Exhibit 10.2


 


FIRST LIEN GUARANTEE AND
COLLATERAL AGREEMENT, dated as of April 30, 2010 made by each of the
signatories hereto (together with any other entity that may become a party
hereto as provided herein, the “Grantors”), in favor of JPMORGAN CHASE
BANK, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) for the banks and other financial institutions or entities (the “Lenders”)
from time to time parties to the First Lien Credit Agreement, dated as of April 30,
2010 (as amended, supplemented, restated or otherwise modified from time to
time, the “Credit Agreement”), among SIX FLAGS ENTERTAINMENT CORPORATION
(formerly known as SIX FLAGS, INC.), a Delaware corporation (“Parent”),
SIX FLAGS OPERATIONS INC., a Delaware corporation (“Holdings”), SIX
FLAGS THEME PARKS INC., a Delaware corporation (the “Borrower”), the
Administrative Agent and the other agents named therein.


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, in connection
with the confirmation and implementation of the Plan of Reorganization, the
Borrower has requested that the Lenders make loans and other credit available
to the Borrower under the Credit Agreement in order to enable the reorganized
Debtors to consummate the transactions contemplated by the Plan of
Reorganization, pay related fees and expenses and finance the working capital
needs and general corporate purposes of the Borrower;


 


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


 


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


 


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


 


SECTION 1.  DEFINED TERMS


 


1.1                                 Definitions.  (a)  Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement, and the following terms are used herein
as defined in the New York UCC: 
Accounts, Certificated Security, Chattel Paper, Commercial Tort Claims,
Documents, Equipment, General Intangibles, Instruments, Inventory, Letter-of-Credit
Rights and Supporting Obligations; provided that none of the foregoing
UCC terms shall be deemed to include Excluded Assets.


 


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


 

















 


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


 


“Borrower
Obligations”:  the collective unpaid
principal of and interest on (including, without limitation, interest accruing
at the then applicable rate provided in the Credit Agreement after the maturity
of the Loans and Reimbursement Obligations and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans,
the Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Secured Party, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge
Agreement, any Specified Cash Management Agreement or any other document made,
delivered or given by any Loan Party in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Administrative Agent or to any Secured
Party that are required to be paid by the Borrower pursuant hereto) or
otherwise.


 


“Collateral”:  as defined in Section 3.


 


“Copyrights”:  (i) all works of authorship and
copyrights arising under the laws of the United States, any group of countries,
other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished, all registrations thereof,
and all applications in connection therewith, including, without limitation,
all registrations and applications in the United States Copyright Office,
including, without limitation, any of the foregoing listed in Schedule 5, and (ii) the
right to obtain all renewals thereof.


 


“Copyright
Licenses”:  any written or oral
agreement naming any Grantor as licensor or licensee, granting any right under
any Copyright, including, without limitation, the grant of rights to
manufacture, distribute, exploit and sell materials derived from any Copyright,
including, without limitation, any of the foregoing listed in Schedule 5.


 


“Deposit
Account”:  as defined in the Uniform
Commercial Code of any applicable jurisdiction and, in any event, including,
without limitation, any demand, time, savings, passbook or like account
maintained with a depositary institution.


 


“Excluded Assets”:  the
collective reference to (i) all Capital Stock owned by any Grantor in (A) Flags
Beverages, Inc., Fiesta Texas Hospitality LLC, Spring Beverage Holding
Corp. and other Subsidiaries, if any, which have no material assets other than
a liquor license, (B) HWP Development Holdings, LLC, HWP Development LLC
and any other entity formed pursuant to the Great Escape Agreements and (C) Servicios de
Restaurantes Especializados, S.A. De C.V. so long as it owns no assets
(other than a de minimus amount), (ii) any Trademark License with Warner
Bros. or its affiliates that expressly prohibits the granting of a security


 

















 


interest
therein (including but not limited to (A) those licenses contemplated by
the German WB Acquisition, and (B) the Amended and Restated License
Agreement #5854-WB/DC dated as of April 1, 1998 with the Borrower and the
License Agreement #8898-TOON dated January 1, 1998 between the Borrower
and Warner Bros. Consumer Products Division (Cartoon Network), as any of the
foregoing may be amended from time to time), except, in each case, to the
extent that such term in such license providing for such prohibition is
ineffective under applicable law, (iii) any other Trademark License that
expressly prohibits the granting of a security interest therein, except, in
each case, to the extent that such term in such license providing for such
prohibition is ineffective under applicable law, (iv) that portion of the
Capital Stock of any Excluded Foreign Subsidiary that is in excess of 65% of
the total outstanding Capital Stock of such Excluded Foreign Subsidiary, (v) the
Capital Stock of a Subsidiary acquired after the date hereof to the extent that
Section 8.6(f) of the Credit Agreement does not require the granting
of a security interest therein, (vi) any Property of any Grantor covered by a pledge or
security interest under the New Time Warner Facility or subject to a negative
pledge thereunder, (vii) any Property owned by any Grantor to the extent that creation of a security
interest therein would be prohibited by a Contractual Obligation binding on any
Grantor that is the owner of such Property, including pursuant to the New Time
Warner Facility or the Partnership Parks Agreements (provided that, with
respect to Property acquired after the date hereof, such Contractual Obligation
existed at the time such property was acquired and was not entered into in
anticipation of such acquisition); provided, however, that such Property shall no
longer constitute “Excluded Assets” immediately at such time as such security
interest ceases to be prohibited by a binding Contractual Obligation, (viii) any
Property of any Grantor to the
extent that the Administrative Agent shall determine in its sole discretion
that the costs of obtaining a security interest in such Property is excessive in relation to the value of the
security to be afforded thereby and (ix) United States intent-to-use
Trademark applications to the extent that, and solely during the period in
which, the grant of a security interest therein would impair the validity or
enforceability of such intent-to-use trademark applications under applicable
federal law.


 


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


 


“Foreign
Subsidiary Voting Stock”:  the voting
Capital Stock of any Foreign Subsidiary.


 


“Guarantor
Obligations”:  with respect to any
Guarantor, all obligations and liabilities of such Guarantor which may arise
under or in connection with this Agreement (including, without limitation, Section 2)
or any other Loan Document, or any Specified Hedge Agreements or Specified Cash
Management Agreements to which such Guarantor is a party, in each case whether
on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the Secured
Parties that are required to be paid by such Guarantor pursuant to the terms of
this Agreement or any other Loan Document to which such Guarantor is a party).


 


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


 


“Infringement”:  infringement, misappropriation, dilution or
other impairment or violation.


 

















 


“Intellectual
Property”:  the collective reference
to all rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks, and the Trademark
Licenses, and all rights to sue at law or in equity for any Infringement
thereof, including the right to receive all proceeds and damages therefrom; provided
that Intellectual Property excludes any Excluded Assets.


 


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


 


“Intercreditor
Agreement”:  the Intercreditor
Agreement dated as of April 30, 2010 (as amended, restated, supplemented
or otherwise modified from time to time) among Parent, Holdings, the Borrower,
the Subsidiary Guarantors, the First Priority Representative (as defined
therein) and the Second Priority Representative (as defined therein).


 


“Investment
Property”:  the collective reference
to (i) all “investment property” as such term is defined in Section 9-102(a)(49)
of the New York UCC (other than any Foreign Subsidiary Voting Stock excluded
from the definition of “Pledged Stock”) and (ii) whether or not
constituting “investment property” as so defined, all Pledged Notes and all
Pledged Stock; provided that Investment Property excludes any Excluded
Assets.


 


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


 


“Material
Trademarks”: all Trademarks included in the Collateral that are material to
the business of the applicable Grantor.


 


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


 


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


 


“Patents”:  (i) all letters patent of the United
States, any group of countries, other country or any political subdivision
thereof, all reissues and extensions thereof, and (ii) all applications
for letters patent of the United States or any group of countries, other
country or any political subdivision thereof, and all reissues, divisions,
extensions, continuations and continuations-in-part thereof, similar legal
protections related thereto, or rights to obtain the foregoing, including,
without limitation, any of the foregoing listed in Schedule 5.


 


“Patent
License”:  any written or oral
agreement providing for the grant by or to any Grantor of any right to make,
have made, manufacture, use or sell (directly or indirectly), offer to sell,
import or dispose of any invention or practice any method covered in whole or
in part by a Patent, including, without limitation, any of the foregoing listed
in Schedule 5.


 


“Pledged
Notes”:  all promissory notes listed
on Schedule 2, all Intercompany Notes at any time issued to any Grantor and all
other promissory notes issued to or held


 

















 


by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary
course of business), excluding any Excluded Assets.


 


“Pledged
Securities”:  means any Instruments,
Certificated Securities, Chattel Paper and Investment Property.


 


“Pledged
Stock”:  the shares of Capital Stock
listed on Schedule 2, together with any other shares, stock certificates,
options, interests or rights of any nature whatsoever in respect of the Capital
Stock of any Person that may be issued or granted to, or held by, any Grantor
while this Agreement is in effect, excluding any Excluded Assets; provided
that in no event shall more than 65% of the total outstanding Foreign
Subsidiary Voting Stock of any Foreign Subsidiary be required to be pledged
hereunder.


 


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


 


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


 


“Registered
Intellectual Property”:  all
registrations and applications for registration of Trademarks, Patents and
Copyrights.


 


“Second
Lien Guarantee and Collateral Agreement”: the Second Lien Guarantee and
Collateral Agreement, dated as of the date hereof, made by Parent, Holdings,
the Borrower and each Subsidiary Guarantor, in favor of the Second Priority Representative
(as defined in the Intercreditor Agreement) for the benefit of the secured
parties thereunder.


 


“Secured
Parties”: the collective reference to the Lenders and each Qualified
Counterparty.


 


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


 


“Subsidiary
Guarantor”:  each Grantor other than
Parent, Holdings and the Borrower.


 


“Trademarks”:  (i) all trademarks, trade names, brand
names, corporate names, company names, business names, fictitious business
names, trade styles, trade dress, domain names, service marks, logos and other
source or business identifiers, and all goodwill associated therewith or
symbolized thereby, now existing or hereafter adopted or acquired, all
registrations thereof, and all applications in connection therewith, whether in
the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any group of countries, other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including,


 

















 


without limitation, any of the foregoing listed in
Schedule 5, and (ii) the right to obtain all renewals thereof.


 


“Trademark
License”:  any written or oral
agreement providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing listed in
Schedule 5, but excluding the Excluded Assets.


 


“Vehicles”:  all cars, trucks, trailers, construction and
earth moving equipment and other vehicles covered by a certificate of title law
of any state and all tires and other appurtenances to any of the foregoing.


 


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


 


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


 


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


 


SECTION 2.  GUARANTEE


 


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


 


(b)                                 Anything
herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder and under the other Security
Documents and the maximum amount which may be secured by the Liens granted with
respect to the Collateral hereunder and the Collateral under the other Security
Documents, in each case, shall in no event exceed the amount which can be
guaranteed by such Guarantor, or secured by assets of such Guarantor, under
applicable federal and state laws relating to the insolvency of debtors (after
giving effect to the right of contribution established in Section 2.2).


 


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


 


(d)                                 The
guarantee contained in this Section 2 shall remain in full force and
effect until all of the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time the
Borrower may be free from any Obligations.


 

















 


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


 


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


 


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


 


2.4                                 Amendments, etc.
with respect to the Borrower Obligations. 
Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to
or further assent by any Guarantor, any demand for payment of any of the
Borrower Obligations made by the Administrative Agent or any Secured Party may
be rescinded by the Administrative Agent or such Secured Party and any of the
Borrower Obligations continued, and the Borrower Obligations, or the liability
of any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right


 

















 


of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or any Secured
Party, and the Credit Agreement and the other Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or
any Secured Party for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released. 
Neither the Administrative Agent nor any Secured Party shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Borrower Obligations or for the guarantee contained in
this Section 2 or any property subject thereto.


 


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


 

















 


Agent or any Secured Party against any Guarantor.  For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.


 


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


 


2.7                                 Payments.  Each Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent without set-off or
counterclaim, in immediately available funds in the currency in which the
relevant Obligation is denominated, at the applicable Payment Office.


 


SECTION 3.  GRANT OF SECURITY INTEREST


 


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


 


(a)                                  all
Accounts;


 


(b)                                 all
Chattel Paper;


 


(c)                                  all
Deposit Accounts;


 


(d)                                 all
Documents;


 


(e)                                  all
Equipment;


 


(f)                                    all
Fixtures;


 


(g)                                 all
General Intangibles;


 


(h)                                 all
Instruments;


 


(i)                                     all
Intellectual Property;


 


(j)                                     all
Inventory;


 


(k)                                  all
Investment Property;


 


(l)                                     all
other personal property not otherwise described above;


 















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

 

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

 

Notwithstanding the foregoing, (i) the Collateral shall not include the Excluded Assets and (ii) the Partnership Parks Entities and their Property and any other Property of Parent and its Subsidiaries subject to the Partnership Parks Agreements shall be expressly excluded from, and shall not be subject to, any provisions of this Agreement so long as the creation of a security interest under, or the execution of, this Agreement is prohibited by a Contractual Obligation binding on the Partnership Park Entities or, with respect to any other Property of Parent and its Subsidiaries, is prohibited by the Partnership Parks Agreements.

 

SECTION 4.    REPRESENTATIONS AND WARRANTIES

 

To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower thereunder, and to induce the Qualified Counterparties to enter into the Specified Cash Management Agreements and Specified Hedge Agreements, as applicable, each Grantor hereby represents and warrants to the Administrative Agent and each Secured Party that:

 

4.1                                 Investment Property.  (a)  The shares of Pledged Stock pledged by such Grantor hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of each Issuer owned by such Grantor or, in the case of Foreign Subsidiary Voting Stock, 65% of the outstanding Foreign Subsidiary Voting Stock of each relevant Issuer.

 

(b)                                 All the shares of the Pledged Stock issued by each Issuer (other than any Issuer that is a Foreign Subsidiary, a partnership or a limited liability company) have been duly and validly issued and are fully paid and nonassessable.

 

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

 

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

 

4.2                                 Intellectual Property.  (a) Schedule 5 lists all (i) Registered Intellectual Property owned by such Grantor in its own name on the date hereof and (ii) all material Registered Intellectual Property exclusively licensed by such Grantor as of the date hereof, noting in each case the relevant registration, application or serial number, the jurisdiction of registration or application, and, in the case of (ii), the title of the license, the counterparty to such

 











 

license and the date of such license, provided that with respect to the foregoing clause (ii), the applicable Registered Intellectual Property is identified in the applicable license.

 

(b)                                 Except as set forth in Schedule 5 and except for joint marketing and sponsorship agreements entered into by such Grantor in the ordinary course of its business, on the date hereof, none of the Intellectual Property is the subject of any licensing or franchise agreement pursuant to which such Grantor is the licensor or franchisor.

 

(c)                                  Such Grantor owns, or is licensed to use, all Intellectual Property material to the conduct of its business as currently conducted, free and clear of all Liens other than Permitted Liens, and takes reasonable actions to protect, preserve and maintain such Intellectual Property except as permitted by Sections 9.5(c)(i) and (c)(xvi) of the Credit Agreement.  Except as could not reasonably be expected to have a Material Adverse Effect, (i) all such Intellectual Property is valid and enforceable and (ii) all Registered Intellectual Property has not expired or been abandoned except as permitted by Sections 9.5(c)(i) and (c)(xvi) of the Credit Agreement.   No claim, action or proceeding is pending by any Person or, to the knowledge of such Grantor, threatened, or imminent, on the date hereof, and no holding, decision or judgment has been rendered by any Governmental Authority or arbitrator, which may limit, cancel or challenge the validity, enforceability, ownership or use of, any material Intellectual Property in any material respect, except for claims, actions, proceedings, holdings, decisions or judgments which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  To the knowledge of such Grantor, (i) the operation of the business of such Grantor does not Infringe the Intellectual Property rights of any Person, and, (ii) no Person is Infringing any Intellectual Property owned by such Grantor to an extent which could reasonably be expected to have a Material Adverse Effect.

 

(d)                                 Commercial Tort Claims.  On the date hereof, no Grantor has rights in any Commercial Tort Claim with potential value in excess of $100,000.

 

4.3                                 Additional Representations and Warranties.

 

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

 

(b)                                 Each Grantor has good and valid rights in and title to the Collateral with respect to which it has purported to grant a security interest hereunder and has full power and authority to grant to the Administrative Agent a security interest in such 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.

 

(c)                                  The UCC financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations for filing in each governmental, municipal or other office specified in Schedule 3 hereto, and with respect to Collateral consisting of registered and applied for United States Patents, Trademarks, or Copyrights, to the extent required by

 











 

applicable Federal law, filings made at the United States Patent and Trademark Office and the United States Copyright Office, as applicable, are all the filings, recordings and registrations that are necessary to establish a legal, valid and perfected security interest in favor of the Administrative Agent (for the benefit of the Secured Parties) in respect of all Collateral 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, 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.

 

(d)                                 The security interest granted to the Administrative Agent constitutes (i) a legal and valid security interest in all the Collateral securing the payment and performance of the Obligations and (ii) subject to the filings described in Section 4.4(c), a perfected security interest in all 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 in the relevant jurisdiction. The security interest granted to the Administrative Agent is and shall be prior to any other Lien on any of the Collateral, other than Liens expressly permitted under the Credit Agreement.

 

(e)                                  The Collateral is owned by the Grantors free and clear of any Lien, except for Permitted Liens under the Credit Agreement.  None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the New York UCC or any other applicable laws covering any Collateral or (ii) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any 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 the Credit Agreement, or those which are for notice purposes only.

 

SECTION 5.  COVENANTS

 

Each Grantor covenants and agrees with the Administrative Agent and the Secured Parties that, from and after the date of this Agreement until the Obligations shall have been paid in full (other than Obligations under Specified Hedge Agreements and Specified Cash Management Agreements that are not yet due and payable, and contingent indemnification obligations not yet accrued and payable), no Letter of Credit shall be outstanding and the Commitments shall have terminated:

 

5.1                                 Delivery of Pledged Securities.

 

(a)                                  Each Grantor agrees promptly to deliver or cause to be delivered to the Administrative Agent, for the benefit of the Secured Parties, any and all Pledged Securities (other than any uncertificated Capital Stock, but only for so long as such Capital Stock remains uncertificated) to the extent such Pledged Securities, in the case of promissory notes or other instruments evidencing Indebtedness, are required to be delivered pursuant to paragraph (b) of this Section 5.1 (it being understood that, with respect to Reino Aventura, S.A. De C.V. and Ventas Y Servicios Al Consumidor, S.A. De C.V, such Pledged Securities shall be delivered

 











 

within 30 days following the Closing Date (or such later date as consented to by the Administrative Agent in its reasonable discretion)).

 

(b)                                 Each Grantor will cause (i) any Indebtedness for borrowed money (other than intercompany loans referred to in clause (ii) below) having an aggregate principal amount in excess of $1,000,000 owed to such Grantor by any Person and (ii) any intercompany loans made by such Grantor to any Person that is not a Loan Party to be evidenced by a duly executed promissory note (or pursuant to a global note) that is pledged and delivered to the Administrative Agent, for the benefit of the Secured Parties, pursuant to the terms hereof.

 

(c)                                  Upon delivery to the Administrative Agent, (i) any Pledged Securities shall be accompanied by stock powers duly executed in blank or other instruments of transfer reasonably satisfactory to the Administrative Agent and by such other instruments and documents as the Administrative Agent may reasonably request and (ii) all other property comprising part of the Pledged Securities shall be accompanied by proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Administrative Agent may reasonably request.  Each delivery of Pledged Securities shall be accompanied by a schedule describing such Pledged Securities, which schedule shall be attached hereto as Schedule 2 and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities.  Each schedule so delivered shall supplement any prior schedules so delivered.

 

(d)                                 At any time and from time to time, upon the written request of the Administrative Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby and (ii) in the case of Investment Property, Deposit Accounts, Letter-of-Credit Rights and any other relevant Collateral, taking any actions necessary to enable the Administrative Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto.

 

(e)                                  In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Investment Property issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Administrative Agent promptly in writing of the occurrence of any of the events described in Section 5.4(b) with respect to the Investment Property issued by it and (iii) the terms of Sections 6.2(d) and 6.7 shall apply to it, mutatis  mutandis, with respect to all actions that may be required of it pursuant to Section 6.2(d) or 6.7 with respect to the Investment Property issued by it.

 

5.2                                 Intellectual Property.  (a) Except as permitted by Sections 9.5(c)(i) and (c)(xvi) of the Credit Agreement, such Grantor (either itself or through licensees) will (i) continue to use each Material Trademark in order to maintain such Material Trademark in full force free from any claim of abandonment for non-use, (ii) maintain in all material respects as in the past the quality of all products and services offered under any Material Trademark, (iii) use each Material Trademark with all appropriate notices of registration and all other notices and legends required by applicable Requirements of Law, (iv) not adopt or use any new mark, or any

 











 

mark which is confusingly similar or a colorable imitation of a Trademark included in the Collateral unless the Administrative Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this Agreement, and (v) not (and will use commercially reasonable efforts to prohibit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby a Material Trademark could reasonably be expected to become invalidated or diluted in any way, except, in each case, as could not reasonably be expected to have a Material Adverse Effect.

 

(b)                                 Except as permitted by Sections 9.5(c)(i) and (c)(xvi) of the Credit Agreement, such Grantor will not do any act, or omit to do any act (and will use commercially reasonable efforts to ensure that any licensee or sublicensee does not do any act or omit to do any act) whereby any material Patent included in the Collateral is abandoned or dedicated to the public, or allowed to prematurely lapse.

 

(c)                                  Such Grantor will not do any act or knowingly omit to do any act (and will use commercially reasonable efforts to ensure that any licensee or sublicensee does not do any act or omit to do any act) whereby any material portion of the Copyrights included in the Collateral could reasonably be expected to become invalidated or otherwise materially impaired.  Such Grantor will not do any act (and will use commercially reasonable efforts to ensure that any licensee or sublicensee does not do any act) whereby a material portion of any Copyright included in the Collateral falls into the public domain.

 

(d)                                 Such Grantor will not (and will use commercially reasonable efforts to ensure that any licensee or sublicense does not) knowingly Infringe in any material respect upon the intellectual property rights of any other Person.

 

(e)                                  Such Grantor will notify the Administrative Agent in the next Compliance Certificate required to be delivered by it pursuant to Section 8.1(f) of the Credit Agreement if it knows, or has reason to know, that any material Registered Intellectual Property may become forfeited, abandoned or dedicated to the public, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency, or any court or tribunal in any country) regarding such Grantor’s rights in, or the validity, enforceability, ownership or use of, any material Intellectual Property, including, without limitation, such Grantor’s right to register or maintain same.

 

(f)                                    Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, shall acquire, become the exclusive licensee of, or file an application for the registration of, any Registered Intellectual Property with the United States Copyright Office or the United States Patent and Trademark Office, or any similar office or agency in any group of countries, other country or any political subdivision thereof, such Grantor shall report such filing to the Administrative Agent on the first Compliance Certificate delivered pursuant to Section 8.1(f) of the Credit Agreement after such acquisition, licensing, or filing.  Upon request of the Administrative Agent, such Grantor shall execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s and the Secured Parties security interest in any Registered Intellectual Property which is not an Excluded Asset.

 











 

(g)                                 Such Grantor will take such actions as it reasonably deems appropriate under the circumstances, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of all Registered Intellectual Property, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.

 

(h)                                 In the event that any material Intellectual Property is Infringed by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such Intellectual Property is of material economic value to the Grantors as a whole, promptly notify the Administrative Agent after it learns thereof and, after taking reasonable and customary measures to stop such Infringement and where appropriate in such Grantor’s reasonable business judgment, sue for Infringement, seek injunctive relief and to recover any and all damages for such Infringement.

 

5.3                                 Additional Covenants.

 

(a)                                  The Borrower agrees, on its own behalf and on behalf of each Grantor, to notify the Administrative Agent in writing of any change (i) in legal name of any Grantor, (ii) in the identity or type of organization or corporate structure of any Grantor, or (iii) in the jurisdiction of organization of any Grantor, within 15 days of any such change.

 

(b)                                 Each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to defend title to the Collateral against all Persons and to defend the security interest of the Administrative Agent in the Collateral and the priority thereof against any Lien not expressly permitted by the Credit Agreement.

 

(c)                                  The Borrower agrees, on its own behalf and on behalf of each other Grantor, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Administrative Agent may from time to time reasonably request to better assure, preserve, protect and perfect its security interest and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting to the Administrative Agent of a security interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith.  If any amount payable under or in connection with any of the Collateral that is in excess of $1,000,000 shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be promptly pledged and delivered to the Administrative Agent, for the benefit of the Secured Parties, duly endorsed in a manner reasonably satisfactory to the Administrative Agent.

 

(d)                                 At its option, the Administrative Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral and not permitted under the Credit Agreement, and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement and within a reasonable period of time after the Administrative Agent has requested that it do so, and each Grantor jointly and severally agrees to reimburse the Administrative Agent within 10 days after demand for any payment made or any reasonable expense incurred by the Administrative Agent pursuant to the foregoing authorization.  Nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Administrative Agent or any 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, in the other Loan Documents.

 

(e)                                  If at any time any Grantor shall take a security interest in any property of any Person who is or who may become obligated to any Grantor under, with respect to or on account of an Account (an “Account Debtor”), or any other Person, the value of which is in excess of $1,000,000, to secure payment and performance of an Account, such Grantor shall promptly assign such security interest to the Administrative Agent for the benefit of the Secured Parties.  Such assignment need not be filed of public record unless necessary to continue the perfected status of the security interest against creditors of and transferees from the Account Debtor or other Person granting the security interest.

 

(f)                                    Each Grantor (rather than the Administrative Agent or any Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the material conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the Secured Parties from and against any and all liability for such performance; provided, that no Grantor shall have any obligation hereunder to the Administrative Agent or any Secured Party with respect to any such liabilities to the extent such liabilities are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or any Secured Party or of any director, officer, or employee of the Administrative Agent or any Secured Party.

 

(g)                                 If any Grantor shall at any time hold or acquire a Commercial Tort Claim with a value in excess of $1,000,000, such Grantor shall promptly notify the Administrative Agent in writing signed by such Grantor of the brief details thereof and grant to the Administrative Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement pursuant to a document in form and substance reasonably satisfactory to the Administrative Agent.

 

(h)                                 The aggregate book value of all Vehicles owned by all such Grantors will not exceed $10,000,000 or such higher book value as shall be reasonably satisfactory to the Administrative Agent.

 

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

 

(a)                                  Instruments.  If any Grantor shall at any time hold or acquire any Instruments constituting Collateral and evidencing an amount in excess of $1,000,000, such Grantor shall forthwith endorse, assign and deliver the same to the Administrative Agent for the benefit of the Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably request.

 











 

(b)                                 Investment Property.  If any Grantor shall at any time hold or acquire any certificated Capital Stock, such Grantor shall forthwith endorse, assign and deliver the same to the Administrative Agent for the benefit of the Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably request.  If any Capital Stock 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 notify the Administrative Agent thereof and, at the Administrative Agent’s reasonable request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, either (i) cause the Issuer to agree to comply with instructions from the Administrative Agent as to such securities, without further consent of any Grantor or such nominee, or (ii) arrange for the Administrative Agent to become the registered owner of the securities.  If any Capital Stock, whether certificated or uncertificated, or other Investment Property are held by any Grantor or its nominee through a securities intermediary or commodity intermediary, such Grantor shall promptly notify the Administrative Agent thereof and at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent shall either (i) cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such security entitlements, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of any Grantor or such nominee, or (ii) in the case of financial assets or other Investment Property held through a securities intermediary, arrange for the Administrative Agent to become the entitlement holder with respect to such Investment Property, with the Grantor being permitted, only with the consent of the Administrative Agent, to exercise rights to withdraw or otherwise deal with such Investment Property.  The Administrative Agent agrees with each of the Grantors that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such Issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Grantor, unless an Event of Default has occurred and is continuing. The provisions of this paragraph shall not apply to any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary.

 

SECTION 6.  REMEDIAL PROVISIONS

 

6.1                                 Registration in Nominee Name; Denominations. If an Event of Default shall occur and be continuing, (a) the Administrative Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Administrative Agent, and each Grantor will promptly give to the Administrative Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Grantor and (b) the Administrative Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.

 













 


6.2                                 Voting
Rights; Dividends and Interest.


 


(a)                                  Unless and until an Event of Default
shall have occurred and be continuing and the Administrative Agent shall have
notified the Borrower that the rights of the Grantors under this
Section 6.2 are being suspended:


 


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


 


(ii)                                  Each Grantor shall be entitled to receive
and retain any and all dividends, interest, principal and other distributions
paid on or distributed in respect of the Pledged Securities to the extent and
only to the extent that such dividends, interest, principal and other
distributions are permitted by, and otherwise paid or distributed in accordance
with, the terms and conditions of the Credit Agreement, the other Loan
Documents and applicable Laws; provided
that any noncash dividends, interest, principal or other distributions, 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 Collateral, and, if received by any Grantor,
shall not be commingled by such Grantor with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Administrative Agent and the Secured Parties and shall be
forthwith delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement reasonably requested by the Administrative
Agent).


 


(b)                                 Upon the occurrence and during the
continuance of an Event of Default, after the Administrative Agent shall have
notified the Borrower of the suspension of the rights of the Grantors under
paragraph (a)(ii) of this Section 6.2, then all rights of any Grantor
to dividends, interest, principal or other distributions that such Grantor is
authorized to receive pursuant to paragraph (a)(ii) of this
Section 6.2 shall cease, and all such rights shall thereupon become vested
in the Administrative 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 6.2 shall be (i) held in trust for the benefit of the
Administrative Agent, (ii) segregated from other property or funds of such
Grantor and (iii) forthwith delivered to the Administrative Agent in the
same form as so received (with any necessary endorsement reasonably requested
by the Administrative Agent).  Any and
all money and other property paid over to or received by the Administrative
Agent pursuant to the provisions of this paragraph (b) shall be retained
by the Administrative Agent in an account to be established by the
Administrative Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 6.4.  After all Events of Default have been cured
or waived, the Administrative Agent shall promptly repay to each Grantor
(without interest) all dividends, interest, principal or other distributions
that such Grantor would otherwise be


 

















 


permitted to retain pursuant to the terms of paragraph
(a)(ii) of this Section 6.2 and that remain in such account.


 


(c)                                  Upon the occurrence and during the
continuance of an Event of Default, after the Administrative Agent shall
have notified the Borrower of the suspension of the rights of the Grantors
under paragraph (a)(i) of this Section 6.2, then all rights of any
Grantor to exercise the voting and consensual rights and powers it is entitled
to exercise pursuant to paragraph (a)(i) of this Section 6.2 shall
cease, and all such rights shall thereupon become vested in
the Administrative 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 Administrative Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Grantors to exercise such rights.  After all Events
of Default have been cured or waived, each Grantor shall have the exclusive
right to exercise the voting and/or consensual rights and powers that such
Grantor would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) of this Section 6.2.


 


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


 


6.3                                 Additional
Remedies upon Default.


 


(a)                                  Upon the occurrence and during the
continuance of an Event of Default, it is agreed that the Administrative Agent
shall have the right to exercise any and all rights afforded to a Secured Party
with respect to the Obligations under the Uniform Commercial Code or other
applicable law and also may (i) require each Grantor to, and each Grantor
agrees that it will at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the Administrative
Agent and make it available to the Administrative Agent at a place and time to
be designated by the Administrative Agent; (ii) occupy any premises owned
or, to the extent lawful and permitted, leased by any of the Grantors where the
Collateral or any part thereof is assembled or located for a reasonable period
in order to effectuate its rights and remedies hereunder or under law, without
obligation to such Grantor in respect of such occupation; (iii) exercise
any and all rights and remedies of any of the Grantors under or in connection
with the Collateral, or otherwise in respect of the Collateral, provided
that, with respect to any Collateral consisting of Pledged Stock of any Issuer
that is not a Wholly Owned Subsidiary, such exercise shall be subject to any
limitations or prohibitions of any Contractual Obligations among the holders of
such Issuer’s Capital Stock; and (iv) subject to the mandatory
requirements of applicable law, consent to the use by any Grantor of any cash
collateral arising in respect of the Collateral on such terms as the
Administrative Agent deems reasonable and/or may sell or otherwise dispose of,
or acquire by credit bid on behalf of the Secured Parties, all or any part of
the Collateral securing the Obligations at a public or private sale or at any
broker’s board or on any securities exchange, for cash, upon credit or for
future delivery as the


 

















 


Administrative Agent shall deem appropriate.  The Administrative Agent shall be authorized
at any such sale of securities (if it deems it advisable to do so) to restrict
the prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing the Collateral for their own account for investment
and not with a view to the distribution or sale thereof, and upon consummation
of any such sale the Administrative Agent shall have the right to assign,
transfer and deliver to the purchaser or purchasers thereof the Collateral so
sold.  Each such purchaser at any sale of
Collateral shall hold the property sold absolutely, free from any claim or
right on the part of any Grantor, and each Grantor hereby waives (to the extent
not prohibited by law) all rights of redemption, stay and appraisal which such
Grantor now has or may at any time in the future have under any rule of
law or statute now existing or hereafter enacted.


 


(b)                                 The Administrative Agent shall give the
applicable Grantors 10 days’ written notice (which each Grantor agrees is
reasonable notice within the meaning of Section 9-611 of the New York UCC
or its equivalent in other jurisdictions) of the Administrative Agent’s
intention to make any sale of Collateral. 
Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker’s board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or
places as the Administrative Agent may fix and state in the notice (if any) of
such sale.  At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Administrative Agent may (in its sole
and absolute discretion) determine.  The
Administrative Agent shall not be obligated to make any sale of any Collateral
if it shall determine not to do so, regardless of the fact that notice of sale
of such Collateral shall have been given. 
The Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned.  In case any sale of all or
any part of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by the Administrative Agent until the sale
price is paid by the purchaser or purchasers thereof, but the Administrative
Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may be sold again upon like notice.  At any public or private sale made pursuant
to this Agreement, any Secured Party may bid for or purchase, free 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 not
prohibited by law), the Collateral or any part thereof offered for sale and may
make payment on account thereof by using any claim then due and payable to such
Secured Party from any Grantor as a credit against the purchase price, and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to any Grantor
therefor.  For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Administrative Agent shall be free to carry out such sale
pursuant to such agreement and no Grantor shall be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact
that, after the Administrative Agent shall have entered into such an agreement,
all Events of Default shall have been remedied and the Obligations paid in
full.  As an alternative to exercising
the power of sale herein conferred upon it, the Administrative Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and
to sell the Collateral or any portion thereof pursuant to a judgment or decree
of a court or courts having


 

















 


competent jurisdiction or pursuant to a proceeding by
a court appointed receiver.  Any sale
pursuant to the provisions of this Section 6.3 shall be deemed to conform
to the commercially reasonable standards as provided in Section 9-610(b) of
the New York UCC or its equivalent in other jurisdictions.


 


6.4                                 Application
of Proceeds.  Subject to the terms of
the Intercreditor Agreement, at such intervals as may be agreed upon by the
Borrower and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent’s election,
the Administrative Agent may apply all or any part of Proceeds of any
collection or sale of Collateral, including any Collateral consisting of cash,
and any proceeds of the guarantee set forth in Section 2 in payment of the
Obligations in the following order:


 


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


 


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


 


Third, to the Administrative Agent, for
application by it towards prepayment of the Obligations (other than obligations
in respect of Specified Hedge Agreements and Specified Cash Management
Agreements), pro rata among the Lenders according to the amounts of the
Obligations then held by the Lenders, with any such prepayment of Loans being
applied, first, to Base Rate Loans and, second, to Eurocurrency Loans; and


 


Fourth, any balance of such Proceeds remaining
after the Obligations shall have been paid in full, no Letters of Credit shall
be outstanding and the Commitments shall have terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the same.


 


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


 


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


 


6.7                                 Registration
Rights.  (a)  Upon the
occurrence and during the continuance of an Event of Default, (i) if the
Loans (with accrued interest thereon) and all other amounts owing under the
Loan Documents have become due and payable in accordance with the Credit
Agreement and (ii) if the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to Section 6.3,
and if in the opinion of the Administrative Agent it is necessary or advisable
to have the Pledged Stock, or that portion thereof to be sold, registered under
the provisions of the Securities Act, the relevant Grantor will cause the
Issuer


 

















 


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


 


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


 


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


 


6.8                                 Grant of Intellectual Property License. 
During the continuance of an Event of Default, for the purpose of
enabling the Administrative Agent to exercise the rights and remedies under
this Agreement at such time as the Administrative Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby (a) grants
to the Administrative Agent, for the benefit of the Administrative Agent and
the Secured Parties, a nonexclusive license (exercisable without payment of
royalty or other compensation to any Grantor) to use, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to


 

















 


all media in which any of the licensed items may be
recorded or stored and to all computer software and programs used for the
compilation or printout thereof, the right to prosecute and maintain all
Intellectual Property included in the Collateral and the right to sue for past
infringement of such Intellectual Property; and (b) agrees that the
Administrative Agent may sell any of such Grantor’s Inventory directly to any
person, including without limitation persons who have previously purchased the Grantor’s
Inventory from such Grantor and in connection with any such sale or other
enforcement of the Administrative Agent’s rights under this Agreement, may sell
Inventory which bears any Trademark included in the Collateral and any
Inventory that is covered by any Copyright included in the Collateral and the
Administrative Agent may finish any work in process and affix any Trademark
included in the Collateral and sell such Inventory as provided herein.


 


SECTION 7.  THE ADMINISTRATIVE AGENT


 


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


 


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


 


(ii)                                  in the case of any Intellectual Property,
execute and deliver, and record  or have
recorded, any and all agreements, instruments, financing statements, documents
and papers as the Administrative Agent may request (A) to evidence the
Administrative Agent’s and the Secured Parties’ security interest in such
Intellectual Property, and (B) to perfect such security interest;


 


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


 


(iv)                              execute, in connection with the exercise
of any right or remedy provided for in Section 6.3 or 6.7, any
indorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral; and


 


(v)                                 (1)  direct any party liable for any
payment under any of the Collateral to make payment of any and all moneys due
or to become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (2) ask or demand for,


 

















 


collect, and receive payment of and receipt for, any
and all moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (3) sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit,
action or proceeding brought against such Grantor with respect to any
Collateral; (6) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases as
the Administrative Agent may deem appropriate; (7) assign any Intellectual
Property, throughout the world for such term or terms, on such conditions, and
in such manner, as the Administrative Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any
agreement with respect to, or consent to any use of cash collateral arising in
respect of or otherwise deal with, any of the Collateral as fully and
completely as though the Administrative Agent were the absolute owner thereof
for all purposes, and do, at the Administrative Agent’s option and such Grantor’s
expense, at any time, or from time to time, all acts and things which the
Administrative Agent deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent’s and the Secured Parties’ security
interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.


 


Anything in this Section 7.1(a) to the
contrary notwithstanding, the Administrative Agent agrees that it will not
exercise any rights under the power of attorney provided for in this Section 7.1(a) 
(other than any rights set forth in clause (ii) of Section 7.1(a))
unless an Event of Default shall have occurred and be continuing.


 


(b)                                 If any Grantor fails to perform or comply
with any of its agreements contained herein, the Administrative Agent, at its
option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.


 


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


 


(d)                                 Each Grantor hereby ratifies all that
said attorneys shall lawfully do or cause to be done by virtue hereof.  Each Secured Party, by its authorization of
the Administrative Agent’s entering into this Agreement, consents to the
exercise by the Administrative Agent of any power, right or remedy provided for
herein.  All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.


 


7.2                                 Duty
of Administrative Agent.  The
Administrative Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the New York UCC or otherwise, shall be to deal with it in the same manner
as the Administrative Agent deals with similar property for its own
account.  Neither the Administrative
Agent, any Secured Party nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the


 

















 


Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof unless such
failure constitutes gross negligence, willful misconduct or fraud.  The powers conferred on the Administrative
Agent and the Secured Parties hereunder are solely to protect the
Administrative Agent’s and the Secured Parties’ interests in the Collateral and
shall not impose any duty upon the Administrative Agent or any Secured Party to
exercise any such powers.  The Administrative
Agent and the Secured Parties shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and neither they
nor any of their officers, directors, employees or agents shall be responsible
to any Grantor for any act or failure to act hereunder, except for their (or
their officers, directors, employees or agents’) own gross negligence or
willful misconduct.


 


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


 


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


 


SECTION 8. 
MISCELLANEOUS


 


8.1                                 Amendments
in Writing.  None of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except in accordance with Sections 8.6 and 12.1 of the Credit
Agreement.


 


8.2                                 Notices.  All notices, requests and demands to or upon
the Administrative Agent or any Grantor hereunder shall be effected in the
manner provided for in Section 12.2 of the Credit Agreement; provided
that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on Schedule 1.


 


8.3                                 No
Waiver by Course of Conduct; Cumulative Remedies.  Neither the Administrative Agent nor any Secured
Party shall by any act (except by a written instrument pursuant to Section 8.1),
delay, indulgence, omission or otherwise be deemed to have waived any


 

















 


right or remedy hereunder or to have acquiesced in any Default or Event
of Default.  No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof.  No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.  A waiver by the Administrative Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or
such Secured Party would otherwise have on any future occasion.  The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.


 


8.4                                 Enforcement
Expenses; Indemnification.  (a) 
Subject to the limitations set forth in Section 12.5 of the Credit
Agreement, each Guarantor agrees to pay or reimburse each Secured Party and the
Administrative Agent for all its costs and expenses incurred in collecting
against such Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement and the other
Loan Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent.


 


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


 


(c)                                  Each Guarantor agrees to pay, and to save
the Administrative Agent and the Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to Section 12.5
of the Credit Agreement.


 


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


 


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


 


8.6                                 Set-Off.  Subject to the terms of the Intercreditor
Agreement, in addition to any rights and remedies of the Secured Parties
provided by law, each Secured Party shall have the right, without prior notice
to such Grantor or any other Grantor, any such notice being expressly waived by
each Grantor to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower and each Grantor hereunder (whether at
the stated maturity, by acceleration or otherwise), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency,


 

















 


and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Secured Party or any branch or agency thereof
to or for the credit or the account of such Grantor, as the case may be.  Each Secured Party agrees promptly to notify
Parent and the Administrative Agent after any such set-off and application made
by such Secured Party, provided that the failure to give such notice shall not
affect the validity of such set-off and application.  The rights of the Administrative Agent and
each Secured Party under this Section 8.6 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such Secured Party may have.


 


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


 


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


 


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


 


8.10                           Integration.  This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the
Secured Parties with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Secured Party relative to subject matter hereof and
thereof not expressly set forth or referred to herein or in the other Loan
Documents.  In the event of any conflict
between the terms of this Agreement and the provisions of the Credit Agreement,
the provisions of the Credit Agreement shall control.  With respect to the pledge of any Foreign
Subsidiary Voting Stock, in the event of any conflict between the terms of this
Agreement and the provisions of any pledge agreement covering such Foreign
Subsidiary Voting Stock, the provisions of such pledge agreement shall control.


 


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


 


8.12                           Submission
To Jurisdiction; Waivers.  Each of
the Agents, the Secured Parties and each Grantor hereby irrevocably and
unconditionally:


 


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


 

















 


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


 


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


 


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


 


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


 


8.13                           Acknowledgments.  Each Grantor hereby acknowledges that:


 


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


 


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


 


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


 


8.14                           Additional
Grantors.  Each Subsidiary of Parent
that is required to become a party to this Agreement pursuant to Section 8.6
of the Credit Agreement shall become a Grantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement
substantially in the form of Annex 1 hereto.


 


8.15                           Termination,
Releases or Subordination.


 


(a)                                  This Agreement, the security interest
granted to the Administrative Agent and all other security interests granted
hereby shall terminate with respect to all Obligations when all the outstanding
Obligations (other than (x) obligations under Specified Hedge Agreements
and Specified Cash Management Agreements not yet due and payable and (y) contingent
indemnification obligations not yet accrued and payable) have been indefeasibly
paid in full and the Lenders have no further commitment to lend under the
Credit Agreement, the L/C Obligations have been reduced to zero and the Issuing
Lenders have no further obligations to issue Letters of Credit under the Credit
Agreement.


 


(b)                                 A Grantor shall automatically be released
from its obligations hereunder, and the security interest granted to the
Administrative Agent in the Collateral of such Grantor


 

















 


shall be automatically released, upon the consummation
of any transaction permitted by the Credit Agreement as a result of which such
Grantor ceases to be a Subsidiary; provided that the Required Lenders
(or all Lenders, as the case may be) shall have consented to such transaction
(to the extent required by the Credit Agreement) and the terms of such consent
did not provide otherwise.


 


(c)                                  Upon any Disposition by any Grantor of
any Collateral that is permitted under the Credit Agreement, or upon the
effectiveness of any written consent of the Required Lenders (or all Lenders,
as the case may be) to the release of the security interest granted hereby in
any Collateral, the security interest of such Grantor in such Collateral shall
be automatically released or, to the extent permitted under Section 12.16(a) of
the Credit Agreement, subordinated.


 


(d)                                 In connection with any termination,
release or subordination pursuant to paragraph (a), (b) or (c) of
this Section 8.15, the Administrative Agent shall execute and deliver to
any Grantor, at such Grantor’s expense, all documents that such Grantor shall
reasonably request to evidence such termination, release or subordination, as
applicable.  Any execution and delivery
of documents pursuant to this Section 8.15 shall be without recourse to or
warranty by the Administrative Agent.


 


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


 


8.17                           INTERCREDITOR AGREEMENT.  Notwithstanding
anything herein to the contrary, the lien and security interest granted
pursuant to this Agreement and the exercise of any right or remedy hereunder
are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.


 

















 


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


 


	
   

  	
  SIX FLAGS ENTERTAINMENT

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Coughlin

  
	
   

  	
  Name:

  	
  James
  M. Coughlin

  
	
   

  	
  Title:

  	
  General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIX FLAGS OPERATIONS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Coughlin

  
	
   

  	
  Name:

  	
  James
  M. Coughlin

  
	
   

  	
  Title:

  	
  General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIX FLAGS THEME PARKS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Coughlin

  
	
   

  	
  Name:

  	
  James
  M. Coughlin

  
	
   

  	
  Title:

  	
  General
  Counsel

  
					



 

















 


	
   

  	
  Fiesta Texas, Inc.

  
	
   

  	
  Funtime, Inc.

  
	
   

  	
  Funtime Parks, Inc.

  
	
   

  	
  Great America LLC

  
	
   

  	
  Great Escape Holding Inc.

  
	
   

  	
  Hurricane Harbor GP LLC

  
	
   

  	
  Hurricane Harbor LP LLC

  
	
   

  	
  KKI, LLC

  
	
   

  	
  Magic Mountain LLC

  
	
   

  	
  Park Management Corp.

  
	
   

  	
  Premier International Holdings Inc.

  
	
   

  	
  Premier Parks Holdings Inc.

  
	
   

  	
  Premier Parks of Colorado Inc.

  
	
   

  	
  Riverside Park Enterprises, Inc.

  
	
   

  	
  SF HWP management llc

  
	
   

  	
  SFJ Management Inc.

  
	
   

  	
  Six Flags America Property Corporation

  
	
   

  	
  Six Flags Great Adventure LLC

  
	
   

  	
  Six Flags
  Services, Inc.

  
	
   

  	
  Six Flags Services of Illinois, Inc.

  
	
   

  	
  Six Flags St. Louis LLC

  
	
   

  	
  South Street Holdings LLC

  
	
   

  	
  Stuart Amusement Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Danielle J. Bernthal

  
	
   

  	
  Name:

  	
  Danielle
  J. Bernthal

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
				



 

















 


	
   

  	
  Hurricane Harbor LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Hurricane Harbor GP LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Danielle J. Bernthal

  
	
   

  	
   

  	
  Name:

  	
  Danielle
  J. Bernthal

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Six Flags America LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Funtime, Inc.,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Danielle J. Bernthal

  
	
   

  	
   

  	
  Name:

  	
  Danielle
  J. Bernthal

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
  Six Flags Great Escape L.P.

  
	
   

  	
  Great Escape Theme Park L.P.

  
	
   

  	
  Great Escape Rides L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Great Escape Holding Inc.,

  
	
   

  	
   

  	
  their
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Danielle J. Bernthal

  
	
   

  	
   

  	
  Name:

  	
  Danielle
  J. Bernthal

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
						



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   By:

  	
  /s/
  Christophe Vohmann

  
	
   

  	
     Name:

  	
  Christophe
  Vohmann

  
	
   

  	
     Title:

  	
  Authorized
  Signatory