Deposit Account has been terminated pursuant to the terms of the Security Agreement
and the Collateral Agent has notified the Financial Institution of such termination in writing. The
Collateral Agent agrees to provide Notice of Termination in substantially the form



EXHIBIT D-3





 









 







of Exhibit A hereto to the Financial Institution upon the request of the Debtor on or after the
termination of the Collateral Agent’s security interest in the Deposit Account pursuant to the
terms of the Security Agreement. The termination of this Agreement shall not terminate the Deposit
Account or alter the obligations of the Financial Institution to the Debtor pursuant to any other
agreement with respect to the Deposit Account.




     Section 13. Counterparts. This Agreement may be executed in any number of counterparts, all of
which shall constitute one and the same instrument, and any party hereto may execute this Agreement
by signing and delivering one or more counterparts.



          IN WITNESS WHEREOF, the parties hereto have caused this Deposit Account Control Agreement to
be executed as of the date first above written by their respective officers thereunto duly
authorized.




	 	 	 	 	 
	 	[DEBTOR],

as Debtor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF FINANCIAL INSTITUTION],

as Financial Institution

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT D-4








 









 








EXHIBIT A

TO DEPOSIT ACCOUNT CONTROL AGREEMENT




[Letterhead of Collateral Agent]




[Date]



[Name and Address of Financial Institution]

Attention: [___________]




Re: Notice of Sole Control



Ladies and Gentlemen:





     As referenced in the Deposit Account Control Agreement dated as of [________], 20[___]
among [Name of Debtor] (the “Debtor”), you and the undersigned (a copy of which is attached),
we hereby give you notice of our sole control over deposit account number [________________] (the
“Deposit Account”) and all financial assets credited thereto. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the Deposit Account or
the financial assets credited thereto from any person other than the undersigned, unless otherwise
ordered by a court of competent jurisdiction.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	Very truly yours,

Deutsche Bank AG New York Branch,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


cc: [Name of Debtor]




EXHIBIT D-5





 











 





EXHIBIT B

TO DEPOSIT ACCOUNT CONTROL AGREEMENT




[Letterhead of the CollateralAgent]



[Date]


[Name and Address of Financial Institution]


Attention:[                    ]




Re: Termination of Deposit Account Control Agreement



     You are hereby notified that the Deposit Account Control Agreement dated as of
[       ], 20[   ] among [Name of Debtor] (the “Debtor”), you and the undersigned (a copy
of which is attached) is terminated and you have no further obligations to the undersigned pursuant
to such Agreement. Notwithstanding any previous instructions to you, you are hereby
instructed to accept all future directions with respect to account number(s) [                     ]
from the Debtor. This notice terminates any obligations you may have to the undersigned with
respect to such account, however nothing contained in this notice shall alter any obligations which
you may otherwise owe to the Debtor pursuant to any other agreement.



     You are instructed to deliver a copy of this notice by facsimile transmission to the
Debtor.



	 	 	 	 	 
	 	Very truly yours,

Deutsche Bank AG New York Branch, 

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT D-6









 






	 	 	 	 	 



EXHIBIT E

TO PLEDGE AND SECURITY AGREEMENT




FORM OF TRADEMARK SECURITY AGREEMENT




     This TRADEMARK SECURITY AGREEMENT, dated as of [                     ], 20[
      ]
(as it may be amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), is made by the entities identified as grantors on the signature pages hereto
(collectively, the “Grantors”) in favor of Deutsche Bank AG New York Branch, as collateral
agent for the Secured Parties (in such capacity, together with its successors and permitted
assigns, the “Collateral Agent”).



     WHEREAS, the Grantors are party to a Pledge and Security Agreement dated as of June 1, 2011
(the “Pledge and Security Agreement”) between each of the Grantors and the other grantors
party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest
to the Collateral Agent in the Trademark Collateral (as defined below) and are required to execute
and deliver this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby
agree with the Collateral Agent as follows:



SECTION 1. Defined Terms




     Unless otherwise defined herein, terms defined in the Security Agreement and used herein have
the meaning given to them in the Security Agreement.



SECTION 2. Grant of Security Interest in Trademark Collateral




     SECTION 2.1 Grant of Security. Each Grantor hereby grants to the Collateral Agent, for the
benefit of the Secured Parties, a security interest in and continuing lien on all of such Grantor’s
right, title and interest in, to and under the following, in each case whether now owned or
existing or hereafter acquired, developed, created or arising and wherever located (collectively,
the “Trademark Collateral”):




all United States, and foreign trademarks, trade names, trade dress, corporate names, company
names, business names, fictitious business names, Internet domain names, service marks,
certification marks, collective marks, logos, other source or business identifiers, designs
and general intangibles of a like nature, whether or not registered, and with respect to any
and all of the foregoing: (i) all registrations and applications therefor including, without
limitation, the registrations and applications listed or required to be listed in Schedule A
attached hereto, (ii) all extensions or renewals of any of the foregoing, (iii) all of the
goodwill of the business connected with the use of and symbolized by any of the foregoing,
(iv) all rights to sue or otherwise recover for any past, present and future infringement,
dilution or other violation of any of the foregoing or for any injury to the related
goodwill, (v) all Proceeds of the foregoing, including, without limitation, license fees,
royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due
and/or payable with respect thereto, and (vi) all other rights of any kind accruing
thereunder or pertaining thereto throughout the world.



EXHIBIT E-1









 






     SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no
event shall the Trademark Collateral include or the security interest granted under Section 2.1
hereof attach to any “intent-to-use” application for registration of a Trademark filed pursuant to
Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use”
pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c)
of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the
period, if any, in which, the grant of a security interest therein would impair the validity or
enforceability of any registration that issues from such intent-to-use application under applicable
federal law.



SECTION 3. Security Agreement




     The security interest granted pursuant to this Agreement is granted in conjunction with the
security interest granted to the Collateral Agent for the Secured Parties pursuant to the Pledge
and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies
of the Collateral Agent with respect to the security interest in the Trademark Collateral made and
granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and
provisions of which are incorporated by
reference herein as if fully set forth herein. In the event that any provision of this
Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the
Pledge and Security Agreement shall control.



SECTION 4. Governing Law




     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL CLAIMS AND
CONTROVERSIES ARISING OUT OF THE
SUBJECT MATTER HEREOF WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER
THAN THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF LAW RELATING TO THE LAW
GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).



SECTION 5. Counterparts




     This Agreement may be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument.



[Remainder of page intentionally left blank]




EXHIBIT E-2











 





     IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered
by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 	 	 

	STATE OF

	 	 

	 	)	 	 	 	 	 
	 

	 	 	 	)	 	 	 	 	ss.
	COUNTY OF

	 	 

	 	)	 	 	 	 	 






     On this                      day of                     ,                      before me personally ap
peared
                    , proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of                     , who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 	 	 

	STATE OF

	 	 

	 	)	 	 	 	 	 
	 

	 	 	 	)	 	 	 	 	ss.
	COUNTY OF

	 	 

	 	)	 	 	 	 	 






     On                this day of                     ,                      before me personally appeared
                          , proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of                     , who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.



[ADD
SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]




EXHIBIT E-3









 







Accepted and Agreed:




DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT E-4









 






	 	 	 	 	 



SCHEDULE A

to

TRADEMARK SECURITY AGREEMENT




TRADEMARK REGISTRATIONS AND APPLICATIONS



	 	 	 	 	 	 	 	 	 
	Mark	 	Serial No.	 	Filing Date	 	Registration No.	 	Registration Date
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 





EXHIBIT E-5









 






EXHIBIT F

TO PLEDGE AND SECURITY AGREEMENT




FORM OF PATENT SECURITY AGREEMENT




     This
PATENT SECURITY AGREEMENT, dated as of [______], 20[_] (as it
may be amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), is made by the entities identified as grantors on the signature pages hereto
(collectively, the “Grantors”) in favor of Deutsche Bank AG New York Branch, as collateral
agent for the Secured Parties (in such capacity, together with its successors and permitted
assigns, the “Collateral Agent”).



     WHEREAS, the Grantors are party to a Pledge and Security Agreement dated as of June 1, 2011
(the “Pledge and Security Agreement”) between each of the Grantors and the other grantors
party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest
to the Collateral Agent in the Patent Collateral (as defined below) and are required to execute and
deliver this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby
agree with the Collateral Agent as follows:



SECTION. 1. Defined Terms




     Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used
herein have the meaning given to them in the Pledge and Security Agreement.



SECTION 2. Grant of Security Interest




     Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in and continuing lien on all of such Grantor’s right, title and interest in, to
and under the following, in each case whether now owned or existing or hereafter acquired,
developed, created or arising and wherever located (collectively, the “Patent Collateral”):




all United States and foreign patents and certificates of invention, or similar industrial
property rights, and applications for any of the foregoing, including, but not limited to:
(i) each patent and patent application listed or required to be listed in Schedule A attached
hereto, (ii) all reissues, divisions, continuations, continuations-in-part, extensions,
renewals, and reexaminations thereof, (iii) all patentable inventions and improvements
thereto, (iv) all rights to sue or otherwise recover for any past, present and future
infringement or other violation thereof, (v) all Proceeds of the foregoing, including,
without limitation, license fees, royalties, income, payments, claims, damages, and proceeds
of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights
of any kind accruing thereunder or pertaining thereto throughout the world.



SECTION 3. Security Agreement




     The security interest granted pursuant to this Agreement is granted in conjunction with the
security interest granted to the Collateral Agent for the Secured Parties pursuant to the Pledge
and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies
of the Collateral Agent with respect to the security interest in the Patent Collateral made



EXHIBIT F-1









 




and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth herein. In the event
that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement,
the provisions of the Pledge and Security Agreement shall control.




SECTION 4. Governing Law




     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND ALL CLAIMS AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER
SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER
THAN THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF LAW RELATING TO THE LAW
GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).



SECTION 5. Counterparts




     This Agreement may be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument.



[Remainder of page intentionally left blank]




EXHIBIT F-2









 








     IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and delivered by its
duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 	 	 

	STATE OF

	 	 

	 	 	)	 	 	 	 	 
	 

	 	 	 	 	)	 	 	 	 	ss.
	COUNTY OF

	 	 

	 	 	)	 	 	 	 	 





On this
                    
day of
                    ,
           before me personally appeared
                    , proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of                     , who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.




	 	 	 	 	 
	 	 	 
	 	  	 	 
	 	 	Notary Public 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 	 	 

	STATE OF

	 	 

	 	 	)	 	 	 	 	 
	 

	 	 	 	 	)	 	 	 	 	ss.
	COUNTY OF

	 	 

	 	 	)	 	 	 	 	 





On this
                     day of                     ,            before me personally appeared
                    , proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of                     , who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.




[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER
GRANTORS]









EXHIBIT F-3









 







Accepted and Agreed:




DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent




	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



EXHIBIT F-4









 






	 	 	 	 	 



SCHEDULE A

to

PATENT SECURITY AGREEMENT




PATENTS AND PATENT APPLICATIONS



	 	 	 	 	 	 	 	 	 
	Title	 	Application No.	 	Filing Date	 	Patent No.	 	Issue Date
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 






EXHIBIT F-5











 





EXHIBIT G

TO PLEDGE AND SECURITY AGREEMENT




FORM OF COPYRIGHT SECURITY AGREEMENT




     This
COPYRIGHT SECURITY AGREEMENT, dated as of [                   ], 20[___] (as
it may be amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), is made by the entities identified as grantors on the signature pages hereto
(collectively, the “Grantors”) in favor of Deutsche Bank AG New York Branch, as collateral
agent for the Secured Parties (in such capacity, together with its successors and permitted
assigns, the “Collateral Agent”).



     WHEREAS,
the Grantors are party to a Pledge and Security Agreement dated as of June 1, 2011
(the “Pledge and Security Agreement”) between each of the Grantors and the other grantors
party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest
to the Collateral Agent in the Copyright Collateral (as defined below) and are required to execute
and deliver this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby
agree with the Collateral Agent as follows:



SECTION 1. Defined Terms




     Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used
herein have the meaning given to them in the Pledge and Security Agreement.



SECTION 2. Grant of Security Interest




     Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in and continuing lien on all of such Grantor’s right, title and interest in, to
and under the following, in each case whether now owned or existing or hereafter acquired,
developed, created or arising and wherever located (collectively, the “Copyright
Collateral”):



          (a) all United States, and foreign copyrights (whether or not the underlying works of
authorship have been published), including but not limited to copyrights in software and all rights
in and to databases, all designs (including but not limited to industrial designs, Protected
Designs and Community designs), and all Mask Works (as defined under 17 U.S.C. 901 of the U.S.
Copyright Act), whether registered or unregistered, as well as all moral rights, reversionary
interests, and termination rights, and, with respect to any and all of the foregoing: (i) all
registrations and applications therefor including, without limitation, the registrations and
applications listed or required to be listed in Schedule A attached hereto, (ii) all extensions and
renewals thereof, (iii) all rights to sue or otherwise recover for any past, present and future
infringement or other violation thereof, (iv) all Proceeds of the foregoing, including, without
limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or
hereafter due and/or payable with respect thereto, and (v) all other rights of any kind accruing
thereunder or pertaining thereto throughout the world; and




          (b) any and all agreements, licenses and covenants providing for the granting of any exclusive
right to such Grantor in or to any registered Copyright including, without limitation, each
agreement required to be listed in Schedule A attached hereto, and all rights to





EXHIBIT G-1









 







sue or otherwise recover for past, present and future infringement or other violation or impairment
thereof, including the right to receive all Proceeds therefrom, including without limitation
license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter
due and/or payable with respect thereto.




SECTION 3. Security Agreement




     The security interest granted pursuant to this Agreement is granted in conjunction with the
security interest granted to the Collateral Agent for the Secured Parties pursuant to the Pledge
and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies
of the Collateral Agent with respect to the security interest in the Copyright Collateral made and
granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth herein. In the event
that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement,
the provisions of the Pledge and Security Agreement shall control.



SECTION 4. Governing Law




     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND ALL CLAIMS AND CONTROVERSIES ARISING OUT OF THE
SUBJECT MATTER HEREOF WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER
THAN THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF LAW RELATING TO THE LAW
GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).



SECTION 5. Counterparts




     This Agreement may be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument.



[Remainder of page intentionally left blank]









EXHIBIT G-2









 











     IN WITNESS WHEREOF, each Grantor has caused this Agreement to be executed and
delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 

	STATE OF                                

	)	 	 	 
	 

	 	 	)	 	 	                    ss.
	COUNTY OF                             

	)	 	 	 






     On
this ____ day of ____________, _____ before me personally appeared
___________________, proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of _______________, who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.



	 	 	 	 	 
	 	 	 
	 	  	 	 
	 	 	Notary Public 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




	 	 	 	 	 	 	 

	STATE OF                                

	)	 	 	 
	 

	 	 	)	 	 	                    ss.
	COUNTY OF                             

	)	 	 	 





     On
this ____ day of ____________, _____ before me personally appeared
___________________, proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of _______________, who being by me duly
sworn did depose and say that he/she is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation as authorized by its Board of Directors and
that he/she acknowledged said instrument to be the free act and deed of said corporation.



[ADD
SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]









EXHIBIT G-3









 







Accepted and Agreed:




	 	 	 	 	 
	DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 








EXHIBIT G-4









 








SCHEDULE A

to

COPYRIGHT SECURITY AGREEMENT




COPYRIGHT REGISTRATIONS AND APPLICATIONS



	 	 	 	 	 	 	 	 	 
	Title	 	Application No.	 	Filing Date	 	Registration No.	 	Registration Date
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 





EXCLUSIVE COPYRIGHT LICENSES



	 	 	 	 	 
	 	 	 	 	Registration Number
	 	 	 	 	of underlying
	Description of Copyright License	 	Name of Licensor	 	Copyright
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 





EXHIBIT G-5









 






EXHIBIT H

TO PLEDGE AND SECURITY AGREEMENT




FORM OF NOTICE OF SPECIFIED HEDGE AGREEMENT


[Name and Address of Collateral Agent]



Attention: [___________]




Re: Notice of Specified Hedge Agreement1



Ladies and Gentlemen:




     Reference is made to the Pledge & Security Agreement dated as of June 1, 2011 (as amended,
supplemented and modified to date, the “Pledge & Security Agreement”), among Grifols Inc., (the
“U.S. Borrower”), Grifols, S.A., a sociedad
anónima organized under the laws of the Kingdom
of Spain (the “Foreign Borrower”) and various affiliates of the U.S. Borrower in favor of
Deutsche Bank AG New York Branch, as Collateral Agent. Capitalized terms used herein have the
meaning set forth in the Pledge & Security
Agreement or if not defined therein in the Credit Agreement (as defined in the Pledge &
Security Agreement). This is to notify you that we have entered into the following Hedge Agreement:



	 	 	 

	Date of Hedge Agreement

	 	Names of Parties






     We hereby confirm that we are a “Lender Counterparty.” As used herein Lender Counterparty
means: “each Lender, each Agent and each of their respective Affiliates counterparty to a Hedge
Agreement (including any Person who is an Agent or a Lender (and any Affiliate thereof) as of the
Closing Date but subsequently, whether before or after entering into a Hedge Agreement, ceases to
be an Agent or a Lender, as the case may be).” We hereby appoint Collateral Agent as our agent for
purposes of the Security Agreement. We understand and agree neither the Collateral Agent nor the
Administrative Agent shall owe us any fiduciary duly, duty of loyalty, duty of care, duty of
disclosure or any other obligations whatsoever by virtue of our status as a secured party under the
Pledge & Security Agreement and we agree to be bound by the Loan Documents as a Secured Party.





 




			
	1	 	The current version of the Pledge & Security Agreement does not require that this
notice be delivered in order for a hedge counterparty to be a secured party. However, a hedge
counterparty may nonetheless decide to deliver this notice to ensure that the agent knows it
is a secured party and to strengthen its claims as a secured party.




EXHIBIT H-1









 










	 	 	 	 	 
	 	NAME OF LENDER COUNTERPARTY

 	 
	 	By:  	 	 
	 	 	(name)  	 
	 	 	  	 	 
	 	  	(title) 	 
	 






EXHIBIT H-2