EX-10.2



 






Exhibit 10.2




 


GUARANTEE AND COLLATERAL AGREEMENT




dated as of




July 25, 2007




among




CHS/COMMUNITY HEALTH SYSTEMS, INC.,




COMMUNITY HEALTH SYSTEMS, INC.,




the Subsidiaries of the Borrower




from time to time party hereto




and




CREDIT SUISSE,

as Collateral Agent


 








 



 



TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION 1.01. Credit Agreement

	 	 	1	 
	SECTION 1.02. Other Defined Terms

	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	Guarantee

	 
	 	 	 	 
	SECTION 2.01. Guarantee

	 	 	6	 
	SECTION 2.02. Guarantee of Payment

	 	 	6	 
	SECTION 2.03. No Limitations, Etc

	 	 	6	 
	SECTION 2.04. Reinstatement

	 	 	7	 
	SECTION 2.05. Agreement To Pay; Subrogation

	 	 	7	 
	SECTION 2.06. Information

	 	 	7	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Pledge of Securities

	 
	 	 	 	 
	SECTION 3.01. Pledge

	 	 	8	 
	SECTION 3.02. Delivery of the Pledged Collateral

	 	 	9	 
	SECTION 3.03. Representations, Warranties and Covenants

	 	 	9	 
	SECTION 3.04. Certification of Limited Liability Company Interests and Limited Partnership Interests

	 	 	10	 
	SECTION 3.05. Registration in Nominee Name; Denominations

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

	 	 	11	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Security Interests in Personal Property

	SECTION 4.01. Security Interest

	 	 	13	 
	SECTION 4.02. Representations and Warranties

	 	 	15	 
	SECTION 4.03. Covenants

	 	 	18	 
	SECTION 4.04. Other Actions

	 	 	21	 
	SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral

	 	 	23	 












 



ii


	 	 	 	 	 
	 	 	Page
	ARTICLE V

	 
	 	 	 	 
	Remedies

	 
	 	 	 	 
	SECTION 5.01. Remedies Upon Default

	 	 	24	 
	SECTION 5.02. Application of Proceeds

	 	 	26	 
	SECTION 5.03. Grant of License to Use Intellectual Property

	 	 	27	 
	SECTION 5.04. Securities Act, Etc

	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Indemnity, Subrogation and Subordination

	 
	 	 	 	 
	SECTION 6.01. Indemnity and Subrogation

	 	 	28	 
	SECTION 6.02. Contribution and Subrogation

	 	 	28	 
	SECTION 6.03. Subordination

	 	 	29	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 7.01. Notices

	 	 	29	 
	SECTION 7.02. Security Interest Absolute

	 	 	29	 
	SECTION 7.03. Survival of Agreement

	 	 	30	 
	SECTION 7.04. Binding Effect; Several Agreement

	 	 	30	 
	SECTION 7.05. Successors and Assigns

	 	 	30	 
	SECTION 7.06. Collateral Agent’s Fees and Expenses; Indemnification

	 	 	31	 
	SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact

	 	 	31	 
	SECTION 7.08. Applicable Law

	 	 	32	 
	SECTION 7.09. Waivers; Amendment

	 	 	32	 
	SECTION 7.10. WAIVER OF JURY TRIAL

	 	 	33	 
	SECTION 7.11. Severability

	 	 	33	 
	SECTION 7.12. Counterparts

	 	 	33	 
	SECTION 7.13. Headings

	 	 	34	 
	SECTION 7.14. Jurisdiction; Consent to Service of Process

	 	 	34	 
	SECTION 7.15. Termination or Release

	 	 	34	 
	SECTION 7.16. Additional Subsidiaries

	 	 	35	 
	SECTION 7.17. Right of Setoff

	 	 	36	 












 



iii 


Schedules




	 	 	 
	Schedule I

	 	Exact Legal Names of Each Grantor
	Schedule II

	 	Subsidiary Guarantors
	Schedule III

	 	Equity Interests; Stock Ownership; Pledged Debt Securities
	Schedule IV

	 	Debt Instruments; Advances
	Schedule V

	 	Mortgage Filings
	Schedule VI

	 	Intellectual Property
	Schedule VII

	 	Commercial Tort Claims






Exhibits




Exhibit A Form of Supplement










 



 



     GUARANTEE AND COLLATERAL AGREEMENT dated as of July 25, 2007
(this “Agreement”), among CHS/COMMUNITY HEALTH SYSTEMS, INC., a
Delaware corporation (the “Borrower”), COMMUNITY HEALTH SYSTEMS,
INC., a Delaware corporation (“Parent”), the Subsidiaries from
time to time party hereto and CREDIT SUISSE (“Credit Suisse”), as
collateral agent (in such capacity, the “Collateral Agent”).



PRELIMINARY STATEMENT




          Reference is made to the Credit Agreement dated as of July 25, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower,
Parent, the lenders from time to time party thereto (each, a “Lender” and collectively, the
“Lenders”) and Credit Suisse, as administrative agent (in such capacity, the “Administrative
Agent”) and Collateral Agent.



          The Lenders and the Issuing Bank (such term and each other capitalized term used but not
defined in this preliminary statement having the meaning given or ascribed to it in Article I) have
agreed to extend credit to the Borrower pursuant to, and upon the terms and conditions specified
in, the Credit Agreement. The obligations of the Lenders and the Issuing Bank to extend credit to
the Borrower are conditioned upon, among other things, the execution and delivery of this Agreement
by the Borrower and each Guarantor. Each Guarantor is an affiliate of the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement
and is willing to execute and deliver this Agreement in order to induce the Lenders and the Issuing
Bank to extend such credit. Accordingly, the parties hereto agree as follows:



ARTICLE I




Definitions




          SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings set forth in the Credit Agreement. All capitalized
terms defined in the New York UCC (as such term is defined herein) and not defined in this
Agreement have the meanings specified therein. All references to the Uniform Commercial Code shall
mean the New York UCC.



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



          SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:









 



 


 2




          “Accounts Receivable” shall mean all Accounts and all right, title and interest in any
returned goods, together with all rights, titles, securities and guarantees with respect thereto,
including any rights to stoppage in transit, replevin, reclamation and resales, and all related
security interests, liens and pledges, whether voluntary or involuntary, in each case whether now
existing or owned or hereafter arising or acquired.



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



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



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



          “Cash Management Arrangements” shall mean overdraft protections, netting services and similar
arrangements arising from treasury, depository and cash management services, any automated clearing
house transfers of funds or any credit card or similar services, in each case in the ordinary
course of business.



          “Collateral” shall mean the Article 9 Collateral and the Pledged Collateral.



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



          “Copyright License” shall mean any written agreement, now or hereafter in effect, granting any
right to any third person under any registered copyright now or hereafter owned by any Grantor or
that such Grantor otherwise has the right to license, or granting any right to any Grantor under
any registered copyright now or hereafter owned by any third person, and all rights of such Grantor
under any such agreement.



          “Copyrights” shall mean all of the following now owned or hereafter acquired by any Grantor:
(a) all registered copyright rights in any work subject to the copyright laws of the United States
or any other country, whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the United States or any
other country, including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office (or any successor office or any
similar office in any other country), including those registered and pending copyrights listed on
Schedule VI.



          “Federal Securities Laws” shall have the meaning assigned to such term in Section 5.04.



          “General Intangibles” shall mean all choses in action and causes of action and all other
intangible personal property of any Grantor of every kind and nature (other than Accounts) now
owned or hereafter acquired by any Grantor, including all rights and interests in partnerships,
limited partnerships, limited liability companies and other









 



3



unincorporated entities, corporate or other business records, indemnification claims, contract
rights (including rights under leases, whether entered into as lessor or lessee, Hedging Agreements
and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund
claims and any letter of credit, guarantee, claim, security interest or other security held by or
granted to any Grantor to secure payment by an Account Debtor of any of the Accounts.



          “Grantors” shall mean the Borrower and the Guarantors.



          “Guarantors” shall mean Parent and the Subsidiary Guarantors.



          “Intellectual Property” shall mean all intellectual property of any Grantor of every kind and
nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation and registrations, and all additions and
improvements to any of the foregoing.



          “License” shall mean any Patent License, Trademark License, Copyright License or other license
or sublicense agreement relating to Intellectual Property to which any Grantor is a party,
including those listed on Schedule VI.



          “Loan Document Obligations” shall mean (a) the due and punctual payment of (i) the principal
of and interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under
the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in
respect of reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower to any of the Secured Parties
under the Credit Agreement and each of the other Loan Documents, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the
due and punctual performance of all other obligations of the Borrower under or pursuant to the
Credit Agreement and each of the other Loan Documents, and (c) the due and punctual payment and
performance of all the obligations of each other Loan Party under or pursuant to this Agreement and
each of the other Loan Documents.



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



          “Obligations” shall mean (a) the Loan Document Obligations and (b) the due and punctual
payment and performance of all obligations of each Loan Party under









 



4



each Hedging Agreement or Cash Management Arrangement that (i) is in effect on the Closing
Date with a counterparty that is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender as of the Closing Date or (ii) is entered into after the Closing
Date with any counterparty that is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender at the time such Hedging Agreement or Cash Management Arrangement
is entered into; provided, however, that the aggregate amount of obligations under Cash Management
Arrangements that shall constitute “Obligations” hereunder shall not exceed $200,000,000 at any
time.



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



          “Patent License” shall mean any written agreement, now or hereafter in effect, granting to any
third person any right to make, use or sell any invention on which a Patent, now or hereafter owned
by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting
to any Grantor any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third person, is in existence, and all rights of any Grantor under any such agreement.



          “Patents” shall mean all of the following now owned or hereafter acquired by any Grantor: (a)
all letters patent of the United States or the equivalent thereof in any other country, all
registrations and recordings thereof, and all applications for letters patent of the United States
or the equivalent thereof in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office (or any successor or any similar
offices in any other country), including those listed on Schedule VI, and (b) all reissues,
continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to exclude others from making, using and/or
selling the inventions disclosed or claimed therein.



          “Pledged Collateral” shall have the meaning assigned to such term in Section 3.01.



          “Pledged Debt Securities” shall have the meaning assigned to such term in Section 3.01.



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



          “Pledged Stock” shall have the meaning assigned to such term in Section 3.01.



          “Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral
Agent, (d) any Issuing Bank, (e) each counterparty to any Hedging Agreement or Cash Management
Arrangement with a Loan Party that either (i) is in effect on the Closing Date if such counterparty
is the Administrative Agent, a









 



5



Lender or an Affiliate of the Administrative Agent or a Lender as of the Closing Date or (ii)
is entered into after the Closing Date if such counterparty is the Administrative Agent, a Lender
or an Affiliate of the Administrative Agent or a Lender at the time such Hedging Agreement or Cash
Management Arrangement is entered into, (f) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document and (g) the successors and permitted assigns
of each of the foregoing.



          ”Security Interest” shall have the meaning assigned to such term in Section 4.01.



          ”Subsidiary Guarantors” shall mean (a) the Subsidiaries identified on Schedule II hereto as
Subsidiary Guarantors and (b) each other Subsidiary that becomes a party to this Agreement as a
Subsidiary Guarantor after the Closing Date.



          ”Trademark License” shall mean any written agreement, now or hereafter in effect, granting to
any third person any right to use any trademark now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, or granting to any Grantor any right to use any
trademark now or hereafter owned by any third person, and all rights of any Grantor under any such
agreement.



          ”Trademarks” shall mean all of the following now owned or hereafter acquired by any Grantor:
(a) all registered trademarks, service marks, trade names, corporate names, company names, business
names, fictitious business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and recording applications
filed in connection therewith, including registrations and applications for registration (other
than intent-to-use applications) in the United States Patent and Trademark Office (or any successor
office) or any similar offices in any State of the United States, and all extensions or renewals
thereof, including those listed on Schedule VI, and (b) all goodwill associated therewith or
symbolized thereby.



          ”Unfunded Advances/Participations” shall mean (a) with respect to the Administrative Agent,
the aggregate amount, if any (i) made available to the Borrower on the assumption that each Lender
has made its portion of the applicable Borrowing available to the Administrative Agent as
contemplated by Section 2.02(d) of the Credit Agreement and (ii) with respect to which a
corresponding amount shall not in fact have been returned to the Administrative Agent by the
Borrower or made available to the Administrative Agent by any such Lender, (b) with respect to the
Swingline Lender, the aggregate amount, if any, of participations in respect of any outstanding
Swingline Loan that shall not have been funded by the Revolving Credit Lenders in accordance with
Section 2.22(e) of the Credit Agreement and (c) with respect to any Issuing Bank, the aggregate
amount, if any, of participations in respect of any outstanding L/C Disbursement that shall not
have been funded by the Revolving Credit Lenders in accordance with Sections 2.23(d) and 2.02(f) of
the Credit Agreement.









 



6


ARTICLE II




Guarantee




          SECTION 2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other
Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual
payment and performance of the Obligations. Each Guarantor further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent from it, and that
it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation,
and hereby waives any provision of applicable law to the contrary that may be waived by such
Guarantor. Each Guarantor waives presentment to, demand of payment from and protest to the
Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment.



          SECTION 2.02. Guarantee of Payment. Each Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and waives any right
to require that any resort be had by the Collateral Agent or any other Secured Party to any
security held for the payment of the Obligations or credit on the books of the Collateral Agent or
any other Secured Party in favor of the Borrower or any other person.



          SECTION 2.03. No Limitations, Etc. (a) Except for termination of a Guarantor’s obligations
hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert
any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or
otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of
the terms or provisions of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to
perfect any Lien on or security interest in, any security held by the Collateral Agent or any other
Secured Party for the Obligations or any of them, (iv) any default, failure or delay, wilful or
otherwise, in the performance of the Obligations or (v) any other act or omission that may or might
in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge
of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations (other than unasserted contingent indemnity obligations)). To the fullest
extent permitted by applicable law, each Guarantor expressly authorizes the Collateral Agent to
take and hold security for the payment and performance of the Obligations, to exchange, waive or
release any or all such security (with or without consideration), to enforce or apply such security
and direct









 



7



the order and manner of any sale thereof in its sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of the Obligations, all without
affecting the obligations of any Guarantor hereunder.



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



          SECTION 2.04. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Obligation is rescinded or must otherwise be restored by the Collateral Agent or
any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party
or otherwise.



          SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in
limitation of any other right that the Collateral Agent or any other Secured Party has at law or in
equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan
Party to pay any Obligation owed by such party when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises
to and will, promptly upon written notice thereof from the Collateral Agent, forthwith pay, or
cause to be paid, to the Collateral Agent for distribution to the applicable Secured Parties in
cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the
Collateral Agent as provided above, all rights of such Guarantor against the Borrower or any other
Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subject to Article VI.



          SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower’s and each other Loan Party’s financial condition and assets and of
all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature,
scope and extent of the risks that such









 



8



Guarantor assumes and incurs hereunder, and agrees that neither the Collateral Agent nor any
other Secured Party will have any duty to advise such Guarantor of information known to it or any
of them regarding such circumstances or risks.



ARTICLE III




Pledge of Securities




          SECTION 3.01. Pledge. As security for the payment or performance, as the case may be, in full
of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors
and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured
Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under
(a)(i) the Equity Interests owned by such Grantor on the date hereof (including all such Equity
Interests listed on Schedule III), (ii) any other Equity Interests obtained in the future by such
Grantor and (iii) the certificates representing all such Equity Interests (all the foregoing
collectively referred to herein as the “Pledged Stock”); (provided, however, that the Pledged Stock
shall not include (A) more than 65% of the outstanding voting Equity Interests in any Foreign
Subsidiary, (B) any Equity Interest in any Non-Significant Subsidiary or (C) any Equity Interest in
any Permitted Syndication Subsidiary, any Securitization Subsidiary or any Permitted Joint Venture
Subsidiary to the extent the pledge of the Equity Interest in such Subsidiary is prohibited by any
applicable Contractual Obligation or requirement of law), (b)(i) the debt securities held by such
Grantor on the date hereof (including all such debt securities listed opposite the name of such
Grantor on Schedule III), (ii) any debt securities in the future issued to such Grantor and (iii)
the promissory notes and any other instruments evidencing such debt securities (excluding any
promissory notes issued by employees of any Grantor) (all the foregoing collectively referred to
herein as the “Pledged Debt Securities”), (c) all other property that may be delivered to and held
by the Collateral Agent pursuant to the terms of this Section 3.01, (d) subject to Section 3.06,
all payments of principal or interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of, in exchange for or upon the
conversion of, and all other Proceeds received in respect of, the securities referred to in clauses
(a) and (b) above, (e) subject to Section 3.06, all rights and privileges of such Grantor with
respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above,
and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (f)
above being collectively referred to as the “Pledged Collateral”).



          TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its
successors and permitted assigns, for the ratable benefit of the Secured Parties, forever; subject,
however, to the terms, covenants and conditions hereinafter set forth.









 



9


          SECTION 3.02. Delivery of the Pledged Collateral. (a) Each Grantor agrees promptly to
deliver or cause to be delivered to the Collateral Agent any and all certificates, promissory
notes, instruments or other documents representing or evidencing Pledged Securities (other than
Pledged Debt Securities with a face amount less than $1,000,000).



          (b) Subject to the Post-Closing Letter Agreement, each Grantor agrees promptly to deliver or
cause to be delivered to the Collateral Agent any and all Pledged Debt Securities with a face
amount in excess of $1,000,000.



          (c) Upon delivery to the Collateral Agent, (i) any certificate, instrument or document
representing or evidencing Pledged Securities shall be accompanied by undated stock powers duly
executed in blank or other undated instruments of transfer satisfactory to the Collateral Agent and
duly executed in blank and by such other instruments and documents as the Collateral Agent may
reasonably request and (ii) all other property comprising part of the Pledged Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable Grantor and such
other instruments or documents as the Collateral Agent may reasonably request. Each delivery of
Pledged Securities shall be accompanied by a schedule describing the applicable securities, which
schedule shall be attached hereto as Schedule III and made a part hereof; provided that failure to
attach any such schedule hereto shall not affect the validity of the pledge of such Pledged
Securities. Each schedule so delivered shall supplement any prior schedules so delivered.



          SECTION 3.03. Representations, Warranties and Covenants. The Grantors jointly and severally
represent, warrant and covenant to and with the Collateral Agent, for the benefit of the Secured
Parties, that:




          (a) As of the date hereof, Schedule III correctly sets forth the percentage of the
issued and outstanding shares of each class of the Equity Interests of the issuer thereof
represented by such Pledged Stock and includes all Equity Interests, debt securities and
promissory notes required to be pledged hereunder (to the extent not waived or extended in
accordance with the terms of the Credit Agreement);




          (b) Subject to the Post-Closing Letter Agreement, as of the date hereof, Schedule IV
correctly sets forth all promissory notes and other evidence of indebtedness required to be
pledged hereunder including all intercompany notes between Parent and any subsidiary of
Parent and any subsidiary of Parent and any other such subsidiary;




          (c) the Pledged Stock and Pledged Debt Securities have been duly and validly
authorized and issued by the issuers thereof and (i) in the case of Pledged Stock, are
fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal,
valid and binding obligations of the issuers thereof;









 



10



          (d) except for the security interests granted hereunder (or otherwise permitted under
the Credit Agreement or the other Loan Documents), each Grantor (i) is and, subject to any
transfers made in compliance with the Credit Agreement, will continue to be the direct
owner, beneficially and of record, of the Pledged Securities indicated on Schedule III as
owned by such Grantor, (ii) holds the same free and clear of all Liens other than Liens
permitted by Section 6.02 of the Credit Agreement, and (iii) will not create or permit to
exist any security interest in or other Lien on, the Pledged Collateral, other than
transfers made in compliance with the Credit Agreement or the other Loan Documents;




          (e) except for restrictions and limitations imposed by the Loan Documents or
securities or other laws generally, the Pledged Collateral is and will continue to be
freely transferable and assignable, and none of the Pledged Collateral is or will be
subject to any option, right of first refusal, shareholders agreement, charter or by-law
provisions or contractual restriction of any nature that might prohibit, impair, delay or
otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition
thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies
hereunder other than Liens permitted by Section 6.02 of the Credit Agreement;




          (f) each Grantor (i) has the power and authority to pledge the Pledged Collateral
pledged by it hereunder in the manner hereby done or contemplated and (ii) will defend its
title or interest thereto or therein against any and all Liens (other than any Lien created
or permitted by the Loan Documents), however arising, of all persons whomsoever;




          (g) no material consent or approval of any Governmental Authority or, any securities
exchange was or is necessary to the validity of the pledge effected hereby (other than such
as have been obtained and are in full force and effect);




          (h) by virtue of the execution and delivery by each Grantor of this Agreement, when
any Pledged Securities are delivered to the Collateral Agent in accordance with this
Agreement, the Collateral Agent will obtain a legal, valid and perfected first priority
lien upon and security interest in such Pledged Securities as security for the payment and
performance of the Obligations; and




          (i) the pledge effected hereby is effective to vest in the Collateral Agent, for the
ratable benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged
Collateral as set forth herein.



          SECTION 3.04. Certification of Limited Liability Company Interests and Limited Partnership
Interests. If any Pledged Collateral is not a security pursuant to Section 8-103 of the UCC, no
Grantor shall take any action that, under such Section, converts such Pledged Collateral into a
security without causing the issuer thereof to issue to it certificates or instruments evidencing
such Pledged Collateral, which it shall promptly deliver to the Collateral Agent as provided in
Section 3.02.









 



11


          SECTION 3.05. Registration in Nominee Name; Denominations. The Collateral Agent, on behalf of
the Secured Parties, shall have the right (in its sole and absolute discretion), upon the
occurrence and during the continuance of an Event of Default, to hold the Pledged Securities in its
own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent. Each
Grantor will promptly give to the Collateral Agent copies of any material written notices or other
material written communications received by it with respect to Pledged Securities in its capacity
as the registered owner thereof. After the occurrence and during the continuance of an Event of
Default, the Collateral Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.



          SECTION 3.06. Voting Rights; Dividends and Interest, Etc. (a) Unless and until an Event of
Default shall have occurred and be continuing and the Collateral Agent shall have given the
Grantors notice of its intent to exercise its rights under this Agreement (which notice shall be
deemed to have been given immediately upon the occurrence of an Event of Default under paragraph
(g) or (h) of Article VII of the Credit Agreement):




     (i) Each Grantor shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Securities or any part
thereof for any purpose consistent with the terms of this Agreement, the Credit
Agreement and the other Loan Documents; provided, however, that such rights and
powers shall not be exercised in any manner that could reasonably be expected to
materially and adversely affect the rights inuring to a holder of any Pledged
Securities or the rights and remedies of any of the Collateral Agent or the other
Secured Parties under this Agreement or the Credit Agreement or any other Loan
Document or the ability of the Secured Parties to exercise the same.




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




     (iii) Each Grantor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or distributed in
respect of the Pledged Securities to the extent and only to the extent that such
dividends, interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and conditions of the
Credit Agreement, the other Loan Documents and applicable law; provided, however,
that any noncash dividends, interest, principal or other distributions that would
constitute Pledged Stock or









 



12



Pledged Debt Securities, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any Pledged
Securities or received in exchange for Pledged Securities or any part thereof, or
in redemption thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or otherwise, shall be
and become part of the Pledged Collateral, and, if received by any Grantor, shall
not be commingled by such Grantor with any of its other funds or property but shall
be held separate and apart therefrom, shall be held in trust for the ratable
benefit of the Secured Parties and shall be forthwith delivered to the Collateral
Agent in the same form as so received (with any necessary endorsement or instrument
of assignment). This paragraph (iii) shall not apply to dividends between or among
the Borrower, the Guarantors and any Subsidiaries only of property subject to a
perfected security interest under this Agreement.



          (b) To the fullest extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, after the Collateral Agent shall have notified (or shall be
deemed to have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights
under paragraph (a)(iii) of this Section 3.06, then all rights of any Grantor to dividends,
interest, principal or other distributions that such Grantor is authorized to receive pursuant to
paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right and authority to
receive and retain such dividends, interest, principal or other distributions. All dividends,
interest, principal or other distributions received by any Grantor contrary to the provisions of
this Section 3.06 shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Grantor and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any necessary endorsement or
instrument of assignment). Any and all money and other property paid over to or received by the
Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money
or other property and shall be applied in accordance with the provisions of Section 5.02. After
all Events of Default have been cured or waived and each applicable Grantor has delivered to the
Administrative Agent certificates to that effect, the Collateral Agent shall, promptly after all
such Events of Default have been cured or waived, repay to each applicable Grantor (without
interest) all dividends, interest, principal or other distributions that such Grantor would
otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06
and that remain in such account.



          (c) Upon the occurrence and during the continuance of an Event of Default, after the
Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section
3.06(a)) the Grantors of the suspension of their rights under paragraph (a)(i) of this Section
3.06, then all rights of any Grantor to exercise the voting and consensual rights and powers it is
entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and the obligations of the
Collateral Agent under paragraph (a)(ii) of this Section 3.06,









 



13



shall cease, and, subject to compliance with any applicable healthcare laws, all such rights
shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to exercise such voting and consensual rights and powers; provided that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to
time following and during the continuance of an Event of Default to permit the Grantors to exercise
such rights. After all Events of Default have been cured or waived and each applicable Grantor has
delivered to the Administrative Agent a certificate to that effect, such voting and consensual
rights shall automatically vest in the applicable Grantor, and the Collateral Agent shall (1) take
such steps reasonably requested by the applicable Grantor, at such Grantor’s expense, to allow all
Pledged Securities registered under its name to be registered under the name of the applicable
Grantor and (2) promptly repay to each applicable Grantor (without interest) all dividends,
interest, principal or other distributions that such Grantor would otherwise have been permitted to
retain pursuant to the terms of paragraph (a) of this Section 3.06 that were not applied to repay
the Obligations.



          (d) Any notice given by the Collateral Agent to the Grantors exercising its rights under
paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing,
(ii) may be given to one or more of the Grantors at the same or different times and (iii) may
suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without
suspending all such rights (as specified by the Collateral Agent in its sole and absolute
discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give
additional notices from time to time suspending other rights so long as an Event of Default has
occurred and is continuing.



ARTICLE IV




Security Interests in Personal Property




          SECTION 4.01. Security Interest. (a) As security for the payment or performance, as the case
may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral
Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and
hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable
benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title
or interest in or to any and all of the following assets and properties now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future
may acquire any right, title or interest (collectively, the “Article 9 Collateral”):




     (i) all Accounts;




     (ii) all Chattel Paper;




     (iii) all Documents;




     (iv) all Equipment;









 



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     (v) all General Intangibles;




     (vi) all Instruments;




     (vii) all Inventory;




     (viii) all Investment Property;




     (ix) all Letter-of-Credit Rights;




     (x) all Commercial Tort Claims;




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




     (xii) to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing and all collateral security and guarantees given by any
person with respect to any of the foregoing.



          Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and
no Grantor shall be deemed to have granted a security interest in any (I) General Intangible,
Instrument, license, property right, permit or any other contract or agreement to which a Grantor
is a party or any of its rights or interests thereunder if and for so long as the grant of such
security interest shall constitute or result in (x) the abandonment, invalidation or
unenforceability of any right, title or interest of the Grantor therein, (y) a violation of a valid
and enforceable restriction in respect of such General Intangible, Instrument, license, property
right, permit or any other contract or agreement or other such rights (1) in favor of a third party
or (2) under any law, regulation, permit, order or decree of any Governmental Authority or (z) a
breach or termination (or result in any party thereto having the right to terminate) pursuant to
the terms of, or a default under, such General Intangible, Instrument, license, property right,
permit or any other contract or agreement (other than to the extent that any such term would be
rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any
other applicable law or principles of equity); provided, however, that such security interest shall
attach immediately at such time as the condition causing such abandonment, invalidation,
unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent
severable, shall attach immediately to any portion of such General Intangible, Instrument, license,
property right, permit or any other contract or agreement that does not result in any of the
consequences specified in the immediately preceding clause (x), (y) or (z) including, any proceeds
of such General Intangible, Instrument, license, property rights, permit or any other contract or
agreement; (II) more than 65% of the outstanding voting Equity Interests in any Foreign Subsidiary,
(III) any Equity Interest in any Non-Significant Subsidiary, (IV) any Equity Interest in any
Permitted Syndication Subsidiary, any Securitization Subsidiary or any Permitted Joint Venture
Subsidiary to the extent the pledge of the Equity Interest in such Subsidiary is prohibited by any
applicable Contractual Obligation or requirement of law, (V) any vehicle or other asset subject to
certificate of title, (VI) any asset that requires perfection through control agreements
(including, to the extent required in the relevant









 



15



jurisdiction for deposit accounts and investment property), (VII) any minority Equity
Interests, (VIII) any assets with respect to which the Collateral Agent shall reasonably determine
that the cost of creating and/or perfecting a security interest therein is excessive in relation to
the benefit to the Secured Parties or that the granting or perfection of a security interest
therein would violate applicable law or regulation and (IX) any assets (other than any General
Intangible, Instrument, license, property right, permit or any other contract or agreement) owned
by any Grantor that are subject to a Lien permitted by Section 6.02(c) or (n) of the Credit
Agreement, to the extent and for so long as such Lien exists and the terms of the Indebtedness or
other obligations secured thereby prevent the grant of a security interest in such assets
hereunder.



          (b) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time
to time to file in any relevant jurisdiction any initial financing statements (including fixture
filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that
(i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect,
and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or amendment, including (A)
whether such Grantor is an organization, the type of organization and any organizational
identification number issued to such Grantor and (B) in the case of a financing statement filed as
a fixture filing, a sufficient description of the real property to which such Article 9 Collateral
relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon
request.



          (c) Each Grantor also ratifies its authorization for the Collateral Agent to file in any
relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the
date hereof.



          The Collateral Agent is further authorized to file with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office) such documents as may be
necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or
protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and
naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party.



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



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




          (a) Each Grantor has good and valid rights in and marketable title to the Article 9
Collateral with respect to which it has purported to grant a Security Interest hereunder
and has full power and authority to grant to the Collateral Agent, for the ratable benefit
of the Secured Parties, the Security Interest in such Article 9 Collateral pursuant hereto
and to execute, deliver and perform its









 



16



obligations in accordance with the terms of this Agreement, without the consent or
approval of any other person other than any consent or approval that has been obtained or
any other consent where the failure to obtain such consent could not reasonably be expected
to have a Material Adverse Effect.




          (b) The Schedules attached hereto have been duly prepared and completed and the
information set forth therein (including (x) the exact legal name of each Grantor in
Schedule I and (y) the jurisdiction of organization of each Grantor in Schedule I) is true
and correct in all material respects as of the Closing Date. Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations containing a description of the Article 9 Collateral
have been prepared by the Collateral Agent based upon the information provided to the
Administrative Agent and the Secured Parties in the applicable Schedules attached hereto
for filing in each governmental, municipal or other office specified in Schedule I (or
specified by notice from the Borrower to the Administrative Agent after the Closing Date in
the case of filings, recordings or registrations required by Sections 5.06 or 5.12 of the
Credit Agreement), which are all the filings, recordings and registrations (other than
filings required to be made in the United States Patent and Trademark Office and the United
States Copyright Office in order to perfect the Security Interest in the Article 9
Collateral consisting of United States Patents, Trademarks and Copyrights (to the extent
that perfection can be achieved by such filings)) that are necessary to publish notice of
and protect the validity of and to establish a legal, valid and perfected security interest
in favor of the Collateral Agent (for the ratable benefit of the Secured Parties) in
respect of all Article 9 Collateral in which the Security Interest may be perfected by
filing, recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent filing,
refiling, recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing of
continuation statements. Each Grantor represents and warrants that a fully executed short
form agreement in form and substance reasonably satisfactory to the Collateral Agent, and
containing a description of all Article 9 Collateral consisting of pending and issued
United States Patents and United States Trademarks and United States Copyrights will be
delivered to the Collateral Agent as of or prior to the Closing Date for timely recording
with the United States Patent and Trademark Office and the United States Copyright Office
pursuant to 35 U.S.C. §261, 15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations
thereunder.




          (c) As of the date hereof, Schedule I correctly sets forth (i) the exact legal name of
each Grantor, as such name appears in its respective certificate of formation; (ii) the
jurisdiction of formation of each Grantor that is a registered organization; (iii) the
Organizational Identification Number, if any, issued by the jurisdiction of formation of
each Grantor that is a registered organization; (iv) the









 



17



chief executive office of each Grantor; and (v) all locations where Grantor maintains
any material books or records relating to any Accounts Receivables.




          (d) As of the date hereof, Schedule V correctly sets forth, with respect to each
Mortgaged Property, (i) the exact name of the person that owns such property as such name
appears in its certificate of formation or other organizational document; (ii) if different
from the name identified pursuant to clause (i), the exact name of the current record owner
of such property reflected in the records of the filing office for such property identified
pursuant to the following clause (iii); and (iii) the filing office in which a mortgage
with respect to such property must be filed or recorded in order for the Collateral Agent
to obtain a perfected security interest therein.




          (e) As of the date hereof, Schedule VI correctly sets forth, in proper form for filing
with (a) the United States Patent and Trademark Office a list of each issued and pending
Patents and Trademarks, including, as applicable, the name of the registered owner and the
registration number of each Patent and Trademark owned by any Grantor and (b) the United
States Copyright Office a list of each Copyright, including the name of the registered
owner and the registration number of each Copyright owned by any Grantor.




          (f) The Security Interest constitutes (i) a legal and valid security interest in all
Article 9 Collateral securing the payment and performance of the Obligations, (ii) subject
to the qualifications and filings described in Section 4.02(b) (including payment of
applicable fees in connection therewith), a perfected security interest in all Article 9
Collateral in which and to the extent a security interest may be perfected by filing,
recording or registering a financing statement or analogous document in the United States
(or any political subdivision thereof) and its territories and possessions pursuant to the
Uniform Commercial Code or other applicable law in such jurisdictions and (iii) a security
interest that shall be perfected in all Article 9 Collateral in which a security interest
may be perfected upon the receipt and recording of this Agreement with the United States
Patent and Trademark Office and the United States Copyright Office, as applicable. The
Security Interest is and shall be prior to any other Lien on any of the Article 9
Collateral, other than Liens expressly permitted pursuant to Section 6.02 of the Credit
Agreement or the other Loan Documents that have priority as a matter of law.




          (g) The Article 9 Collateral is owned by the Grantors free and clear of any Lien,
except for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement or
the other Loan Documents. No Grantor has filed or consented to the filing of (i) any
financing statement or analogous document under the Uniform Commercial Code or any other
applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor
assigns any Collateral or any security agreement or similar instrument covering any Article
9 Collateral with the United States Patent and Trademark Office or the United









 



18



States Copyright Office, (iii) any notice under the Assignment of Claims Act, or (iv)
any assignment in which any Grantor assigns any Article 9 Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with any foreign
governmental, municipal or other office, which financing statement or analogous document,
assignment, security agreement or similar instrument is still in effect, except, in each
case, for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement or the
other Loan Documents. As of the date hereof, no Grantor holds any Commercial Tort Claims
in an amount in excess of $5,000,000 except as indicated on Schedule VII.



          SECTION 4.03. Covenants. (a) Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change in (i) its legal name and/or address, (ii) its identity or type of
organization or corporate structure, (iii) its Federal Taxpayer Identification Number or
organizational identification number or (iv) its jurisdiction of organization. Each Grantor agrees
promptly to provide the Collateral Agent with certified organizational documents reflecting any of
the changes described in the first sentence of this paragraph. Each Grantor agrees not to effect
or permit any change referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid, legal and perfected first priority
security interest in all the Article 9 Collateral. Each Grantor agrees promptly to notify the
Collateral Agent if any material portion of the Article 9 Collateral owned or held by such Grantor
is damaged or destroyed.



          (b) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate
records (in all material respects) with respect to the Article 9 Collateral owned by it as is
consistent with its current practices and in accordance with such prudent and standard practices
used in industries that are the same as or similar to those in which such Grantor is engaged, but
in any event to include complete accounting records (in all material respects) indicating all
material payments and proceeds received with respect to any part of the Article 9 Collateral.



          (c) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to Section 5.04(a) of the Credit Agreement, the Borrower shall
deliver to the Collateral Agent a certificate executed by a Responsible Officer of the Borrower
setting forth in the format of Schedule VI all Intellectual Property of any Grantor in existence on
the date thereof that, if it had existed on the date hereof, would have been required to be listed
in such Schedule, and not then listed on such Schedules or previously so identified to the
Collateral Agent.



          (d) Each Grantor shall, at its own expense, take any and all commercially reasonable actions
necessary to defend title to the Article 9 Collateral against all persons and to defend the
Security Interest of the Collateral Agent in the Article 9 Collateral and the priority thereof
against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement.









 



19


          (e) Each Grantor agrees, at its own expense, promptly to execute, acknowledge, deliver and
cause to be duly filed all such further instruments and documents and take all such actions as the
Collateral Agent may from time to time reasonably request to obtain, preserve, protect and perfect
(to the extent that perfection can be achieved under any applicable law by such filings and
actions) the Security Interest and the rights and remedies created hereby, including the payment of
any fees and Taxes required in connection with the execution and delivery of this Agreement, the
granting of the Security Interest and the filing of any financing or continuation statements
(including fixture filings) or other documents in connection herewith or therewith. If any amount
payable to any Grantor under or in connection with any of the Article 9 Collateral shall be or
become evidenced by any promissory note or other instrument with a face amount in excess of
$1,000,000, such note or instrument shall be promptly pledged and delivered to the Collateral
Agent, duly endorsed in a manner reasonably satisfactory to the Collateral Agent.



          Without limiting the generality of the foregoing, each Grantor hereby authorizes the
Collateral Agent, with prompt notice thereof to the Grantors, to supplement this Agreement by
supplementing Schedule VI or adding additional schedules hereto to identify specifically any asset
or item of a Grantor that may, in the Collateral Agent’s reasonable judgment, constitute
Copyrights, Licenses, Patents or Trademarks; provided that any Grantor shall have the right,
exercisable within 30 days after it has been notified by the Collateral Agent of the specific
identification of such Collateral, to advise the Collateral Agent in writing of any inaccuracy of
the representations and warranties made by such Grantor hereunder with respect to such Collateral.
Each Grantor agrees that it will use its commercially reasonable efforts to take such action as
shall be necessary, and which the Collateral Agent may from time to time reasonably request, in
order that all representations and warranties hereunder shall be true and correct in all material
respects with respect to such Collateral within 45 days after the date it has been notified by the
Collateral Agent of the specific identification of such Collateral and any such request.



          (f) The Collateral Agent and such persons as the Collateral Agent may designate shall have the
right to inspect, subject to a reasonable prior notice to each Grantor, the Article 9 Collateral,
all records related thereto (and to make extracts and copies from such records) and the premises
upon which any of the Article 9 Collateral is located, to discuss the applicable Grantor’s affairs
with the officers of such Grantor and its independent accountants and to verify the existence,
validity, amount, quality, quantity, value, condition and status of, or any other matter relating
to, the Article 9 Collateral, including, in the case of Accounts or other Article 9 Collateral in
the possession of any third person, after the occurrence and during the continuance of an Event of
Default, by contacting Account Debtors or the third person possessing such Article 9 Collateral for
the purpose of making such a verification, subject in each case to the requirements of applicable
law, including healthcare laws, data privacy and third party confidentiality obligations all at the
expense of the Borrower; provided that, excluding any such visits and inspections during the
continuation of an Event of Default, only one such visit during any fiscal year shall be at the
Borrower’s expense. The Collateral Agent shall have the absolute









 



20



right to share any information it gains from such inspection or verification with any Secured
Party, subject in each case to the requirements of applicable law, including healthcare laws, data
privacy and third party confidentiality obligations.



          (g) At its option, upon the occurrence and during the continuation of a Default or an Event of
Default, the Collateral Agent may with five Business Days’, prior written notice to the relevant
Grantor discharge past due Taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Article 9 Collateral and not expressly permitted
pursuant to Section 5.03 or Section 6.02 of the Credit Agreement, and may pay for the maintenance
and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as required
by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to
reimburse the Collateral Agent within five Business Days after written demand for any reasonable
payment made or any reasonable expense incurred by the Collateral Agent pursuant to the foregoing
authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing
any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to
Taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.



          (h) If at any time any Grantor shall take a security interest in any property of an Account
Debtor or any other person valued in excess of $1,000,000 to secure payment and performance of an
Account, such Grantor shall promptly assign such security interest to the Collateral Agent for the
ratable benefit of the Secured Parties. Such assignment need not be filed of public record unless
necessary to continue the perfected status of the security interest against creditors of and
transferees from the Account Debtor or other person granting the security interest.



          (i) Except to the extent otherwise expressly agreed by the Collateral Agent, each Grantor
shall remain liable to observe and perform all the conditions and obligations to be observed and
performed by it under each contract, agreement or instrument relating to the Article 9 Collateral,
all in accordance with the terms and conditions thereof, and each Grantor jointly and severally
agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against
any and all liability for such performance in accordance with Section 7.06 of this Agreement.



          (j) No Grantor shall make or permit to be made an assignment, pledge or hypothecation of the
Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral or permit
any notice to be filed under the Assignment of Claims Act, except, in each case, as expressly
permitted by Section 6.02 of the Credit Agreement. No Grantor shall make or permit to be made any
transfer of the Article 9 Collateral, except as permitted by the Credit Agreement.



          (k) No Grantor will, without the Collateral Agent’s prior written consent, grant any extension
of the time of payment of any Accounts included in the Article 9









 



21



Collateral, compromise, compound or settle the same for less than the full amount thereof
(unless the aggregate amount of such compromised or settled Accounts in any fiscal year is not in
excess of $5,000,000), release, wholly or partly, any person liable for the payment thereof (unless
the aggregate amount of such compromised or settled Accounts in any fiscal year is not in excess of
$5,000,000) or allow any credit or discount whatsoever thereon (unless the aggregate amount of such
compromised or settled Accounts in any fiscal year is not in excess of $5,000,000), other than
extensions, credits, discounts, compromises, compoundings or settlements in each case granted or
made in the ordinary course of business.



          (l) Each Grantor, at its own expense, shall maintain or cause to be maintained insurance
covering physical loss or damage to the Inventory and Equipment in accordance with the requirements
set forth in Section 5.02 of the Credit Agreement. Each Grantor irrevocably makes, constitutes and
appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral
Agent) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon the
occurrence and during the continuance of an Event of Default, of making, settling and adjusting
claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such
Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies
of insurance and for making all determinations and decisions with respect thereto (provided that
the Collateral Agent shall give five Business Days’ prior written notice to such Grantor prior to
exercising its rights in such capacity). In the event that any Grantor at any time or times shall
fail to obtain or maintain any of the policies of insurance required hereby or under the Credit
Agreement or to pay any premium in whole or part relating thereto, the Collateral Agent may,
without waiving or releasing any obligation or liability of any Grantor hereunder or any Default or
Event of Default, in its sole reasonable discretion, upon notice to the Grantors, obtain and
maintain such policies of insurance and pay such premium and take any other actions with respect
thereto as the Collateral Agent reasonably deems advisable. All sums disbursed by the Collateral
Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs,
out-of-pocket expenses and other charges relating thereto, shall be payable, within five Business
Days of written demand (accompanied by supporting documentation therefor in reasonable detail) by
the Grantors to the Collateral Agent and shall be additional Obligations secured hereby.



          SECTION 4.04. Other Actions. In order to further insure the attachment, perfection and
priority of, and the ability of the Collateral Agent to enforce, the Security Interest in the
Article 9 Collateral, each Grantor agrees, in each case at such Grantor’s own expense, to take the
following actions with respect to the following Article 9 Collateral:




          (a) Instruments. If any Grantor shall at any time hold or acquire any Instruments
(other than (x) any Instruments in an amount no greater than $1,000,000 and (y) any
Instruments representing loans or advances permitted under Section 6.04(c) of the Credit
Agreement, to the extent such Instruments represent Indebtedness excluded from the
requirements of subclause (ii) of such Section, that have not been pledged hereunder, such
Grantor shall forthwith









 



22



endorse, assign and deliver the same to the Collateral Agent, accompanied by such
undated instruments of endorsement, transfer or assignment duly executed in blank as the
Collateral Agent may from time to time reasonably request.




          (b) Electronic Chattel Paper and Transferable Records. If any Grantor at any time
holds or acquires an interest in any material Electronic Chattel Paper or any material
“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, such Grantor shall promptly
notify the Collateral Agent thereof and, at the reasonable request of the Collateral Agent,
shall take such action as the Collateral Agent may reasonably request to vest in the
Collateral Agent control under New York UCC Section 9-105 of such Electronic Chattel Paper
or control under Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act,
as so in effect in such jurisdiction, of such transferable record. The Collateral Agent
agrees with such Grantor that the Collateral Agent will arrange, pursuant to procedures
reasonably satisfactory to the Collateral Agent and so long as such procedures will not
result in the Collateral Agent’s loss of control, for the Grantor to make alterations to
the Electronic Chattel Paper or transferable record permitted under UCC Section 9-105 or,
as the case may be, Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in
control to allow without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such Grantor with respect
to such Electronic Chattel Paper or transferable record. Notwithstanding the foregoing, no
Grantor shall be obligated to deliver to the Collateral Agent any Electronic Chattel Paper
held by such Grantor with a face amount less than $1,000,000, provided that the aggregate
face amount of the Electronic Chattel Paper so excluded pursuant to this sentence shall not
exceed $10,000,000 at any time.




          (c) Letter-of-Credit Rights. If any Grantor is at any time a beneficiary under a
letter of credit with a face amount exceeding $2,000,000 now or hereafter issued in favor
of such Grantor, such Grantor shall promptly notify the Collateral Agent thereof and, at
the request and option of the Collateral Agent, such Grantor shall, pursuant to an
agreement in form and substance reasonably satisfactory to the Collateral Agent, either (i)
arrange for the issuer and any confirmer of such letter of credit to consent to an
assignment to the Collateral Agent of the proceeds of any drawing under the letter of
credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of the
letter of credit, with the Collateral Agent agreeing, in each case, that the proceeds of
any drawing under the letter of credit are to be paid to the applicable Grantor unless an
Event of Default has occurred or is continuing.









 



23



          (d) Commercial Tort Claims. If any Grantor shall at any time hold or acquire a
Commercial Tort Claim in an amount reasonably estimated to exceed $5,000,000, the Grantor
shall promptly notify the Collateral Agent thereof in a writing signed by such Grantor
including a summary description of such claim and grant to the Collateral Agent, for the
ratable benefit of the Secured Parties, in such writing a security interest therein and in
the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form
and substance reasonably satisfactory to the Collateral Agent.



          SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. In each case
unless otherwise decided by such Grantor in its reasonable business judgment or such Collateral is
not material to the business of such Grantor: (a) Each Grantor agrees that it will not, and will
not permit any of its licensees to, do any act, or omit to do any act, whereby any Patent that is
material to the conduct of such Grantor’s business may become invalidated or dedicated to the
public, and agrees that it shall continue to mark any products covered by a Patent with the
relevant patent number to the extent necessary and sufficient to establish and preserve its maximum
rights under applicable patent laws, to the extent required by applicable law.



          (b) Each Grantor (either itself or through its licensees or its sublicensees) will, for each
Trademark material to the conduct of such Grantor’s business, (i) maintain such Trademark in full
force free from any claim of abandonment or invalidity for non-use, (ii) maintain the quality of
products and services offered under such Trademark, (iii) display such Trademark with notice of
Federal or foreign registration to the extent necessary and sufficient to establish and preserve
its maximum rights under applicable law, to the extent required by applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any third party rights.



          (c) Each Grantor (either itself or through its licensees or sublicensees) will, for each work
covered by a material Copyright, continue to publish, reproduce, display, adopt and distribute the
work with appropriate copyright notice to the extent necessary and sufficient to establish and
preserve its maximum rights under applicable copyright laws, to the extent required by applicable
law.



          (d) Each Grantor shall notify the Collateral Agent promptly if it knows that any Patent,
Trademark or Copyright material to the conduct of its business has or is likely to become
abandoned, lost or dedicated to the public, or of any materially adverse determination or
development (including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States Copyright Office or any
court or similar office of any country) regarding such Grantor’s ownership of any such Patent,
Trademark or Copyright, its right to register the same, or its right to keep and maintain the same.



          (e) If any Grantor, either itself or through any agent, employee, licensee or designee, files
an application for any Patent, Trademark or Copyright (or for the registration of any Trademark or
Copyright) with the United States Patent and Trademark









 



24



Office, United States Copyright Office or any office or agency in any political subdivision of
the United States, the Grantor shall so notify the Collateral Agent, and, upon request of the
Collateral Agent, shall execute and deliver any and all agreements, instruments, documents and
papers as the Collateral Agent may reasonably request to evidence the Security Interest in such
Patent, Trademark or Copyright, and each Grantor hereby appoints the Collateral Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed.



          (f) Each Grantor will take all necessary steps that are consistent with the practice in any
proceeding before the United States Patent and Trademark Office, United States Copyright Office or
any office or agency in any political subdivision of the United States, to maintain and pursue each
material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the
relevant grant or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor’s business, including
timely filings of applications for renewal, affidavits of use, affidavits of incontestability and
payment of maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancellation proceedings against third parties.



          (g) In the event that any Grantor knows or has reason to believe that any Article 9 Collateral
consisting of a Patent, Trademark or Copyright material to the conduct of any Grantor’s business
has been or is about to be infringed, misappropriated or diluted by a third person, such Grantor
promptly shall notify the Collateral Agent and shall, if consistent with good business judgment,
promptly sue for infringement, misappropriation or dilution and to recover any and all damages for
such infringement, misappropriation or dilution, and take such other actions, if consistent with
good business judgment, as are reasonably appropriate under the circumstances to protect such
Article 9 Collateral.



          (h) Upon the occurrence and during the continuance of an Event of Default, upon the reasonable
request of the Collateral Agent, each Grantor shall use its best efforts to obtain all requisite
consents or approvals by the licensor of each Copyright License, Patent License or Trademark
License, and each other material License, to effect the assignment of all such Grantor’s right,
title and interest thereunder to the Collateral Agent, for the ratable benefit of the Secured
Parties, or its designee.



ARTICLE V




Remedies




          SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an
Event of Default, each Grantor agrees to deliver each item of Collateral to the Collateral Agent on
demand, and it is agreed that the Collateral Agent shall have the right to take any of or all the
following actions at the same or different times: (a) with respect to any Article 9 Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest to become an
assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable
Grantor to the Collateral









 



25



Agent, or to license or sublicense, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine (other than in violation
of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b)
with or without legal process and with or without prior notice or demand for performance, to take
possession of the Article 9 Collateral and without liability for trespass to enter any premises
where the Article 9 Collateral may be located for the purpose of taking possession of or removing
the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party
under the Uniform Commercial Code or other applicable law. Without limiting the generality of the
foregoing, each Grantor agrees that the Collateral Agent shall have the right, subject to the
requirements of applicable law, including any applicable healthcare laws, to sell or otherwise
dispose of all or any part of the Collateral at a public or private sale or at any broker’s board
or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent
shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent
and agree that they are purchasing the Collateral for their own account for investment and not with
a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral
Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral so sold. Each such purchaser at any such sale shall hold the property sold
absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor
now has or may at any time in the future have under any rule of law or statute now existing or
hereafter enacted.



          The Collateral Agent shall give each applicable Grantor 10 days’ written notice (which each
Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its
equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral shall have been given.
The Collateral Agent may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place to which the same
was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Collateral Agent until the









 



26



sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not
incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this
Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by applicable
law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all
said rights being also hereby waived and released to the extent permitted by applicable law), the
Collateral or any part thereof offered for sale and may make payment on account thereof by using
any claim then due and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain
and dispose of such property without further accountability to any Grantor therefor. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a
sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations paid in full. As an
alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. To the fullest
extent permitted under applicable law, any sale pursuant to the provisions of this Section 5.01
shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b)
of the New York UCC or its equivalent in other jurisdictions.



          SECTION 5.02. Application of Proceeds. If an Event of Default shall have occurred and is
continuing, the Collateral Agent shall apply the proceeds of any collection, sale, foreclosure or
other realization upon any Collateral, including any Collateral consisting of cash, as follows:




     FIRST, to the payment of all reasonable out-of-pocket costs and expenses incurred by
the Administrative Agent or the Collateral Agent (in their respective capacities as such
hereunder or under any other Loan Document) in connection with such collection, sale,
foreclosure or realization or otherwise in connection with this Agreement, any other Loan
Document or any of the Obligations, including all court costs and the fees and expenses of
its agents and legal counsel, the repayment of all advances made by the Administrative
Agent and/or the Collateral Agent hereunder or under any other Loan Document on behalf of
any Grantor and any other reasonable out-of-pocket costs or expenses incurred in connection
with the exercise of any right or remedy hereunder or under any other Loan Document;




     SECOND, to the payment in full of Unfunded Advances/Participations (the amounts so
applied to be distributed between or among the Administrative Agent, the Swingline Lender
and any Issuing Bank pro rata in accordance with









 



27



the amounts of Unfunded Advances/Participations owed to them on the date of any such
distribution);




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




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


The Collateral Agent shall have absolute discretion as to the time of application of any such
proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the
Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the misapplication
thereof.




          SECTION 5.03. Grant of License to Use Intellectual Property. For the purpose of enabling the
Collateral Agent to exercise rights and remedies under this Agreement at such time as the
Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to the Collateral Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the
Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such
Grantor, and wherever the same may be located, and including in such license access to all media in
which any of the licensed items may be recorded or stored and to all computer software and programs
used for the compilation or printout thereof. The use of such license by the Collateral Agent may
be exercised, at the option of the Collateral Agent, and shall be effective only upon the
occurrence and during the continuation of an Event of Default; provided, however, that any license,
sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall
be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.



          SECTION 5.04. Securities Act, Etc. In view of the position of the Grantors in relation to the
Pledged Collateral, or because of other current or future circumstances, a question may arise under
the U.S. Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter
enacted analogous in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the “Federal Securities Laws”) with respect to any disposition of the
Pledged Collateral permitted hereunder. Each Grantor understands that compliance with the Federal
Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the
Collateral Agent were to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly,









 



28



there may be other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Collateral under applicable “blue sky” or other
state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that
in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of
the Pledged Collateral, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for investment, and not with a view to the
distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such
restrictions and limitations, the Collateral Agent, in its sole and absolute discretion (a) to the
fullest extent permitted by applicable Federal Securities Laws, may proceed to make such a sale
whether or not a registration statement for the purpose of registering such Pledged Collateral or
part thereof shall have been filed under the Federal Securities Laws and (b) may approach and
negotiate with a limited number of potential purchasers (including a single potential purchaser) to
effect such sale. Each Grantor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public sale without such
restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or
liability for selling all or any part of the Pledged Collateral at a price that the Collateral
Agent, in its sole and absolute discretion, may in good faith deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price might have been
realized if the sale were deferred until after registration as aforesaid or if more than a limited
number of purchasers (or a single purchaser) were approached. The provisions of this Section 5.04
will apply notwithstanding the existence of a public or private market upon which the quotations or
sales prices may exceed substantially the price at which the Collateral Agent sells.



ARTICLE VI




Indemnity, Subrogation and Subordination




          SECTION 6.01. Indemnity and Subrogation. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but subject to Section 6.03), the
Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this
Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold
pursuant to this Agreement or any other Security Document to satisfy in whole or in part a claim of
any Secured Party, the Borrower shall indemnify such Guarantor in an amount equal to the greater of
the book value or the fair market value of the assets so sold.



          SECTION 6.02. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”)
agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Guarantor
hereunder in respect of any Obligation, or assets of any other Guarantor shall be sold pursuant to
any Security Document to satisfy any Obligation owed to any Secured Party, and such other Guarantor
(the “Claiming









 



29



Guarantor”) shall not have been fully indemnified by the Borrower as provided in Section 6.01,
the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to (i) the
amount of such payment or (ii) the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be
the net worth of the Contributing Guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 7.16, the date of the supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming
Guarantor under Section 6.01 to the extent of such payment.



          SECTION 6.03. Subordination. (a) Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors under Sections 6.01 and 6.02 and all other rights of
indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the payment in full in cash of the Obligations (other than contingent
indemnification obligations for which no claim has been made). No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and 6.02 (or any other
payments required under applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall
remain liable for the full amount of its obligations hereunder.



          (b) The Borrower and each Guarantor hereby agree that all Indebtedness and other monetary
obligations owed by it to the Borrower or any Subsidiary shall be fully subordinated to the payment
in full in cash of the Obligations; provided that, as long as no Event of Default shall have
occurred and be continuing, nothing in this Section 6.03(b) shall prohibit any payments or
distributions permitted by the Credit Agreement.



ARTICLE VII




Miscellaneous




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



          SECTION 7.02. Security Interest Absolute. All rights of the Collateral Agent hereunder, the
Security Interest, the grant of a security interest in the Pledged Collateral and all obligations
of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of









 



30



the Obligations, or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or instrument relating to the
foregoing, (c) any exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or
this Agreement.



          SECTION 7.03. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the Lenders and the Issuing Bank and
shall survive the execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any Lender or Issuing
Bank or on their behalf and notwithstanding that the Collateral Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended under the Credit Agreement, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any fee or any other
amount payable under any Loan Document is outstanding and unpaid or the aggregate L/C Exposure does
not equal zero (except for outstanding Letters of Credit subject to arrangements satisfactory to
the Administrative Agent and the Issuing Bank) and so long as the Commitments have not expired or
terminated.



          SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall become effective as to
any Loan Party when a counterpart hereof executed on behalf of such Loan Party shall have been
delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon such Loan Party and the Collateral Agent
and their respective permitted successors and assigns, and shall inure to the benefit of such Loan
Party, the Collateral Agent and the other Secured Parties and their respective successors and
permitted assigns, except that no Loan Party shall have the right to assign or transfer its rights
or obligations hereunder or any interest herein or in the Collateral (and any such assignment or
transfer shall be void) except as expressly contemplated or permitted by this Agreement or the
Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each
Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan
Party without the approval of any other Loan Party and without affecting the obligations of any
other Loan Party hereunder.



          SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the permitted successors and permitted
assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or
the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and permitted assigns.









 



31


          SECTION 7.06. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties hereto
agree that the Collateral Agent shall be entitled to reimbursement of its expenses incurred
hereunder as provided in Section 9.05 of the Credit Agreement.



          (b) Without limitation or duplication of its indemnification obligations under the other Loan
Documents, each Grantor jointly and severally agrees to indemnify the Collateral Agent and the
other indemnitees against, and hold each indemnitee harmless from, any and all losses, claims,
damages, liabilities, penalties and related reasonable out of pocket expenses, including the
reasonable fees, charges and disbursements of any one counsel in each relevant jurisdiction (and
any such additional counsel, if necessary, as a result of actual or potential conflicts of
interest) for all indemnitees, incurred by or asserted against any indemnitee arising out of, in
any way connected with, or as a result of, the execution, delivery or performance of this Agreement
or any agreement or instrument contemplated hereby or any claim, litigation, investigation or
proceeding relating to any of the foregoing or to the Collateral, regardless of whether any
indemnitee is a party thereto or whether initiated by a third party or by a Loan Party or any
Affiliate thereof; provided, however, that such indemnity shall not, as to any indemnitee, be
available to the extent that such losses, claims, damages, liabilities, penalties or related
expenses are determined by a court of competent jurisdiction by final judgment to have resulted
from the gross negligence or wilful misconduct of such indemnitee. To the extent permitted by
applicable law, neither any Grantor nor the Collateral Agent shall assert, and each Grantor and the
Collateral Agent hereby waives any claim against any indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of
proceeds thereof.



          (c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section 7.06 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any
other Secured Party. All amounts due under this Section 7.06 shall be payable within 30 days after
written demand therefor and shall bear interest, on and from the date of demand, at the rate
specified in Section 2.06(a) of the Credit Agreement.



          SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints the
Collateral Agent as the attorney-in-fact of such Grantor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument that the Collateral
Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the
Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event
of Default, with full power of substitution either in the Collateral Agent’s name or in the name of
such









 



32



Grantor (provided, that to the extent written notice is not required hereunder, the Collateral
Agent shall use commercially reasonable efforts to provide notice to such Grantor, though its
rights hereunder are not conditioned thereon) (a) to receive, endorse, assign and/or deliver any
and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to
the Collateral or any part thereof, (b) upon three Business Days’ prior written notice to such
Grantor, to demand, collect, receive payment of, give receipt for and give discharges and releases
of all or any of the Collateral, (c) to sign the name of any Grantor on any invoice or bill of
lading relating to any of the Collateral, (d) upon three Business Days’ prior written notice to
such Grantor, to send verifications of Accounts Receivable to any Account Debtor, (e) to commence
and prosecute any and all suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to
enforce any rights in respect of any Collateral, (f) to settle, compromise, compound, adjust or
defend any actions, suits or proceedings relating to all or any of the Collateral, (g) upon three
Business Days’ prior written notice to such Grantor, to notify, or to require any Grantor to
notify, Account Debtors to make payment directly to the Collateral Agent, and (h) to use, sell,
assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the purposes of this
Agreement in accordance with its terms, as fully and completely as though the Collateral Agent were
the absolute owner of the Collateral for all purposes; provided, however, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral
Agent, or to present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable
only for amounts actually received as a result of the exercise of the powers granted to them
herein, and neither they nor their officers, directors, employees or agents shall be responsible to
any Grantor for any act or failure to act hereunder, except for their own gross negligence, wilful
misconduct or bad faith.



          SECTION 7.08. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



          SECTION 7.09. Waivers; Amendment. (a) No failure or delay by the Collateral Agent, the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver hereof or thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Collateral Agent, the Administrative
Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by









 



33



paragraph (b) of this Section 7.09, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Collateral Agent, any Lender or any Issuing Bank
may have had notice or knowledge of such Default at the time. No notice or demand on any Loan Party
in any case shall entitle any Loan Party to any other or further notice or demand in similar or
other circumstances.



          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Collateral Agent (acting at
the direction, or with the consent, of the Required Lenders) and the Loan Party or Loan Parties
with respect to which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.08 of the Credit Agreement.



          SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.10.



          SECTION 7.11. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.



          SECTION 7.12. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 7.04. Delivery of an executed









 



34



signature page to this Agreement by facsimile transmission or electronic transmission shall be
as effective as delivery of a manually signed counterpart of this Agreement.



          SECTION 7.13. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



          SECTION 7.14. Jurisdiction; Consent to Service of Process. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or Federal court of the United States of America, sitting
in New York City, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the Collateral Agent, the
Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any Grantor or its
properties in the courts of any jurisdiction.



          (b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (a) of this Section 7.14. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.



          (c) Each of the parties hereto hereby irrevocably consents to service of process in the manner
provided for notices in Section 7.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party hereto to serve process in any other manner permitted by law.



          SECTION 7.15. Termination or Release. (a) This Agreement, the guarantees made herein, the
Security Interest, the pledge of the Pledged Collateral and all other security interests granted
hereby shall automatically terminate and be released when all the Obligations (other than
contingent indemnification obligations for which no claim has been made) have been paid in full in
cash and the Lenders have no further commitment to lend under the Credit Agreement, the aggregate
L/C Exposure has been reduced to zero (or the only outstanding Letters of Credit have become
subject to arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank)









 



35



and the Issuing Banks have no further obligations to issue Letters of Credit under the Credit
Agreement.



          (b) A Subsidiary Guarantor shall automatically be released from its obligations hereunder and
the Security Interests created hereunder in the Collateral of such Subsidiary Guarantor shall be
automatically released upon the consummation of any transaction permitted by the Credit Agreement
(or consented to in writing pursuant to Section 9.08 of the Credit Agreement) as a result of which
such Subsidiary Guarantor ceases to be a Subsidiary, or in accordance with Section 9.09(c) of the
Credit Agreement.



          (c) Upon any sale or other transfer by any Grantor of any Collateral that is permitted under
the Credit Agreement to any person that is not the Borrower or a Guarantor (including any Permitted
Receivables Transaction or Permitted Securitization Transaction), or, upon the effectiveness of any
written consent to the release of the Security Interest granted hereby in any Collateral pursuant
to Section 9.08 of the Credit Agreement, the Security Interest in such Collateral shall be
automatically released.



          (d) In connection with any termination or release pursuant to paragraph (a), (b) or (c) above,
the Collateral Agent shall promptly execute and deliver to any Grantor, at such Grantor’s expense,
all Uniform Commercial Code termination statements and similar documents that such Grantor shall
reasonably request to evidence such termination or release, and all assignments or other
instruments of transfer as may be necessary to reassign to such Grantor all rights, titles and
interests in any relevant Intellectual Property as may have been assigned to the Collateral Agent
and/or its designees, subject to any disposition thereof that may have been made by the Collateral
Agent and/or its designees in accordance with the terms of this Agreement, and all rights and
license granted to the Collateral Agent and/or its designees in or to any such Intellectual
Property pursuant to this Agreement shall automatically and immediately terminate and all rights
shall automatically and immediately revert to such Grantor. Any execution and delivery of documents
pursuant to this Section 7.15 shall be without recourse to or representation or warranty by the
Collateral Agent or any Secured Party. Without limiting the provisions of Section 7.06, the
Borrower shall reimburse the Collateral Agent upon demand for all costs and out of pocket expenses,
including the reasonable fees, charges and expenses of counsel, incurred by it in connection with
any action contemplated by this Section 7.15.



          SECTION 7.16. Additional Subsidiaries. Any Subsidiary that is required to become a party
hereto pursuant to Section 5.12 of the Credit Agreement shall enter into this Agreement as a
Subsidiary Guarantor and a Grantor upon becoming such a Subsidiary. Upon execution and delivery by
the Collateral Agent and such Subsidiary of a supplement in the form of Exhibit A hereto, such
Subsidiary shall become a Subsidiary Guarantor and a Grantor hereunder with the same force and
effect as if originally named as a Subsidiary Guarantor and a Grantor herein. The execution and
delivery of any such instrument shall not require the consent of any other Loan Party hereunder.
The rights and obligations of each Loan Party hereunder shall remain in full force and effect
notwithstanding the addition of any new Loan Party as a party to this Agreement.









 



36


          SECTION 7.17. Right of Setoff. If an Event of Default shall have occurred and is continuing,
each Secured Party and its Affiliates hereby are authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all Collateral (including any
deposits (general or special, time or demand, provisional or final (other than tax accounts, trust
accounts or payroll accounts))) at any time held and other obligations at any time owing by such
Secured Party or any of its Affiliates to or for the credit or the account of any Grantor against
any and all of the obligations of such Grantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Secured Party, provided that at such time such obligations
are due or payable. The rights of each Secured Party and its Affiliates under this Section 7.17
are in addition to other rights and remedies (including other rights of setoff) which such Secured
Party or its Affiliates may have. The applicable Lender shall notify such Grantor and the
Collateral Agent of any such setoff and application made by such Lender, provided that any failure
to give or any delay in giving such notice shall not affect the validity of any such setoff and
application under this Section.



[Remainder of page intentionally left blank]










 



37




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



	 	 	 	 	 	 	 	 	 
	 	 	CHS/COMMUNITY HEALTH SYSTEMS, INC.,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ W. Larry Cash	 	 
	 

	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: W. Larry Cash

Title: Executive Vice President and 

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COMMUNITY HEALTH SYSTEMS, INC.,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ W. Larry Cash	 	 
	 

	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: W. Larry Cash

Title: Executive Vice President and 

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE II HERETO,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ James W. Doucette	 	 
	 

	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	Name: James W. Doucette

Title: Vice President, Finance and Treasurer	 	 






 








 



38




	 	 	 	 	 	 	 	 	 
	 	 	CHS HOLDINGS CORP.,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ Kathleen Fritz	 	 
	 

	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	Name: Kathleen Fritz

Title: President	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HALLMARK HOLDINGS CORP.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ Kathleen Fritz	 	 
	 

	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	Name: Kathleen Fritz

Title: President	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Collateral Agent,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by
	 	/s/ James Moran	 	 
	 

	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	Name: James Moran

Title: Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ Nupur Kumar	 	 
	 

	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	Name: /s/ Nupur Kumar

Title: Associate