exv4w11



 




Exhibit 4.11




FORM OF

GUARANTOR SECURITY AGREEMENT

[GUARANTOR NAME]




         This Guarantor Security Agreement (this “Agreement”) dated as of
           , 2004 is by [SUBSIDIARY], a            corporation
(“Guarantor”), in favor of STATE STREET BANK AND TRUST COMPANY, a Massachusetts
banking corporation, as collateral agent (in such capacity, “Collateral
Agent”). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in the Credit Agreement (as defined
below).




W I T N E S S E T H




         WHEREAS, AirGate PCS, Inc., a Delaware corporation (“Borrower”), is a
party to that certain Credit Agreement, dated as of August 16, 1999, as
amended, among the lending institutions from time to time party thereto (the
“Lenders”), the Collateral Agent, and Lehman Commercial Paper, Inc., as
administrative agent (the “Administrative Agent”) (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”), pursuant to
which the Lenders may make loans and provide other financial accommodations to
Borrower;




         WHEREAS, Guarantor has executed and delivered that certain Guaranty
Agreement, of even date herewith, in favor of Collateral Agent for the benefit
of the Lenders, pursuant to which Guarantor absolutely and unconditionally
guarantees to the Lenders the payment and performance of all now existing and
hereafter arising obligations, liabilities and indebtedness of Borrower to the
Lenders (the “Guaranty”); and




         WHEREAS, to secure the due and prompt payment and performance by the
Guarantor of its obligations under the Guaranty, the Lenders required the
Guarantor to execute and deliver a security agreement;




         NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:




         1. Grant of Security Interest. Guarantor hereby pledges, assigns and
grants to Collateral Agent for the benefit of the Lenders a continuing first
priority security interest in and first priority lien on all of Guarantor’s
assets and rights of every kind and nature wherever located, whether now owned
or hereafter acquired or arising, and all proceeds and products thereof and
accessions thereto (all of the same being hereinafter called the “Collateral”),
including, without limiting the generality of the foregoing, the following
properties, assets and rights owned by Guarantor, whether now owned or
hereafter acquired:




         (a) all goods, accounts, accounts receivable, leases and contract rights
(including without limitation, all of Guarantor’s rights arising in connection
with any existing or hereafter created intercompany contracts to which
Guarantor is a party) and, to the extent not included in the foregoing, all
proceeds of any and all of the foregoing;





 








 



         (b) all rights to the payment of money, including tax refund claims,
insurance proceeds and tort claims and all rights to proceeds of any
termination, including any partial termination, of employee benefit plans;




         (c) all chattel paper, documents, instruments and securities, together
with income therefrom, increases therein and proceeds thereof;




         (d) all general intangibles, patents, trademarks, service marks and trade
names including, without limitation, those set forth on Schedule 3.05(c) of the
Credit Agreement, together with all right, title and interest of Guarantor in
and to all of the same which Guarantor may hereinafter acquire, the right to
file and prosecute applications for patents and trademarks and similar
intellectual property anywhere in the world and the good will of the business
connected with the use of and symbolized by the same, the right to sue for
infringement for any of the same, together with all assets which uniquely
reflect the good will of the business of Guarantor, including but not limited
to, Guarantor’s trade names, franchises, customer lists, trade secrets,
corporate and other business records, license rights, advertising materials,
methods, processes, know-how, sales literature, drawings, specifications,
descriptions, inventions, name plates, catalogues, copyrights including,
without limitation, those set forth on the attached Schedule A hereto, dealer
contracts, supplier contracts, distribution agreements, proprietary information
and books and records; and




         (e) all furniture, personal property and fixtures of every kind and
description including, without limitation, all motor vehicles, all related
equipment, parts and accessories with respect thereto and all substitutions and
replacements, equipment, inventory, raw materials and work in progress,
wherever located, now or hereafter existing;



provided that, (A) the Guarantor shall not grant, nor shall be deemed to have
granted, a security interest in any item of Collateral which is subject to a
Lien permitted by Section 6.02 of the Credit Agreement to the extent that the
agreement, instrument or document which creates such Lien permitted by Section
6.02 of the Credit Agreement (other than Permitted Encumbrances as defined
pursuant to clause (g) of the definition of Permitted Encumbrances as set forth
in the Credit Agreement) prohibits the granting of a security interest in, or
encumbrance upon, such item of Collateral and (B) in no event shall Collateral
include, and the Guarantor shall not be deemed to have granted a security
interest in, any of the Guarantor’s right, title or interest in any agreement,
license, permit or instrument to which the Guarantor is a party or any of its
rights or interests thereunder to the extent that such agreement, license,
permit or instrument is not material to the business of Borrower or Guarantor,
and to the extent that (but only to the extent) that such a grant would violate
the terms of, or result in a default under, such agreement, license, permit or
instrument under the terms of such agreement, license, permit or instrument or
applicable law (other than to the extent that any such term would be rendered
ineffective pursuant to Section 9-406(d) of the UCC); provided, however, that
upon the termination of such prohibitions for any reason whatsoever, the
provisions of this Section 1 shall be deemed to apply thereto automatically.





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         2. Obligations Secured. The Collateral hereunder constitutes and will
constitute continuing security for prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the
Obligations.




         3. Guarantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) Guarantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by Collateral Agent for
the benefit of the Lenders of any of the rights hereunder shall not release
Guarantor from any of its duties or obligations under the contracts and
agreements included in the Collateral, and (c) Collateral Agent shall not have
any obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall Collateral Agent be obligated
to perform any of the obligations or duties of Guarantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.




         4. Application of Proceeds of Collateral. All amounts owing with respect
to the Obligations shall be secured by the Collateral without distinction as to
whether some Obligations are then due and payable and other Obligations are not
then due and payable. Upon any realization upon the Collateral by Collateral
Agent or any Lender, whether by receipt of insurance proceeds or upon
foreclosure and sale of all or part of the Collateral, Guarantor agrees that
the proceeds thereof shall be applied as follows:




         (a) first, to the payment of the costs and expenses of such sale or
disposition, including reasonable compensation to the Lenders for customary
brokerage commissions and their agents and counsel, and all reasonable
expenses, liabilities and advances made or incurred by the Lenders in
connection therewith;




         (b) second, to the payment of accrued interest on the Loans;




         (c) third, to the Administrative Agent for payment in full of all other
Obligations, in such order as the Administrative Agent in its sole discretion
deems appropriate; and




         (d) fourth, to the payment to Guarantor, its successors or assigns, or as
a court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.




         Guarantor shall remain liable for any deficiency remaining unpaid after
the application of proceeds in accordance with the foregoing provisions.
Guarantor agrees that all amounts received through realization on the
Collateral or otherwise, shall be applied to the payment of the Obligations in
accordance with the provisions of this Section 4.




         5. Representations, Warranties and Covenants of Guarantor. Guarantor
represents and warrants to and in favor of Collateral Agent, for the benefit of
the Lenders, as follows:




         (a) Property. Guarantor has good title in all personal property material
to its business subject to Liens permitted by Section 6.02 of the Credit
Agreement. As of the date





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hereof, Guarantor owns or leases, individually or jointly, only that real
property described in Schedule 3.05(b) of the Credit Agreement. Guarantor
agrees to notify Collateral Agent of any real property which Guarantor may
hereafter acquire or lease in the manner set forth in Section 5.01(c) of the
Credit Agreement. Guarantor agrees that hereafter at such times as any
mortgageable right, title or interest (including any leasehold interest) is
acquired in the future by Guarantor in any real property to be used as a site
to install Network switches, it will execute and deliver to Collateral Agent
for the benefit of the Lenders any and all mortgages, landlord consents and
other instruments reasonably requested by Collateral Agent or any Lender and
file the same in the appropriate recording offices. All such mortgages,
landlord consents and other instruments shall secure all of the Obligations
pro, rata and shall be on terms and conditions reasonably satisfactory to
Administrative Agent as evidenced by its written consent thereto.




         (b) Patents, Trademarks, Copyrights. Guarantor represents to Collateral
Agent that as of the date hereof, except as set forth on Schedule 3.05(c) of
the Credit Agreement, it has no right, title or interest in any patent,
trademark registrations, copyright registrations or service mark registrations,
or in any pending applications for the same and agrees promptly to furnish to
Collateral Agent written notice of each such patent, trademark, copyright or
service mark registrations, or any applications for same, in which it may
hereafter acquire any right, title or interest. Guarantor shall, on request by
Collateral Agent, execute, acknowledge and deliver all such documents and
instruments as Collateral Agent may reasonably require to confirm Collateral
Agent’s security interest for the benefit of the Lenders in and to any such
patent, trademark or service mark registrations, or application for the same
part of the Collateral hereunder and appoints Collateral Agent as Guarantor’s
attorney-in-fact to execute and file the same.




         (c) Location of Chief Executive
Office; Tax Identification Number. As of
the date hereof, Guarantor represents to Collateral Agent that the federal tax
identification of Guarantor is            . Guarantor represents and
warrants to Collateral Agent that it is organized under the laws of the State
of            , and as of the date hereof, the location of its chief executive
office and the location where its books and records are kept is
           . Guarantor shall hold and preserve such records and
will permit representatives of Collateral Agent to inspect and make abstracts
from such records. Guarantor further represents that as of the date hereof,
Schedule B hereto contains a true and correct list of all locations where
property comprising a part of the Collateral is located. Guarantor agrees that
it will provide the Collateral Agent with prompt written notice of any change
in its federal tax identification number, the location of its chief executive
office, its principal place of business, its jurisdiction of organization or
the location where its books and records relating to the Collateral are kept or
any office or facility at which Collateral (other than antennae or any related
base stations) owned by it is located (including the establishment of any such
new office or facility; provided that only quarterly notices pursuant to
Section 5.01(c) of the Credit Agreement shall be required with respect to new
locations of real property owned in fee simple or leased by Guarantor or
Borrower used for the purpose of the installation or relocation of antennae or
any related base stations. Guarantor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise as requested by the Collateral Agent
that are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Guarantor also agrees promptly to





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notify the Collateral Agent if any material portion of the Collateral is
damaged or destroyed. Each year, the Guarantor shall deliver to the Collateral
Agent a certificate of a financial officer certifying that the Guarantor
provided all of the information required pursuant to this Section during the
preceding fiscal year.




         (d) Ownership of Collateral. Guarantor represents that, as of the date
hereof, it is the owner of the Collateral free from any adverse lien, security
interest or encumbrance, except for Liens permitted under Section 6.02 of the
Credit Agreement. Guarantor shall defend the same against all claims and
demands of all persons at any time claiming the same or any interest therein
adverse to the Lenders. Except as otherwise permitted by each of the Loan
Documents, Guarantor shall not pledge, mortgage nor create nor suffer to exist
a security interest in the Collateral in favor of any person other than
Collateral Agent for the benefit of the Lenders.




         (e) Insurance. Guarantor shall have and maintain at all times with
respect to the Collateral insurance satisfying the same requirements as set
forth for Borrower as described in Section 5.07 of the Credit Agreement, such
insurance to be payable to Collateral Agent for the benefit of the Lenders
and/or to Guarantor as set forth therein.




         (f) Maintenance of Collateral. Guarantor will keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and will not use the same in
violation of law or any policy of insurance thereon except where the failure to
do so individually or in the aggregate could not reasonably be expected to
result in a Material Adverse Effect. Collateral Agent may inspect the
Collateral upon reasonable advance notice and at reasonable times. Guarantor
will pay (or cause to be paid) promptly when due all taxes and assessments upon
the Collateral or for its use or operation or upon this Agreement subject to
Section 5.05 of the Credit Agreement. In its discretion, Collateral Agent may
discharge taxes and other encumbrances at any time levied or placed on the
Collateral which remain unpaid in violation of any of the Loan Documents, make
repairs of the Collateral which remain unmade in violation of the Loan
Documents and pay any necessary filing fees. Guarantor agrees to reimburse
Collateral Agent on demand for any and all expenditures so made, and until
paid, the amount thereof shall be a debt secured by the Collateral. Collateral
Agent shall have no obligation to Guarantor to make any such expenditures, nor
shall the making thereof relieve Guarantor of any default.




         (g) Creation and Perfection of Lien. This Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral
and, when financing statements in appropriate form are filed in the appropriate
offices, each Lien created by this Agreement shall constitute a fully perfected
(to the extent such Lien can be perfected by such filing) Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property), in each case prior and
superior in right to any other Person, other than with respect to Liens
expressly permitted by this Agreement or any other Loan Document.




         (h) No Further Actions. Except for the filings referred to in the
previous paragraph 5(g) above, no authorization, approval or other action by,
and no notice of filing with, any Governmental Authority or other Person that
has not been received, taken or made is required (i) for the grant by Guarantor
of the security interest granted hereby or for the





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execution, delivery or performance of this Agreement by Guarantor; (ii)
for the perfection and maintenance of the security interest hereunder
(including the first priority nature of such security interest) to the extent
such security interest can be perfected by filing of Uniform Commercial Code
financing statements; or (iii) for the exercise by Collateral Agent of the
rights or the remedies in respect of the Collateral pursuant to this Agreement
in accordance with applicable law.




         (i) Accounts Receivable. Guarantor shall keep or cause to be kept
separate records of accounts which are complete and accurate in all material
respects, and from time to time upon the request of Collateral Agent, shall
deliver to Collateral Agent a list of the names, addresses, face value, and
dates of invoices for each debtor obligated on such accounts receivable.




         (j) Government Contracts. Guarantor represents to Collateral Agent that,
as of the date hereof, and except as otherwise disclosed in writing to
Collateral Agent, it is not a party to, and has no rights to moneys due or to
become due under, any contracts or agreements with or orders from the United
States government or any agency or department thereof.




         (k) Authority. The Guarantor represents and warrants that: (i) Guarantor
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority,
including all Licenses, to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required; (ii) the Transactions to be entered into by the
Guarantor are within the Guarantor’s corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action; and
(iii) this Agreement has been duly executed and delivered by Guarantor and
constitutes, and each other Loan Document to which the Guarantor is to be a
party, when executed and delivered by the Guarantor, will constitute, a legal,
valid and binding obligation of the Guarantor, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.




         (l) Further Assurances. Guarantor agrees that from time to time, at the
expense of Guarantor, it will promptly execute and deliver to Collateral Agent
for the benefit of the Lenders such further instruments and documents, and take
such further action, that Collateral Agent may request, in order to perfect or
otherwise protect and maintain the security interest granted or intended to be
granted and the lien intended to be created hereby or to enable Collateral
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, Guarantor
will: (i) if any Collateral shall be evidenced by a promissory note or other
instrument or chattel paper, deliver and pledge to Collateral Agent, for the
benefit of the Lenders, hereunder such note or instrument or chattel paper duly
endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to Collateral Agent; (ii)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as Collateral Agent may
request, in order to perfect and preserve the





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assignment and security interest granted or be purported to be granted
hereby; and (iii) mark conspicuously each chattel paper which evidences any
Collateral with a legend, in form and substance satisfactory to Collateral
Agent, indicating that such chattel paper has been assigned and is subject to
the security interest pursuant hereto. Guarantor hereby authorizes Collateral
Agent for the benefit of the Lenders to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Collateral without the signature of Guarantor where permitted by law.
Collateral Agent agrees to provide Guarantor with a copy of any such filing.
This clause (l) shall only apply to chattel paper with respect to which
Guarantor is the lessor or has the right to receive payments.




         6. Power of Attorney. Guarantor hereby irrevocably appoints Collateral
Agent as its attorney-in-fact, effective at all times subsequent to the
occurrence of an Event of Default, and during the continuance thereof, with
full authority in the place and stead of Guarantor and in the name of Guarantor
or otherwise, to take any action and to execute any instrument which Collateral
Agent may deem necessary or advisable to accomplish the purpose of this
Agreement, including, without limitation, the power and right (i) to endorse
Guarantor’s name on any checks, notes, acceptances, money orders, drafts,
filings or other forms of payment or security that may come into Collateral
Agent’s possession and (ii) to do all other things which Collateral Agent then
determines to be necessary to carry out the terms of this Agreement. Guarantor
ratifies and approves all acts of such attorney-in-fact. The power conferred on
Collateral Agent hereunder is solely to protect Collateral Agent’s and the
Lenders’ interests in the Collateral and shall not impose any duty upon
Collateral Agent to exercise such power.




         (a) Securities as Collateral.




   (i) Guarantor agrees to deliver and pledge to Collateral Agent
hereunder for the benefit of the Lenders any certificate
representing any securities, within five (5) days of Guarantor’s
receipt of the same, together with stock powers or other
appropriate instruments of assignment with respect thereto, in form
and substance reasonably satisfactory to Administrative Agent, duly
executed in blank, regarding the securities.




   (ii) Collateral Agent may at any time after the occurrence and
during the continuance of an Event of Default, at its option,
transfer to itself or any nominee any other securities constituting
Collateral, receive any income thereon and hold such income as
additional Collateral or apply it to the Obligations. If Collateral
Agent so elects to exercise its right herein and gives notice of
such election to Guarantor, upon the occurrence and during the
continuance of an Event of Default, Collateral Agent may vote any
or all of the securities constituting Collateral possessing voting
rights (whether or not the same shall have been transferred into
its name or the name of its nominee or nominees) and give all
consents, waivers and ratifications in respect of the securities
constituting Collateral and otherwise act with respect thereto as
though it were the outright owner thereof, Guarantor hereby
irrevocably constituting and appointing Collateral Agent the proxy
and attorney-in-fact of Guarantor, with full power of substitution,
to do so. So long as no Event of Default is continuing, Guarantor
shall be entitled to receive all cash dividends paid in respect of
the securities, to





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vote the securities and to give consents, waivers and
ratifications in respect of the securities, provided that no vote
shall be cast, or consent, waiver or ratification given or action
taken which would be inconsistent with or violate any provisions of
this Agreement or any of the other Loan Documents.




   (iii) Any sums paid upon or with respect to any of the
securities upon the liquidation or dissolution of the issuer
thereof shall be paid over to Collateral Agent to be held by it as
security for the Obligations; and in case any distribution of
capital shall be made on or in respect of any of the securities or
any property shall be distributed upon or with respect to any of
the securities pursuant to the recapitalization or reclassification
of the capital of the issuer thereof or pursuant to the
reorganization thereof, the property so distributed shall be
delivered to Collateral Agent to be held by it as security for the
Obligations. All sums of money and property paid or distributed in
respect of the securities upon such a liquidation, dissolution,
recapitalization or reclassification which are received by
Guarantor shall, until paid or delivered to Collateral Agent, be
held in trust for the Lenders as security for the Obligations.




         7. Accounts Receivable. Until Collateral Agent requests after the
occurrence and during the continuance of an Event of Default that debtors on
accounts receivable of Guarantor or obligors on accounts, chattel paper or
general intangibles of Guarantor or obligors on instruments for which Guarantor
is an obligee or lessee or conditional vendee under agreements governing the
leasing or selling by conditional sale of Collateral by Guarantor be notified
of the Lenders’ security interest, Guarantor shall continue to collect payment
thereof. Upon the making of such a request by Collateral Agent, Guarantor shall
hold the proceeds received from collection as trustee for the Lenders and shall
turn the same over to the Administrative Agent (insofar as such proceeds relate
to Collateral), immediately upon receipt in the identical form received.
Guarantor shall, at the request of Collateral Agent after the occurrence and
during the continuance of an Event of Default, notify such account debtors and
obligors that payment thereof is to be made directly to Administrative Agent,
and Collateral Agent and/or Administrative Agent may itself at any time after
the occurrence and during the continuance of an Event of Default, without
notice to or demand upon Guarantor, so notify such account debtors and
obligors. The making of such a request or the giving of any such notification
shall not affect the duties of Guarantor described above with respect to
proceeds of collection of accounts receivable received by Guarantor.
Administrative Agent shall apply the proceeds of such collection received by
Collateral Agent (insofar as such proceeds relate to Collateral) to the
Obligations in accordance with Section 4 hereof. The application of the
proceeds of such collection shall be conditional upon final payment in cash or
solvent credits of the items giving rise to them. If any item is not so paid,
Collateral Agent in its discretion, whether or not the item is returned, may
either reverse any credit given for the item or charge it to any deposit
account maintained by Guarantor with Collateral Agent.




         8. Events of Default; Remedies.




         (a) Upon the occurrence and during the continuance of an Event of Default,
whether or not the Obligations are due, Collateral Agent may demand, sue for,
collect, or make any settlement or compromise with respect to the Collateral.





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         (b) Upon the occurrence and during the continuance of an Event of Default,
to the fullest extent permitted by applicable law, in addition to the remedies
set forth elsewhere in this Agreement:




   (i) Collateral Agent shall have, in addition to all other
rights and remedies given it by any instrument or other agreement
evidencing, or executed and delivered in connection with, any of
the Obligations and otherwise allowed by law, the rights and
remedies of a secured party under the Uniform Commercial Code as
enacted in any applicable jurisdiction, and without limiting the
generality of the foregoing, Collateral Agent may immediately,
without (to the fullest extent permitted by law) demand of
performance or advertisement or notice of intention to sell or of
time or place of sale or of redemption or other notice or demand
whatsoever (except that Collateral Agent shall give to each of
Administrative Agent, the Lenders and Guarantor at least ten days’
notice of the time and place of any proposed sale or other
disposition), all of which are hereby expressly waived to the
fullest extent permitted by law, sell at public or private sale or
otherwise realize upon, in the City of Atlanta, Georgia or
elsewhere, the whole or from time to time any part of the
Collateral in or upon which Collateral Agent shall have a security
interest or lien hereunder, or any interest which Guarantor may
have therein, and after deducting from the proceeds of sale or
other disposition of the Collateral all expenses (including all
reasonable expenses for legal services, including, without
limitation, reasonable allocated costs of staff counsel) as
provided in Section 12 hereof, shall apply the residue of such
proceeds toward the payment of the Obligations in accordance with
Section 4 hereof, Guarantor remaining liable for any deficiency
remaining unpaid after such application. If notice of any sale or
other disposition is required by law to be given to Guarantor or
the Lenders, Guarantor and the Lenders hereby agree that a notice
given as hereinbefore provided shall be reasonable notice of such
sale or other disposition. Guarantor also agrees to assemble the
Collateral at such place or places as Collateral Agent reasonably
designates by written notice. At any such sale or other disposition
each Lender may itself, and any other person or entity owed any
Obligation may itself, purchase the whole or any part of the
Collateral sold, free from any right of redemption on the part of
Guarantor, which right is hereby waived and released to the fullest
extent permitted by law.




   (ii) Furthermore, without limiting the generality of any of
the rights and remedies conferred upon Collateral Agent under
Section 8(b)(i) hereof, Collateral Agent to the fullest extent
permitted by law may enter upon the premises of Guarantor, exclude
Guarantor therefrom and take immediate possession of the Collateral
either personally or by means of a receiver appointed by a court
therefor, using all necessary force to do so, and may, at its
option, use, operate, manage and control the Collateral in any
lawful manner and may collect and receive all rents, income,
revenue, earnings, issues and profits therefrom, and may maintain,
repair, renovate, alter or remove the Collateral as Collateral
Agent may determine in its discretion, and any such monies so
collected or received by Collateral Agent shall be applied to, or
may be accumulated for application upon, the Obligations in
accordance with Section 4 hereof.





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   (iii) Collateral Agent agrees that it will give notice to
Guarantor and the Lenders of any enforcement action taken by it
pursuant to this Section 8 promptly after commencing such action.




   (iv) Guarantor recognizes that Collateral Agent may be unable
to effect a public sale of the securities by reason of certain
prohibitions contained in the Securities Act of 1933, as amended,
and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers consistent with all applicable
laws. Guarantor agrees that any such private sales may be at
prices and other terms less favorable to Guarantor than if sold at
public sales and that such private sales shall not by reason
thereof be deemed not to have been made in a commercially
reasonable manner. Collateral Agent shall be under no obligation to
delay a sale of any of the securities for the period of time
necessary to permit the issuer of such securities to register such
securities for public sale under the Securities Act of 1933, as
amended, even if the issuer would agree to do so.




         9. Marshalling. Neither Collateral Agent nor Administrative Agent shall
be required to marshal any present or future security for (including but not
limited to this Agreement and the Collateral subject to the security interest
created hereby), or guaranties of, the Obligations or any of them, or to resort
to such security or guaranties in any particular order; and all of its rights
hereunder and in respect of such security and guaranties shall be cumulative
and in addition to all other rights, however existing or arising. To the extent
that it lawfully may, Guarantor hereby agrees that it will not invoke any law
relating to the marshalling of Collateral which might cause delay in or impede
the enforcement of Collateral Agent’s or Administrative Agent’s rights under
this Agreement or under any other instrument evidencing any of the Obligations
or under which any of the Obligations is outstanding or by which any of the
Obligations is secured or guaranteed, and to the extent that it lawfully may do
so, Guarantor hereby irrevocably waives the benefits of all such laws. Except
as otherwise provided by applicable law, neither Collateral Agent nor
Administrative Agent shall have a duty as to the collection or protection of
the Collateral or any income thereon, nor as to the preservation of rights
against prior parties, nor as to the preservation of any rights pertaining
thereto beyond the sole custody thereof.




         10. Guarantor’s Obligations Not Affected. To the extent permitted by law,
the obligations of Guarantor under this Agreement shall remain in full force
and effect without regard to, and shall not be impaired by (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of Guarantor, to the extent permitted by law; (b) any exercise or
nonexercise, or any waiver, by Collateral Agent or Administrative Agent of any
right, remedy, power or privilege under or in respect of any of the Obligations
or any security therefor (including this Agreement); (c) any amendment to or
modification of any instrument evidencing any of the Obligations or pursuant to
which any of them were issued; (d) any amendment to or modification of any
instrument or agreement (other than this Agreement) securing any of the
Obligations; or (e) the taking of additional security for or any guaranty of
any of the Obligations or the release or discharge or termination of any
security or guaranty for any of the Obligations; and whether or not Guarantor
shall have notice or knowledge of any of the foregoing.





10








 



         11. No Waiver. No failure on the part of Collateral Agent or
Administrative Agent to exercise, and no delay in exercising, any right, remedy
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by Collateral Agent or Administrative Agent of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power. Each and every right, remedy and power hereby granted
to Collateral Agent, Administrative Agent, the Lenders or the future holders of
any of the Obligations or allowed to any of them by law or other agreement,
including, without limitation, each of the Loan Documents, shall be cumulative
and not exclusive of any other, and, subject to the provisions of this
Agreement, may be exercised by Collateral Agent, Administrative Agent any
Lender or the future holders of any of the Obligations from time to time.




         12. Indemnity and Expenses. (a) Guarantor agrees to indemnify Collateral
Agent from and against any and all claims, losses and liabilities growing out
of or resulting from this Agreement (including, without limitation, enforcement
of this Agreement), except claims, losses or liabilities resulting from
Collateral Agent’s gross negligence or willful misconduct.




         (b) Guarantor will upon demand pay to Collateral Agent the amount of any
and all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, which Collateral Agent may incur in
connection with (i) the preparation and administration of this Agreement or the
Credit Agreement; (ii) the custody or preservation of, or the collection from
or other realization upon, any of the Collateral; (iii) the exercise or
enforcement of any of the rights of Collateral Agent hereunder; or (iv) the
failure by Guarantor to perform or observe any of the provisions hereof.




         13. Consents, Amendments, Waivers. Any term of this Agreement may be
amended, and the performance or observance by Guarantor of any term hereof may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the prior written consent of
Collateral Agent.




         14. Governing Law. Except as otherwise required by the laws of any
jurisdiction in which any Collateral is located, this Agreement shall for all
purposes be governed by, and construed and interpreted in accordance with, the
law of the State of New York excluding (to the greatest extent permissible by
law) any rule of law that would cause the application of the laws of any
jurisdiction other than the State of New York.




         15. Parties in Interest. All terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and permitted assigns of the parties hereto; provided that Guarantor
may not assign or transfer its rights hereunder without the prior written
consent of Administrative Agent. Any assignment or transfer by Guarantor of its
rights hereunder in violation of this Agreement shall be void.




         16. Waivers of Jury Trial. GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW.





11








 



         17. Submission To Jurisdiction; Waivers. Guarantor hereby irrevocably and
unconditionally:




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




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




         (c) Agrees that service of process in any such action or proceeding may be
made personally or by mailing or delivering a copy of the summons and complaint
or other legal process in any legal action or proceeding to Guarantor at its
address for notices set forth herein;




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




         (e) Waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section 17(e) any special, indirect, punitive or consequential damages (as
opposed to direct or actual damages other than damages waived hereunder)
arising out of this Agreement.




         18. Counterparts. This Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.




         19. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provision with valid provisions the economic effect of which is
as close as possible to that of the invalid, illegal or unenforceable
provision.




         20. Termination. Upon payment in full of the Obligations in accordance
with their terms, (a) this Agreement shall automatically terminate, the
Collateral shall automatically be released from the lien created hereby and
Guarantor shall be entitled to the return, at Guarantor’s expense, of such
Collateral in the possession or control of Collateral Agent as has not
theretofore been disposed of pursuant to the provisions hereof and (b) upon
request of Guarantor, Collateral Agent will execute and file, at Guarantor’s
expense, UCC termination statements and such other documents as Guarantor may
reasonably request to evidence the





12








 


termination of Collateral Agent’s security interest in the Collateral. If
any of the Collateral shall be sold, transferred or otherwise disposed of by
Guarantor in a transaction permitted by the Credit Agreement, then the
Administrative Agent and the Collateral Agent, at the request and sole expense
of Guarantor, shall execute and deliver to Guarantor all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral.




         21. Notices. Except as otherwise specified herein, all notices, requests,
demands, consents, instructions or other communications hereunder shall be duly
given or made if sent in writing and shall be deemed to have been duly given or
made:




         (a) If sent by fax, upon the transmittal thereof;




         (b) If sent by nationally recognized overnight courier, on the following
Business Day; and




         (c) If sent by first-class mail, on the fifth Business Day following the
deposit thereof in the mails, postage prepaid, in each case addressed to the
Person to which such notice is requested or permitted to be given or made
hereunder at the following address (or such other address as may hereafter be
designated, in writing, by the relevant Person in accordance with this Section
21):




	 	 	 	 	 
	 	 	 	 	If to Collateral Agent:
	 	 	 	 	 
	 	 	 	 	State Street Bank and Trust Company
	 	 	 	 	2 Avenue de Lafayette, 6th Floor
	 	 	 	 	Boston, Massachusetts 02111-1724
	 	 	 	 	Telephone No.: (617) 662-1726
	 	 	 	 	Telecopier No.: (617) 662-1460
	 	 	 	 	Attention: Patrick E. Thebado,
	 	 	 	 	Assistant Vice President
	 	 	 	 	 
	 	 	 	 	with a copy to:
	 	 	 	 	 
	 	 	 	 	Lehman Commercial Paper, Inc.
	 	 	 	 	745 7th Avenue
	 	 	 	 	New York, New York 10019
	 	 	 	 	Telephone No.: (212)
	 	 	 	 	526-1463 Telecopier No.:
	 	 	 	 	(646) 758-1986 Attention:
	 	 	 	 	Frank P. Turner
	 	 	 	 	 
	 	 	
(i)
	 	If to Guarantor:
	 	 	 	 	 
	 	 	 	 	 
	 	 	
(ii)
	 	If to the Administrative Agent:
	 	 	 	 	 
	 	 	 	 	Lehman Commercial Paper, Inc.







13








 




	 	 	 	 	 
	 	 	 	 	745 7th Avenue
	 	 	 	 	New York, New York 10019
	 	 	 	 	Telephone No.: (212) 526-1463
	 	 	 	 	Telecopier No.: (646) 758-196
	 	 	 	 	Attention: Frank P. Turner






[Signatures follow on next page.]





14








 



         IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as an instrument under seal by their authorized representatives
as of the date first written above.




	 	 	 	 	 
	 	 	[GUARANTOR],

a ___________ corporation
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	STATE STREET BANK AND TRUST COMPANY,
	 	 	a Massachusetts banking corporation,

as Collateral Agent for the Lenders
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Patrick E. Thebado
	 	 	 	 	Assistant Vice President







15








 



SCHEDULE A




INTELLECTUAL PROPERTY





16








 



SCHEDULE B




LOCATIONS OF COLLATERAL






17