Exhibit 10.74


 


EXECUTION COPY


 




 


 





GUARANTEE AND COLLATERAL AGREEMENT



dated as of



September 22, 2005,



among


SSA GLOBAL
TECHNOLOGIES, INC.,


THE SUBSIDIARIES OF SSA GLOBAL
TECHNOLOGIES, INC.
IDENTIFIED HEREIN


 


and


 


JPMORGAN CHASE BANK, N.A.,



as Collateral Agent




 


 





[CS&M #6701-529]


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I

  

  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION
  1.01. Credit Agreement

  	
   

  
	
  SECTION 1.02. Certain Defined Terms

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  II

  

  Guarantee

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. Guarantees

  	
   

  
	
  SECTION 2.02. Guarantee of Payment

  	
   

  
	
  SECTION 2.03. No Limitations, Etc

  	
   

  
	
  SECTION 2.04. Reinstatement

  	
   

  
	
  SECTION 2.05. Agreement To Pay; Subrogation

  	
   

  
	
  SECTION 2.06. Information

  	
   

  
	
   

  	
   

  
	
  ARTICLE III

  

  Pledge of Securities

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. Pledge

  	
   

  
	
  SECTION 3.02. Delivery of the Pledged Collateral

  	
   

  
	
  SECTION 3.03. Representations, Warranties and Covenants

  	
   

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

  	
   

  
	
  SECTION 3.05. Registration in Nominee Name; Denominations

  	
   

  
	
  SECTION 3.06. Voting Rights; Dividends and Interest

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV

  

  Security Interests in Personal Property

  	
   

  
	
   

  	
   

  
	
  SECTION
  4.01. Security Interest

  	
   

  
	
  SECTION 4.02. Representations and Warranties

  	
   

  
	
  SECTION 4.03. Covenants

  	
   

  
	
  SECTION 4.04. Other Actions

  	
   

  
	
  SECTION 4.05. Covenants regarding Patent, Trademark and Copyright
  Collateral

  	
   

  



 





















 


	
  ARTICLE
  V

  

  Remedies

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01. Remedies upon Default

  	
   

  
	
  SECTION 5.02. Application of Proceeds

  	
   

  
	
  SECTION 5.03. Grant of License to Use Intellectual Property

  	
   

  
	
  SECTION 5.04. Securities Act, etc

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  

  Indemnity, Subrogation and Subordination

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. Indemnity and Subrogation

  	
   

  
	
  SECTION 6.02. Contribution and Subrogation

  	
   

  
	
  SECTION 6.03. Subordination

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VII

  

  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  SECTION
  7.01. Notices

  	
   

  
	
  SECTION
  7.02. Security Interest Absolute

  	
   

  
	
  SECTION
  7.03. Survival of Agreement

  	
   

  
	
  SECTION
  7.04. Binding Effect; Several Agreement

  	
   

  
	
  SECTION
  7.05. Successors and Assigns

  	
   

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

  	
   

  
	
  SECTION
  7.07. Collateral Agent Appointed Attorney-in-Fact

  	
   

  
	
  SECTION
  7.08. GOVERNING LAW

  	
   

  
	
  SECTION
  7.09. Waivers; Amendment

  	
   

  
	
  SECTION
  7.10. WAIVER OF JURY TRIAL

  	
   

  
	
  SECTION
  7.11. Severability

  	
   

  
	
  SECTION
  7.12. Counterparts

  	
   

  
	
  SECTION
  7.13. Headings

  	
   

  
	
  SECTION
  7.14. Jurisdiction; Consent to Service of Process

  	
   

  
	
  SECTION
  7.15. Additional Subsidiaries

  	
   

  
	
  SECTION
  7.16. Right of Setoff

  	
   

  
	
  SECTION
  7.17. Termination or Release

  	
   

  



 





















 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  Subsidiary
  Parties

  
	
  Schedule II

  	
  Equity
  Interests; Debt Securities

  
	
  Schedule III

  	
  Intellectual
  Property

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit I

  	
  Form of
  Supplement to the Collateral Agreement

  
	
  Exhibit II

  	
  Form of
  Deposit Account Control Agreement

  



 





















 


GUARANTEE AND
COLLATERAL AGREEMENT dated as of September 22, 2005, among SSA GLOBAL TECHNOLOGIES, INC., a Delaware
corporation (the “Borrower”), the Subsidiaries of the Borrower
identified herein and JPMORGAN CHASE BANK, N.A., a national banking association
(“JPMCB”), as collateral agent (in such capacity, the “Collateral
Agent”) for the Secured Parties (as defined below).


 


Reference is
made to the Credit Agreement dated as of September 22, 2005, (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the lenders from time to time party thereto (the “Lenders”)
and JPMCB, as Administrative Agent and Collateral Agent.  The Lenders have agreed to extend credit to
the Borrower on the terms and subject to the 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.  The
Subsidiary Parties are subsidiaries of the Borrower, will derive substantial
benefits from the extension of credit to the Borrower under the Credit
Agreement and are willing to execute and deliver this Agreement in order to
induce the Lenders to extend such credit. 
Accordingly, in consideration of the above recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, 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 (whether or not capitalized herein)
defined in the New York UCC and not otherwise defined in this Agreement shall
have the meanings assigned thereto in the New York UCC.  The term “instrument” shall have the meaning
specified in Article 9 of the New York UCC.


 


(b)  The rules of
construction specified in Article I of the Credit Agreement shall also
apply to this Agreement.


 


SECTION 1.02.  Certain
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.


 


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


 


“Borrower
Obligations” means (a) the due and punctual payment by the Borrower of
(i) the principal of and interest (including interest accruing during the


 





















 


pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations of the Borrower to any of the Secured Parties under the Credit
Agreement and each of the other Loan Documents, including obligations to pay
fees, expense and reimbursement obligations and indemnification obligations,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), (b) the due and punctual
performance of all other obligations of the Borrower under or pursuant to the Credit
Agreement and each of the other Loan Documents, (c) the due and punctual
payment and performance of all obligations of each Loan Party under each
Hedging 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 time such
Hedging Agreement is entered into and (d) the due and punctual payment and
performance of all obligations in respect of overdrafts and other liabilities
owed to any Lender (in its individual capacity) or any of its Affiliates and
arising from treasury, depositary or cash management services or in connection
with any automated clearinghouse transfers of funds.


 


“Collateral” means Article 9 Collateral and
Pledged Collateral.


 


“Concentration Account” means the cash collateral
account established at the office of JPMCB pursuant to Section 4.06.


 


“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 any 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 any 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,
as updated from time to time pursuant to Section 4.05(e).


 


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


 


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


 


“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in limited liability companies, beneficial interests in trusts or
other equity ownership interests in any Person and any warrants, options or
other rights to acquire any of the foregoing.


 


“Excluded Operating Account” means
payroll and other operating accounts of the Borrower or any other Grantor
identified as such in one or more notices delivered to the Collateral Agent
that are not used to receive (a) payments from any Account Debtor in
respect of Accounts or (b) payments in respect of Inventory, and
containing only such amounts as are required in the Borrower’s or such other
Grantor’s good faith judgment to meet ordinary course operating expenses
anticipated to be paid within 30 days.


 


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


 


“General Fund Account” means a general fund
account established at the office of JPMCB pursuant to Section 4.06.


 


“General Intangibles” means all “General
Intangibles”, as defined in the New York UCC, of any Grantor, including 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 such Grantor, including all rights and interests in partnerships,
limited partnerships, limited liability companies and other unincorporated
entities, corporate or other business records, indemnification claims, payment
intangibles, contract rights (including rights under leases, whether entered
into as lessor or lessee, Hedging Agreements and other agreements),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to any Grantor to secure payment by an Account Debtor of any
of the Accounts.


 


“Grantors” means the Borrower and the Subsidiary
Parties.


 


“Guarantor
Obligations” means the due and punctual payment and performance of all the
obligations of each Loan Party (other than the Borrower) under or pursuant to
this Agreement and each of the other Loan Documents.


 


“Guarantors”
means the Subsidiary Parties.


 


“Intellectual Property” means, as to any Grantor,
all Patents, Copyrights, Licenses and Trademarks now owned or hereafter
acquired by such Grantor.


 


“License” means any Patent License, Trademark
License, Copyright License or other license or sublicense containing an
explicit grant of Intellectual Property rights to which any Grantor is a party,
including but not limited to the Licenses listed on


 


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Schedule III, as updated
from time to time pursuant to Section 4.05(e).  It is agreed that no provision of this
Agreement will require the Grantors to list Licenses that are not Material
Licenses on Schedule III.


 


“Material
Licenses” means all Licenses other than Licenses under which Grantors
obtain the right to use Intellectual Property owned by Persons that are not
Affiliates of such Grantors to the extent such Licenses have individual book
values and fair market values less than $500,000.


 


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


 


“Obligations” means (a) the Borrower Obligations and (b) the
Guarantor Obligations.


 


“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 such 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, as updated from time to
time pursuant to Section 4.05(e), 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.


 


“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 §9-102 of
the New York UCC.


 


4





















 


“Secured Parties” means (a) the Lenders and
each Affiliate of a Lender to which any obligation referred to in clause (c) or
(d) of the definition of the term “Borrower Obligations” is owed, (b) the
Collateral Agent, (c) the Administrative Agent, (d) the Issuing Bank,
(e) the beneficiaries of each indemnification obligation undertaken by any
Loan Party under any Loan Document, (f) each other Person to which any of
the Obligations is owed and (g) the successors and permitted assigns of
each of the foregoing.


 


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


 


“Subsidiary Parties” means (a) the
Subsidiaries identified on Schedule I and (b) each other Subsidiary
that becomes a party to this Agreement as a Subsidiary Party as contemplated by
Section 7.15.  For the avoidance of
doubt, in no event shall “Subsidiary Parties” include Foreign Subsidiaries.


 


“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 such 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 and other source or business
identifiers, all registrations, applications and recordings thereof, and all
registration and application recordings filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office (except for intent-to-use applications for
trademark or service mark registrations filed pursuant to Section 1(b) of
the Lanham Act, 15 U.S.C. §1051, to the extent that any security interest of
the Collateral Agent therein could reasonably be expected to cause the
invalidation of such application and unless and until an Amendment of Alleged
Use or a Statement of Use under Section 1(c) or (d), as the case may
be, of such Act (or the equivalent) in respect thereof has been filed with, and
accepted by, 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, as updated from time to time pursuant to Section 4.05(e) and
(b) all goodwill associated therewith or symbolized thereby.


 


ARTICLE II


 


Guarantee


 


SECTION 2.01.  Guarantees.  Each Guarantor irrevocably and
unconditionally guarantees, jointly with the other Guarantors and severally, as
a primary obligor and not merely as a surety, the due and punctual payment and
performance of the Borrower Obligations. 
Each Guarantor further agrees that the Borrower Obligations may


 


5





















 


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 Borrower Obligation.  Each Guarantor waives presentment to, demand
of payment from and protest to the Borrower or any other Loan Party of any of
the Borrower Obligations, and also waives notice of acceptance of its
guarantee, notice of protest for nonpayment and all similar formalities.


 


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


 


SECTION 2.03.  No
Limitations, Etc.  (a)  Except
for termination of a Guarantor’s obligations hereunder as expressly provided in
Section 9.13 of the Credit Agreement, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Borrower 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, the Collateral Agent or any other Secured Party to assert any claim or
demand or to exercise or 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 failure to perfect any security
interest in, or the release of, any security held by the Collateral Agent or
any other Secured Party for the Borrower Obligations or any of them; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Borrower Obligations; or (v) any other act or omission that may or might
in any manner or to any extent vary the risk of such Guarantor or otherwise
operate as a discharge of such Guarantor as a matter of law or equity (other
than the payment in full in cash of all the Borrower Obligations).  Each Guarantor expressly authorizes the
Collateral Agent to take and hold security for the payment and performance of
the Borrower 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 its sole discretion or to
release or substitute any one or more other guarantors or obligors upon or in
respect of the Borrower Obligations, all without affecting the obligations of
such Guarantor hereunder.


 


(b)  To
the fullest extent permitted by applicable law, each Guarantor waives any
defense based on or arising out of any defense of the Borrower or any other
Loan Party or the unenforceability of the Borrower Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the
Borrower or any other Loan Party, other than the payment in full in cash of all
the Borrower Obligations.  The


 


6





















 


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


 


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


 


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


 


SECTION 2.06.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower’s and each other Loan Party’s
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Borrower Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Collateral 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 Obligations, each Grantor
hereby pledges to the Collateral Agent, its successors and permitted assigns,
for the benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors


 


7





















 


and permitted assigns, for the benefit of the Secured Parties, a
security interest in, all such Grantor’s right, title and interest in, to and
under (a) the Equity Interests directly owned by it and listed on Schedule II
and any other Equity Interests now owned by it or obtained by it in the future
and all certificates representing such Equity Interests (the “Pledged Stock”);
provided that the Pledged Stock shall not include Excluded Equity
Interests; (b)(i) the debt securities and intercompany loans and advances
listed opposite the name of such Grantor on Schedule II, (ii) any
other debt securities, intercompany loans or advances now owned or owed to or
in the future issued or owed to such Grantor and (iii) all promissory
notes and other instruments evidencing such debt securities or intercompany
loans or advances (the “Pledged Debt Securities”); (c)  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; (d) 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) and (c) above; and (e) all
Proceeds of any of the foregoing (the items referred to in clauses (a) through
(e) above being collectively referred to as the “Pledged Collateral”).


 


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


 


SECTION 3.02.  Delivery
of the Pledged Collateral.  (a) 
Each Grantor agrees promptly to deliver or cause to be delivered to the
Collateral Agent any and all Pledged Securities, except as otherwise excluded
under this Agreement.


 


(b)  Upon
delivery to the Collateral Agent, (i) any Pledged Securities shall, if “certificated”
(as defined in the New York UCC) or required to be certificated under Section 3.04
or Section 6.04(e) of the Credit Agreement, be accompanied by stock
or note powers, as the case may be, duly executed in blank or other instruments
of transfer reasonably satisfactory to the Collateral Agent and by such other
instruments and documents necessary (or that the Collateral Agent in good faith
after consultation with the applicable Grantor deems advisable) to perfect the
Collateral Agent’s interest under this Agreement 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 necessary (or that the Collateral Agent in
good faith after consultation with the applicable Grantor deems advisable) to
perfect the Collateral Agent’s security interest under this Agreement.  Each delivery of Pledged Securities shall be
accompanied by a schedule describing such Pledged 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 and shall not constitute a Default or an Event of
Default.  Each schedule so delivered
shall automatically supplement and modify any prior schedules so delivered.


 


8





















 


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


 


(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 the Pledged Stock and
correctly sets forth all Pledged Stock and Pledged Debt Securities required to
be pledged hereunder in order to satisfy the Collateral and Guarantee
Requirement;


 


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


 


(c) except for the security interests
granted hereunder, each Grantor (i) is and, subject to any sales,
transfers or other dispositions 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 being owned by such
Grantor, (ii) holds the same free and clear of all Liens, other than Liens
created by this Agreement and Liens permitted by Section 6.02 of the
Credit Agreement and (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,
Liens permitted by Section 6.02 of the Credit Agreement and sales,
transfers and other dispositions made in compliance with the Credit Agreement;


 


(d) except for restrictions and
limitations imposed by the Loan Documents or securities laws generally or any
other Requirement of Law or, to the extent permitted by Section 6.10 of
the Credit Agreement, the Pledged Collateral is and will continue to be freely
transferable and assignable, and none of the Pledged Collateral with book or
fair market value in excess of $500,000 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 adversely affect the pledge of such Pledged Collateral hereunder, the
sale or disposition thereof pursuant hereto or the exercise by the Collateral
Agent of rights and remedies hereunder, in each case, in any material respect,
except, in the case of Pledged Collateral that is issued by a Person that is
not a Grantor, any of the foregoing to the extent entered into, granted, issued
or permitted to exist by such Person other than at the request or demand of any
Grantor;


 


(e) each Grantor (i) has the power
and authority to pledge the Pledged Collateral pledged by it hereunder in the
manner hereby done or contemplated and (ii) will defend its title or
interest thereto or therein against any and all Liens


 


9





















 


(other than the Lien created by this Agreement and any Lien permitted
by Section 6.02 of the Credit Agreement), however, arising, of all Persons
whomsoever;


 


(f) no consent of any other Person
(including shareholders, partners, members or creditors of any Grantor) and no
consent or approval of any Governmental Authority, any securities exchange or
any other Person was or is necessary to the validity of the pledge of the
Pledged Collateral effected hereby (other than such as have been obtained and
are in full force and effect); and


 


(g) by virtue of the execution and
delivery by the Grantors of this Agreement, when any Pledged Securities are
delivered to the Collateral Agent in accordance with this Agreement, the
Collateral Agent will obtain a perfected lien
upon and security interest in such Pledged Securities as security for the
payment and performance of the Obligations, to the extent, in the case of
Pledged Securities of Foreign Subsidiaries, the perfection of such Pledged
Securities is governed by Article 9 of the Uniform Commercial Code.


 


SECTION 3.04.  Certification
of Limited Liability Company and Limited Partnership Interests.  (a)  The Grantors acknowledge and agree
that (i) each interest in any limited liability company or limited
partnership that is a Domestic Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia,
pledged hereunder and represented by a certificate, shall be a “security”
within the meaning of Article 8 of the New York UCC and shall be governed
by Article 8 of the New York UCC and (ii) each such interest shall at
all times hereafter be represented by a certificate.


 


(b)  The
Grantors further acknowledge and agree that (i) each interest in any
limited liability company or limited partnership that is a Domestic Subsidiary
organized under the laws of the United States of America, any State thereof or
the District of Columbia, pledged hereunder and not represented by a
certificate shall not be a “security” within the meaning of Article 8 of
the New York UCC and shall not be governed by Article 8 of the New York
UCC, and (ii) the Grantors shall at no time elect to treat any such
interest as a “security” within the meaning of Article 8 of the New York
UCC or cause or permit the issuance of any certificate representing such
interest, unless the applicable Grantor or Grantors provide prior written
notification to the Collateral Agent and immediately deliver any such
certificate to the Collateral Agent under this Agreement.


 


SECTION 3.05.  Registration
in Nominee Name; Denominations.  Upon
the occurrence and during the continuance of an Event of Default, the
Collateral Agent, on behalf of the Secured Parties, shall have the right to
hold the Pledged Securities in its own name as pledgee, the name of its nominee
(as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or
assigned in blank or in favor of the Collateral Agent.  The Collateral Agent shall, upon reasonable
request and following the occurrence and during the continuance of an Event of
Default, have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose consistent
with this Agreement.


 


10





















 


SECTION 3.06.  Voting
Rights; Dividends and Interest.  (a) 
Unless and until an Event of Default shall have occurred and be continuing and
the Collateral Agent shall have provided written notice to the Grantors that
their rights in respect of the Pledged Securities under this Section are
being suspended:


 


(i) Each Grantor shall be entitled to
exercise any and all voting and/or other 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.


 


(ii) The Collateral Agent shall execute
and deliver to each Grantor, or cause to be executed and delivered to such
Grantor, all such proxies, powers of attorney, certificates and other
instruments as such Grantor may reasonably request for the purpose of enabling
such Grantor to (A) exercise the voting and/or rights and powers it is
entitled to exercise pursuant to subparagraph (i) above, (B) receive
dividends, interest, principal and other distributions it is entitled to
receive pursuant to clause (iii) below and (C) sell, transfer or
otherwise dispose of Pledged Collateral to the extent permitted under the Credit
Agreement.


 


(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 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 Collateral
Agent and shall be subject to the security interest of the Collateral Agent for
the benefit of the Secured Parties.


 


(b)  Upon
the occurrence and during the continuance of an Event of Default, 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 shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to receive and retain such dividends, interest, principal or
other distributions.  All dividends,
interest, principal or other distributions received by any Grantor contrary to
the provisions of this Section shall be held in trust for the benefit of
the Collateral Agent, shall be segregated from other property or funds of such
Grantor and shall be forthwith delivered to the Collateral Agent upon demand in
the form in which so received (with any necessary endorsement).  Any


 


11





















 


and all money and other property paid over to or received by the
Collateral Agent pursuant to the provisions of this paragraph (b) shall be
retained by the Collateral Agent in an account to be established by the
Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 5.02.  To the extent not required to be applied as
provided herein, such deposits shall be invested in obligations (which shall be
selected by, and may be obligations of, the Collateral Agent) earning interest
at an overnight rate, which investments shall be made at the Borrower’s risk
and expense.  After all Events of Default
have been cured or waived and the Borrower has delivered to the Collateral
Agent a certificate to that effect and any acceleration of the Obligations has
been rescinded, nullified or otherwise cancelled, the Collateral Agent shall,
within 5 Business Days repay to each Grantor (with interest, if any) 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 and that remain in such account.


 


(c)  Upon
the occurrence and during the continuance of an Event of Default, after the
Collateral Agent shall have provided notice to the Grantors of the suspension
of their rights under sub-paragraph (a)(i) of this Section 3.06, all
rights of any Grantor to exercise the voting and consensual rights and powers
it is entitled to exercise pursuant to paragraph (a)(i) of this
Section, and the obligations of the Collateral Agent under paragraph (a)(ii) of
this Section, shall cease, and all such rights shall thereupon become vested in
the Collateral Agent, which shall have the sole and exclusive right and
authority to exercise such voting and consensual rights and powers; provided that, unless otherwise
directed by the Required Lenders, the Collateral Agent shall have the right
from time to time following the occurrence 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 Borrower has delivered to
the Collateral Agent a certificate to that effect, each Grantor will have the
right to exercise the voting and consensual rights and powers that such Grantor
would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.


 


ARTICLE IV


 


Security Interests in Personal Property


 


SECTION 4.01.  Security Interest.  (a)  As security for the Obligations,
each Grantor hereby pledges to the Collateral Agent, its successors and
permitted assigns, for the benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and permitted assigns, for the benefit of
the Secured Parties, a security interest (the “Security Interest”) in
all right, title and 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;


 


12





















 


(ii) all Chattel Paper;


 


(iii) all Deposit Accounts and all cash
and other assets therein;


 


(iv) all Documents;


 


(v) all Equipment;


 


(vi) all Fixtures;


 


(vii) all General Intangibles;


 


(viii) all Instruments;


 


(ix) all Inventory;


 


(x) all Investment Property;


 


(xi) all letter-of-credit rights;


 


(xii) all Commercial Tort Claims;


 


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


 


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


 


Notwithstanding the foregoing
and in addition to the limitations and qualifications set forth in the
definition of “Collateral and Guarantee Requirement”, the Article 9
Collateral shall not include (i) any Excluded Equity Interests, or (ii) any
rights of the Grantors under contracts, agreements (including Licenses),
permits and licenses to the extent that such contracts, agreements, permits or
licenses contain valid and effective prohibitions on the creation of security
interests in such rights (or give the applicable counterparty the right to
terminate any of the foregoing or constitute a breach thereunder or a violation
thereof) and consents from the applicable counterparties to the creation of the
Security Interest have not been obtained, except that rights under such
contracts will be included in the Article 9 Collateral to the extent that
such prohibitions are not enforceable by reason of the provisions of Section 9-406,
9-407, 9-408 or 9-409 of the applicable Uniform Commercial Code or any other
applicable law limiting the enforceability of restrictions on the creation of
security interests.  The Grantors agree
to use commercially reasonable efforts to obtain all such consents as may be
required in order that rights of the Grantors under contracts, agreements
(including Licenses), permits and licenses, to the extent such contracts,
agreements, permits or licenses, individually or in the aggregate, are material
to the business of the Borrower and its Subsidiaries taken as a whole, will not
be excluded from the Collateral by reason of the immediately preceding
sentence.


 


13





















 


(b)  Each
Grantor hereby irrevocably authorizes the Collateral Agent at any time and from
time to time to file (with copies to be delivered to the Borrower with
reasonable promptness after such filing) in any relevant jurisdiction, without
the signature of such Grantor, any initial financing statements (including
fixture filings) with respect to the Article 9 Collateral or any part
thereof and amendments thereto that the Collateral Agent determines to be
necessary (or that the Collateral Agent in good faith after consultation with
the applicable Grantor deems advisable) to perfect, confirm, continue, enforce
or protect the Security Interest granted by such Grantor, each such financing
statement or amendment to name such Grantor as debtor and the Collateral Agent
as secured party and to contain the information required by Article 9 of
the Uniform Commercial Code of each applicable jurisdiction.  Each Grantor agrees to provide such
information to the Collateral Agent promptly upon written request.


 


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


 


The Collateral
Agent is further authorized to file with the United States Patent and Trademark
Office and United States Copyright Office (or any successor office or any
similar office in any other country) such documents as it may determine to be
necessary (or that the Collateral Agent in good faith after consultation with
the applicable Grantor deems advisable) for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted
by any Grantor, without the signature of such Grantor, and naming such Grantor
or the Grantors as debtors and the Collateral Agent as secured party (with
copies to be delivered to the Borrower with reasonable promptness after such
filing).


 


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


 


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


 


(a)  Each
Grantor has good and valid rights in and title to the Article 9 Collateral
with respect to which it has granted a Security Interest hereunder and has full
power and authority to grant to the Collateral Agent 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 is in full force and effect or that is not required
after giving effect to any applicable law.


 


(b)  The Perfection
Certificate has been duly prepared, completed and executed and the information
set forth therein, including the exact legal name of each Grantor and the
jurisdiction of organization of each Grantor, is correct and complete in all
material respects as of the Effective Date. 
The Uniform Commercial Code financing


 


14





















 


statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations containing a description of the Article 9 Collateral
prepared by the Collateral Agent for filing in each governmental, municipal or
other office specified in Schedule 6 to the Perfection Certificate have
been reviewed by the Grantors and are acknowledged by the Grantors as being
complete and correct, and such financing statements, filings, recordings or
registrations 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 Article 9 Collateral consisting of United States Patents,
Trademarks and Copyrights) that are necessary as of the Effective Date to
publish notice of and protect the validity of and to establish a legal, valid
and perfected security interest in favor of the Collateral Agent (for the
ratable benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements or amendments.  Each Grantor shall ensure that a fully
executed agreement in the form hereof containing a description of all
Article 9 Collateral consisting of Intellectual Property with respect to
United States Patents and United States registered Trademarks (and Trademarks
for which applications for United States registration are pending) and United
States registered Copyrights have been delivered to the Collateral Agent for
recording with the United States Patent and Trademark Office and the United
States Copyright Office pursuant to 35 U.S.C. §261,
15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations
thereunder, as applicable, and otherwise as may be required pursuant to the
laws of any other applicable jurisdiction, to protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Collateral Agent (for the ratable benefit of the Secured Parties) in respect of
all Article 9 Collateral consisting of such Intellectual Property in which
a security interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof) and its territories
and possessions, or in any other necessary jurisdiction, and, assuming the
proper recordation thereof, no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in the
United States (other than such actions as are necessary to perfect the Security
Interest with respect to any Article 9 Collateral consisting of Patents,
Trademarks and Copyrights (or registration or application for registration
thereof) acquired or developed after the date hereof).


 


(c)  The
Security Interest constitutes (i) a legal and valid security interest in
all the Article 9 Collateral securing the payment and performance of the
Obligations, (ii) subject to the filings described in Section 4.02(b),
a perfected security interest in all 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 Article 9 Collateral in
which a security interest may be perfected upon the receipt and recording of
this Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable. 
The


 


15





















 


Security Interest is and shall be prior to any other Lien on any of the
Article 9 Collateral, other than Liens expressly permitted under Section 6.02
of the Credit Agreement.


 


(d)  The Article 9
Collateral is owned by the Grantors free and clear of any Lien, other than
Liens expressly permitted under Section 6.02 of the Credit Agreement.  None of the Grantors has filed or consented
to the filing of (i) any financing statement or analogous document under
the Uniform Commercial Code or any other applicable laws covering any Article 9
Collateral, (ii) any assignment in which any Grantor assigns any Article 9
Collateral or any security agreement or similar instrument covering any Article 9
Collateral with the United States Patent and Trademark Office or the United
States Copyright Office or (iii) any assignment in which any Grantor
assigns any Article 9 Collateral or any security agreement or similar
instrument covering any Article 9 Collateral with any foreign
governmental, municipal or other office, which financing statement or analogous
document, assignment, security agreement or similar instrument is still in
effect, except, in each case, for Liens expressly permitted under Section 6.02
of the Credit Agreement.


 


SECTION 4.03.  Covenants.  (a)  
Without limiting Section 5.03 of the Credit Agreement, each Grantor
agrees promptly (and in any event within 10 Business Days) to notify the
Collateral Agent in writing of any change (i)  in its legal name or type
of organization or (ii) in the ownership of any Equity Interest pledged
under this Agreement.  Each Grantor
agrees promptly to provide the Collateral Agent with certified organizational
documents reflecting any of the changes described in the immediately preceding
sentence.  Each Grantor agrees not to
effect or permit any change referred to in the first sentence of this paragraph
unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at
all times following such change to have a valid, legal and perfected first
priority security interest in all the Article 9 Collateral in which a
security interest may be perfected.


 


(b)  Each
Grantor agrees to comply with the obligations set forth in Section 5.09 of
the Credit Agreement as if they were obligations of such Grantor.


 


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


 


(d)  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 Collateral Agent may from time to time 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 any 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 amounts payable under or in connection
with


 


16





















 


any of the Article 9 Collateral shall become evidenced by any
promissory notes or other instruments, the Grantors shall promptly notify the
Collateral Agent thereof to the extent such promissory notes or other
instruments have individual principal amounts exceeding $500,000, and such
promissory notes or other instruments shall be promptly pledged and delivered
to the Collateral Agent, duly endorsed, in accordance with Section 3.02.


 


(e) 
Subject to Section 5.09 of the Credit Agreement, representatives
designated by the Collateral Agent and/or, upon the request of the Required
Lenders, any Lender shall have the right, at the Grantors’ own cost and expense
and upon reasonable prior notice, (i) so long as no Event of Default has
occurred and continuing, not more than twice in any one calendar year, 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 (ii) to verify under
reasonable procedures, in accordance with Section 5.03 of the Credit
Agreement, the validity, amount, quality, quantity, value, condition and status
of, or any other matter relating to, the Article 9 Collateral, including,
so long as an Event of Default has occurred and is continuing, 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; provided, that
the Borrower may restrict the access of such representatives to
(x) materials protected by the attorney-client privilege where, in the
judgment of the Borrower, such access might endanger such privilege,
(y) materials which the Borrower or any Subsidiary may not disclose
without violation of confidentiality obligations binding on it and (z) trade
secrets and similar proprietary information. 
Subject to Section 9.12 of the Credit Agreement, the Collateral
Agent shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party.


 


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


 


(g)  If
at any time any Grantor shall take one or more security interests in any
property of an Account Debtor or any other Person to secure payment and
performance of an Account or Accounts in an individual outstanding amount
exceeding $500,000 that constitute Article 9 Collateral, such Grantor
shall promptly assign such


 


17





















 


security interests to the Collateral Agent.  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.


 


(h)  Each
Grantor shall remain liable to observe and perform all the conditions and
obligations to be observed and performed by it under each contract, agreement
or instrument relating to the Article 9 Collateral, all in accordance with
the terms and conditions thereof, and each Grantor jointly and severally agrees
to indemnify and hold harmless the Collateral Agent and the Secured Parties
from and against any and all liability for such performance, except to the
extent that such liability is determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the bad faith, gross
negligence or willful misconduct of the Collateral Agent or such Secured Party,
as the case may be.


 


(i)  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 to the extent not prohibited
by Section 6.02 of the Credit Agreement. 
None of the Grantors shall make or permit to be made any sale, lease,
transfer or other disposition of the Article 9 Collateral, except to the
extent not prohibited by Section 6.04 of the Credit Agreement.  Each Grantor agrees that it shall not permit
any Inventory with an aggregate book value exceeding $500,000 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 Collateral Agent, that such
warehouseman, agent, bailee or processor holds the Inventory for the benefit of
the Collateral Agent subject to the Security Interest and shall act upon the
instructions of the Collateral Agent without further consent from the Grantor,
and that such warehouseman, agent, bailee or processor further agrees to waive
and release any Lien held by it with respect to such Inventory, whether arising
by operation of law or otherwise.


 


(j)  None of the Grantors will, without the
Collateral Agent’s prior written consent, grant any extension of the time of
payment of any Accounts included in the Article 9 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 (i) 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, or (ii) to
the extent permitted by Section 6.05 of the Credit Agreement.


 


(k)  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
Section 5.07 of the Credit Agreement. 
Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent
(and all


 


18





















 


officers, employees or agents designated by the Collateral Agent) as
such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose,
upon the occurrence and during the continuance of an Event of Default, of
making, settling and adjusting claims in respect of Article 9 Collateral
under policies of insurance, endorsing the name of such Grantor on any check,
draft, instrument or other item of payment for the proceeds of such policies of
insurance and for making all determinations and decisions with respect
thereto.  In the event that any Grantor
at any time or times shall fail to obtain or maintain any of the policies of
insurance required hereby or under the Credit Agreement or to pay any premium
relating thereto in whole or part when due, the Collateral Agent may, after the
expiration of any applicable cure or grace period provided for herein or in the
Credit Agreement, 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 premiums and take any other
actions with respect thereto as the Collateral Agent deems advisable.  All sums disbursed by the Collateral Agent in
connection with this paragraph, including court costs, expenses, reasonable
attorneys’ fees and other charges relating thereto, shall be payable, upon
demand, by the Grantors to the Collateral Agent and shall be additional
Obligations secured hereby.


 


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


 


(a) Instruments
and Tangible Chattel Paper.  If any
Grantor shall at any time hold or acquire any Instruments or Tangible Chattel
Paper in an individual principal amount exceeding $500,000 (other than checks
and other payment Instruments received in the ordinary course of business which
are not expected to be held (and are not held) by the applicable Grantor for a
period in excess of 30 days) included in the Article 9 Collateral, such
Grantor shall forthwith endorse, assign and deliver the same to the Collateral
Agent, accompanied by such instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time reasonably specify.


 


(b) Deposit
Accounts.  For each deposit account
that any Grantor at any time opens or maintains, such Grantor shall cause
the depositary bank to enter into a Deposit Account Control Agreement among
such Grantor, the depositary bank and the Collateral Agent substantially in the
form set forth in Exhibit II hereto or in such other form as shall be
reasonably acceptable to the Collateral Agent, (x) in the case of any such
deposit account in existence on the Effective Date, not later than the date set
forth in the Post-Closing Letter for the satisfaction thereof and (y) in
the case of any such deposit account opened after the Effective Date, as
promptly as practicable (and in no event later than 30 days) after the
opening thereof.  The Collateral Agent
agrees with each Grantor that the Collateral Agent shall not withdraw funds
from, or direct or give instructions to the depositary bank with respect to the
funds of, any such deposit account, in each case unless an Event of Default
under clause (a), (b), (h) or (i) of Section 7.01 of the Credit
Agreement has occurred and is continuing or the maturity of the Loans shall
have been accelerated.  The provisions of
this paragraph shall not apply to (A) any deposit account


 


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for which the Collateral Agent is the depositary, (B) any Excluded
Operating Account or (C) other accounts of the Grantors that at all times
have an aggregate balance for all such accounts of less than $5,000,000; provided
that each such account shall be identified as such in one or more notices
delivered to the Collateral Agent.  No
Grantor will (x) deposit funds in any deposit account (other than (x) an
Excluded Operating Account, (y) one or more accounts referred to in clause (C) of
the preceding sentence or (z) prior to the date set forth in the Post-Closing
Letter for the execution of a Deposit Account Control Agreement in respect
thereof, any deposit account existing on the Effective Date) until a Deposit
Account Control Agreement shall have been entered into with respect to such
deposit account, or (y) at any time deposit any funds in an Excluded Operating
Account or account referred to in clause (C) of the preceding sentence if
such deposit would result in such account no longer being a Excluded Operating
Account or the aggregate amount on deposit in all accounts referred to in such
clause (C) exceeding $5,000,000.


 


(c) Investment
Property.  Except to the extent
otherwise permitted by Article III, if any Grantor shall at any time hold
or acquire any Certificated Securities (x) of any Subsidiary or (y) of any
other Person with an individual outstanding fair market value exceeding
$500,000 (other than, in the case of each of the foregoing clauses (x) and (y),
Excluded Equity Interests), then, in each case, such Grantor shall promptly
(but in any event within 5 Business Days) notify the Collateral Agent thereof
and, upon the written request of the Collateral Agent, forthwith endorse,
assign and deliver all of such Certificated Securities (other than any Excluded
Equity Interests) to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent may from
time to time reasonably 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 promptly (but in any event within 5 Business Days) notify the
Collateral Agent thereof and, at the Collateral Agent’s request and option, use
commercially reasonable efforts to either (i) cause the issuer to agree to
comply with instructions from the Collateral Agent as to such securities,
without further consent of any Grantor or such nominee, or (ii) arrange
for the Collateral Agent to become the registered owner of the securities.  If any securities in an individual fair
market value exceeding $500,000, 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 promptly notify the Collateral Agent thereof
and, at the Collateral Agent’s request and option, either (A) use
commercially reasonable efforts to cause such securities intermediary or
commodity intermediary (as the case may be) to agree to comply with entitlement
orders or other instructions from the Collateral Agent to, in the case of a
securities entitlement, such securities intermediary as to such securities
entitlement, or, in the case of a commodity contract, to apply any value
distributed on account of such commodity contract as directed by the Collateral
Agent to such commodity intermediary, in each case without further consent of
any Grantor or such nominee, or (B) in the case of Financial Assets or
other Investment Property held through a securities intermediary, arrange for
the Collateral Agent to become the entitlement holder with respect to such
investment property, with the Grantor being permitted, only with the consent of
the Collateral Agent, to exercise rights to withdraw or otherwise deal with
such investment property.  The Collateral
Agent agrees with each Grantor that the


 


20





















 


Collateral 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
under clause (a), (b), (h) or (i) of Section 7.01 of the Credit
Agreement has occurred and is continuing or the maturity of the Loans shall
have been accelerated.  The provisions of
this paragraph shall not apply to any financial assets credited to a securities
account for which the Collateral Agent is the securities intermediary.  Notwithstanding anything to the contrary in
this clause (c), no Grantor shall be required to pledge any Excluded Equity
Interests.


 


(d) Electronic Chattel Paper and Transferable Records.  If any Grantor at any time hold or acquire
any interests in any Electronic Chattel Paper or any “transferable records,” as
that term is defined in §201 of the Federal Electronic Signatures in Global and
National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as
in effect in any relevant jurisdiction, in each case, in an individual amount
exceeding $500,000, such Grantor shall promptly notify the Collateral Agent
thereof and, at the request of the Collateral Agent, shall take such action as
the Collateral Agent may reasonably request to vest in the Collateral Agent
control under New York UCC §9-105 of such Electronic Chattel Paper or control
under §201 of the Federal Electronic Signatures in Global and National Commerce
Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as
so in effect in such jurisdiction, of such transferable record.  The Collateral Agent agrees with each such
Grantor that the Collateral Agent will arrange, pursuant to procedures
reasonably satisfactory to the Collateral Agent and so long as such procedures
will not result in the Collateral Agent’s loss of control, for such Grantor to
make alterations to the Electronic Chattel Paper or transferable record
permitted under New York UCC §9-105 or, as the case may be, §201 of the Federal
Electronic Signatures in Global and National Commerce Act or §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
beneficiaries under one or more letters of credit in an individual amount
exceeding $500,000 now or hereafter issued in favor of such Grantor, such
Grantor shall promptly notify the Collateral Agent thereof and, upon the
written request and option of the Collateral Agent, such Grantor shall,
pursuant to an agreement in form and substance reasonably satisfactory to the
Collateral Agent, use commercially reasonable efforts to arrange for the issuer
and any confirmer of such letter of credit to consent to an assignment to the
Collateral Agent of the proceeds of any drawing under such letter of credit
with the Collateral Agent agreeing that the proceeds of any drawing under the
letter of credit are to be paid to such Grantor unless an Event of Default has occurred
and is continuing, in which case such proceeds shall be applied to the
repayment of Loans in the manner set forth in the Credit Agreement.


 


(f) Commercial Tort Claims. 
If any Grantor shall at any time hold or acquire a Commercial Tort
Claims in an individual amount exceeding $500,000, and an


 


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allegation of the occurrence of a commercial
tort with respect to such Commercial Tort Claim has been filed with a court of
competent jurisdiction, such Grantor shall promptly (but in any event within 5
Business Days) notify the Collateral Agent in a writing signed by such Grantor
of the brief details thereof and grant to the Collateral 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 Collateral Agent.


 


SECTION 4.05.  Covenants
regarding Patent, Trademark and Copyright Collateral.  (a)  Each Grantor agrees that it will not
do or omit to do any act whereby any Patent owned by such Grantor 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 such Patent with the relevant patent number as sufficient to
establish and preserve its rights under applicable patent laws, except where
the failure could not reasonably be expected to result in a material diminution
in the value of the Collateral.


 


(b)  Each
Grantor will, for each Trademark owned by such Grantor that is 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
sufficient to establish and preserve its rights under applicable law, in each
case of clauses (i) through (iii), except where the failure could not
reasonably be expected to result in a material diminution in the value of the
Collateral, and (iv) not knowingly use or knowingly permit the use of such
Trademark in violation of any third party rights, except for violations that,
taken as a whole, could not reasonably be expected to result in a Material
Adverse Effect.


 


(c)  Each
Grantor will, for each work covered by a Copyright owned by such Grantor that
is material to the conduct of such Grantor’s business, continue to publish,
reproduce, display, adopt and distribute the work with appropriate copyright
notice as sufficient to establish and preserve its rights under applicable
copyright laws, except where the failure could not reasonably be expected to
result in a material diminution in the value of the Collateral.


 


(d)  Each
Grantor shall notify the Collateral Agent promptly (but in any event within 5
Business Days) if it knows or has reason to know that any Patent, Trademark or
Copyright material to the conduct of such Grantor’s 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 country) regarding such Grantor’s ownership of any such Patent,
Trademark or Copyright, its right to register the same, or its right to keep
and maintain the same.


 


(e)  In
the event any Grantor, either itself or through any agent, employee, licensee
or designee, files an application for any Patent or for the registration of any


 


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Trademark or Copyright with the United States Patent and Trademark
Office, the 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, or becomes party to any new Material License, it
shall notify the Collateral Agent within 5 days after the end of the calendar
quarter in which it makes any such filing or becomes a party thereto.  Each Grantor shall inform the Collateral
Agent within 5 days after the end of the calendar quarter in which it has filed
an Amendment of Alleged Use or a Statement of Use under Section 1(c) or
(d), as the case may be, of the Lanham Act, 15 U.S.C. § 1051, with respect
to an intent-to-use application for trademark or service mark
registration.  Upon the request of the
Collateral Agent, such Grantor shall execute and deliver any and all
agreements, instruments, documents and papers as the Collateral Agent may
reasonably request (including, for the avoidance of doubt, modifications of Schedule III
hereto to include any such Intellectual Property) to evidence the Collateral
Agent’s security interest in any such Patent, Trademark, Copyright or Material
License, and each Grantor hereby appoints the Collateral Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed; such power,
being coupled with an interest, is irrevocable; provided that no Grantor
is required to notify the Collateral Agent or perform any such acts with
respect to any Patent, Trademark or Copyright deemed by such Grantor in the
exercise of its reasonable judgment to be no longer useful or of any material
economic value.


 


(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, the 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 owned by such Grantor (and to obtain the relevant
grant or registration) and to maintain each issued Patent owned by such Grantor
and each registration of the Trademarks and Copyrights owned by such Grantor
that is material to the conduct of such 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 or defend opposition, interference and
cancellation proceedings against third parties.


 


(g)  In
the event that any Grantor knows or has reason to believe that any Article 9
Collateral consisting of a Patent, Trademark or Copyright owned by such Grantor
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 Collateral Agent and shall, unless the board of directors of
such Grantor deems such action not to be desirable and further deems that the
failure to take such action would not materially and adversely affect the
rights of the Lenders, 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
the occurrence and during the continuance of an Event of Default, each Grantor
shall use its commercially reasonable efforts to obtain all requisite


 


23





















 


consents or approvals from the licensor under each license consisting
of a Copyright License, Patent License or Trademark License to effect the
assignment of all such Grantor’s right, title and interest thereunder to the
Collateral Agent or its designee.


 


ARTICLE V


 


Remedies


 


SECTION 5.01.  Remedies
upon Default.  Upon the occurrence
and during the continuance of an Event of Default, each Grantor agrees to
deliver each item of Collateral to the Collateral Agent on demand, and it is
agreed that the Collateral Agent shall have the right to take any of or all the
following actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause its
Security Interest to become an assignment, transfer and conveyance of any of or
all such Article 9 Collateral by the applicable Grantors to the Collateral
Agent, or to grant any license or sublicense, whether general, special or
otherwise, and whether on an exclusive or nonexclusive basis, with respect to
any such Article 9 Collateral throughout the world on such terms and
conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then-existing licensing arrangements to the extent
that waivers cannot be obtained), and (b) with or without legal process
and with or without prior notice or demand for performance and, subject to any
limitations set forth in paragraph (b) or (c) of Section 4.04,
to take possession of the Article 9 Collateral and without liability for
trespass to enter any premises where the Article 9 Collateral may be
located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law.  Without limiting the generality of the
foregoing, each Grantor agrees that the Collateral Agent shall have the right,
subject to the 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 Collateral Agent shall deem appropriate.  The Collateral Agent shall be authorized at
any such sale of securities (if it deems it advisable in view of securities law
and other legal considerations 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 of Collateral
the Collateral Agent shall have the right to assign, transfer and deliver to
the purchaser or purchasers thereof the Collateral so sold.  Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
any Grantor, and each Grantor hereby waives and releases (to the extent
permitted by law) all rights of redemption, stay, valuation and appraisal that
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.


 


In the case of
any Collateral that constitutes Article 9 Collateral, the Collateral Agent
shall give the applicable Grantors 10 days’ prior written notice (which
each Grantor agrees is reasonable notice within the meaning of §9-611 of the
New York UCC or its equivalent in other jurisdictions) of the Collateral
Agent’s intention to make


 


24





















 


any sale of Collateral.  Such notice, in the case of a public sale,
shall state the time and place for such sale and, in the case of a sale at a
broker’s board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or
portion thereof, will first be offered for sale at such board or exchange.  Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale.  At any such sale, the Collateral , or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine.  The Collateral Agent shall
not be obligated to make any sale of any Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of such Collateral shall
have been given.  The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned.  In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid by the
purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. 
At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase for cash,
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 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 any Collateral or
portion thereof shall be treated as a sale thereof; the Collateral Agent shall
be free to carry out such sale pursuant to such agreement and no Grantor shall
be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Collateral Agent shall have
entered into such an agreement all Events of Default shall have been remedied
and the Obligations paid in full.  As an
alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.  Any sale pursuant to the provisions of this Section 5.01
shall be deemed to conform to the commercially reasonable standards as provided
in §9-504(3) of the New York UCC or its equivalent in other
jurisdictions.


 


SECTION 5.02.  Application
of Proceeds.  The Collateral Agent
shall apply the proceeds of the collection or sale of, or foreclosure or other
realization upon, any Collateral, as well as any Collateral consisting of cash,
as follows:


 


FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent and the Collateral Agent in connection with such
collection or sale or otherwise in connection with this Agreement, any other
Loan Document or, or otherwise in connection with any of the Obligations,
including all court


 


25





















 


costs and the fees and expenses of its agents
and legal counsel, the repayment of all advances made by the Administrative
Agent or the Collateral Agent hereunder or under any other Loan Document on
behalf of any Grantor and any other 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 Collateral
Agent shall have absolute discretion as to the time of application of any such
proceeds, moneys or balances in accordance with this Agreement.  Upon any sale of Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the purchase money by the Collateral Agent
or of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or purchasers
shall not be obligated to see to the application of any part of the purchase
money paid over to the Collateral Agent or such officer or be answerable in any
way for the misapplication thereof.


 


SECTION 5.03.  Grant of
License to Use Intellectual Property. 
Each Grantor hereby grants to the Collateral Agent, solely to the extent
necessary to enable the Collateral Agent to exercise rights and remedies under
this Agreement at such time as the Collateral Agent shall be lawfully entitled
to exercise such rights and remedies, 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, 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 Collateral Agent shall be exercised, at the option
of the Collateral Agent, only upon the occurrence and during the continuation
of an Event of Default; provided that any license, sublicense or other
transaction entered into by the Collateral Agent in accordance herewith shall
be binding upon the Grantors notwithstanding any subsequent cure of any Event
of Default.


 


SECTION 5.04.  Securities
Act, etc.  In view of the position of
the Grantors in relation to the Pledged Securities, 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 Securities permitted hereunder.  Each Grantor understands that compliance with
the Federal Securities Laws might very strictly limit the course of conduct of
the Collateral Agent if the Collateral


 


26





















 


Agent were to attempt to dispose of all or any part of the Pledged
Securities, and might also limit the extent to which or the manner in which any
subsequent transferee of any Pledged Securities could dispose of the same.  Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Securities under applicable “blue sky” or
other state securities laws or similar laws analogous in purpose or
effect.  Each Grantor recognizes that in
light of such restrictions and limitations the Collateral Agent may, with
respect to any sale of the Pledged Securities, limit the purchasers to those
who will agree, among other things, to acquire such Pledged Securities for
their own account, for investment, and not with a view to the distribution or
resale thereof.  Each Grantor
acknowledges and agrees that in light of such restrictions and limitations, the
Collateral Agent, in its sole and absolute discretion (a) may proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Securities 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 Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities at a price that the Collateral Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a single purchaser were approached.  The provisions of this Section 5.04 will
apply notwithstanding the existence of a public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.


 


ARTICLE VI


 


Indemnity, Subrogation and Subordination


 


SECTION 6.01.  Indemnity
and Subrogation.  In addition to all
such rights of indemnity and subrogation as the Grantors and Guarantors may
have under applicable law (but subject to Section 6.03), the Borrower
agrees that (a) in the event a payment shall be made by any Guarantor
under this Agreement in respect of an Obligation, the Borrower shall indemnify
such Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the Person to whom such payment shall have been
made to the extent of such payment and (b) in the event any assets of any
Grantor shall be sold pursuant to any Security Document to satisfy in whole or
in part an Obligation, the 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 Guarantor and
Grantor (a “Contributing Party”) agrees (subject to Section 6.03)
that, in the event a payment shall be made by any other Guarantor hereunder in
respect of any Obligation or assets of any other Grantor shall be sold pursuant
to any Security Document to satisfy any Obligation Owed to any Secured Party
and such other Guarantor or Grantor (the “Claiming Party”) shall not
have been fully indemnified by the Borrower as provided in


 


27





















 


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 Guarantors and Grantors on the date hereof (or,
in the case of any Guarantor or Grantor becoming a party hereto pursuant to Section 7.14,
the date of the supplement hereto executed and delivered by such Guarantor or
Grantor).  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
Sections 6.01 and 6.02 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to
the payment in full in cash of the Obligations, and no Guarantor or Grantor
shall seek to enforce any of such rights until the Obligations have been paid
in full.  No failure on the part of the
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 and 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 Guarantor, Grantor or any other Subsidiary
shall be fully subordinated to the 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 given as provided in
the Credit Agreement.  All communications
and notices hereunder to any Subsidiary Party shall be given to it in care of
the Borrower as provided in Section 10.01 of the Credit Agreement.


 


SECTION 7.02.  Security Interest Absolute.  All rights of the Collateral Agent hereunder,
the Security Interest, the grant of a security interest in the Pledged
Collateral and all obligations of each Grantor 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,


 


28





















 


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, except payment in full in cash of the Obligations.


 


SECTION 7.03.  Survival of Agreement.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the other Secured Parties and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and the issuance of any Letters of Credit, regardless of any
investigation made by any Lender or other Secured Party or on its behalf and
notwithstanding that the Administrative Agent, the Collateral Agent, the
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 7.04.  Binding Effect; Several Agreement.  This Agreement shall become effective as to
any Loan Party when a counterpart hereof executed on behalf of such Loan Party
shall have been delivered to the Administrative Agent and a counterpart hereof
shall have been executed on behalf of the Collateral Agent, and thereafter
shall be binding upon such Loan Party and the Collateral Agent and their
respective successors and permitted assigns, and shall inure to the benefit of
such Loan Party, the Collateral Agent and the other Secured Parties and their
respective successors and permitted assigns, except that no Loan Party shall
have the right to assign or transfer its rights or obligations hereunder or any
interest herein or in the Collateral (and any such assignment or transfer shall
be void) except as expressly contemplated by this Agreement or the Credit
Agreement.  This Agreement shall be
construed as a separate agreement with respect to each Loan Party and may be
amended, modified, supplemented, waived or released with respect to any Loan
Party without the approval of any other Loan Party and without affecting the
obligations of any other Loan Party hereunder.


 


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


 


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


 


29





















 


(b) 
Without limitation of its indemnification obligations under the other Loan
Documents, each Grantor and each Guarantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees (as defined in the
Credit Agreement) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, arising out of, in
connection with, or as a result of, the execution, delivery or performance of
this Agreement or any agreement or instrument contemplated hereby or any claim,
litigation, investigation or proceeding relating to any of the foregoing or to
the Collateral, whether instituted by any Grantor or whether any Indemnitee is
a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful
misconduct of such Indemnitee; provided further that Section 2.16
of the Credit Agreement, and not this paragraph, shall apply with respect to
any Taxes on amounts paid by the Borrower under the Credit Agreement or under
any other Loan Document and to Excluded Taxes and Other Taxes.


 


(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 shall
remain operative and in full force and effect regardless of the termination of
this Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Collateral Agent or
any other Secured Party.  All amounts due
under this Section shall be payable on written demand therefor.


 


SECTION 7.07.  Collateral Agent Appointed Attorney-in-Fact.  Each Grantor hereby appoints the Collateral
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 Collateral Agent may deem necessary (or that the Collateral Agent in
good faith after consultation with the applicable Grantor deems advisable) to
accomplish the purposes hereof, in each case exercisable only upon the
occurrence and during the continuance of an Event of Default, which appointment
is irrevocable and coupled with an interest. 
Without limiting the generality of the foregoing, the Collateral Agent
shall have the right, upon the occurrence and during the continuance of an
Event of Default, with full power of substitution either in the Collateral
Agent’s name or in the name of such 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 ask
for, demand, sue for, collect, receive and give acquittance for any and all
moneys due or to become due under and by virtue of any Collateral; (d) to
sign the name of any Grantor on any invoice or bill of lading relating to any
of the Collateral; (e) to send verifications of Accounts to any Account
Debtor; (f) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of


 


30





















 


competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (g) to
settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to all or any of the Collateral; (h) to notify, or to
require any Grantor to notify, Account Debtors to make payment directly to the
Collateral Agent; and (i) 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 Collateral Agent were the
absolute owner of the Collateral for all purposes; provided that nothing
herein contained shall be construed as requiring or obligating the Collateral
Agent to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or
any property covered thereby.  The
Collateral Agent and the other Secured Parties shall be accountable only for
amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own bad faith, gross negligence or willful
misconduct.


 


SECTION 7.08.  GOVERNING
LAW.  THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


SECTION 7.09.  Waivers; Amendment.  (a)  No failure or delay by the
Administrative Agent, the Collateral Agent or any other Secured Party in
exercising any right, power or remedy hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy, or any abandonment or
discontinuance of steps to enforce such a right, power or remedy, preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.  The rights and remedies of the
Administrative Agent, the Collateral Agent and the other Secured Parties
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, 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, no extension of credit by any Secured Party under the Credit
Agreement or otherwise shall be construed as a waiver of any default hereunder,
regardless of whether the Administrative Agent, the Collateral Agent or any
other Secured Party may have had notice or knowledge of such default at the
time.  No notice or demand on any Loan
Party in any case shall entitle such Loan Party to any other or further notice
or demand in similar or other circumstances.


 


31





















 


(b) 
Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Collateral Agent 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.


 


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.  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
unenforceability in such jurisdiction 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 hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 7.12.  Counterparts.  This Agreement may be executed and delivered
in counterparts, each of which shall constitute an original but all of which
when taken together shall constitute a single contract, and shall become
effective as provided in this Section. 
Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.


 


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


 


SECTION 7.14.  Jurisdiction; Consent to Service of
Process.  (a)  Each of the 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


 


32





















 


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 judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Grantor or Guarantor, or its properties in
the courts of any jurisdiction.


 


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


 


(c)  Each
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.


 


SECTION 7.15.  Additional Subsidiaries.  Pursuant to Sections 5.11 and 5.12 of
the Credit Agreement, certain Subsidiaries may be required to enter into this
Agreement as Subsidiary Parties.  Upon
execution and delivery by the Collateral Agent and a Subsidiary of an
instrument in the form of Exhibit I hereto, such Subsidiary shall become a
Subsidiary Party hereunder with the same force and effect as if originally
named as a Subsidiary 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 7.16.  Right of Setoff.  If an Event of Default under clause (a), (b),
(h) or (i) of Section 7.01 of the Credit Agreement shall have
occurred and be continuing or following an acceleration of the maturity of the
Loans, 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 the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this
Agreement held by 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


 


33





















 


rights of each Lender under this Section are in addition to and
shall not limit other rights and remedies (including other rights of setoff)
which such Lender may have.


 


SECTION 7.17.  Termination or Release.  (a)  This Agreement, the Guarantees made
herein and all security interests granted hereby shall terminate when the
Loans, the Borrower’s obligations to reimburse the Issuing Bank pursuant to Section 2.04(e) of
the Credit Agreement for outstanding LC Disbursements, all accrued interest and
fees under this Agreement, and all other obligations under the Loan Documents
(other than (i) obligations under Sections 2.14, 2.16 and 9.03 of the
Credit Agreement that are not then due and payable and (ii) other
obligations in respect of outstanding Letters of Credit that are not then due
and payable) shall have been paid in full in cash, the Commitments have been
terminated and all Letters of Credit shall have been discharged, Cash
Collateralized or supported by Supporting Letters of Credit to the reasonable satisfaction
of the Collateral Agent and Issuing Bank (each of which shall have confirmed
such satisfaction by written notice to the Borrower).


 


(b)  The
Subsidiary Parties shall be released from their obligations hereunder and the
Security Interest in the Collateral of the Subsidiary Parties shall be released
under the circumstances and in the manner set forth in Section 9.13 of the
Credit Agreement.


 


(c)  Upon the incurrence or assumption of
Indebtedness by any Grantor to any Person that is not an Affiliate of
such Grantor to finance the
acquisition, construction or improvement of any Collateral constituting fixed
or capital assets in compliance with Section 6.01(a)(vi) and (b) of
the Credit Agreement, the security interest of the Collateral Agent in
such Collateral shall, to the extent required under the terms of such
Indebtedness, be automatically released upon the delivery by such Grantor of a
notice to the Collateral Agent describing the Collateral released and stating
that the incurrence of such Indebtedness is permitted under the Credit
Agreement.


 


(c)  In connection with any termination
or release pursuant to paragraph (a), (b) or (c), the Collateral
Agent shall execute and deliver to each Grantor and Guarantor affected thereby,
at the expense of such Grantors and Guarantors, all documents that such
Grantors and Guarantors shall reasonably request to evidence such termination
or release.  Any execution and delivery
of documents pursuant to this Section shall be without recourse to or
warranty by the Collateral Agent.


 


34





















 


	
   

  	
  SSA
  GLOBAL TECHNOLOGIES, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:    EXECUTIVE
  VICE PRESIDENT & GENERAL COUNSEL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


35





















 


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


 


	
   

  	
  SSA
  GLOBAL TECHNOLOGIES, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ David M. Mallett

  
	
   

  	
   

  	
  Name:  David M. Mallett

  
	
   

  	
   

  	
  Title:    Vice
  President

  



 


36





















 


	
   

  	
  INFINIUM SOFTWARE, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INFINIUM SOFTWARE ASIA/PACIFIC,

  INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA HOLDINGS INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA ACQUISITION SUBSIDIARY

  INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ELEVON, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  CAPS LOGISTICS INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BAAN U.S.A., INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXE TECHNOLOGIES, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SSA PACIFIC RIM CORP.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SSA GLOBAL TECHNOLOGIES

  (JAPAN) L.L.C.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  SSA JAPAN CORP.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ARZOON GLOBAL COMMERCE, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  BONIVA SOFTWARE, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER INTERACTIVE PRODUCTS

  INTERNATIONAL,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  SSA-E ACQUISITION SUBSIDIARY

  INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  SSA-E MERGER SUBSIDIARY INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Kirk J. Isaacson

  
	
   

  	
   

  	
  Name:  KIRK J. ISAACSON

  
	
   

  	
   

  	
  Title: