exv10w12



 








Exhibit 10.12




 





GUARANTEE AND COLLATERAL AGREEMENT




dated as of




December 21, 2005,




among




CCE SPINCO, INC.,




SFX ENTERTAINMENT, INC.,




THE OTHER SUBSIDIARIES OF CCE SPINCO, INC.




IDENTIFIED HEREIN




and




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent




 











 



 


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 

	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Definitions	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Credit Agreement
	 	 	1	 
	SECTION 1.02.

	 	Other Defined Terms
	 	 	1	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Guarantee	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Guarantee
	 	 	5	 
	SECTION 2.02.

	 	Guarantee of Payment
	 	 	6	 
	SECTION 2.03.

	 	No Limitations
	 	 	6	 
	SECTION 2.04.

	 	Reinstatement
	 	 	7	 
	SECTION 2.05.

	 	Agreement To Pay; Subrogation
	 	 	7	 
	SECTION 2.06.

	 	Information
	 	 	7	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Pledge of Securities	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Pledge
	 	 	7	 
	SECTION 3.02.

	 	Delivery of the Pledged Collateral
	 	 	8	 
	SECTION 3.03.

	 	Representations, Warranties and Covenants
	 	 	9	 
	SECTION 3.04.

	 	Limited Liability Company and Limited Partnership Interests
	 	 	10	 
	SECTION 3.05.

	 	Registration in Nominee Name; Denominations
	 	 	10	 
	SECTION 3.06.

	 	Voting Rights; Dividends and Interest
	 	 	10	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Security Interests in Personal Property	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Security Interest
	 	 	13	 
	SECTION 4.02.

	 	Representations and Warranties
	 	 	15	 
	SECTION 4.03.

	 	Covenants
	 	 	16	 
	SECTION 4.04.

	 	Other Actions
	 	 	20	 
	SECTION 4.05.

	 	Covenants Regarding Patent, Trademark and Copyright Collateral
	 	 	23	 












 



 


	 	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Remedies	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Remedies Upon Default
	 	 	25	 
	SECTION 5.02.

	 	Application of Proceeds
	 	 	26	 
	SECTION 5.03.

	 	Grant of License to Use Intellectual Property
	 	 	27	 
	SECTION 5.04.

	 	Securities Act
	 	 	27	 
	SECTION 5.05.

	 	Registration
	 	 	28	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Indemnity, Subrogation and Subordination	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Indemnity and Subrogation
	 	 	29	 
	SECTION 6.02.

	 	Contribution and Subrogation
	 	 	29	 
	SECTION 6.03.

	 	Subordination
	 	 	29	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Miscellaneous	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Notices
	 	 	30	 
	SECTION 7.02.

	 	Waivers; Amendment
	 	 	30	 
	SECTION 7.03.

	 	Administrative Agent’s Fees and Expenses; Indemnification
	 	 	31	 
	SECTION 7.04.

	 	Successors and Assigns
	 	 	31	 
	SECTION 7.05.

	 	Survival of Agreement
	 	 	32	 
	SECTION 7.06.

	 	Counterparts; Effectiveness; Several Agreement
	 	 	32	 
	SECTION 7.07.

	 	Severability
	 	 	32	 
	SECTION 7.08.

	 	Right of Set-Off
	 	 	33	 
	SECTION 7.09.

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	33	 
	SECTION 7.10.

	 	WAIVER OF JURY TRIAL
	 	 	34	 
	SECTION 7.11.

	 	Headings
	 	 	34	 
	SECTION 7.12.

	 	Security Interest Absolute
	 	 	34	 
	SECTION 7.13.

	 	Termination or Release
	 	 	34	 
	SECTION 7.14.

	 	Additional Subsidiaries
	 	 	35	 
	SECTION 7.15.

	 	Administrative Agent Appointed Attorney-in-Fact
	 	 	35	 












 



 


	 	 	 
	Schedules
	 	 
	 
	 	 
	Schedule I

	 	Subsidiary Loan Parties
	Schedule II

	 	Pledged Stock; Pledged Debt Securities
	Schedule III

	 	Intellectual Property
	Schedule IV

	 	Insurance Requirements
	Schedule V

	 	Commercial Tort Claims
	 
	 	 
	Exhibits
	 	 
	 
	 	 
	Exhibit I

	 	Form of Supplement
	Exhibit II

	 	Form of Perfection Certificate












 



 



     GUARANTEE AND COLLATERAL AGREEMENT dated as of December 21, 2005,
among CCE SPINCO, INC., SFX ENTERTAINMENT, INC., the other Subsidiaries of
CCE SPINCO, INC. identified herein and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.



          Reference is made to the Credit Agreement dated as of December 21, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CCE
Spinco, Inc. (“Parent”), SFX Entertainment, Inc. (the “US Borrower”), the Foreign
Borrowers party thereto (together with the US Borrower, the “Borrowers”), the Lenders party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., Toronto
Branch, as Canadian Agent, J.P. Morgan Europe Limited, as London Agent, and Bank of America, N.A.,
as Syndication Agent. The Lenders have agreed to extend credit to the Borrowers subject to the
terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend
such credit are conditioned upon, among other things, the execution and delivery of this Agreement.
Parent and the Subsidiary Loan Parties are affiliates of the Borrowers, will derive substantial
benefits from the extension of credit to the Borrowers pursuant to the Credit Agreement and are
willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit.
Accordingly, the parties hereto agree as follows:




ARTICLE I




Definitions




          SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings specified in the Credit Agreement. All terms defined in
the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified
therein; the term “instrument” shall have the meaning specified in Article 9 of the New York UCC.




          (b) The rules of construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.




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




          “Account Debtor” means any Person who is or who may become obligated to any Grantor
under, with respect to or on account of an Account.




          “Agreement” means this Guarantee and Collateral Agreement.




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










 



 




 2




          “Borrowers” has the meaning assigned to such term in the preliminary statement of this
Agreement.




          “Claiming Party” has the meaning assigned to such term in Section 6.02.




          “Collateral” means Article 9 Collateral and Pledged Collateral.




          “Contributing Party” has the meaning assigned to such term in Section 6.02.




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




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




          “Credit Agreement” has the meaning assigned to such term in the preliminary statement
of this Agreement.




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




          “General Intangibles” means all choses in action and causes of action and all other
intangible personal property of every kind and nature (other than Accounts) now owned or hereafter
acquired by any Grantor, including corporate or other business records, indemnification claims,
contract rights (including rights under leases, whether entered into as lessor or lessee, Swap
Agreements and other agreements)1, Intellectual Property, goodwill, registrations,
franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or
other security held by or granted to any Grantor to secure payment by an Account Debtor of any of
the Accounts.




          “Grantors” means Parent, the US Borrower and each other Material Subsidiary that is a
Domestic Subsidiary.




          “Guarantors” means Parent, the US Borrower and each other Material Subsidiary that is
a Domestic Subsidiary.






 




			
	1	 	Name any specific contracts and include party
names and dates.










 



3






          “Guarantee and Collateral Agreement Supplement” means an instrument in the form of
Exhibit I hereto.




          “Parent” has the meaning assigned to such term in the preliminary statement of this
Agreement.




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




          “License” means any Patent License, Trademark License, Copyright License or other
license or sublicense agreement to which any Grantor is a party.




          “Loan Document Obligations” means (a) the due and punctual payment by the Borrowers of
(i) the principal of and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by
any Borrower in respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement of LC Disbursements, interest thereon (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) and obligations to provide cash collateral, (iii)
all reimbursement obligations of the Canadian Borrowers in respect of B/As accepted under or
pursuant to the Credit Agreement and (iv) all other monetary obligations of the Borrowers under the
Credit Agreement and each of the other Loan Documents, including obligations to pay fees, expense
reimbursement obligations and indemnification obligations, whether primary, secondary, direct,
contingent, fixed or otherwise, arising under the Loan Documents (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) and (b) the due and
punctual payment of all the monetary obligations of each other Loan Party under or pursuant to the
Credit Agreement and each of the other Loan Documents




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




          “Obligations” means (a) Loan Document Obligations and (b) the due and punctual payment
of all monetary obligations of each Loan Party under each Swap Agreement that (i) is in effect on
the Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the
Effective Date or (ii) is entered into after the Effective Date with any counterparty that is a
Lender or an Affiliate of a Lender at the










 



4



time such Swap Agreement is entered into (other than Swap Agreements entered into after (A)
the principal of and interest on each Loan and all fees payable under or pursuant to the Credit
Agreement have been paid in full, (B) the Lenders have no further commitment to lend under or
pursuant to the Credit Agreement, (C) the LC exposures have been reduced to zero and (D) the
Issuing Banks have no further obligations to issue Letters of Credit).




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




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




          “Perfection Certificate” means a certificate substantially in the form of Exhibit II,
completed and supplemented with the schedules and attachments contemplated thereby, and duly
executed by a Financial Officer and the chief legal officer of the US Borrower.




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




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




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




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




          “Proceeds” has the meaning specified in Section 9-102 of the New York UCC.




          “Secured Parties” means (a) the Lenders, (b) the Administrative Agent, (c) any Issuing
Bank, (d) each counterparty to any Swap Agreement with a Loan Party the obligations under which
constitute Obligations, (e) the beneficiaries of each










 



5



indemnification obligation undertaken by any Loan Party under any Loan Document and (f) the
successors and assigns of each of the foregoing.




          “Security Interest” has the meaning assigned to such term in Section 4.01.




          “Subsidiary Loan Parties” means (a) the Subsidiaries identified on Schedule I and (b)
each other Subsidiary that becomes a party to this Agreement as a Subsidiary Loan Party after the
Effective Date.




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




          “Trademarks” means all of the following now owned or hereafter acquired by any
Grantor: (a) all trademarks, service marks, trade names, corporate names, company names, business
names, fictitious business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and recording applications
filed in connection therewith, including registrations and registration applications in the United
States Patent and Trademark Office or any similar offices in any State of the United States or any
other country or any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby
and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill.




          “US Borrower” has the meaning assigned to such term in the preliminary statement of
this Agreement.




          “US Borrower Subsidiary Party” means each party hereto that is a Subsidiary of the US
Borrower.




ARTICLE II




Guarantee




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










 



6




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




          SECTION 2.03. No Limitations. (a) Except for termination of a Guarantor’s obligations
hereunder as expressly provided in Section 7.13, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Administrative Agent or any other Secured Party to
assert any claim or demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release
from any of the terms or provisions of, any Loan Document or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any security held by the
Administrative Agent or any other Secured Party for the Obligations or any of them; (iv) any
default, failure or delay, wilful or otherwise, in the performance of the Obligations; or (v) any
other act or omission that may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Obligations). Each Guarantor expressly
authorizes the Administrative Agent and the other Secured Parties to take and hold security for the
payment of the Obligations, to exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and manner of any sale
thereof in their sole discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the obligations of any
Guarantor hereunder.




          (b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based
on or arising out of any defense of the applicable Borrower or any other Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of the applicable Borrower or any other Loan Party, other than the
indefeasible payment in full in cash of all the Obligations. The Administrative Agent and the
other Secured Parties may, at their election, foreclose on any security held by one or more of them
by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with
the applicable Borrower or any other Loan Party or exercise any other right or remedy available to
them against the applicable Borrower or any other Loan Party, without affecting or impairing in any
way the liability of any Guarantor hereunder except to the extent the Obligations have been
indefeasibly paid in full in cash. To the fullest extent










 



7



permitted by applicable law, each Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Guarantor against the
applicable Borrower or any other Loan Party, as the case may be, or any security.




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




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




          SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and keeping
itself informed of each Borrower’s and each other Loan Party’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the other Secured Parties will have any duty to advise such
Guarantor of information known to it or any of them regarding such circumstances or risks.




ARTICLE III




Pledge of Securities




          SECTION 3.01. Pledge. As security for the payment, as the case may be, in full of the
Obligations, each Grantor hereby assigns and pledges to the Administrative Agent, its successors
and assigns, for the benefit of the other Secured Parties, and hereby grants to the Administrative
Agent, its successors and assigns, for the benefit of the other Secured Parties, a security
interest in, all of such Grantor’s right, title and interest in, to and under (a) all Equity
Interests owned by it and listed on Schedule II and any other Equity Interests obtained in the
future by such Grantor and, as reasonably requested by the Administrative Agent, the certificates
or other instruments representing all such Equity Interests (the “Pledged Stock”),
provided that the Pledged Stock shall not include










 



8



more than 66.5% of the issued and outstanding voting Equity Interests of any Foreign
Subsidiary to the extent that the pledge of any greater percentage would result in adverse tax
consequences; (b)(i) all Indebtedness of Parent, any Borrower or any other Subsidiary that is
evidenced by a promissory note, owing to any Loan Party and constitutes Collateral and listed
opposite the name of such Grantor on Schedule II, (ii) any debt securities in the future issued to
such Grantor and (iii) the promissory notes and any other instruments evidencing such debt
securities (the “Pledged Debt Securities”); (c) all other property that may be delivered to
and held by the Administrative Agent pursuant to the terms of this Section 3.01; (d) subject to
Section 3.06, all payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in respect of, in exchange
for or upon the conversion of, and all other Proceeds received in respect of, the securities
referred to in clauses (a) and (b) above; (e) subject to Section 3.06, all rights and privileges of
such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c)
and (d) above; and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a)
through (f) above being collectively referred to as the “Pledged Collateral”),
provided that notwithstanding anything to the contrary in this Agreement, this Agreement
shall not constitute a pledge or grant of a security interest in any Pledged Collateral if and for
so long as the Administrative Agent, in consultation with the US Borrower, reasonably determines
that the cost to any Borrower of creating or perfecting a pledge or security interest in such
Pledged Collateral (taking into account any adverse tax consequences to Parent, the Borrowers and
the other Subsidiaries (including the imposition of withholding or other material taxes on
Lenders)) shall be commercially unreasonable in view of the benefits to be obtained by the Lenders
therefrom.




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




          SECTION 3.02. Delivery of the Pledged Collateral. (a) Each Grantor agrees promptly to
deliver or cause to be delivered to the Administrative Agent, for the benefit of the other Secured
Parties, any and all Pledged Securities.




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










 



9




          SECTION 3.03. Representations, Warranties and Covenants. Each Grantor represents, warrants
and covenants to and with the Administrative Agent, for the benefit of the other Secured Parties,
that with respect to such Grantor:





     (a) Schedule II correctly sets forth the percentage of the issued and outstanding
units of each class of the Equity Interests of the issuer thereof represented by such
Grantor’s Pledged Stock and includes all Equity Interests, debt securities and promissory
notes required to be pledged hereunder by such Grantor in order to satisfy the Collateral
and Guarantee Requirement;




     (b) the Grantor’s Pledged Stock and Pledged Debt Securities have been duly and validly
authorized and issued by such Grantor and (i) in the case of such Pledged Stock, are fully
paid and nonassessable and (ii) in the case of such Pledged Debt Securities, are legal,
valid and binding obligations of such Grantor, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or law;




     (c) except for the security interests granted hereunder, such Grantor (i) is and,
subject to any transfers made in compliance with the Credit Agreement, will continue to be
the direct owner, beneficially and of record, of the Pledged Securities indicated on
Schedule II as owned by such Grantor, (ii) holds the same free and clear of all Liens,
other than Liens created by this Agreement, Permitted Encumbrances and transfers made in
compliance with the Credit Agreement, (iii) will make no assignment, pledge, hypothecation
or transfer of, or create or permit to exist any security interest in or other Lien on, the
Pledged Collateral, other than Liens created by this Agreement, Permitted Encumbrances and
transfers made in compliance with the Credit Agreement and (iv) will defend its title or
interest thereto or therein against any and all Liens (other than Liens created by this
Agreement and Permitted Encumbrances), however, arising, of all Persons whomsoever;




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




     (e) each Grantor has the corporate or equivalent power and authority to pledge all of
such Grantor’s Pledged Collateral pledged by it hereunder in the manner hereby done or
contemplated;




     (f) no consent or approval of any Governmental Authority, any securities exchange or
any other Person to be obtained by any Loan Party pursuant to any









 



10



applicable law, rule or regulation applicable to it was or is necessary to the
validity of such Grantor’s pledge effected hereby (other than such as have been obtained
and are in full force and effect);




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




     (h) such Grantor’s pledge effected hereby is effective to vest in the Administrative
Agent, for the benefit of the other Secured Parties, the rights of the Administrative Agent
in all of such Grantor’s Pledged Collateral as set forth herein; and




     (i) none of such Grantor’s Pledged Stock consisting of partnership or limited
liability company interests (i) is dealt in or traded on a securities exchange or
securities market, (ii) is a security governed by Article 8 of the New York UCC, (iii) is
an investment company security, (iv) is held in a securities account or (v) constitutes a
“security” or “financial asset” as such terms are defined in Article 8 of the New York UCC.



          SECTION 3.04. Limited Liability Company and Limited Partnership Interests. So long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under any
Loan Document is outstanding and unpaid or any Letter of Credit or B/A is outstanding and so long
as the Commitments have not expired or terminated, such Grantor shall not elect to treat any
interest in any limited liability company or limited partnership pledged hereunder as a “security”
within the meaning of Article 8 of the New York UCC or issue any certificate representing such
interest, unless such Grantor provides prior written notification to the Administrative Agent of
such election and immediately delivers any such certificate to the Administrative Agent pursuant to
the terms hereof.




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




          SECTION 3.06. Voting Rights; Dividends and Interest. (a) Unless and until an Event of
Default shall have occurred and be continuing and the Administrative










 



11



Agent shall have notified the US Borrower that the rights of the Grantors under this Section
3.06 are being suspended:





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




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




     (iii) Each Grantor shall be entitled to receive and retain any and all dividends,
interest, principal and other distributions paid on or distributed in respect of the
Pledged Securities to the extent and only to the extent that such dividends, interest,
principal and other distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents
and applicable laws, provided that any noncash dividends, interest, principal or
other distributions that would constitute Pledged Stock or Pledged Debt Securities, whether
resulting from a subdivision, combination or reclassification of the outstanding Equity
Interests of the issuer of any Pledged Securities or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer may be a party
or otherwise, shall be and become part of the Pledged Collateral, and, if received by any
Grantor, shall not be commingled by such Grantor with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for the benefit of
the Administrative Agent and the other Secured Parties and shall be forthwith delivered to
the Administrative Agent in the same form as so received (with any necessary endorsement
reasonably requested by the Administrative Agent).



          (b) Upon the occurrence and during the continuance of an Event of Default, after the
Administrative Agent shall have notified the US Borrower of the suspension of the rights of the
Grantors under paragraph (a)(i) of this Section 3.06, then all rights of any Grantor to exercise
the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 3.06, and the obligations of the Administrative Agent under paragraph
(a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, for the benefit of the other Secured Parties, which shall have the sole and
exclusive right and authority










 



12



to exercise such voting and/or consensual rights and powers, provided that, unless
otherwise directed by the Required Lenders, the Administrative Agent shall have the right from time
to time following and during the continuance of an Event of Default to permit the Grantors to
exercise such rights. After all Events of Default have been cured or waived and the US Borrower
has delivered to the Administrative Agent a certificate to that effect, each Grantor shall have the
exclusive right to exercise the voting and/or consensual rights and powers that such Grantor would
otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above and the
obligations of the Administrative Agent under paragraph (a)(ii) of this Section 3.06 shall be
reinstated.




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




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










 



13




ARTICLE IV




Security Interests in Personal Property




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





     (i) all Accounts;




     (ii)
all Chattel Paper;




     (iii) all Deposit Accounts;




     (iv) all Documents;




     (v) all Equipment;




     (vi) all General Intangibles;




     (vii) all Instruments;




     (viii) all Inventory;




     (ix) all Investment Property;




     (x) letter of credit rights;




     (xi) commercial tort claims listed on Schedule V;




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




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


provided that notwithstanding anything to the contrary in this Agreement, this Agreement
shall not constitute a grant of a security interest in (A) any Excluded Assets or (B) any asset if
and for so long as the Administrative Agent, in consultation with the US Borrower, reasonably
determines that the cost to any Borrower of creating or perfecting a pledge or security interest in
such asset (taking into account any adverse tax consequences to Parent, the Borrowers and the other
Subsidiaries (including the








 



14


imposition of withholding or other material taxes on Lenders)) shall be commercially unreasonable
in view of the benefits to be obtained by the Lenders therefrom.




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




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




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




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




          (d) Notwithstanding anything herein to the contrary, in no event shall the security interest
granted hereunder attach to any contract, agreement or instrument to which a Grantor is a party or
any of its rights or interests thereunder if and for so long as the grant of such security interest
shall constitute or result in (i) the unenforceability of any right of the Grantor therein or (ii)
in a breach or termination pursuant to the terms of, or a default under, any such contract,
agreement or instrument (other than to the extent that any such term would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law
or principles of equity), provided, however, that such security interest shall attach
immediately at such time as the condition causing such unenforceability shall be remedied and, to
the extent severable, shall attach immediately to any portion of such contract or agreement that
does not result in any of the consequences specified in clause (i) or (ii) above including any
proceeds of such contract or agreement.










 



15




          SECTION 4.02. Representations and Warranties. Each Grantor represents and warrants to the
Administrative Agent and the other Secured Parties that with respect to such Grantor:




          (a) Such Grantor has good and valid rights in and title to such Grantor’s Article 9 Collateral
with respect to which it has purported to grant a Security Interest hereunder and has full
corporate or equivalent power and authority to grant to the Administrative Agent, for the benefit
of the other Secured Parties, the Security Interest in such Article 9 Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms of this Agreement,
without the consent or approval of any other Person other than any consent or approval that has
been obtained and in full force and effect.




          (b) The Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein, including the exact legal name of such Grantor, is correct and
complete as of the Effective Date. The Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or registrations prepared
by the Administrative Agent based upon the information provided to the Administrative Agent by such
Grantor in the Perfection Certificate for filing in each governmental, municipal or other office
specified in Schedule 2 to the Perfection Certificate (or specified by notice from the US Borrower
to the Administrative Agent after the Effective Date in the case of filings, recordings or
registrations required by Section 5.03(a) or 5.12 of the Credit Agreement), are all the filings,
recordings and registrations (other than filings required to be made in the United States Patent
and Trademark Office and the United States Copyright Office in order to perfect the Security
Interest in all of such Grantor’s Article 9 Collateral consisting of United States Patents,
Trademarks and Copyrights) that are necessary to publish notice of and protect the validity of and
to establish a legal, valid and perfected security interest in favor of the Administrative Agent,
for the benefit of the other Secured Parties, in respect of all of such Grantor’s Article 9
Collateral in which the Security Interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof) and its territories and possessions, and
no further or subsequent filing, refiling, recording, rerecording, registration or reregistration
is necessary in any such jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements. Each Grantor represents and warrants that a fully executed
agreement in the form hereof and containing a description of all of such Grantor’s Article 9
Collateral consisting of Intellectual Property with respect to United States Patents and United
States registered Trademarks (and Trademarks for which United States registration applications are
pending) and United States registered Copyrights have been delivered to the Administrative Agent
for recording by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations
thereunder, as applicable, and otherwise as may be required pursuant to the laws of any other
necessary jurisdiction, to protect the validity of and to establish a legal, valid and perfected
security interest in favor of the Administrative Agent, for the benefit of the other Secured
Parties, in respect of all of such Grantor’s Article 9 Collateral consisting of Patents, Trademarks
and Copyrights in which a security interest may be perfected by filing, recording or















 








16



registration in the United States (or any political subdivision thereof) and its territories
and possessions, and no further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are necessary to perfect
the Security Interest with respect to any of such Grantor’s Article 9 Collateral consisting of
Patents, Trademarks and Copyrights (or registration or application for registration thereof)
acquired or developed after the Effective Date)).




          (c) The Security Interest constitutes (i) a legal and valid security interest in all of such
Grantor’s Article 9 Collateral securing the payment of the Obligations, (ii) subject to the filings
described in Section 4.02(b), a perfected security interest in all of such Grantor’s Article 9
Collateral in which a security interest may be perfected by filing, recording or registering a
financing statement or analogous document in the United States (or any political subdivision
thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other
applicable law in such jurisdictions and (iii) a security interest that shall be perfected in all
of such Grantor’s Article 9 Collateral in which a security interest may be perfected upon the
receipt and recording of this Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, within the three-month period (commencing as of the
date hereof) pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 or the one month period (commencing as
of the date hereof) pursuant to 17 U.S.C. § 205 and otherwise as may be required pursuant to the
laws of any other necessary jurisdiction. The Security Interest is and shall be prior to any other
Lien on any of such Grantor’s Article 9 Collateral, other than Permitted Encumbrances that have
priority as a matter of law and Liens expressly permitted to be prior to the Security Interest
pursuant to Section 6.02(a) of the Credit Agreement.




          (d) All of such Grantor’s Article 9 Collateral is owned by such Grantor free and clear of any
Lien, except for Liens expressly permitted pursuant to Section 6.02(a) of the Credit Agreement.
Such Grantor has not filed or consented to the filing of (i) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable laws covering any of such
Grantor’s Article 9 Collateral, (ii) any assignment in which any such Grantor assigns any
Collateral or any security agreement or similar instrument covering any of such Grantor’s Article 9
Collateral with the United States Patent and Trademark Office or the United States Copyright Office
or (iii) any assignment in which any such Grantor assigns any of such Grantor’s Article 9
Collateral or any security agreement or similar instrument covering any of such Grantor’s Article 9
Collateral with any foreign governmental, municipal or other office, which financing statement or
analogous document, assignment, security agreement or similar instrument is still in effect,
except, in each case, for Liens expressly permitted pursuant to Section 6.02(a) of the Credit
Agreement.




          SECTION 4.03. Covenants. (a) Each Grantor agrees promptly to notify the Administrative
Agent in writing of any change (i) in its corporate name or in any trade name used to identify it
in the conduct of its business or in the ownership of its properties, (ii) in the location of its
chief executive office, its principal place of business, any office in which it maintains books or
records relating to Article 9 Collateral owned by it or any office or facility at which Article 9
Collateral owned by it is located











 





17



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




          (b) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate
records with respect to the Article 9 Collateral owned by it as is consistent with its current
practices and in accordance with such prudent and standard practices used in industries that are
the same as or similar to those in which such Grantor is engaged, but in any event to include
complete accounting records indicating all payments and proceeds received with respect to any part
of the Article 9 Collateral owned by it, and, at such time or times as the Administrative Agent may
reasonably request, promptly to prepare and deliver to the Administrative Agent a duly certified
schedule or schedules in form and detail satisfactory to the Administrative Agent showing the
identity, amount and location of any and all Article 9 Collateral owned by it.




          (c) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to Section 5.01(a) of the Credit Agreement, Parent shall deliver to
the Administrative Agent a certificate executed by a Financial Officer and the general counsel of
Parent (i) setting forth the information required pursuant to Section 2 of the Perfection
Certificate or confirming that there has been no change in such information since the date of the
Perfection Certificate delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section 4.03(c) and (ii) certifying that, to the best knowledge of such
Financial Officer and general counsel, all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a description of the Article
9 Collateral have been filed of record in each governmental, municipal or other appropriate office
in each jurisdiction identified pursuant to clause (a) of this Section 4.03 to the extent necessary
to protect and perfect the Security Interest for a period of not less than 18 months after the date
of such certificate (except as noted therein with respect to any continuation statements to be
filed within such period). Each certificate delivered pursuant to this Section 4.03(c) shall
identify in the format of Schedule III all Intellectual Property of any Grantor in existence on the
date thereof and not then listed on such Schedules or previously so identified to the
Administrative Agent.




          (d) Each Grantor shall, at its own expense, take any and all actions necessary to defend
title to the Article 9 Collateral owned by it against all Persons and to defend the Security
Interest of the Administrative Agent in the Article 9 Collateral owned










 



18



by it and the priority thereof against any Lien not expressly permitted pursuant to Section
6.02 of the Credit Agreement.




          (e) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be
duly filed all such further instruments and documents and take all such actions as the
Administrative Agent may from time to time reasonably request to better assure, preserve, protect
and perfect the Security Interest and the rights and remedies created hereby, including the payment
of any fees and taxes required in connection with the execution and delivery of this Agreement, the
granting of the Security Interest and the filing of any financing statements (including fixture
filings) or other documents in connection herewith or therewith. If any amount payable under or in
connection with any of the Article 9 Collateral owned by it shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be immediately pledged and
delivered to the Administrative Agent, duly endorsed in a manner satisfactory to the Administrative
Agent.




          Without limiting the generality of the foregoing, each Grantor hereby authorizes the
Administrative Agent, with prompt notice thereof to the Grantors, to supplement this Agreement by
supplementing Schedule III or adding additional schedules hereto to specifically identify any asset
or item that may constitute Copyrights, Licenses, Patents or Trademarks, provided that any
Grantor shall have the right, exercisable within 10 days after it has been notified by the
Administrative Agent of the specific identification of such Collateral, to advise the
Administrative Agent in writing of any inaccuracy of the representations and warranties made by
such Grantor hereunder with respect to such Collateral. Each Grantor agrees that it will use its
commercially reasonable efforts to take such action as shall be necessary in order that all
representations and warranties hereunder shall be true and correct in all material respects with
respect to such Collateral within 30 days after the date it has been notified by the Administrative
Agent of the specific identification of such Collateral.




          (f) The Administrative Agent and such Persons as the Administrative Agent may reasonably
designate shall have the right, at the Grantors’ own cost and expense, to inspect the Article 9
Collateral, all records related thereto (and to make extracts and copies from such records) and the
premises upon which any of the Article 9 Collateral is located, to discuss the Grantors’ affairs
with the officers of the Grantors and their independent accountants and to verify under reasonable
procedures, the validity, amount, quality, quantity, value, condition and status of, or any other
matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9
Collateral in the possession of any third person, by contacting Account Debtors or the third person
possessing such Article 9 Collateral for the purpose of making such a verification. The
Administrative Agent shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party.




          (g) At its option, the Administrative Agent may discharge past due taxes, assessments,
charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the
Article 9 Collateral and not permitted pursuant to Section 6.02 of the Credit Agreement, and may
pay for the maintenance and preservation of the Article 9







 



19




Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or
this Agreement, and each Grantor jointly and severally agrees to reimburse the Administrative Agent
on demand for any payment made or any reasonable expense incurred by the Administrative Agent
pursuant to the foregoing authorization, provided that nothing in this paragraph shall be
interpreted as excusing any Grantor from the performance of, or imposing any obligation on the
Administrative Agent or any other Secured Party to cure or perform, any covenants or other promises
of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or
other encumbrances or maintenance as set forth herein or in the other Loan Documents.




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




          (i) Each Grantor (rather than the Administrative Agent or any Secured Party) shall remain
liable to observe and perform all the conditions and obligations to be observed and performed by it
under each contract, agreement or instrument relating to the Article 9 Collateral, all in
accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to
indemnify and hold harmless the Administrative Agent and the other Secured Parties from and against
any and all liability for such performance.




          (j) None of the Grantors shall make or permit to be made an assignment, pledge or
hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9
Collateral, except as permitted by the Credit Agreement. None of the Grantors shall make or permit
to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in
possession of the Article 9 Collateral owned by it, except that unless and until the Administrative
Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and
that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or
otherwise dispose of any Article 9 Collateral (which notice may be given by telephone if promptly
confirmed in writing), the Grantors may use and dispose of the Article 9 Collateral in any lawful
manner not inconsistent with the provisions of this Agreement, the Credit Agreement or any other
Loan Document. Without limiting the generality of the foregoing, each Grantor agrees that it shall
not permit any Inventory to be in the possession or control of any warehouseman, agent, bailee, or
processor at any time unless such warehouseman, bailee, agent or processor shall have been notified
of the Security Interest and shall have acknowledged in writing, in form and substance reasonably
satisfactory to the Administrative Agent, that such warehouseman, agent, bailee or processor holds
the Inventory for the benefit of the Administrative Agent subject to the Security Interest and
shall act upon the instructions of the Administrative Agent without further consent from the
Grantor, and that such warehouseman, agent, bailee or processor further agrees to







 



20




waive and release any Lien held by it with respect to such Inventory, whether arising by
operation of law or otherwise.




          (k) None of the Grantors will, without the Administrative Agent’s prior written consent,
grant any extension of the time of payment of any Accounts included in the Article 9 Collateral,
compromise, compound or settle the same for less than the full amount thereof, release, wholly or
partly, any Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, compromises, settlements, releases, credits or discounts granted or
made in the ordinary course of business and consistent with its current practices and in accordance
with such prudent and standard practice used in industries that are the same as or similar to those
in which such Grantor is engaged.




          (l) The Grantors, at their own expense, shall maintain or cause to be maintained insurance
covering physical loss or damage to the Inventory and Equipment in accordance with the requirements
set forth in Schedule IV hereto and Section 5.07 of the Credit Agreement. Each Grantor irrevocably
makes, constitutes and appoints the Administrative Agent (and all officers, employees or agents
designated by the Administrative Agent) as such Grantor’s true and lawful agent (and
attorney-in-fact) for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Article 9 Collateral under policies of insurance,
endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and decisions with respect
thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any
of the policies of insurance required hereby or to pay any premium in whole or part relating
thereto, the Administrative Agent may, without waiving or releasing any obligation or liability of
the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such
policies of insurance and pay such premium and take any other actions with respect thereto as the
Administrative Agent reasonably deems advisable. All reasonable out-of-pocket sums disbursed by
the Administrative Agent in connection with this paragraph, including reasonable attorneys’ fees,
court costs, reasonable out-of-pocket expenses and other reasonable charges relating thereto, shall
be payable, upon demand, by the Grantors to the Administrative Agent and shall be additional
Obligations secured hereby.




          (m) Each Grantor shall maintain, in form and manner reasonably satisfactory to the
Administrative Agent, records of its Chattel Paper and its books, records and documents evidencing
or pertaining thereto.




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





     (a) Instruments. If any Grantor shall at any time hold or acquire any Instruments,
such Grantor shall forthwith endorse, assign and deliver the same to the Administrative
Agent, for the benefit of the other Secured Parties,









 



21



accompanied by such instruments of transfer or assignment duly endorsed in blank by
such Grantor as the Administrative Agent may from time to time reasonably request.




     (b) Deposit Accounts. For each deposit account that any Grantor at any time opens or
maintains, such Grantor shall, either (i) cause the depositary bank to agree to comply with
instructions from the Administrative Agent to such depositary bank directing the
disposition of funds from time to time credited to such deposit account, without further
consent of such Grantor or any other Person, pursuant to an agreement satisfactory to the
Administrative Agent, or (ii) arrange for the Administrative Agent to become the customer
of the depositary bank with respect to the deposit account, with the Grantor being
permitted, only with the consent of the Administrative Agent, to exercise rights to
withdraw funds from such deposit account. The Administrative Agent agrees with each
Grantor that the Administrative Agent shall not give any such instructions or withhold any
withdrawal rights from any Grantor unless an Event of Default has occurred and is
continuing, or, after giving effect to any such withdrawal rights, would occur. The
provisions of this paragraph shall not apply to (A) any deposit account for which any
Grantor, the depositary bank and the Administrative Agent have entered into a cash
collateral agreement specially negotiated among such Grantor, the depositary bank and the
Administrative Agent for the specific purpose set forth therein and (B) deposit accounts
for which the Administrative Agent is the depositary.




     (c) Investment Property. Except to the extent otherwise provided in Article III, if
any Grantor shall at any time hold or acquire any certificated securities, such Grantor
shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the
benefit of the other Secured Parties, accompanied by such instruments of transfer or
assignment duly endorsed in blank by such Grantor as the Administrative Agent may from time
to time specify. If any securities now or hereafter acquired by any Grantor are
uncertificated and are issued to such Grantor or its nominee directly by the issuer
thereof, such Grantor shall immediately notify the Administrative Agent thereof and, at the
Administrative Agent’s request and option, pursuant to an agreement in form and substance
reasonably satisfactory to the Administrative Agent, either (i) cause the issuer to agree
to comply with instructions from the Administrative Agent as to such securities, without
further consent of any Grantor or such nominee, or (ii) arrange for the Administrative
Agent to become the registered owner of the securities. If any securities, whether
certificated or uncertificated, or other investment property now or hereafter acquired by
any Grantor are held by such Grantor or its nominee through a securities intermediary or
commodity intermediary, such Grantor shall immediately notify the Administrative Agent
thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in
form and substance reasonably satisfactory to the Administrative Agent, either (i) cause
such securities intermediary or (as the case may be) commodity intermediary to agree to
comply with entitlement orders or other instructions from the Administrative Agent to such
securities intermediary as to









 



22



such security entitlements, or (as the case may be) to apply any value distributed on
account of any commodity contract as directed by the Administrative Agent to such commodity
intermediary, in each case without further consent of any Grantor or such nominee, or (ii)
in the case of financial assets or other Investment Property held through a securities
intermediary, arrange for the Administrative Agent to become the entitlement holder with
respect to such investment property, with the Grantor being permitted, only with the
consent of the Administrative Agent, to exercise rights to withdraw or otherwise deal with
such investment property. The Administrative Agent agrees with each Grantor that the
Administrative Agent shall not give any such entitlement orders or instructions or
directions to any such issuer, securities intermediary or commodity intermediary, and shall
not withhold its consent to the exercise of any withdrawal or dealing rights by any
Grantor, unless an Event of Default has occurred and is continuing, or, after giving effect
to any such investment and withdrawal rights, would occur. The provisions of this
paragraph shall not apply to any financial assets credited to a securities account for
which the Administrative Agent is the securities intermediary.




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




     (e) Letter of Credit Rights. If any Grantor is at any time a beneficiary under a
letter of credit now or hereafter issued in favor of such Grantor, such Grantor shall
promptly notify the Administrative Agent thereof and, at the request and option of the
Administrative Agent, such Grantor shall, pursuant to an agreement in form and substance
reasonably satisfactory to the Administrative









 



23



Agent, either (i) arrange for the issuer and any confirmer of such letter of credit to
consent to an assignment to the Administrative Agent of the proceeds of any drawing under
the letter of credit or (ii) arrange for the Administrative Agent to become the transferee
beneficiary of the letter of credit, with the Administrative Agent agreeing, in each case,
that the proceeds of any drawing under the letter of credit are to be paid to the
applicable Grantor unless an Event of Default has occurred or is continuing.




     ((f) Commercial Tort Claims. If any Grantor shall at any time hold or acquire a
commercial tort claim in an amount reasonably estimated to exceed $250,000, the Grantor
shall promptly notify the Administrative Agent thereof in a writing signed by such Grantor
including a summary description of such claim and grant to the Administrative Agent in such
writing a security interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance reasonably satisfactory to the
Administrative Agent.



          SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. (a) Each
Grantor agrees that it will not do any act or omit do to any act (and will exercise commercially
reasonable efforts to prevent its licensees from doing any act or omitting to do any act) whereby
any Patent that is material to the conduct of such Grantor’s business may become invalidated or
dedicated to the public, and agrees that it shall continue to mark any products covered by a Patent
with the relevant patent number as necessary and sufficient to establish and preserve its maximum
rights under applicable patent laws.




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




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




          (d) Each Grantor shall notify the Administrative Agent promptly if it knows or has reason to
know that any Patent, Trademark or Copyright material to the conduct of its business may become
abandoned, lost or dedicated to the public, or of any materially adverse determination or
development (including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States Copyright Office or any
court or similar office of any







 



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country) regarding such Grantor’s ownership of any Patent, Trademark or Copyright, its right
to register the same, or its right to keep and maintain the same.




          (e) In no event shall any Grantor, either itself or through any agent, employee, licensee or
designee, file an application for any Patent, Trademark or Copyright (or for the registration of
any Trademark or Copyright) with the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the United States or in
any other country or any political subdivision thereof, unless it promptly informs the
Administrative Agent, and, upon request of the Administrative Agent, executes and delivers any and
all agreements, instruments, documents and papers as the Administrative Agent may reasonably
request to evidence the Administrative Agent’s security interest in such Patent, Trademark or
Copyright, and each Grantor hereby appoints the Administrative Agent as its attorney-in-fact to
execute and file such writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is irrevocable.




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




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




          (h) Upon and during the continuance of an Event of Default, each Grantor shall use its
commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of
each Copyright License, Patent License or Trademark License to effect the assignment of all such
Grantor’s right, title and interest thereunder to the Administrative Agent or its designee.










 



25




ARTICLE V




Remedies




          SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an
Event of Default, each Grantor agrees to deliver each item of Collateral to the Administrative
Agent on demand, and it is agreed that the Administrative Agent shall have the right to take any of
or all the following actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become
an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable
Grantors to the Administrative Agent, or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral
throughout the world on such terms and conditions and in such manner as the Administrative Agent
shall determine (other than in violation of any then-existing licensing arrangements to the extent
that waivers cannot be obtained on commercially reasonable terms), and (b) with or without legal
process and with or without prior notice or demand for performance, to take possession of the
Article 9 Collateral and without liability for trespass to enter any premises where the Article 9
Collateral may be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured party under the
Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing,
each Grantor agrees that the Administrative Agent shall have the right, subject to the mandatory
requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral
at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon
credit or for future delivery as the Administrative Agent shall deem appropriate. The
Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable
to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing the Collateral for their own account for investment and not with a view to
the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent
shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of Collateral shall hold the property sold
absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor
now has or may at any time in the future have under any rule of law or statute now existing or
hereafter enacted.




          The Administrative Agent shall give the applicable Grantors 10 days’ written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or
its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or places as the







 



26




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




          SECTION 5.02. Application of Proceeds. The Administrative Agent shall apply the proceeds of
any collection or sale of Collateral, including any Collateral consisting of cash, as follows:





     FIRST, to the payment of all reasonable out-of-pocket costs and expenses incurred by
the Administrative Agent in connection with such collection or sale or otherwise in
connection with this Agreement, any other Loan Document or any of the Obligations,
including all court costs and the reasonable fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Administrative Agent hereunder or under
any other Loan Document on behalf of









 



27



any Grantor and any other reasonable out-of-pocket costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under any other Loan
Document;




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




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


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




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




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







 



28




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




          SECTION 5.05. Registration. Each Grantor agrees that, upon the occurrence and during the
continuance of an Event of Default, if for any reason the Administrative Agent desires to sell any
of the Pledged Collateral at a public sale, such Grantor will, at any time and from time to time,
upon the written request of the Administrative Agent, use its commercially reasonable efforts to
take or to cause the issuer of such Pledged Collateral to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable opinion of counsel for
the Administrative Agent to permit the public sale of such Pledged Collateral. Each Grantor
further agrees to indemnify, defend and hold harmless the Administrative Agent, each other Secured
Party, any underwriter and their respective officers, directors, affiliates and controlling persons
from and against all loss, liability, reasonable out-of-pocket expenses, reasonable costs of
counsel (including reasonable fees and expenses to the Administrative Agent of legal counsel), and
claims (including the reasonable costs of investigation) that they may incur insofar as such loss,
liability, expense or claim arises out of or is based upon any alleged untrue statement of a
material fact contained in any prospectus (or any amendment or supplement thereto) or in any
notification or offering circular, or arises out of or is based upon any alleged omission to state
a material fact required to be stated therein or necessary to make the statements in any thereof
not misleading, except insofar as the same may have been caused by any untrue statement or omission
based upon information furnished in writing to such Grantor or the issuer of such Pledged
Collateral by the Administrative Agent or any other Secured Party expressly for use therein. Each
Grantor further agrees, upon such written request referred to above, to use its







 



29




commercially reasonable efforts to qualify, file or register, or cause the issuer of such
Pledged Collateral to qualify, file or register, any of the Pledged Collateral under the Blue Sky
or other securities laws of such states as may be requested by the Administrative Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or registrations. Each
Grantor will bear all costs and expenses of carrying out its obligations under this Section 5.05.
Each Grantor acknowledges that there is no adequate remedy at law for failure by it to comply with
the provisions of this Section 5.05 and that such failure would not be adequately compensable in
damages, and therefore agrees that its agreements contained in this Section 5.05 may be
specifically enforced.




ARTICLE VI




Indemnity, Subrogation and Subordination




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




          SECTION 6.02. Contribution and Subrogation. Each US Borrower Subsidiary Party (a
“Contributing Party”) agrees (subject to Section 6.03) that, in the event a payment shall
be made by any other US Borrower Subsidiary Party hereunder in respect of any Obligation or assets
of any other US Borrower Subsidiary Party shall be sold pursuant to any Security Document to
satisfy any Obligation owed to any Secured Party and such other US Borrower Subsidiary Party (the
“Claiming Party”) shall not have been fully indemnified by the applicable Borrower as
provided in Section 6.01, the Contributing Party shall indemnify the Claiming Party in an amount
equal to the amount of such payment or the greater of the book value or the fair market value of
such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall
be the net worth of the Contributing Party on the date hereof and the denominator shall be the
aggregate net worth of all the US Borrower Subsidiary Parties on the date hereof (or, in the case
of any US Borrower Subsidiary Party becoming a party hereto pursuant to Section 7.14, the date of
the Guarantee and Collateral Agreement Supplement hereto executed and delivered by such US Borrower
Subsidiary Party). Any Contributing Party making any payment to a Claiming Party pursuant to this
Section 6.02 shall be subrogated to the rights of such Claiming Party under Section 6.01 to the
extent of such payment.




          SECTION 6.03. Subordination. (a) Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors and Grantors under







 



30




Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash
of the Obligations. No failure on the part of any Borrower or any Guarantor or Grantor to make the
payments required by Sections 6.01 and 6.02 (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and liabilities of any Guarantor or Grantor
with respect to its obligations hereunder, and each Guarantor or Grantor shall remain liable for
the full amount of the obligations of such Guarantor or Grantor hereunder.




          (b) Each Guarantor and Grantor hereby agrees that all Indebtedness and other monetary
obligations owed by it to any other Subsidiary shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations.




ARTICLE VII




Miscellaneous




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




          SECTION 7.02. Waivers; Amendment. (a) No failure or delay by the Administrative Agent, any
Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 7.02, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of such Default at the time. No notice to or demand on any
Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in
similar or other circumstances.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the
Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to
apply, subject to any consent required in accordance with Section 9.02 of the Credit Agreement.










 



31




          SECTION 7.03. Administrative Agent’s Fees and Expenses; Indemnification. (a) The parties
hereto agree that the Administrative Agent shall be entitled to reimbursement of its reasonable
out-of-pocket expenses incurred hereunder as provided in Section 9.03 of the Credit Agreement.




          (b) Without limitation of its indemnification obligations under the other Loan Documents,
each Grantor and each Guarantor agrees to indemnify the Administrative Agent and the other
Indemnitees (as defined in Section 9.03(b) of the Credit Agreement) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related reasonable
out-of-pocket expenses, including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee, reasonably incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the arrangement and the syndication of the credit facilities
provided for herein, the preparation, execution, delivery and administration of the Loan Documents
or any other agreement or instrument contemplated hereby, the performance by the parties to the
Loan Documents of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan, B/A or Letter of Credit or the use of
the proceeds therefrom (including any refusal by an Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or operated by Parent, the
Borrowers or any of the other Subsidiaries, or any Environmental Liability related in any way to
Parent, the Borrowers or any of the other Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto and
regardless of whether such matter is initiated by a third party or by Parent or any Affiliate
thereof, provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related reasonable out-of-pocket expenses
are determined by a court of competent jurisdiction by final and non-appealed judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee or such Indemnitee’s
violation of any applicable law or breach of its obligations under the Loan Documents.




          (c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section 7.03 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or
any other Secured Party. All amounts due under this Section 7.03 shall be payable on written
demand therefor.




          SECTION 7.04. Successors and Assigns. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted successors and assigns of
such party; and all covenants, promises and







 



32




agreements by or on behalf of any Guarantor, Grantor or the Administrative Agent that are
contained in this Agreement shall bind and inure to the benefit of their respective successors and
assigns.




          SECTION 7.05. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the Lenders and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any Lender or on its behalf and
notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under any
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated.




          SECTION 7.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall
become effective as to any Loan Party when a counterpart hereof executed on behalf of such Loan
Party shall have been delivered to the Administrative Agent and a counterpart hereof shall have
been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such Loan
Party and the Administrative Agent and their respective permitted successors and assigns, and shall
inure to the benefit of such Loan Party, the Administrative Agent and the other Secured Parties and
their respective successors and assigns, except that no Loan Party shall have the right to assign
or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and
any such assignment or transfer shall be void) except as expressly contemplated by this Agreement
or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to
each Loan Party and may be amended, modified, supplemented, waived or released with respect to any
Loan Party without the approval of any other Loan Party and without affecting the obligations of
any other Loan Party hereunder.




          SECTION 7.07. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or uneforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.










 



33




          SECTION 7.08. Right of Set-Off. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of any Subsidiary Loan
Party against any of and all the obligations of such Subsidiary Loan Party now or hereafter
existing under this Agreement owed to such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section 7.08 are in addition to other rights and remedies
(including other rights of set-off) which such Lender may have.




          SECTION 7.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




          (b) Each of Parent, the US Borrower and the Subsidiary Loan Parties hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final, non-appealed judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect
any right that Parent, the US Borrower, the Subsidiary Loan Parties, any Agent, any Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any
other Loan Document against any other party hereto or their properties in the courts of any
jurisdiction.




          (c) Each of Parent, the US Borrower and the Subsidiary Loan Parties hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court referred to in
paragraph (b) of this Section 7.09. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.




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










 



34




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




          SECTION 7.11. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or to be taken into consideration in interpreting, this Agreement.




          SECTION 7.12. Security Interest Absolute. All rights of the Administrative Agent hereunder,
the Security Interest, the grant of a security interest in the Pledged Collateral and all
obligations of each Grantor and Guarantor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan
Document, any agreement with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any other Loan Document or any other agreement
or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Grantor or Guarantor in respect of the
Obligations or this Agreement.




          SECTION 7.13. Termination or Release. (a) This Agreement, the Guarantees made herein, the
Security Interest and all other security interests granted hereby shall terminate when all the
outstanding Loan Document Obligations have been indefeasibly paid in full and the Lenders have no
further commitment to lend under the Credit Agreement, the LC Exposure has been reduced to zero and
the Issuing Banks have no further obligations to issue Letters of Credit under the Credit
Agreement.




          (b) A Subsidiary Loan Party shall automatically be released from its obligations hereunder
and the Security Interest in the Collateral of such Subsidiary Loan Party shall be automatically
released and all provisions of the Loan Documents shall cease to apply to such Subsidiary Loan
Party upon the consummation of any transaction permitted by the Credit Agreement as a result of
which such Subsidiary Loan Party







 



35




ceases to be a Subsidiary, provided that if so required by the Credit Agreement, the
Required Lenders shall have consented to such transaction and the terms of such consent did not
provide otherwise.




          (c) Upon any sale or other transfer by any Grantor (other than to Parent or any Subsidiary)
of any Collateral that is permitted under any Loan Document, or upon the effectiveness of any
written consent to the release of the security interest granted hereby in any Collateral pursuant
to Section 9.02 of the Credit Agreement, the security interest in such Collateral shall be
automatically released.




          (d) In connection with any termination or release pursuant to clause (a), (b) or (c) of this
Section 7.13, the Administrative Agent shall execute and deliver to any Grantor, at such Grantor’s
expense, all documents that such Grantor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section 7.13 shall be without
recourse to or warranty by the Administrative Agent.




          SECTION 7.14. Additional Subsidiaries. Each Domestic Subsidiary of a Loan Party that is not
a Foreign Subsidiary that was not in existence or not such a Subsidiary on the date of the Credit
Agreement is required to enter in this Agreement as a Subsidiary Loan Party in accordance with
Section 5.11 of the Credit Agreement. Upon execution and delivery by the Administrative Agent and
a Subsidiary of a Guarantee and Collateral Agreement Supplement, such Subsidiary shall become a
Subsidiary Loan Party hereunder with the same force and effect as if originally named as a
Subsidiary Loan Party herein. The execution and delivery of any such instrument shall not require
the consent of any other Loan Party hereunder. The rights and obligations of each Loan Party
hereunder shall remain in full force and effect notwithstanding the addition of any new Loan Party
as a party to this Agreement.




          SECTION 7.15. Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints
the Administrative Agent the attorney-in-fact of such Grantor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Administrative Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in the Administrative
Agent’s name or in the name of such Grantor (a) to receive, endorse, assign and/or deliver any and
all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the
Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and
give discharges and releases of all or any of the Collateral; (c) to sign the name of any Grantor
on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of
Accounts Receivable to any Account Debtor; (e) to commence and prosecute any and all suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise
realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f)
to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all













 






36



or any of the Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors to
make payment directly to the Administrative Agent; and (h) to use, sell, assign, transfer, pledge,
make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do
all other acts and things necessary to carry out the purposes of this Agreement, as fully and
completely as though the Administrative Agent were the absolute owner of the Collateral for all
purposes, provided that nothing herein contained shall be construed as requiring or
obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Administrative Agent, or to present or file any claim
or notice, or to take any action with respect to the Collateral or any part thereof or the moneys
due or to become due in respect thereof or any property covered thereby. The Administrative Agent
and the other Secured Parties shall be accountable only for amounts actually received as a result
of the exercise of the powers granted to them herein, and neither they nor their officers,
directors, employees or agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or wilful misconduct (as determined by a court of
competent jurisdiction by final and non-appealed judgment).




 









 





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



	 	 	 	 	 	 	 
	 	 	CCE SPINCO, INC.,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	/s/ Michael Rapino	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael Rapino	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SFX ENTERTAINMENT, INC.,	 	 
	 
	 	 	 	 	 	 
	 

	 	by
	 	/s/ Michael Rapino	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael Rapino	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 







 









 








	 	 	 	 	 	 	 
	 	 	EACH OF THE SUBSIDIARIES	 	 
	 	 	LISTED ON SCHEDULE I HERETO,	 	 
	 
	 	 	 	 	 	 
	 

	 	by
	 	/s/ Michael Rapino	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael Rapino	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 







 









 








	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., AS	 	 
	 	 	ADMINISTRATIVE AGENT,	 	 
	 
	 	 	 	 	 	 
	 

	 	by
	 	/s/
Thomas H. Kozlark	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	  Name: Thomas H. Kozlark	 
	 

	 	 	 	  Title:   Vice President