exv10w4



 





EXHIBIT 10.4



 




INTELLECTUAL PROPERTY SECURITY AGREEMENT




dated as of




October 24, 2006




among




WEST CORPORATION,




THE OTHER GRANTORS IDENTIFIED HEREIN




and




LEHMAN COMMERCIAL PAPER INC.,




as Administrative Agent



 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Credit Agreement
	 	 	1	 
	SECTION 1.02. Other Defined Terms
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	Security Interests
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Security Interest
	 	 	4	 
	SECTION 2.02. Representations And Warranties
	 	 	5	 
	SECTION 2.03. Covenants
	 	 	7	 
	SECTION 2.04. As To Intellectual Property Collateral
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Remedies
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Remedies Upon Default
	 	 	10	 
	SECTION 3.02. Application Of Proceeds
	 	 	12	 
	SECTION 3.03. Grant Of License To Use Intellectual Property
	 	 	12	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Indemnity, Subrogation and Subordination
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Indemnity
	 	 	12	 
	SECTION 4.02. Contribution And Subrogation
	 	 	13	 
	SECTION 4.03. Subordination
	 	 	13	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Notices
	 	 	13	 
	SECTION 5.02. Waivers; Amendment
	 	 	13	 
	SECTION 5.03. Administrative Agent’s Fees And Expenses; Indemnification
	 	 	14	 
	SECTION 5.04. Successors And Assigns
	 	 	15	 
	SECTION 5.05. Survival Of Agreement
	 	 	15	 






 









 







TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 5.06. Counterparts; Effectiveness; Several Agreement
	 	 	15	 
	SECTION 5.07. Severability
	 	 	16	 
	SECTION 5.08. Right Of Set-Off
	 	 	16	 
	SECTION 5.09. Governing Law; Jurisdiction; Consent To Service Of Process
	 	 	16	 
	SECTION 5.10. Waiver Of Jury Trial
	 	 	17	 
	SECTION 5.11. Headings
	 	 	17	 
	SECTION 5.12. Security Interest Absolute
	 	 	17	 
	SECTION 5.13. Termination Or Release
	 	 	17	 
	SECTION 5.14. Additional Grantors
	 	 	18	 
	SECTION 5.15. General Authority Of The Administrative Agent
	 	 	19	 
	SECTION 5.16. Administrative Agent Appointed Attorney-In-Fact
	 	 	19	 






 









 





	 	 	 
	Schedules
	 	 
	 
	 	 
	Schedule I
	 	Subsidiary Parties
	Schedule II
	 	Intellectual Property
	 
	 	 
	Exhibits
	 	 
	 
	 	 
	Exhibit I
	 	Form of Supplement
	Exhibit II
	 	Form of Short Form Intellectual Property Agreement






 









 





     INTELLECTUAL PROPERTY SECURITY AGREEMENT dated as of October 24, 2006, among WEST CORPORATION
(the “Borrower”), the other Grantors identified herein and LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent for the Secured Parties (as defined below) (in such capacity, the
“Administrative Agent”).



     Reference is made to the Credit Agreement dated as of October 24, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower,
each Lender from time to time party thereto, Lehman Commercial Paper Inc., as Administrative Agent
and Swing Line Lender, Deutsche Bank Securities Inc. and Bank of America, N.A., as Syndication
Agents, and Wachovia Bank, National Association and General Electric Capital Corporation, as
Co-Documentation Agents. The Lenders have agreed to extend credit to the Borrower subject to the
terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend
such credit are conditioned upon, among other things, the execution and delivery of this Agreement.
The Subsidiary Parties are affiliates of the Borrower, will derive substantial benefits from the
extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and
deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the
parties hereto agree as follows:



ARTICLE I




Definitions




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



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



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



     “Agreement” means this Intellectual Property Security Agreement.



     “Claiming Party” has the meaning assigned to such term in Section 4.02.



     “Collateral” has the meaning assigned to such term in Section 2.01.



     “Contributing Party” has the meaning assigned to such term in Section 4.02.



 









 





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



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



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



     “Grantor” means each of the Parent, if any, the Borrower and each Subsidiary Party.



     “Intellectual Property” means all United States or foreign intellectual and similar property
of every kind and nature now owned or hereafter acquired by any Grantor, including, without
limitation, inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets,
confidential or proprietary and technical and business information, know-how or other similar data
or information, software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, and all additions, improvements and accessions to, and
books and records describing or used in connection with, any of the foregoing and all rights to sue
at law or in equity for any infringement or other violation thereof, including the right to receive
all proceeds and damages therefrom.



     “Intellectual Property Collateral” means Collateral consisting of Intellectual Property.



     “Intellectual Property Security Agreement Supplement” means an instrument in the form of
Exhibit I hereto.



     “License” means any Patent License, Trademark License, Copyright License or other license or
sublicense agreement with regard to Intellectual Property to which any Grantor is a party,
including those listed on Schedule II.



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



     “Patent License” means any written agreement, now or hereafter in effect, granting to any
third party any right to make, use or sell any invention on which a



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



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



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



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks,
the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.01(c) of the Credit Agreement.



     “Security Interest” has the meaning assigned to such term in Section 2.01(a).



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



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



     “Trademarks” means all of the following: (a) all trademarks, service marks, trade names,
corporate names, company names, and other source or business identifiers, trade dress, logos,
designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all registration and recording applications filed in
connection therewith, including registrations and registration applications in the United States
Patent and Trademark Office, including those registrations and applications listed on Schedule II,
(b) all extensions and renewals thereof and (c) all goodwill of the business associated therewith
or symbolized thereby.



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ARTICLE II




Security Interests




     SECTION 2.01. Security Interest. (a) As security for the payment or performance, as the case
may be, in full of the Obligations, including the Senior Guarantees, each Grantor hereby pledges to
the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and
hereby grants to the Administrative Agent, its successors and assigns, for the benefit of the
Secured Parties, a security interest (the “Security Interest”) in, all right, title or interest in
or to any and all of the following assets and properties now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire
any right, title or interest (collectively, the “Collateral”):




     (i) all Copyrights;




     (ii) all Patents;




     (iii) all Trademarks;




     (iv) all Licenses;




     (v) all other Intellectual Property; and




     (vi) all Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the foregoing;


provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not
constitute a grant of a security interest in any Intellectual Property of a Grantor arising under
or evidenced by any contract, lease, instrument, license or other document if (but only to the
extent that) the grant of a security interest therein would (x) constitute a violation of a valid
and enforceable restriction in respect of such Intellectual Property in favor of a third party or
under any law, regulation, permit, order or decree of any Governmental Authority, unless and until
all required consents shall have been obtained (for the avoidance of doubt, the restrictions
described herein are not negative pledges or similar undertakings in favor of a lender or other
financial counterparty) or (y) expressly give any other party in respect of any such contract,
lease, instrument, license or other document, the right to terminate its obligations thereunder,
provided, however, that the limitation set forth in this proviso above shall not affect, limit,
restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any
such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant
is rendered ineffective by any applicable law, including the UCC.




     Notwithstanding any provision of this Agreement to the contrary, the Security Interest shall
not include any application for a Trademark that would be deemed



4









 







invalidated, canceled or abandoned due to the grant and/or enforcement of such Security Interest,
including, without limitation, all United States Trademark applications that are based on an
intent-to-use, unless and until such time that the grant and/or enforcement of the Security
Interest will not affect the status or validity of such Trademark



     (b) Each Grantor hereby irrevocably authorizes the Administrative Agent for the benefit of the
Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial
financing statements with respect to the Collateral or any part thereof and amendments thereto that
contain the information required by Article 9 of the Uniform Commercial Code or the analogous
legislation of each applicable jurisdiction for the filing of any financing statement or amendment,
including whether such Grantor is an organization, the type of organization and any organizational
identification number issued to such Grantor. Each Grantor agrees to provide such information to
the Administrative Agent promptly upon request.



     The Administrative Agent is further authorized to file with the United States Patent and
Trademark Office or United States Copyright Office (or any successor office) a short form
intellectual property agreement in the form attached hereto as Exhibit II and such other documents
as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing
or protecting the Security Interest granted by each Grantor, and naming any Grantor or the Grantors
as debtors and the Administrative Agent as secured party. Upon reasonable request, each Grantor
agrees to promptly execute and deliver or otherwise authenticate such documents.



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



     SECTION 2.02. Representations and Warranties. Each Grantor jointly and severally represents
and warrants, as to itself and the other Grantors, to the Administrative Agent and the Secured
Parties that:



     (a) 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 the 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.



     (b) The Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein is correct and complete in all material respects (except the
information therein with respect to the exact legal name of each Grantor shall be correct and
complete in all respects) as of the Closing Date. The Uniform Commercial Code financing statements
(including fixture filings, as applicable) or other appropriate filings, recordings or
registrations prepared by the Administrative Agent based upon the information provided to the
Administrative Agent in the Perfection



5









 







Certificate for filing in each governmental, municipal or other office specified in Schedule 2
to the Perfection Certificate (or specified by notice from the Borrower to the Administrative Agent
after the Closing Date in the case of filings, recordings or registrations required by Section 6.11
of the Credit Agreement), are all the filings, recordings and registrations (other than filings
required to be made in the United States Patent and Trademark Office and the United States
Copyright Office in order to perfect the Security Interest in Collateral consisting of United
States Patents, Trademarks and Copyrights) 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 the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision thereof) and its
territories and possessions, and no further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary in any such jurisdiction, except as provided under
applicable law with respect to the filing of continuation statements. Each Grantor represents and
warrants that fully executed agreements in the form hereof and containing descriptions of all
Collateral consisting of Intellectual Property with respect to United States issued Patents (and
Patents for which United States applications are pending), United States registered Trademarks (and
Trademarks for which United States registration applications are pending) and United States
registered Copyrights have been delivered to the Administrative Agent for recording by the United
States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. §
261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable, to protect
the validity of and to establish a legal, valid and perfected security interest in favor of the
Administrative Agent (for the benefit of the Secured Parties) in respect of all Collateral
consisting of registrations or applications for registration of Patents and Trademarks, and
registrations for Copyrights, to the extent to which a security interest may be perfected by
filing, recording or registration of such interest in the United States, and, to the Grantors’
knowledge, no further or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than (a) such filings or other actions as are required under the
Uniform Commercial Code and (b) such actions as are necessary to perfect the Security Interest with
respect to any Collateral consisting of registrations or applications for registration of Patents
and Trademarks, and registrations for Copyrights, acquired or developed after the date hereof).



     (c) The Security Interest constitutes (i) a legal and valid security interest in all the
Collateral securing the payment and performance of the Obligations, including the Guarantees, (ii)
subject to the filings described in Section 2.02(b), a perfected security interest in all
Collateral to the extent to which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States pursuant to the
Uniform Commercial Code and (iii) a security interest that shall be perfected in all Patents,
Trademarks and Copyrights to the extent to which a security interest may be perfected upon the
receipt and recording of this Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, within the three-month period (commencing as of the
date hereof) pursuant to 35 U.S.C. § 261 or 15 U.S.C. § 1060 or the one month period (commencing as
of the date



6









 







hereof) pursuant to 17 U.S.C. § 205. The Security Interest is and shall be prior to any other
Lien on any of the Collateral, other than (i) any nonconsensual Lien that is expressly permitted
pursuant to Section 7.01 of the Credit Agreement and has priority as a matter of law and (ii) Liens
expressly permitted pursuant to Section 7.01 of the Credit Agreement.



     (d) The Collateral is owned by the Grantors free and clear of any Lien, except for Liens
expressly permitted pursuant to Section 7.01 of the Credit Agreement. None of the Grantors has
filed or consented to the filing of (i) any financing statement or analogous document under the
Uniform Commercial Code or any other applicable laws covering any Collateral, (ii) any assignment
in which any Grantor assigns any Collateral or any security agreement or similar instrument
covering any Collateral with the United States Patent and Trademark Office or the United States
Copyright Office or (iii) any assignment in which any Grantor assigns any 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 pursuant to Section 7.01 of the Credit Agreement.



     SECTION 2.03. Covenants. (a) The Borrower agrees to notify the Administrative Agent in
writing promptly, but in any event within 10 days, after any change (i) in the 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.



     (b) Each Grantor shall, at its own expense, take any and all commercially reasonable actions
necessary to defend title to material Collateral against all Persons and to defend the Security
Interest of the Administrative Agent in such material Collateral and the priority thereof against
any Lien not expressly permitted pursuant to Section 7.01 of the Credit Agreement; provided that
nothing in this Agreement shall prevent any Grantor from disposing of or discontinuing the
operation or maintenance of any of its assets or properties if such disposal or discontinuance is
(x) determined by such Grantor to be desirable in the conduct of its business and not materially
adverse to the Lenders and (y) permitted by the Credit Agreement.



     (c) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to Section 6.01 of the Credit Agreement, the Borrower shall deliver
to the Administrative Agent a certificate executed by the chief financial officer and the chief
legal officer of the Borrower setting forth the information required pursuant to Schedules 1(a),
1(c), 1(e), 1(f) and 2(b) of the Perfection Certificate or confirming that there has been no change
in such information since the date of such certificate or the date of the most recent certificate
delivered pursuant to this Section 2.03(c).



     (d) Each Grantor 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



7









 







all such further instruments and documents and take all such actions as the Administrative
Agent may from time to time reasonably request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including the payment of any fees and
taxes required in connection with the execution and delivery of this Agreement, the granting of the
Security Interest and the filing of any financing statements or other documents in connection
herewith or therewith; provided, however that the delivery or recordation of recordable security
documents in non-U.S. jurisdictions is not required. If any amount payable under or in connection
with any of the Collateral that is in excess of $2,000,000 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.



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



     (e) 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 pursuant to Section 7.01 of 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 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 or in the other
Loan Documents.



     (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 conditions
and obligations to be observed and performed by it under each



8









 







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.



     SECTION 2.04. As to Intellectual Property Collateral. (a) Except to the extent failure to
act could not reasonably be expected to have a Material Adverse Effect, with respect to
registration or pending application of each item of its Intellectual Property Collateral for which
such Grantor has standing to do so, each Grantor agrees to take, at its expense, all commercially
reasonable steps, including, without limitation, in the U.S. Patent and Trademark Office, the U.S.
Copyright Office and any other governmental authority located in the United States, to (i) maintain
the validity and enforceability of any registered Intellectual Property Collateral (or applications
therefor) necessary for the conduct of its business and maintain such Intellectual Property
Collateral in full force and effect and (ii) pursue the registration and maintenance of each
material Patent, Trademark, or Copyright registration or application, now or hereafter included in
such Intellectual Property Collateral of such Grantor that is necessary for the conduct of such
Grantor’s business, including, without limitation, the payment of required fees and taxes, the
filing of responses to office actions issued by the U.S. Patent and Trademark Office, the U.S.
Copyright Office or other governmental authorities, the filing of applications for renewal or
extension, the filing of affidavits under Sections 8 and 15 or the U.S. Trademark Act, the filing
of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions,
the payment of maintenance fees and the participation in interference, reexamination, opposition,
cancellation, infringement and misappropriation proceedings.



     (b) Except as could not reasonably be expected to have a Material Adverse Effect, no Grantor
shall do or permit any act or knowingly omit to do any act whereby any of its material Intellectual
Property Collateral that is necessary for the conduct of its business is reasonably likely to
lapse, be terminated, or become invalid or unenforceable or placed in the public domain (or in case
of a trade secret, lose its competitive value); provided that nothing in this Agreement shall
prevent any Grantor from disposing of or discontinuing the operation or maintenance of any of its
assets or properties if such disposal or discontinuance is (x) determined by such Grantor to be
desirable in the conduct of its business and not materially adverse to the Lenders and (y)
permitted by the Credit Agreement.



     (c) Each Grantor agrees that, should it obtain an ownership or other interest in any
Intellectual Property Collateral after the Closing Date (“After-Acquired Intellectual Property”),
(i) the provisions of this Agreement shall automatically apply thereto and (ii) any such
After-Acquired Intellectual Property and, in the case of Trademarks, the goodwill symbolized
thereby, shall automatically become part of the Intellectual Property Collateral subject to the
terms and conditions of this Agreement with respect thereto.



9









 





     (d) Once every fiscal quarter of the Borrower, with respect to issued or registered Patents
(or published applications therefor), registered Trademarks (or applications therefor), and
registered Copyrights, in each case to the extent such Patents, Trademarks and Copyrights are
registered in the United States, each Grantor shall sign and deliver to the Administrative Agent an
appropriate Intellectual Property Security Agreement with respect to all applicable Intellectual
Property owned by it as of the last day of such period, to the extent that such Intellectual
Property is not covered by any previous Intellectual Property Security Agreement so signed and
delivered by it. In each case, it will promptly cooperate as reasonably necessary to enable the
Administrative Agent to make any necessary or reasonably desirable recordations with the U.S.
Copyright Office or the U.S. Patent and Trademark Office, as appropriate.



     (e) Nothing in this Agreement prevents any Grantor from discontinuing the use or maintenance
of any or its Intellectual Property Collateral to the extent permitted by the Credit Agreement if
such Grantor determines in its reasonable business judgment that such discontinuance is desirable
in the conduct of its business.



ARTICLE III




Remedies




     SECTION 3.01. Remedies Upon Default. Upon the occurrence and during the continuance of an
Event of Default, each Grantor agrees to deliver each item of Collateral to the Administrative
Agent on demand, and it is agreed that the Administrative Agent shall have the right, at the same
or different times, with respect to any Collateral consisting of Intellectual Property, on demand,
to cause the Security Interest to become an assignment, transfer and conveyance of any of or all
such Collateral by the applicable Grantors to the Administrative Agent, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive
basis, any such Collateral throughout the world on such terms and conditions and in such manner as
the Administrative Agent shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers cannot be obtained), and, generally, 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. Without limiting the generality of the foregoing, each Grantor
agrees that the Administrative Agent shall have the right, subject to the mandatory requirements of
applicable law and the notice requirements described below, to sell or otherwise dispose of all or
any part of the Collateral securing the Obligations at a public or private sale, for cash, upon
credit or for future delivery as the Administrative Agent shall deem appropriate. Each such
purchaser at any sale of Collateral shall hold the property sold absolutely, free from any claim or
right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law)
all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted. Notwithstanding
the foregoing, unless and until a “Statement of Use” or an “Amendment to Allege Use” has been filed
and accepted in the United States Patent and Trademark Office, it is agreed that the Administrative



10









 




Agent’s right to assign, transfer or convey any Trademark Collateral for which an application
is pending under Section 1(b) of the Lanham Act, 15 U.S.C. § 1051(b), or any of its successors or
counterparts, shall only be exercised if any such assignment, transfer or conveyance occurs in
connection with the transfer of the business (or the portion of the business) to which such
Trademark Collateral pertains and is made to the successor of that business.




     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. 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, to the extent permitted by law,
private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part
of any Grantor (all said rights being also hereby waived and released to the extent permitted by
law), the Collateral or any part thereof offered for sale and may make payment on account thereof
by using any claim then due and payable to such Secured Party from any Grantor as a credit against
the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any Grantor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Administrative Agent shall be free to carry out such sale pursuant
to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Administrative Agent shall have
entered into such an agreement all Events of Default shall have been remedied and the Obligations
paid in full. As an alternative to exercising the power of sale herein conferred upon it, the
Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or



11









 







pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions
of this Section 3.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.



     SECTION 3.02. Application of Proceeds. The Administrative Agent shall apply the proceeds of
any collection or sale of Collateral, including any Collateral consisting of cash in accordance
with Section 8.04 of the Credit Agreement.



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



     SECTION 3.03. Grant of License to Use Intellectual Property. In addition to the
Administrative Agent’s rights in Section 3.01 hereof, for the purpose of enabling the
Administrative Agent to exercise rights and remedies under this Agreement at such time as the
Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor
shall, upon request by the Administrative Agent at any time after and during the continuance of an
Event of Default, grant to the Administrative Agent a nonexclusive license to the extent that
granting such license is permitted by applicable law and under the terms of each License, to use,
license or sublicense any of the Collateral consisting of Intellectual Property now owned, used or
hereafter acquired or used by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items may be recorded or
stored and to all computer software and programs used for the compilation or printout thereof. The
use of such license by the Administrative Agent may be exercised, at the option of the
Administrative Agent, during the continuation of an Event of Default; provided that any license,
sublicense or other transaction entered into by the Administrative Agent in accordance herewith
shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default.



ARTICLE IV




Indemnity, Subrogation and Subordination




     SECTION 4.01. Indemnity. In addition to all rights of indemnity and subrogation as the
Grantors may have under applicable law (but subject to Section 4.03), the Borrower agrees that in
the event any assets of any Grantor (other than the Borrower) shall be sold pursuant to this
Agreement or any other Collateral Document to satisfy in whole or in part an obligation owed to any
Secured Party, the Borrower shall indemnify



12









 




such Grantor in an amount equal to the greater of the book value or the fair market value of
the assets so sold.




     SECTION 4.02. Contribution and Subrogation. Each Subsidiary Party (a “Contributing Party”)
agrees (subject to Section 4.03) that, in the event assets of any other Subsidiary Party shall be
sold pursuant to any Collateral Document to satisfy any Obligation owed to any Secured Party and
such other Subsidiary Party (the “Claiming Party”) shall not have been fully indemnified by the
Borrower as provided in Section 4.01, the Contributing Party shall indemnify the Claiming Party in
an amount equal to the greater of the book value or the fair market value of such assets, in each
case multiplied by a fraction of which the numerator shall be the net worth of the Contributing
Party on the date hereof and the denominator shall be the aggregate net worth of all the Grantors
on the date hereof (or, in the case of any Grantor becoming a party hereto pursuant to Section
5.14, the date of the Intellectual Property Security Agreement Supplement executed and delivered by
such Grantor). Any Contributing Party making any payment to a Claiming Party pursuant to this
Section 4.02 shall be subrogated to the rights of such Claiming Party to the extent of such
payment.



     SECTION 4.03. Subordination. (a) Notwithstanding any provision of this Agreement to the
contrary, all rights of the Grantors under Sections 4.01 and 4.02 and all other rights of
indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the
part of the Borrower or any Grantor to make the payments required by Sections 4.01 and 4.02 (or
any other payments required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Grantor with respect to its obligations hereunder, and each
Grantor shall remain liable for the full amount of the obligations of such Grantor hereunder.



     (b) Each Grantor hereby agrees that upon the occurrence and during the continuance of an Event
of Default and after notice from the Administrative Agent (which notice states that it is delivered
pursuant to this Section 4.03(b)), all Indebtedness owed by it to any Subsidiary that is not a Loan
Party shall be fully subordinated to the indefeasible payment in full in cash of the Obligations.



ARTICLE V




Miscellaneous




     SECTION 5.01. Notices. All communications and notices hereunder shall (except as otherwise
expressly permitted herein) be in writing and given as provided in Section 10.02 of the Credit
Agreement. All communications and notices hereunder to any Grantor shall be given to it in care of
the Borrower as provided in Section 10.02 of the Credit Agreement.



     SECTION 5.02. Waivers; Amendment. (a) No failure or delay by the Administrative Agent, any
L/C Issuer or any Lender in exercising any right or power



13









 







hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agent, the L/C
Issuers and the Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any Grantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 5.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any L/C Issuer may have had notice or knowledge of such Default at the time.
No notice or demand on any Grantor in any case shall entitle any Grantor to any other or further
notice or demand in similar or other circumstances.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the
Grantor or Grantors with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 10.01 of the Credit Agreement.



     SECTION 5.03. Administrative Agent’s Fees and Expenses; Indemnification. (a) The parties
hereto agree that the Administrative Agent shall be entitled to reimbursement of its reasonable
out-of-pocket expenses incurred hereunder as provided in Section 10.04 of the Credit Agreement.



     (b) Without limitation of its indemnification obligations under the other Loan Documents, each
Grantor agrees to indemnify and hold harmless the Administrative Agent and the other Indemnitees
(as defined in Section 10.05 of the Credit Agreement) from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at
any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to
or arising out of or in connection with the execution, delivery or performance of this Agreement or
any claim, litigation, investigation or proceeding relating to any of the foregoing agreements or
instruments contemplated hereby, or to the Collateral, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements resulted from the gross negligence, bad faith or
willful misconduct of, or the breach of this Agreement by, such Indemnitee or of any affiliate,
director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee.



     (c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Collateral Documents. The provisions of



14









 







this Section 5.03 shall remain operative and in full force and effect regardless of the
termination of this Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any investigation made by or
on behalf of the Administrative Agent or any other Secured Party. All amounts due under this
Section 5.03 shall be payable within 10 days of written demand therefor.



     SECTION 5.04. Successors and Assigns. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the permitted successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of any Grantor or the
Administrative Agent that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.



     SECTION 5.05. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Grantors hereunder and in the other Loan Documents and in the certificates
or other instruments prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders and shall survive
the execution and delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any Lender or on its behalf and
notwithstanding that the Administrative Agent, any L/C Issuer or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any credit is extended
under the Credit Agreement, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any fee or any other amount payable under any Loan Document
(other than (x) obligations under Secured Hedge Agreements not yet due and payable, (y) Cash
Management Obligations and (z) contingent indemnification obligations) is outstanding and unpaid or
any Letter of Credit is outstanding (unless cash collateral or other credit support satisfactory
to the L/C Issuer thereof in its sole discretion has been provided) and so long as the Commitments
have not expired or terminated.



     SECTION 5.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery by telecopier of an executed counterpart of
a signature page to this Agreement shall be effective as delivery of an original executed
counterpart of this Agreement. This Agreement shall become effective as to any Grantor when a
counterpart hereof executed on behalf of such Grantor shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Grantor and the Administrative
Agent and their respective permitted successors and assigns, and shall inure to the benefit of such
Grantor, the Administrative Agent and the other Secured Parties and their respective successors and
assigns, except that no Grantor shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such



15









 







assignment or transfer shall be void) except as expressly contemplated by this Agreement or
the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to
each Grantor and may be amended, modified, supplemented, waived or released with respect to any
Grantor without the approval of any other Grantor and without affecting the obligations of any
other Grantor hereunder.



     SECTION 5.07. Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable, the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.



     SECTION 5.08. Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of Default, each
Lender and its Affiliates is authorized at any time and from time to time, without prior notice to
any Grantor, any such notice being waived by each Grantor to the fullest extent permitted by
applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender
and its Affiliates to or for the credit or the account of the respective Grantor against any and
all obligations owing to such Lender and its Affiliates hereunder, now or hereafter existing,
irrespective of whether or not such Lender or Affiliate shall have made demand under this Agreement
and although such obligations may be contingent or unmatured or denominated in a currency different
from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the
applicable Grantor and the Administrative Agent after any such set off and application made by such
Lender; provided, that the failure to give such notice shall not affect the validity of such setoff
and application. The rights of each Lender under this Section 5.08 are in addition to other rights
and remedies (including other rights of setoff) that such Lender may have.



     SECTION 5.09. GOVERNING LAW. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH GRANTOR CONSENTS, FOR ITSELF



16









 







AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
GRANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.



     SECTION 5.10. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 6.10 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     SECTION 5.11. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



     SECTION 5.12. Security Interest Absolute. All rights of the Administrative Agent hereunder,
the Security Interest, the grant of a security interest in the Pledged Collateral and all
obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to any departure from
the Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of
the Obligations or (d) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Grantor in respect of the Obligations or this Agreement.



     SECTION 5.13. Termination or Release. (a) This Agreement, the Security Interest and all
other security interests granted hereby shall terminate with



17









 







respect to all Secured Obligations when all the outstanding Secured Obligations under the Loan
Documents (other than (x) obligations under Secured Hedge Agreements not yet due and payable, (y)
Cash Management Obligations and (z) contingent indemnification obligations) have been 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 (unless cash collateral or other credit support satisfactory to the L/C
Issuer thereof in its sole discretion has been provided) and the L/C Issuers have no further
obligations to issue Letters of Credit under the Credit Agreement.



     (b) A Subsidiary Party shall automatically be released from its obligations hereunder and the
Security Interest in the Collateral of such Subsidiary Party shall be automatically released upon
the consummation of any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Party ceases to be a Subsidiary of the Borrower or becomes an Excluded Subsidiary;
provided that the Required Lenders 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 sale or other transfer by any Grantor of any Collateral that is permitted under
the Credit Agreement, or upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 10.01 of the Credit
Agreement, the security interest in such Collateral shall be automatically released.



     (d) In connection with any termination or release pursuant to paragraph (a), (b) or (c), the
Administrative Agent shall execute and deliver to any Grantor, at such Grantor’s expense, all
documents that such Grantor shall reasonably request to evidence such termination or release and
shall perform such other actions reasonably requested by such Grantor to effect such release,
including delivery of certificates, securities and instruments. Any execution and delivery of
documents pursuant to this Section 5.13 shall be without recourse to or warranty by the
Administrative Agent.



     SECTION 5.14. Additional Grantors. Pursuant to Section 6.11 of the Credit Agreement, Holdings
and certain Restricted Subsidiaries that (i) are not Excluded Subsidiaries and (ii) were not in
existence or not Restricted Subsidiaries on the date of the Credit Agreement are required to enter
in this Agreement as Grantors upon the occurrence of a Holdings Election Event or becoming a
Restricted Subsidiary that is not an Excluded Subsidiary, as applicable. Upon execution and
delivery by the Administrative Agent and Holdings or a Restricted Subsidiary, as applicable, of a
Security Agreement Supplement, Holdings or such Restricted Subsidiary shall become a Grantor
hereunder with the same force and effect as if originally named as a Grantor herein. The execution
and delivery of any such instrument shall not require the consent of any other Grantor hereunder.
The rights and obligations of each Grantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.



18









 





     SECTION 5.15. General Authority of the Administrative Agent. By acceptance of the benefits of
this Agreement and any other Collateral Documents, each Secured Party (whether or not a signatory
hereto) shall be deemed irrevocably (a) to consent to the appointment of the Administrative Agent
as its agent hereunder and under such other Collateral Documents, (b) to confirm that the
Administrative Agent shall have the authority to act as the exclusive agent of such Secured Party
for the enforcement of any provisions of this Agreement and such other Collateral Documents against
any Grantor, the exercise of remedies hereunder or thereunder and the giving or withholding of any
consent or approval hereunder or thereunder relating to any Collateral or any Grantor’s obligations
with respect thereto, (c) to agree that it shall not take any action to enforce any provisions of
this Agreement or any other Collateral Document against any Grantor, to exercise any remedy
hereunder or thereunder or to give any consents or approvals hereunder or thereunder except as
expressly provided in this Agreement or any other Collateral Document and (d) to agree to be bound
by the terms of this Agreement and any other Collateral Documents.



     SECTION 5.16. Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints
the Administrative Agent the attorney-in-fact of such Grantor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes hereof at any time
after and during the continuance of an Event of Default, which appointment is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, the Administrative
Agent shall have the right, upon the occurrence and during the continuance of an Event of Default
and notice by the Administrative Agent to the Borrower of its intent to exercise such rights, with
full power of substitution either in the Administrative Agent’s name or in the name of such Grantor
(a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and releases of all or
any of the Collateral; (c) to sign the name of any Grantor on any invoice or bill of lading
relating to any of the Collateral; to send verifications of Accoutns Receivable to any Account
Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity
in any court of competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or any of the
Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors to make payment
directly to the Administrative Agent, and (h) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other
acts and things necessary to carry out the purposes of this Agreement, as fully and completely as
though the Administrative Agent were the absolute owner of the Collateral for all purposes;
provided that nothing herein contained shall be construed as requiring or obligating the
Administrative Agent to make any commitment or to make any inquiry as to the nature or sufficiency
of any payment received by the Administrative Agent, or to present or file any claim or notice, or
to take any action with respect to the Collateral or



19









 







any part thereof or the moneys due or to become due in respect thereof or any property covered
thereby. The Administrative Agent and the other Secured Parties shall be accountable only for
amounts actually received as a result of the exercise of the powers granted to them herein, and
neither they nor their officers, directors, employees or agents shall be responsible to any Grantor
for any act or failure to act hereunder, except for their own gross negligence or willful
misconduct or that of any of their Affiliates, directors, officers, employees, counsel, agents or
attorneys-in-fact.



20









 





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


WEST CORPORATION

COSMOSIS CORPORATION

INPULSE RESPONSE GROUP, INC.

INTERCALL, INC.

INTRADO COMMUNICATIONS INC.

INTRADO COMMUNICATIONS OF VIRGINIA INC.

INTRADO INC.

NORTHERN CONTACT, INC.

WEST ASSET MANAGEMENT, INC.

WEST DIRECT, INC.

WEST FACILITIES CORPORATION

WEST INTERACTIVE CORPORATION

WEST INTERNATIONAL CORPORATION

WEST RECEIVABLE SERVICES, INC.

WEST TELEMARKETING CORPORATION II



By: /s/ Paul M. Mendlik                    

Name: Paul M. Mendlik

Title: Chief Financial Officer and Treasurer



ASSET DIRECT MORTGAGE, LLC

BUYDEBTCO, LLC

INTRADO INTERNATIONAL, LLC

STARGATE MANAGEMENT LLC

THE DEBT DEPOT, LLC

WEST ASSET PURCHASING, LLC

WEST TRANSACTION SERVICES II, LLC

WEST TRANSACTION SERVICES, LLC



By: /s/ Paul M. Mendlik                    

Name: Paul M. Mendlik

Title: Manager



ATTENTION FUNDING CORPORATION



By: /s/ Paul M. Mendlik                    

Name: Paul M. Mendlik

Title: Treasurer




 









 







INTERCALL TELECOM VENTURES, LLC

By INTERCALL, INC.

Its sole member



By: /s/ Paul M. Mendlik                    

Name: Paul M. Mendlik

Title: Chief Financial Officer and Treasurer



WEST BUSINESS SERVICES, LP

WEST TELEMARKETING, LP

By WEST TRANSACTION SERVICES, LLC

Their general partner



By: /s/ Paul M. Mendlik                    

Name: Paul M. Mendlik

Title: Manager




 









 







LEHMAN COMMERCIAL PAPER INC.,

as Administrative Agent



By: /s/ Jeff Ogden                    

Name: Jeff Ogden

Title: Managing Director