exhibit10-2_011409.htm


    EXHIBIT 10.2

      


       

      GUARANTEE
AND COLLATERAL AGREEMENT

       

      made
by

       

      WENDY’S
INTERNATIONAL HOLDINGS, LLC

       

      WENDY’S
INTERNATIONAL, INC.

       

      and
certain of its Subsidiaries

       

      in favor
of

       

      JPMORGAN
CHASE BANK, N.A.,

       

      as
Collateral Agent

       

      Dated as
of January 14, 2009

       

       

      


       


      
         

        
           


          
            

          

        

        
          
          

        

      


      TABLE OF CONTENTS

       

       

      
        
          
            
              
                
                  	 	
                           Page

                        
	
                          SECTION 1.  DEFINED TERMS

                        	
                          1

                        
	
                          1.1

                        	
                          Definitions

                        	
                          1

                        
	
                          1.2

                        	
                          Other
      Definitional Provisions

                        	
                          4

                        
	
                          SECTION 2. GUARANTEE

                        	
                          5

                        
	
                          2.1

                        	
                          Guarantee

                        	
                          5

                        
	
                          2.2

                        	
                          Right
      of Contribution

                        	
                          5

                        
	
                          2.3

                        	
                          No
      Subrogation

                        	
                          6

                        
	
                          2.4

                        	
                          Amendments,
      etc. with respect to the Borrower Obligations

                        	
                          6

                        
	
                          2.5

                        	
                          Guarantee
      Absolute and Unconditional

                        	
                          7

                        
	
                          2.6

                        	
                          Reinstatement

                        	
                          7

                        
	
                          2.7

                        	
                          Payments

                        	
                          7

                        
	
                          SECTION 3. GRANT OF SECURITY INTEREST

                        	
                          8

                        
	
                          SECTION 4.  REPRESENTATIONS AND
      WARRANTIES

                        	
                          10

                        
	
                          4.1

                        	
                          Title;
      No Other Liens

                        	
                          10

                        
	
                          4.2

                        	
                          Perfected
      First Priority Liens

                        	
                          10

                        
	
                          4.3

                        	
                          Jurisdiction
      of Organization; Chief Executive Office

                        	
                          10

                        
	
                          4.4

                        	
                          Inventory
      and Equipment

                        	
                          11

                        
	
                          4.5

                        	
                          Farm
      Products

                        	
                          11

                        
	
                          4.6

                        	
                          Investment
      Property

                        	
                          11

                        
	
                          4.7

                        	
                          Receivables

                        	
                          11

                        
	
                          4.8

                        	
                          Intellectual
      Property

                        	
                          11

                        
	
                          4.9

                        	
                          Commercial
      Tort Claims

                        	
                          12

                        
	
                          SECTION 5.  COVENANTS

                        	
                          12

                        
	
                          5.1

                        	
                          Delivery
      of Instruments, Certificated Securities and Chattel Paper

                        	
                          12

                        
	
                          5.2

                        	
                          Maintenance
      of Insurance

                        	
                          13

                        
	
                          5.3

                        	
                          Payment
      of Obligations

                        	
                          13

                        
	
                          5.4

                        	
                          Maintenance
      of Perfected Security Interest; Further Documentation

                        	
                          13

                        
	
                          5.5

                        	
                          Changes
      in Name, etc

                        	
                          14

                        
	
                          5.6

                        	
                          Notices

                        	
                          14

                        
	
                          5.7

                        	
                          Investment
      Property

                        	
                          14

                        
	
                          5.8

                        	
                          Receivables

                        	
                          15

                        
	
                          5.9

                        	
                          Intellectual
      Property

                        	
                          15

                        
	
                          5.10

                        	
                          Commercial
      Tort Claims

                        	
                          16

                        
	
                          SECTION 6.  REMEDIAL
PROVISIONS

                        	
                          16

                        
	
                          6.1

                        	
                          Certain
      Matters Relating to Receivables

                        	
                          16

                        
	
                          6.2

                        	
                          Communications
      with Obligors; Grantors Remain Liable

                        	
                          17

                        
	
                          6.3

                        	
                          Pledged
      Stock

                        	
                          17

                        
	6.4 	Proceeds
      to be Turned Over to Collateral Agent 	
                          18

                        
	6.5 	Application
      of Proceeds 	
                           18

                        
	6.6 	Code
      and Other Remedies 	
                           19

                        
	6.7 	Registration
      Rights 	
                           19

                        
	6.8	Subordination 	
                           20

                        


                  
                     

                  

                   

                  
                     

                    
                      
                      

                      
                        

                      

                    

                    
                      
                      

                    

                  

                  
                  

                  	
                          6.9

                        	
                          Deficiency

                        	
                          20

                        
	
                          SECTION 7.  THE COLLATERAL
    AGENT

                        	
                          21

                        
	
                          7.1

                        	
                          Collateral
      Agent’s Appointment as Attorney-in-Fact, etc

                        	
                          21

                        
	
                          7.2

                        	
                          Duty
      of Collateral Agent

                        	
                          22

                        
	
                          7.3

                        	
                          Financing
      Statements.

                        	
                          22

                        
	
                          7.4

                        	
                          Authority
      of Collateral Agent.

                        	
                          22

                        
	
                          SECTION 8.  MISCELLANEOUS

                        	
                          23

                        
	
                          8.1

                        	
                          Amendments
      in Writing.

                        	
                          23

                        
	
                          8.2

                        	
                          Notices.

                        	
                          23

                        
	
                          8.3

                        	
                          No
      Waiver by Course of Conduct; Cumulative Remedies

                        	
                          23

                        
	
                          8.4

                        	
                          Enforcement
      Expenses; Indemnification

                        	
                          23

                        
	
                          8.5

                        	
                          Successors
      and Assigns

                        	
                          24

                        
	
                          8.6

                        	
                          Set-Off

                        	
                          24

                        
	
                          8.7

                        	
                          Counterparts

                        	
                          24

                        
	
                          8.8

                        	
                          Severability

                        	
                          24

                        
	
                          8.9

                        	
                          Section
      Headings

                        	
                          24

                        
	
                          8.10

                        	
                          Integration

                        	
                          24

                        
	
                          8.11

                        	
                          GOVERNING
      LAW

                        	
                          25

                        
	
                          8.12

                        	
                          Submission
      To Jurisdiction; Waivers

                        	
                          25

                        
	
                          8.13

                        	
                          Acknowledgements

                        	
                          25

                        
	
                          8.14

                        	
                          Additional
      Grantors

                        	
                          26

                        
	
                          8.15

                        	
                          Releases

                        	
                          26

                        
	
                          8.16

                        	
                          Limitations
      on Restricted Entities

                        	
                          26

                        
	
                          8.17

                        	
                          WAIVER
      OF JURY TRIAL

                        	
                          26

                        


                

              

            

          

        

      

      


       

      SCHEDULES

       

      Schedule
1                      Notice
Addresses

      Schedule
2                      Investment
Property

      Schedule
3A                   Exclusions
to Perfection

      Schedule
3B                    Perfection
Matters

      Schedule
4                      Jurisdictions
of Organization and Chief Executive Offices

      Schedule
5                      Inventory
and Equipment Locations

      Schedule
6                      Receivables

      Schedule
7                      Intellectual
Property

      Schedule
8                      Commercial
Tort Claims

      Schedule
9                      Exclusions
to Remedies

      


       

      ANNEXES

       

      Annex
I                           
Form of Acknowledgement and Consent

      Annex
II                          Form
of Assumption Agreement

       

       

      
         

        
           


          
            

          

        

        
          
          

        

      

      


       

      GUARANTEE
AND COLLATERAL AGREEMENT

       

      GUARANTEE
AND COLLATERAL AGREEMENT, dated as of January 14, 2009, made by each of the
signatories hereto (together with any other entity that may become a party
hereto as provided herein, the “Grantors”), in favor
of JPMorgan Chase Bank, N.A., as Collateral Agent (in such capacity, the “Collateral Agent”)
for the banks and other financial institutions or entities (the “Lenders”) from time
to time parties to the Credit Agreement, dated as of January 14, 2009 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Wendy’s International Holdings, LLC (“Holdings”), Wendy’s
International, Inc. (the “Borrower”), the
Lenders and the Agent.

       

      W I T N E S S E T H:

       

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

       

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

       

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

       

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

       

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

       

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

       

       

      SECTION
1.         DEFINED
TERMS

       

      1.1           Definitions

       

      (a)           Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement, and the following
terms are used herein as defined in the New York UCC:  Accounts,
Certificated Security, Chattel Paper, Commercial Tort Claims, Deposit Accounts,
Documents, Equipment, Farm Products, General Intangibles, Goods, Instruments,
Inventory, Letter-of-Credit Rights and Supporting Obligations.

       

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

       

      
        
          Table of Contents

        

        
          1

          
            

          

        

        
           

        

      

          “Agreement” means this
Guarantee and Collateral Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.

       

      “Borrower Obligations”
means the collective reference to the unpaid principal of and interest on the
Loans and Reimbursement Obligations and all other obligations and liabilities of
the Borrower (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Loans
and Reimbursement Obligations and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Agent or any Lender
(or, in the case of any Specified Swap Agreement, any Affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, this Agreement, the other Loan Documents, any Letter
of Credit, any Specified Swap Agreement or any other document made, delivered or
given in connection with any of the foregoing, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Agent or to the Lenders that are required to be paid by the
Borrower pursuant to the terms of any of the foregoing agreements).

       

      “Collateral” means as
defined in Section 3.1.

       

      “Collateral Account”
means any collateral account established by the Collateral Agent as provided in
Section 6.1 or 6.4.

       

      “Collateral Agent”
means JPMorgan Chase Bank, N.A., in its capacity as collateral
agent.

       

      “Copyrights” means (i)
all copyrights and works of authorship arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 7), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.

       

      “Copyright Licenses”
means any written or oral agreement naming any Grantor as licensor or licensee
(including, without limitation, those listed in Schedule 7), granting
any right under any Copyright, including, without limitation, the grant of
rights to manufacture, distribute, exploit and sell materials derived from any
Copyright.

       

      “Excluded Collateral”
means as defined in Section 3.1.

       

      “Foreign Subsidiary”
means any Subsidiary organized under the laws of any jurisdiction outside the
United States of America.

       

      “Foreign Subsidiary
Stock” means the Capital Stock of any Foreign Subsidiary.

       

      “Funding
Office”:  the office of the Agent specified in Section 14.1 of
the Credit Agreement or such other office as may be specified from time to time
by the Agent as its funding office by written notice to the Borrower and the
Lenders.

       

      “Guarantor
Obligations” means with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this
Agreement (including, 

       

      
        
          Table of Contents

        

        
          2

          
            

          

        

        
           

        

      

      without
limitation, Section 2) or any other Loan Document or any Specified Swap
Agreement to which such Guarantor is a party, in each case whether on account of
guarantee obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Collateral Agent or to the Lenders that are required to be
paid by such Guarantor pursuant to the terms of this Agreement or any other Loan
Document).

       

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

       

      “Indenture Threshold
Amount” means as defined in Section 3.

       

      “Infringement” means
infringement, misappropriation, dilution or other violation.

       

      “Intellectual
Property” means all intellectual property (including, without limitation,
those items listed on Schedule 7), whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, all Copyrights, Patents, and
Trademarks.

       

      “Intellectual Property
Licenses” means all Copyright Licenses, Patent Licenses and Trademark
Licenses.

       

      “Intercompany Note”
means any promissory note evidencing loans made by any Grantor to Holdings or
any of its Subsidiaries.

       

      “Investment Property”
means the collective reference to (i) all “investment property” as such term is
defined in Section 9-102(a)(49) of the New York UCC and (ii) whether or not
constituting “investment property” as so defined, all Pledged Notes and all
Pledged Stock.

       

      “Issuers” means the
collective reference to each issuer of any Investment Property.

       

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

       

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

       

      “Patents” means all
(i) letters patent of the United States, any other country or any political
subdivision thereof, all reissues and extensions thereof and all goodwill
associated therewith, including, without limitation, any of the foregoing
referred to in Schedule 7, (ii) all
applications for letters patent of the United States or any other country and
all divisions, continuations and continuations-in-part thereof, including,
without limitation, any of the foregoing referred to in Schedule 7, and (iii)
all rights to obtain any reissues or extensions of the foregoing.

       

      “Patent License” means
all agreements, whether written or oral, providing for the grant by or to any
Grantor of any right to manufacture, use or sell any invention covered in whole
or in part by a Patent, including, without limitation, any of the foregoing
referred to in Schedule
7.

       

      “Pledged Notes” means
all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other promissory
notes issued to or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary course
of business).

       

      
        
          Table of Contents

        

        
          3

          
            

          

        

        
           

        

      



      “Pledged Stock”
means  the shares of Capital Stock listed on Schedule 2, together
with any other shares, stock certificates, options, interests or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this Agreement is in effect,
excluding any Foreign Subsidiary Stock.

       

      “Proceeds” means all
“proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC
and, in any event, shall include, without limitation, all dividends or other
income from the Investment Property, collections thereon or distributions or
payments with respect thereto.

       

      “Receivable” means any
right to payment for goods sold or leased or for services rendered, whether or
not such right is evidenced by an Instrument or Chattel Paper and whether or not
it has been earned by performance (including, without limitation, any
Account).

       

      “Restricted Entities”
means the collective reference to Scioto Insurance Company, a Vermont
corporation, and Oldemark LLC, a Vermont limited liability company, each a
“Restricted
Entity,” in each case, so long as such entity is regulated as
a captive insurance company pursuant to chapter 141 of the Vermont Statutes
Annotated or successor statute, or other similar statute as may apply in the
event such entity changes its state of domicile.

       

      “Secured Parties”
means the collective reference to the Agent, the Collateral Agent, the Lenders
and any affiliate of any Lender to which Borrower Obligations or Guarantor
Obligations, as applicable, are owed.

       

      “Securities Act” means
the Securities Act of 1933, as amended.

       

      “Trademarks” means (i)
all trademarks, trade names, corporate names, company names, business names,
fictitious business names, service marks, domain names, trade dress, logos and
other source or business identifiers, and all goodwill associated therewith or
symbolized thereby, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 7, and (ii)
the right to obtain all renewals thereof.

       

      “Trademark License”
means any agreement, whether written or oral, providing for the grant by or to
any Grantor of any right to use any Trademark, including, without limitation,
any of the foregoing referred to in Schedule
7.

       

      “Vermont Commissioner”
means the Commissioner of the Vermont Department of Banking, Insurance,
Securities & Health Care Administration.

       

      “WNAP” means Wendy’s
National Advertising Program, Inc., an Ohio corporation.

       

      1.2           Other Definitional
Provisions

       

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

       

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

       

      
        
          Table of Contents

        

        
          4

          
            

          

        

        
           

        

      

      (c)    Where the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the
relevant part thereof.

       

       

      SECTION
2.           GUARANTEE

       

      2.1           Guarantee

       

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

       

      (b)           Anything
herein or in any other Loan Document to the contrary notwithstanding, (i) the
maximum liability of each Guarantor hereunder and under the other Loan Documents
shall in no event exceed the amount which can be validly guaranteed by such
Guarantor under applicable federal and state laws relating to the insolvency of
debtors (after giving effect to the right of contribution established in Section
2.2) and (ii) the maximum liability of the Restricted Entities hereunder and
under the other Loan Documents shall in no event in the aggregate exceed the
lesser of (x) $200,000,000 and (y) 90% of the excess, as reflected on the
Restricted Entities’ most recent audited financial statements as of the date of
determination of the Restricted Entities’ liabilities hereunder, of the
Restricted Entities’ total assets (including any note receivable from an
affiliate, but only to the extent that a demand on such note receivable has been
made and has been satisfied since the date of the Restricted Entities’ most
recent audited financial statements) over the Restricted Entities’ total
liabilities.

       

      (c)           Each
Guarantor agrees that the Borrower Obligations may at any time and from time to
time exceed the amount of the liability of such Guarantor hereunder without
impairing the guarantee contained in this Section 2 or affecting the rights and
remedies of the Collateral Agent or any Lender hereunder.

       

      (d)           The
guarantee contained in this Section 2 shall remain in full force and effect
until all the Borrower Obligations (other than obligations under the Specified
Swap Agreements) and the obligations of each Guarantor under the guarantee
contained in this Section 2 shall have been satisfied by payment in full, all
Letters of Credit shall cease to be outstanding (unless cash collateralized on
terms reasonably acceptable to the Agent) and the Commitments shall be
terminated, notwithstanding that from time to time during the term of the Credit
Agreement the Borrower may be free from any Borrower Obligations.

       

      (e)           No
payment made by the Borrower, any of the Guarantors, any other guarantor or any
other Person or received or collected by the Agent or any Lender from the
Borrower, any of the Guarantors, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by such Guarantor in respect of the
Borrower Obligations or any payment received or collected from such Guarantor in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Guarantor hereunder until the Borrower
Obligations (other than obligations under the Specified Swap Agreements) are
paid in full, no Letter of Credit shall be outstanding (unless cash
collateralized on terms reasonably acceptable to the Agent) and the Commitments
are terminated.

       

      2.2       Right of
Contribution

       

      
        
          Table of Contents

        

        
          5

          
            

          

        

        
           

        

      

          Each Subsidiary Guarantor hereby agrees that to
the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment.  Each Subsidiary Guarantor’s right of contribution shall
be subject to the terms and conditions of Section 2.3.  The provisions
of this Section 2.2 shall in no respect limit the obligations and liabilities of
any Subsidiary Guarantor to the Collateral Agent and the Lenders, and each
Subsidiary Guarantor shall remain liable to the Collateral Agent and the Lenders
for the full amount guaranteed by such Subsidiary Guarantor hereunder.  Notwithstanding the foregoing, each
Restricted Entity has a right to require contribution from each of the other
Subsidiary Guarantors in an amount equal to the full amount of the payments such
Restricted Entity has made hereunder.

       

      2.3           No
Subrogation

       

      Notwithstanding
any payment made by any Guarantor hereunder or any set-off or application of
funds of any Guarantor by the Collateral Agent or any Lender, no Guarantor shall
be entitled to be subrogated to any of the rights of the Collateral Agent or any
Lender against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Collateral Agent or any Lender for the
payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled
to seek any contribution or reimbursement from the Borrower or any other
Guarantor in respect of payments made by such Guarantor hereunder, until all
amounts owing to the Agent and the Lenders by the Borrower on account of the
Borrower Obligations (other than obligations under the Specified Swap
Agreements) are paid in full, no Letter of Credit shall be outstanding (unless
cash collateralized on terms reasonably acceptable to the Agent) and the
Commitments are terminated.  If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations (other than obligations under the Specified Swap
Agreements) shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Collateral Agent and the Lenders, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Collateral Agent in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if
required), to be applied against the Borrower Obligations, whether matured or
unmatured, in such order as the Collateral Agent may determine.

       

      2.4           Amendments, etc. with
respect to the Borrower Obligations

       

      Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Collateral Agent or any Lender may be rescinded by the
Collateral Agent or such Lender and any of the Borrower Obligations continued,
and the Borrower Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Collateral Agent or any Lender, and the Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Collateral Agent or any Lender for the payment of the Borrower Obligations may
be sold, exchanged, waived, surrendered or released.  Neither the
Collateral Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Borrower
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.  

       

      
        
          Table of Contents

        

        
          6

          
            

          

        

        
           

        

      



          2.5    Guarantee Absolute and
Unconditional

       

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

       

      2.6           Reinstatement

       

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

       

      2.7           Payments

       

      Each
Guarantor hereby guarantees that payments hereunder will be paid to the Agent
without set-off or counterclaim in Dollars at the Funding Office.

       

      
        
          Table of Contents

        

        
          7

          
            

          

        

        
           

        

      



      SECTION 3.    GRANT
OF SECURITY INTEREST

       

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

       

      (a)           all
Accounts;

       

      (b)           all
cash and Cash Equivalent Investments;

       

      (c)           all
Chattel Paper;

       

      (d)           all
Deposit Accounts;

       

      (e)           all
Documents;

       

      (f)           
all Equipment;

       

      (g)           all
General Intangibles;

       

      (h)           all
Goods;

       

      (i)           
all Instruments;

       

      (j)           
all Intellectual Property and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom, and Intellectual Property Licenses;

       

      (k)           all
Inventory;

       

      (l)           
all Investment Property;

       

      (m)           all
Letter-of-Credit Rights;

       

      (n)           all
Commercial Tort Claims described on Schedule
8;

       

      (o)           all
other personal property not otherwise described above (except for any property
specifically excluded from any clause in this section above, and any property
specifically excluded from any defined term used in any clause of this section
above);

       

      (p)           all
books and records pertaining to the Collateral; and

       

      (q)           to
the extent not otherwise included, all Proceeds, Supporting Obligations 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;

       

      
        provided,
however, that notwithstanding any of the other provisions set forth in
this Section 3.1, this Agreement shall not constitute a grant of a security
interest in, and the “Collateral” shall 

         

        
          
            Table of Contents

          

          
            8

            
              

            

          

          
             

          

        

        not include, (a) any property to the
extent that such grant of a security interest (i) is prohibited by any
Requirements of Law of a Governmental Authority, (ii) requires a consent not
obtained of any Governmental Authority pursuant to such Requirement of Law,
(iii) is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to
such property or, in the case of any Investment Property, Pledged Stock or
Pledged Note, any applicable shareholder or similar agreement, including,
without limitation, the Joint Venture Agreement, dated as of April 18, 1990,
between the Borrower and Wyoming Realty, Inc. establishing Wendcreek Venture, or
(iv) constitutes or results in the abandonment, cancellation, invalidation or
unenforceability of any right, title or interest of any Grantor therein, except
to the extent that such Requirement of Law or the term in such contract,
license, agreement, instrument or other document or shareholder or similar
agreement providing for such prohibition, breach, default or termination or
requiring such consent is ineffective pursuant to Section 9-406, 9-407, 9-408 or
9-409 of the New York UCC (or any successor provision or provisions) of any
relevant jurisdiction or any other applicable law or principles of equity, provided
that the Proceeds from any such property shall not be excluded from the grant of
security interest to the extent that the assignment or pledge of such Proceeds
is not prohibited, and provided further
that such security interest shall attach immediately at such time as the
condition that would cause such breach, default, termination or violation shall
have been remedied; (b) any assets identified by the Borrower in a written
notice to the Collateral Agent as to which the Collateral Agent reasonably
determines that the costs of providing a security interest in such asset or
perfection thereof are excessive in relation to the value to the Secured Parties
of the security to be afforded thereby; (c) any Foreign Subsidiary Stock; (d)
aircraft or motor vehicles and other assets subject to certificates of title;
(e) Equipment owned by any Grantor that is subject to (i) a purchase money Lien,
(ii) a Capitalized Lease or (iii) Indebtedness secured solely by the Equipment,
to the extent financed with such Indebtedness, in each case of clauses (i)
through (iii) to the extent, but only to the extent, that such a grant would,
under the express terms of the contract or agreement granting such purchase
money Lien (or the documentation providing for such Capitalized Lease or such
Indebtedness) result in a breach of the terms of, or constitute a default under,
such contract, agreement or documentation, provided,
that immediately upon the ineffectiveness, lapse, termination or waiver of any
such provision, the Collateral shall include, and such Grantor shall be deemed
to have granted a security interest in, all such Equipment as if such provision
had never been in effect; (f) any application for a Trademark to the extent such
Trademark would be deemed invalidated, canceled or abandoned due to the granting
or enforcement of such security interest; or (g) any Capital Stock of WNAP
(clauses (a) through (g) collectively referred to as “Excluded
Collateral”).

      

       

      Notwithstanding any of the other provisions set forth in
this Section 3 or anything else contained in this Agreement or any other Loan
Document, the aggregate amount of all Obligations secured under the Security
Documents by Principal Property (as defined in each Senior Note Indenture) or
any shares of capital stock or evidences of Indebtedness (as defined in each
Senior Note Indenture) issued by any Domestic Subsidiary (as defined in each
Senior Note Indenture) and owned by the Borrower or any Domestic Subsidiary (as
defined in each Senior Note Indenture) (collectively, the “Restricted Property”)
shall not, at any time, exceed the aggregate amount (such amount, the
“Indenture Threshold Amount”) of Indebtedness (as defined in each Senior Note
Indenture) that may be secured by Restricted Property under each Senior Note
Indenture, determined in accordance with the terms of each Senior Note
Indenture, without requiring holders of the applicable Senior Notes to be
equally and ratably secured in accordance with the terms of such Senior Note
Indenture.  It is understood that from time to time the total amount
of Obligations may be in excess of the Indenture Threshold Amount, but any such
Obligations in excess of the Indenture Threshold Amount shall not at any time be
secured by any Restricted Property hereunder or under any other Security
Document and in no event shall any Lien (as defined in each Senior Note
Indenture) on any Restricted Property in favor of any Secured Party hereunder or
under any other Security Document at any time secure any Obligations in excess
of the Indenture Threshold Amount.  For the avoidance of doubt, the
calculation of the Indenture Threshold Amount at any date of determination shall


       

      
        
          Table of Contents

        

        
          9

          
            

          

        

        
           

        

      

      take into
account all outstanding Attributable Value (as defined in each Senior Note
Indenture) of all Sale and Lease-Back Transactions (as defined in each Senior
Note Indenture) permitted pursuant to the last paragraph of Section 1009 of each
Senior Note Indenture as of such date and all Indebtedness (as defined in each
Senior Note Indenture) of the Borrower and its Domestic Subsidiaries (as defined
in each Senior Note Indenture) secured by Liens (as defined in each Senior Note
Indenture) permitted pursuant to the last paragraph of Section 1008 of each
Senior Note Indenture as of such date.

       

      In
addition, notwithstanding any of the other provisions set forth in this Section
3 or anything else contained in this Agreement or any other Loan Document, the
amount of all Obligations secured by the Restricted Entities’ assets shall not
at any time exceed $200,000,000.

       

       

      SECTION
4.           REPRESENTATIONS
AND WARRANTIES

       

      To induce
the Collateral Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby represents and warrants to the Collateral Agent
and each Lender that:

       

      4.1           Title; No Other
Liens

       

      Except
for the security interest granted to the Collateral Agent for the ratable
benefit of the Secured Parties pursuant to this Agreement and the other Liens
permitted to exist on the Collateral by the Credit Agreement, such Grantor owns
each item of the Collateral free and clear of any and all Liens.  No
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except such as have
been filed in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, pursuant to this Agreement or as are permitted by the Credit
Agreement.  For the avoidance of doubt, it is understood and agreed
that any Grantor may, as part of its business, grant licenses in the ordinary
course of business to third parties to use Intellectual Property owned by,
licensed to, or developed by a Grantor.  For purposes of this
Agreement and the other Loan Documents, such licensing activity shall not
constitute a “Lien” on such Intellectual Property.  Each of the
Collateral Agent and each Lender understands that any such licenses may be
exclusive to the applicable licensees, and such exclusivity provisions may limit
the ability of the Collateral Agent to utilize, sell, lease or transfer the
related Intellectual Property or otherwise realize value from such Intellectual
Property pursuant hereto.

       

      4.2           Perfected First Priority
Liens

       

      The
security interests granted pursuant to this Agreement (a) constitute valid, and
except as provided on Schedule 3A, after
the completion of the filings and the actions described on Schedule 3B,
perfected security interests in all of the Collateral in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, as collateral security
for such Grantor’s Obligations, enforceable in accordance with the terms hereof
against all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor; provided that, with respect to Intellectual
Property included in the Collateral, such Grantor makes such representation and
warranty solely with respect to Trademarks, Copyrights and Patents registered in
the United States, subject to the filing with the United States Patent and
Trademark Office and/or the United States Copyright Office of documents
evidencing such security interest as described in Section 7.1(a)(ii), and (b)
are prior to all other Liens on the Collateral in existence on the date hereof
except for Liens permitted by the Credit Agreement which have priority over the
Liens on the Collateral by operation of law or otherwise permitted by the Credit
Agreement.

       

      4.3           Jurisdiction of
Organization; Chief Executive Office

       

      
        
          Table of Contents

        

        
          10

          
            

          

        

        
           

        

      

          On the date hereof, such Grantor’s jurisdiction of
organization, identification number from the jurisdiction of organization (if
any), and the location of such Grantor’s chief executive office or sole place of
business or principal residence, as the case may be, are specified on Schedule
4.  Such Grantor has furnished to the Agent a certified charter,
certificate of incorporation or other organization document and long-form good
standing certificate as of a date which is recent to the date
hereof.

       

      4.4           Inventory and
Equipment

       

      On the
date hereof, the Inventory and the Equipment (other than mobile goods) are kept
at the locations listed on Schedule
5.

       

      4.5           Farm
Products

       

      On the
date hereof, none of the Collateral constitutes, or is the Proceeds of, Farm
Products.

       

      4.6           Investment
Property

       

      (a)           The
shares of Pledged Stock pledged by such Grantor hereunder constitute all the
issued and outstanding shares of all classes of the Capital Stock of each Issuer
owned by such Grantor.

       

      (b)           All
the shares of the Pledged Stock have been duly and validly issued and are fully
paid and nonassessable.

       

      (c)           Each
of the Intercompany Notes and other Pledged Notes issued by Holdings or any
Subsidiary of Holdings constitutes the legal, valid and binding obligation of
the obligor with respect thereto, enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.

       

      (d)           Such
Grantor is the record and beneficial owner of, and has good title to, the
Investment Property pledged by it hereunder, free of any and all Liens or
options in favor of, or claims of, any other Person, except the security
interest created by this Agreement.

       

      4.7           Receivables

       

      (a)           No
amount payable to such Grantor (other than checks in the ordinary course of
business) in excess of $1,000,000 under or in connection with any Receivable is
evidenced by any Instrument or Chattel Paper which has not been delivered to the
Collateral Agent.

       

      (b)           Except
as set forth on Schedule 6, as of the
date hereof, none of the obligors on any Receivables is a Governmental
Authority.

       

      4.8           Intellectual
Property

       

      (a)           Schedule 7 lists all
registered Intellectual Property and all Intellectual Property for which an
application for registration is pending (including the relevant registration,
application or serial number and the jurisdiction of registration or
application), in each case owned by such Grantor in its own name on the date
hereof, and all exclusive Intellectual Property Licenses to which such Grantor
is a party (including the title, counterparty, and date of such
licenses).

       

      
        
          Table of Contents

        

        
          11

          
            

          

        

        
           

        

      

      (b)    Each
Grantor owns or has the right to use all Intellectual Property that is material
to its business as currently conducted, free of all Liens except liens permitted
by the Credit Agreement, and takes reasonable actions to protect and maintain
such Intellectual Property.

       

      (c)           On
the date hereof, all material Intellectual Property owned by such Grantor is
valid, unexpired and enforceable, and has not been abandoned.  To the
knowledge of such Grantor, the current operation of the business of such Grantor
and such Grantor’s use of Intellectual Property does not Infringe the
Intellectual Property rights of any other Person in any material respect, and to
the knowledge of such Grantor, the material Intellectual Property owned by such
Grantor is not being Infringed by any other Person in any material
respect.

       

      (d)           Except
as set forth in Schedule 7, on the
date hereof, none of the Intellectual Property owned by such Grantor is the
subject of any material Intellectual Property License pursuant to which such
Grantor is the licensor or franchisor.

       

      (e)           No
holding or decision has been rendered by any Governmental Authority that would
limit, cancel or question the validity, enforceability, ownership or use of, or
such Grantor’s rights in, any Intellectual Property owned or exclusively
licensed by such Grantor in any respect that could reasonably be expected to
have a Material Adverse Effect, and such Grantor knows of no valid basis for
same.

       

      (f)       No
claim, action or proceeding is pending, or, to the knowledge of such Grantor,
threatened, on the date hereof (i) seeking to limit, cancel or question the
validity, enforceability, ownership or use of any material Intellectual Property
owned or exclusively licensed by such Grantor or such Grantor’s interest
therein, or (ii) which would have a Material Adverse Effect on the value of any
such Intellectual Property.

       

      4.9           Commercial Tort
Claims

       

      (a)           On
the date hereof, except to the extent listed on Schedule 8, no
Grantor has rights in any Commercial Tort Claim with potential value in excess
of $1,000,000.

       

      (b)           Upon
the filing of a financing statement covering any Commercial Tort Claim referred
to in Section 5.10 hereof against such Grantor in the jurisdiction specified in
Schedule 3B
hereto, the security interest granted in such Commercial Tort Claim will
constitute a valid perfected security interest in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, as collateral security for such
Grantor’s Obligations, enforceable in accordance with the terms hereof against
all creditors of such Grantor and any Persons purporting to purchase such
Collateral from Grantor, which security interest shall be prior to all other
Liens on such Collateral except for unrecorded liens permitted by the Credit
Agreement which have priority over the Liens on such Collateral by operation of
law.

       

       

      SECTION
5.           COVENANTS

       

      Each
Grantor covenants and agrees with the Collateral Agent and the Lenders that,
from and after the date of this Agreement until the Obligations (other than
contingent obligations) shall have been paid in full, no Letter of Credit shall
be outstanding (unless cash collateralized on terms reasonably acceptable to the
Agent) and the Commitments shall have terminated:

       

      5.1           Delivery of Instruments,
Certificated Securities and Chattel Paper

       

      If any amount (other than checks in the ordinary course of
business) in excess of $1,000,000 payable under or in connection with any of the
Collateral shall be or become evidenced by

       

      
        
          Table of Contents

        

        
          12

          
            

          

        

        
           

        

      

      any Instrument, Certificated Security or Chattel Paper,
such Instrument, Certificated Security or Chattel Paper shall be immediately
delivered to the Collateral Agent, duly indorsed in a manner satisfactory to the
Collateral Agent, to be held as Collateral pursuant to this
Agreement.

       

      5.2           Maintenance of
Insurance

       

      (a)           Such
Grantor will maintain, with financially sound and reputable companies, insurance
policies (i) insuring the Inventory and Equipment under a special form “causes
of loss property insurance” coverage form and (ii) insuring such Grantor, the
Collateral Agent and the Secured Parties against liability for personal injury
and property damage relating to such Inventory and Equipment, such policies to
be provided under a standard form commercial general liability policy and to be
in such amounts and having such coverage (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.

       

      (b)           All
such insurance shall (i) provide that no cancellation, material reduction in
amount or material change in coverage thereof shall be effective until at least
30 days after receipt by the Agent of written notice thereof except in the case
of non-payment of premiums in which case 10 days notice shall be required, (ii)
name the Collateral Agent as insured party or loss payee, and (iii) be
reasonably satisfactory in all other respects to the Collateral Agent and in
accordance with standard industry requirements typical for businesses engaged in
the same or a similar business.

       

      (c)           The
Borrower shall deliver to the Collateral Agent and the Lenders a report of a
reputable insurance broker with respect to such insurance substantially
concurrently with each delivery of the Borrower’s audited annual financial
statements and such supplemental reports with respect thereto as the Collateral
Agent may from time to time reasonably request.

       

      5.3           Payment of
Obligations

       

      Such
Grantor will pay and discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all material taxes,
assessments and governmental charges or levies imposed upon the Collateral, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge, tax, assessment, levy or claim need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor and such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any material
portion of the Collateral or any interest therein.

       

      5.4           Maintenance of Perfected
Security Interest; Further Documentation

       

      (a)           Such
Grantor shall maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section
4.2 and shall use commercially reasonable efforts to defend such security
interest against the claims and demands of all Persons whomsoever, subject to
the rights of such Grantor under the Loan Documents to dispose of the
Collateral.

       

      (b)           At
any time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of such Grantor, such Grantor will promptly and
duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Collateral Agent may reasonably
request for the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted, including, without
limitation, (i) filing any financing or 

       

      
        
          Table of Contents

        

        
          13

          
            

          

        

        
           

        

      

      continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) subject to the requirements of subsection 5.4(c), in the case of Investment
Property, Letter-of-Credit Rights and any other relevant Collateral, taking any
actions reasonably necessary to enable the Collateral Agent to obtain “control”
(within the meaning of the applicable Uniform Commercial Code) with respect
thereto.

       

      (c)      Within
90 days after the day hereof (or such later date agreed to by the Collateral
Agent in its sole discretion) and from time to time, upon the written request of
the Collateral Agent and at the sole expense of such Grantor, such Grantor shall
execute and deliver to the Collateral Agent control agreements for each Deposit
Account (other than trust accounts or other fiduciary accounts, payroll
accounts, benefit accounts or similar accounts for the benefit of employees and
accounts with a balance not exceeding $50,000 individually or $125,000 in the
aggregate for such Grantor) maintained by such Grantor.

       

      5.5           Changes in Name,
etc

       

      Such
Grantor will not, except upon 15 days’ prior written notice to the Collateral
Agent and delivery to the Collateral Agent of all additional executed (to the
extent necessary) financing statements and other documents reasonably requested
by the Collateral Agent to maintain the validity, perfection and priority of the
security interests provided for herein, (i) change its jurisdiction of
organization or the location of its chief executive office or sole place of
business or principal residence from that referred to in Section 4.3 or (ii)
change its name.

       

      5.6           Notices

       

      Such
Grantor will advise the Collateral Agent and the Lenders promptly, in reasonable
detail, of:

       

      (a)           any
Lien (other than security interests created hereby or Liens permitted under the
Credit Agreement) on any of the Collateral which would adversely affect the
ability of the Collateral Agent to exercise any of its remedies hereunder;
and

       

      (b)           of
the occurrence of any other event which could reasonably be expected to have a
material adverse effect on the security interests created hereby.

       

      5.7           Investment
Property

       

      (a)           If
such Grantor shall become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights in respect of the Capital Stock of any Issuer, whether in addition to,
in substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Collateral Agent and the Secured Parties, hold the same
in trust for the Collateral Agent and the Secured Parties and deliver the same
forthwith to the Collateral Agent in the exact form received, duly indorsed by
such Grantor to the Collateral Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such Grantor, to
be held by the Collateral Agent, subject to the terms hereof, as additional
collateral security for the Obligations.  Any sums paid upon or in
respect of the Investment Property upon the liquidation or dissolution of any
Issuer shall be paid over to the Collateral Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Investment Property or any
property shall be distributed upon 

       

      
        
          Table of Contents

        

        
          14

          
            

          

        

        
           

        

      

      or with
respect to the Investment Property pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property so distributed shall, unless otherwise subject to a
perfected security interest in favor of the Collateral Agent, be delivered to
the Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations.

       

      (b)    In the
case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property issued
by it and will comply with such terms insofar as such terms are applicable to
it, (ii) it will notify the Collateral Agent promptly in writing of the
occurrence of any of the events described in Section 5.7(a) with respect to the
Investment Property issued by it and (iii) the terms of Sections 6.3(c) and 6.7
shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.3(c) or
6.7 with respect to the Investment Property issued by it.

       

      5.8           Receivables

       

      Such
Grantor will deliver to the Collateral Agent a copy of each material demand,
notice or document received by it that questions or calls into doubt the
validity or enforceability of more than 5% of the aggregate amount of the then
outstanding Receivables.

       

      5.9           Intellectual
Property

       

      (a)           Such
Grantor (either itself or through licensees) will (i) continue to use each
material Trademark on each and every trademark class of goods or services
applicable to its current business in order to maintain such Trademark in full
force free from any claim of abandonment for non-use, except to the extent that
such Grantor determines in its reasonable business judgment that any such use of
a Trademark is no longer necessary or beneficial to the conduct of such
Grantor’s business, (ii) maintain as in the past the quality of products and
services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required by
applicable Requirements of Law consistent with such Grantor’s past practice in
the ordinary course of business, (iv) not adopt or use any mark which is
confusingly similar or a colorable imitation of such Trademark unless the
Collateral Agent, for the ratable benefit of the Secured Parties, shall obtain a
perfected security interest in such mark pursuant to, and to the extent provided
by, this Agreement, and (v) not (and not knowingly permit any licensee or
sublicensee thereof to) knowingly do any act or omit to do any act whereby such
Trademark may become invalidated, except to the extent that such Grantor
determines in its reasonable business judgment that such Trademark is no longer
necessary or beneficial to the conduct of such Grantor’s business.

       

      (b)           Such
Grantor (either itself or through licensees) will not knowingly do any act, or
omit to do any act, whereby any material Patent may become forfeited, abandoned
or dedicated to the public, except to the extent that such Grantor determines in
its reasonable business judgment that the maintenance thereof is no longer
necessary or beneficial to the conduct of such Grantor’s business.

       

      (c)           Such
Grantor (either itself or through licensees) will not knowingly do any act or
omit to do any act whereby any material portion of the Copyrights may become
invalidated or dedicated to the public domain, except to the extent that such
Grantor determines in its reasonable business judgment that the maintenance
thereof is no longer necessary or beneficial to the conduct of such Grantor’s
business.

       

      (d)    Such
Grantor will not knowingly Infringe the Intellectual Property rights of any
other Person in any material respect.

       

      
        
          Table of Contents

        

        
          15

          
            

          

        

        
           

        

      

      (e)           Such
Grantor will notify the Collateral Agent and the Lenders promptly if it knows,
or has reason to know, that any material application or registration relating to
any material Intellectual Property may become forfeited, abandoned or dedicated
to the public, or of any adverse determination or development (including,
without limitation, the institution of, or any such determination or development
in, any proceeding in the United States Patent and Trademark Office or the
United States Copyright Office other than non-final actions of any Intellectual
Property office in connection with the prosecution of an application for
registration) regarding such Grantor’s rights in or ownership, validity,
enforceability or use of, any material Intellectual Property or such Grantor’s
right to register the same or to own and maintain the same.

       

      (f)       Whenever
such Grantor, either by itself or through any agent, employee, licensee or
designee, shall acquire, become exclusive licensee of or file an application for
the registration of any Intellectual Property with the United States Patent and
Trademark Office or the United States Copyright Office, such Grantor shall
report such filing or acquisition to the Collateral Agent within twenty Business
Days after the last day of the fiscal quarter in which such filing or
acquisition occurs.  Upon request of the Collateral Agent not more
than once per fiscal quarter, such Grantor shall execute and deliver, and have
recorded in the United States Patent and Trademark office or the United States
Copyright Office, any and all agreements, instruments, documents, and papers as
the Collateral Agent may request to evidence the Collateral Agent’s and the
Lenders’ security interest in any Copyright, Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.

       

      (g)           Such
Grantor will take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
any other country or any political subdivision thereof, to maintain and pursue
each application (and to obtain the relevant registration) and to maintain each
registration of the material Intellectual Property owned by such Grantor,
including, without limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability, except to the extent that such Grantor
determines in its reasonable business judgment that the maintenance or pursuit
of such registration or application is no longer necessary or beneficial to the
conduct of such Grantor’s business.

       

      (h)           In
the event that any material Intellectual Property is Infringed by a third party
in any material respect, such Grantor shall (i) take such actions as such
Grantor shall reasonably deem appropriate under the circumstances to protect
such Intellectual Property and (ii) if such Intellectual Property is of material
economic value, promptly notify the Collateral Agent after it learns thereof and
sue for Infringement, including seeking injunctive relief where appropriate and
seeking damages for such Infringement, if Grantor deems it appropriate in its
reasonable business judgment.

       

      5.10           Commercial Tort
Claims

       

      (a)           If
such Grantor shall obtain an interest in any Commercial Tort Claim with a
potential value in excess of $1,000,000, such Grantor shall within 30 days of
obtaining such interest sign and deliver documentation acceptable to the
Collateral Agent granting a security interest under the terms and provisions of
this Agreement in and to such Commercial Tort Claim.

       

       

      SECTION
6.             REMEDIAL
PROVISIONS

       

      6.1           Certain Matters Relating to
Receivables

       

      (a)    The Collateral Agent hereby authorizes each Grantor to
collect such Grantor’s Receivables, provided that the Collateral Agent may, by
written notice to the applicable Grantor or the Borrower, curtail or terminate
said authority at any time after the occurrence and during the continuance of
a

       

      
        
          Table of Contents

        

        
          16

          
            

          

        

        
           

        

      

      Default.  If required by the Collateral Agent
at any time after the occurrence and during the continuance of a Default, any
payments of Receivables, when collected by any Grantor, (i) shall be forthwith
(and, in any event, within three Business Days) deposited by such Grantor in the
exact form received, duly indorsed by such Grantor to the Collateral Agent if
required, in a Collateral Account maintained under the sole dominion and control
of the Collateral Agent, subject to withdrawal by the Collateral Agent for the
account of the Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Collateral Agent and the
Lenders, segregated from other funds of such Grantor.  Each such
deposit of Proceeds of Receivables shall be accompanied by a report identifying
in reasonable detail the nature and source of the payments included in the
deposit.

       

      (b)           After
the occurrence and during the continuance of a Default, at the Collateral
Agent’s request, each Grantor shall deliver to the Collateral Agent all original
and other documents evidencing, and relating to, the agreements and transactions
which gave rise to the Receivables, including, without limitation, all original
orders, invoices and shipping receipts.

       

      6.2           Communications with
Obligors; Grantors Remain Liable

       

      (a)           Upon
the request of the Collateral Agent at any time after the occurrence and during
the continuance of a Default, each Grantor shall notify obligors on the
Receivables that the Receivables have been assigned to the Collateral Agent for
the ratable benefit of the Secured Parties and that payments in respect thereof
shall be made directly to the Collateral Agent.

       

      (b)           Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise thereto.  Neither the
Collateral Agent nor any Lender shall have any obligation or liability under any
Receivable (or any agreement giving rise thereto) by reason of or arising out of
this Agreement or the receipt by the Collateral Agent or any Lender of any
payment relating thereto, nor shall the Agent or any Lender be obligated in any
manner to perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it or
as to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.

       

      6.3           Pledged
Stock

       

      (a)           Unless
a Default shall have occurred and be continuing and the Collateral Agent shall
have given notice to the relevant Grantor of the Collateral Agent’s intent to
exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall
be permitted, subject to Section 5.7(a), to receive all cash and non-cash
dividends paid in respect of the Pledged Stock and all payments made in respect
of the Pledged Notes, in each case, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate or other organizational
rights with respect to the Investment Property; provided, however, that no
vote shall be cast or corporate or other organizational right exercised or other
action taken which, in the Collateral Agent’s reasonable judgment, would impair
the Collateral or which would be inconsistent with or result in any violation of
this Agreement or any other Loan Document.

       

      (b)    If a
Default shall occur and be continuing and the Collateral Agent shall give notice
of its intent to exercise such rights to the relevant Grantor or Grantors,
(i) the Collateral Agent shall have the right to receive any and all cash
and non-cash dividends, payments or other Proceeds paid in respect of the
Investment Property and make application thereof to the Obligations in such
order as the Collateral 

       

      
        
          Table of Contents

        

        
          17

          
            

          

        

        
           

        

      

      Agent may
determine, and (ii) any or all of the Investment Property shall be registered in
the name of the Collateral Agent or its nominee, and the Collateral Agent or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Investment Property at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Investment Property as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Investment Property upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate or
other organizational structure of any Issuer, or upon the exercise by any
Grantor or the Collateral Agent of any right, privilege or option pertaining to
such Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Collateral Agent may determine), all without liability except
to account for property actually received by it, but the Collateral Agent shall
have no duty to any Grantor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so
doing.

       

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

       

      6.4           Proceeds to be Turned Over
To Collateral Agent

       

      In
addition to the rights of the Collateral Agent and the Lenders specified in
Section 6.1 with respect to payments of Receivables, if a Default shall occur
and be continuing, upon the request of the Collateral Agent, subject to the
payment subordination provisions described on Schedule 9, all
Proceeds received by any Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Collateral Agent and the
Lenders, segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the Collateral Agent in the exact
form received by such Grantor (duly indorsed by such Grantor to the Collateral
Agent, if required).  All Proceeds received by the Collateral Agent
hereunder shall be held by the Collateral Agent in a Collateral Account
maintained under its sole dominion and control.  All Proceeds while
held by the Collateral Agent in a Collateral Account (or by such Grantor in
trust for the Collateral Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.

       

      6.5           Application of
Proceeds

       

      At such
intervals as may be agreed upon by the Borrower and the Collateral Agent, or, if
a Default shall have occurred and be continuing, at any time at the Collateral
Agent's election, the Collateral Agent may apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, and any
proceeds of the guarantee set forth in Section 2, in payment of the Obligations
in the following order:

       

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

       

      
        
          Table of Contents

        

        
          18

          
            

          

        

        
           

        

      

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

       

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

       

      Fourth, any balance
remaining after the Obligations (other than contingent obligations) shall have
been paid in full, no Letters of Credit shall be outstanding (unless cash
collateralized on terms reasonably acceptable to the Agent) and the Commitments
shall have terminated shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive the same.

       

      6.6           Code and Other
Remedies

       

      If a
Default shall occur and be continuing, the Collateral Agent, on behalf of the
Secured Parties, may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the New York UCC or any other applicable
law.  Without limiting the generality of the foregoing, the Collateral
Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker’s
board or office of the Collateral Agent or any Secured Party or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk.  The Collateral Agent or any Secured Party shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released.  Each
Grantor further agrees, at the Collateral Agent’s request, to assemble the
Collateral and make it available to the Collateral Agent at places which the
Collateral Agent shall reasonably select, whether at such Grantor’s premises or
elsewhere.  The Collateral Agent shall apply the net proceeds of any
action taken by it pursuant to this 6.6, after deducting all reasonable costs
and expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent and the Secured Parties
hereunder, including, without limitation, reasonable attorneys’ fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Collateral Agent may elect, and only after such application and
after the payment by the Collateral Agent of any other amount required by any
provision of law, including, without limitation, Section 9-615(a)(3) of the New
York UCC, need the Collateral Agent account for the surplus, if any, to any
Grantor.  To the extent permitted by applicable law, each Grantor
waives all claims, damages and demands it may acquire against the Collateral
Agent or any Secured Party arising out of the exercise by them of any rights
hereunder.  If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other
disposition.

       

          6.7    Registration Rights

       

      
        
          Table of Contents

        

        
          19

          
            

          

        

        
           

        

      

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

       

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

       

      (c)           Each
Grantor agrees to use its best efforts to do or cause to be done all such other
acts as may be necessary to make such sale or sales of all or any portion of the
Pledged Stock pursuant to this Section 6.7 valid and binding and in compliance
with any and all other applicable Requirements of Law.  Each Grantor
further agrees that a breach of any of the covenants contained in this Section
6.7 will cause irreparable injury to the Collateral Agent and the Secured
Parties, that the Agent and the Secured Parties have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant
contained in this Section 6.7 shall be specifically enforceable against such
Grantor, and such Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit
Agreement.

       

      6.8           Subordination

       

      Each
Grantor hereby agrees that, upon the occurrence and during the continuance of a
Default, unless otherwise agreed by the Collateral Agent, all Indebtedness owing
by it to any Subsidiary of the Borrower shall be fully subordinated to the
indefeasible payment in full in cash of such Grantor’s Obligations.

       

      6.9           Deficiency

       

      
        
          Table of Contents

        

        
          20

          
            

          

        

        
           

        

      

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

       

       

      SECTION
7.           THE
COLLATERAL AGENT

       

      7.1           Collateral Agent’s
Appointment as Attorney-in-Fact, etc

       

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

       

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

       

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

       

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

       

      (iv)           execute,
in connection with any sale provided for in Section 6.6 or 6.7, any
indorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral; and

       

      (v)           (1)  direct
any party liable for any payment under any of the Collateral to make payment of
any and all moneys due or to become due thereunder directly to the Collateral
Agent or as the Collateral Agent shall direct;  (2)   ask or
demand for, collect, and receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Collateral;  (3)   sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral;  (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit,
action or proceeding brought against such Grantor with respect to any
Collateral; (6) settle, compromise or adjust any such suit, action or proceeding
and, in connection therewith, give such discharges or releases as the Collateral
Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along
with the goodwill of the business to which any such Copyright, Patent or
Trademark pertains), throughout the world for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and (8) generally, sell, transfer,

       

      
        
          Table of Contents

        

        
          21

          
            

          

        

        
           

        

      

       pledge
and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and do, at the Collateral Agent’s
option and such Grantor’s expense, at any time, or from time to time, all acts
and things which the Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent’s and the Secured Parties’
security interests therein and to effect the intent of this Agreement, all as
fully and effectively as such Grantor might do.

       

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

       

      (b)           The
expenses of the Collateral Agent incurred in connection with actions undertaken
as provided in this Section 7.1, together with interest thereon at a rate per
annum equal to the highest rate per annum at which interest would then be
payable on any category of past due Floating Rate Loans under the Credit
Agreement, from the date of payment by the Collateral Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Collateral Agent on demand.

       

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

       

      7.2           Duty of Collateral
Agent

       

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

       

      7.3           Financing
Statements

       

      Pursuant
to any applicable law, each Grantor authorizes the Collateral Agent to file or
record financing statements and other filing or recording documents or
instruments with respect to the Collateral without the signature of such Grantor
in such form and in such offices as the Collateral Agent determines appropriate
to perfect the security interests of the Collateral Agent under this
Agreement.  Each Grantor authorizes the Agent to use the collateral
description “all personal property” in any such financing
statements.  Each Grantor hereby ratifies and authorizes the filing by
the Collateral Agent of any financing statement with respect to the Collateral
made prior to the date hereof.

       

      7.4    Authority of Collateral
Agent

       

      
        
          Table of Contents

        

        
          22

          
            

          

        

        
           

        

      

      Each
Grantor acknowledges that the rights and responsibilities of the Collateral
Agent under this Agreement with respect to any action taken by the Collateral
Agent or the exercise or non-exercise by the Collateral Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Collateral
Agent and the Secured Parties, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among them,
but, as between the Collateral Agent and the Grantors, the Collateral Agent
shall be conclusively presumed to be acting as agent for the Secured Parties
with full and valid authority so to act or refrain from acting, and no Grantor
shall be under any obligation, or entitlement, to make any inquiry respecting
such authority.

       

       

      SECTION
8.          MISCELLANEOUS

       

      8.1           Amendments in
Writing.

       

      None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except in accordance with Section 9.2 of the Credit
Agreement.

       

      8.2           Notices.

       

      All
notices, requests and demands to or upon the Collateral Agent or any Grantor
hereunder shall be effected in the manner provided for in Section 14.1 of the
Credit Agreement; provided that any such notice, request or demand to or upon
any Guarantor shall be addressed to such Guarantor at its notice address set
forth on Schedule
1.

       

      8.3           No Waiver by Course of
Conduct; Cumulative Remedies

       

      Neither
the Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Unmatured Default.  No failure to exercise, nor any delay
in exercising, on the part of the Collateral Agent or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver
thereof.  No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.  A waiver by the
Collateral Agent or any Secured Party of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent or such Secured Party would otherwise have on any future
occasion.  The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.

       

      8.4           Enforcement Expenses;
Indemnification

       

      (a)           Each
Guarantor agrees to pay or reimburse each Lender and the Collateral Agent for
all its documented costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing or
preserving any rights under this Agreement and the other Loan Documents to which
such Guarantor is a party, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Collateral Agent.

       

      (b)    Each
Guarantor agrees to pay, and to save the Collateral Agent and the Secured
Parties harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or determined to be payable
with respect to any of the Collateral or in connection with any enforcement
actions contemplated by this Agreement.

       

      
        
          Table of Contents

        

        
          23

          
            

          

        

        
           

        

      

       

      (c)           Each
Guarantor agrees to pay, and to save the Collateral Agent and the Secured
Parties harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to Section 10.6 of the Credit
Agreement.

       

      (d)           The
agreements in this Section 8.4 shall survive repayment of the Obligations and
all other amounts payable under the Credit Agreement and the other Loan
Documents.

       

      8.5           Successors and
Assigns

       

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

       

      8.6           Set-Off

       

      In
addition to any rights and remedies of the Secured Parties provided by law, each
Secured Party shall have the right, without notice to any Grantor, any such
notice being expressly waived by each Grantor to the extent permitted by
applicable law, upon any Obligations becoming due and payable by any Grantor
(whether at the stated maturity, by acceleration or otherwise), to apply to the
payment of such Obligations, by setoff or otherwise, any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Secured Party, any affiliate thereof or any of their
respective branches or agencies to or for the credit or the account of such
Grantor.  Each Secured Party agrees promptly to notify the relevant
Grantor and the Collateral Agent after any such application made by such Secured
Party, provided
that the failure to give such notice shall not affect the validity of such
application.

       

      8.7           Counterparts

       

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

       

      8.8           Severability

       

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

       

      8.9           Section
Headings

       

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

       

      8.10           Integration

       

      
        
          Table of Contents

        

        
          24

          
            

          

        

        
           

        

      

       

       

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

       

      8.11           GOVERNING
LAW

       

      THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.

       

      8.12           Submission To Jurisdiction;
Waivers

       

      Each
Grantor hereby irrevocably and unconditionally:

       

      (a)           submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;

       

      (b)           consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;

       

      (c)           agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Grantor at its address referred
to in Section 8.2 or at such other address of which the Collateral Agent shall
have been notified pursuant thereto;

       

      (d)           agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and

       

      (e)           waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.

       

      8.13           Acknowledgements

       

      Each
Grantor hereby acknowledges that:

       

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

       

      (b)    neither
the Collateral Agent nor any Secured Party has any fiduciary relationship with
or duty to any Grantor arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Grantors, on
the one hand, and the Collateral Agent and Secured
Parties, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and

       

      
        
          Table of Contents

        

        
          25

          
            

          

        

        
           

        

      

       

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

       

      8.14           Additional
Grantors

       

      Each
Subsidiary of the Borrower that is required to become a party to this Agreement
pursuant to Section 7.10 of the Credit Agreement shall become a Grantor for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex II hereto.

       

      8.15           Releases

       

      (a)           At
such time as the Loans, the Reimbursement Obligations and the other Obligations
(other than contingent obligations or Obligations in respect of Specified Swap
Agreements) shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding (unless cash collateralized on
terms reasonably acceptable to the Agent), the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Collateral Agent and
each Grantor hereunder shall terminate, all without delivery of any instrument
or performance of any act by any party, and all rights to the Collateral shall
revert to the Grantors.  At the request and sole expense of any
Grantor following any such termination, the Collateral Agent shall deliver to
such Grantor any Collateral held by the Collateral Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.

       

      (b)           If
any of the Collateral shall be sold, financed, transferred or otherwise disposed
of by any Grantor in a transaction permitted by the Credit Agreement, then the
Collateral Agent, at the request and sole expense of such Grantor, shall execute
and deliver to such Grantor all releases or other documents reasonably necessary
or desirable for the release of the Liens created hereby on such
Collateral.  At the request and sole expense of the Borrower, a
Subsidiary Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Subsidiary Guarantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement; provided that the
Borrower shall have delivered to the Agent, at least five Business Days prior to
the date of the proposed release, a written request for release identifying the
relevant Subsidiary Guarantor and the terms of the sale or other disposition in
reasonable detail, together with a certification by the Borrower stating that
such transaction is in compliance with the Credit Agreement and the other Loan
Documents.

       

      8.16           Limitations on Restricted
Entities

       

      Notwithstanding
anything herein or in any other Loan Document to the contrary, it is hereby
acknowledged and agreed that (a) the perfection and priority of the security
interests granted by the Restricted Entities, (b) the delivery of any Collateral
by the Restricted Entities to the Collateral Agent and (c) if it would result in
an impairment of surplus of the Restricted Entities to the extent that the
surplus is less than the amount prescribed by the Vermont Commissioner pursuant
to Section 6004(b) of

       

      Title 8
of the Vermont Statutes Annotated, the enforcement of rights and remedies of the
Secured Parties are, in each case, subject to the prior consent of the Vermont
Commissioner.

       

      8.17           WAIVER OF
JURY TRIAL

       

      
        EACH
GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.

         

      

      
        
          Table of Contents

        

        
          26

          
            

          

        

        
           

        

      

       

       

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

       

      WENDY’S
INTERNATIONAL HOLDINGS, LLC

      


      


      /s/
Daniel
T. Collins                    

      Name:    Daniel
T. Collins

      Title:      Senior
Vice President, Treasurer and Assistant
Secretary

      
         

        
          
            Table of Contents

          

          
            
            

            
              

            

          

          
             

          

        

         

        WENDY’S
INTERNATIONAL, INC.

        


        


        /s/
Daniel
T. Collins                         

        Name:    Daniel
T. Collins

        Title:      Senior
Vice President, Treasurer and Assistant
Secretary

        
          
            Table of Contents

          

          
            
            

            
              

            

          

          
             

          

        



       

      OLDEMARK
LLC

      


      


      /s/
Daniel
T. Collins                        

      Name:     Daniel
T. Collins

      Title:       Senior
Vice President, Treasurer and Assistant
Secretary

       

      
        
          Table of Contents

        

        
          
          

          
            

          

        

        
           

        

      



      SCIOTO
INSURANCE COMPANY

      


      


      /s/
Chris
A. Varin                        

      Name:     Chris
A. Varin

      Title:       Vice
President and Assistant Secretary


       

      
        
          Table of Contents

        

        
          
          

          
            

          

        

        
           

        

      

      THE
NEW BAKERY CO. OF OHIO, INC.

      


      


      /s/
Daniel
T. Collins                        

      Name:     Daniel
T. Collins

      Title:       Senior
Vice President, Treasurer and Assistant
Secretary

       

       

      
        
          Table of Contents

        

        
          
          

          
            

          

        

        
           

        

      

      WENDY’S
OF DENVER, INC.

      


      


      /s/
Daniel
T. Collins                        

      Name:     Daniel
T. Collins

      Title:       Senior
Vice President, Treasurer and Assistant
Secretary

       

       

      
        
          Table of Contents

        

        
          
          

          
            

          

        

        
           

        

      

      WENDY’S
OF N.E. FLORIDA, INC.

      


      


      /s/
Daniel
T. Collins                        

      Name:     Daniel
T. Collins

      Title:       Senior
Vice President, Treasurer and Assistant
Secretary

       

       

      
        
          Table of Contents

        

        
          
          

          
            

          

        

        
           

        

      

      WENDY’S
OLD FASHIONED HAMBURGERS OF NEW YORK, INC.

      


      


      /s/
Daniel
T. Collins                        

      Name:     Daniel
T. Collins

      Title:       Senior
Vice President, Treasurer and Assistant
Secretary