Exhibit 10.3


 


GUARANTEE AND
COLLATERAL AGREEMENT dated as of May 13, 2004, among PP HOLDING CORPORATION, a
Delaware corporation (“Holdings”), PP ACQUISITION CORPORATION, a
Delaware corporation (the “Borrower”) and the Subsidiaries of the
Borrower identified herein.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, the Borrower will acquire all the capital stock of Polypore,
Inc., a Delaware corporation (the “Company”), pursuant to the Stock
Purchase Agreement, dated as of January 30, 2004 (the “Acquisition
Agreement”), between the Company, the sellers named therein and the
Borrower;


 


WHEREAS, pursuant to the Acquisition Agreement, the Borrower will be
merged with and into the Company, with the Company continuing as the surviving
corporation in such merger (the “Merger”);


 


WHEREAS, upon the effectiveness of the Merger, the Company will succeed
to all rights and obligations of the Borrower by operation of law and all
references herein and in the other Loan Documents to the term “Borrower”
shall thereupon be deemed to be references to the Company;


 


WHEREAS, pursuant to the Credit Agreement, dated as of May 13, 2004
(the “Credit Agreement”), among Holdings, the Borrower, the financial
institutions from time to time party thereto (the “Lenders”), General
Electric Capital Corporation, Lehman Commercial Paper Inc. and UBS Securities
LLC, as co-documentation agents, Bear Stearns Corporate Lending Inc., as
syndication agent and JPMorgan Chase Bank, as administrative agent (the “Administrative
Agent”), the Lenders have severally agreed to make extensions of credit to
the Borrower upon the terms and subject to the conditions set forth therein;


 


WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;


 


WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;


 


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;
and


 


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 Lenders;


 


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, each Grantor hereby agrees 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 set forth in the Credit
Agreement.  All terms defined in the New
York UCC (as such term is defined herein) and not defined in this Agreement
have the meanings specified therein. 
All references to the Uniform Commercial Code shall mean the New York
UCC.


 


(b) The rules of construction specified in Section 1.2 of the
Credit Agreement also apply to this Agreement.


 


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


 


“Account” has the meaning assigned to
such term in Section 9-102 of the New York UCC.


 


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


 


“Accounts Receivable” shall mean all
Accounts and all right, title and interest in any returned goods, together will
all rights, titles, securities and guarantees with respect thereto, including
any rights to stoppage in transit, replevin, reclamation and resales, and all
related security interests, liens and pledges, whether voluntary or
involuntary, in each case whether now existing or owned or hereafter arising or
acquired.


 


“Acquisition Agreement” has the
meaning assigned to such term in the recitals.


 


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


 


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


 


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


 


“Chattel Paper” has the meaning
assigned to such term in Section 9-102 of the New York UCC.


 


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


 


“Collateral” means the Article 9
Collateral and the Pledged Collateral.


 


“Collateral Account” means any
collateral account established by the Administrative Agent as provided in
Section 5.05 or 5.07.


 


“Commercial Tort Claim” has the meaning
assigned to such term in Section 9-102 of the New York UCC.


 


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“Commodity Intermediary” has the
meaning assigned to such term in Section 9-102 of the New York UCC.


 


“Company” has the meaning assigned to
such term in the recitals.


 


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


 


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


 


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


 


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


 


“Daramic” has the meaning assigned to
such term in Section 3.02(a).


 


“Daramic Brazil” has the meaning
assigned to such term in Section 3.02(a).


 


“Deposit Account” has the meaning
assigned to such term in Section 9-102 of the New York UCC.


 


“Electronic Chattel Paper” has the
meaning assigned to such term in Section 9-102 of the New York UCC.


 


“Entitlement Holder” has the meaning
assigned to such term in Section 8-102 of the New York UCC.


 


“Entitlement Order” has the meaning
assigned to such term in Section 8-102 of the New York UCC.


 


“Equipment” has the meaning assigned
to such term in Section 9-102 of the New York UCC.


 


“Equity Interests” means shares of
capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity interests in
any person, or any obligations convertible into or exchangeable for, or giving
any person a right, option or warrant to acquire such equity interests or such
convertible or exchangeable obligations.


 


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


 


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“Farm Products” has the meaning
assigned to such term in Section 9-102 of the New York UCC.


 


“Financial Asset” has the meaning
assigned to such term in Section 8-102 of the New York UCC.


 


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


 


“Grantors” means Holdings, the
Borrower and the Subsidiary Guarantors.


 


“Guarantors” means Holdings and the
Subsidiary Guarantors.


 


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


 


“Instrument” has the meaning assigned
to such term in Section 9-102 of the New York UCC.


 


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


 


“Inventory” has the meaning assigned
to such term in Section 9-102 of the New York UCC.


 


“Investment Property” has the meaning
assigned to such term in Section 9-102 of the New York UCC.


 


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


 


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


 


“Letter-of-Credit Right” has the
meaning assigned to such term in Section 9-102 of the New York UCC.


 


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


 


“Loan Document Obligations” means (a)
the due and punctual payment of (i) the principal of and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations of the Borrower to any of the Secured Parties under the Credit
Agreement and each of the other Loan Documents, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), (b) the due and punctual
performance of all other obligations of the Borrower under or pursuant to the
Credit Agreement and each of the other Loan Documents, and (c) the due and
punctual payment and performance of all the obligations of each other Loan
Party under or pursuant to this Agreement and each of the other Loan Documents.


 


“Merger” has the meaning assigned to
such term in the recitals.


 


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


 


“Obligations” means (a) the Loan
Document Obligations and (b) the due and punctual payment and performance
of all obligations of each Loan Party under each Hedging Agreement that (i) is
in effect on the Closing Date with a counterparty that is a Lender or an
Affiliate of a Lender as of the Closing Date or (ii) is entered into after the
Closing Date with any counterparty that is a Lender or an Affiliate of a Lender
at the time such Hedging Agreement is entered into unless such Hedging
Agreement provides the obligations thereunder are not “Obligations” as defined
herein.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Proceeds” has the meaning assigned to
such term in Section 9-102 of the New York UCC.


 


“Receivable” means 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).


 


“Secured Parties” means (a) the
Lenders, (b) the Administrative Agent, (c) any Issuing Bank,
(d) each counterparty to any Hedging Agreement with a Loan Party that
either (i) is in effect on the Closing Date if such counterparty is a Lender or
an Affiliate of a Lender as of the Closing Date or (ii) is entered into after
the Closing Date if such counterparty is a Lender or an Affiliate of a Lender
at the time such Hedging Agreement is entered into, (e) the beneficiaries
of each indemnification obligation undertaken by any Loan Party under any Loan
Document and (f) the successors and assigns of each of the foregoing.


 


“Securities Account” has the meaning
assigned to such term in Section 8-501 of the New York UCC.


 


“Securities Intermediary” has the
meaning assigned to such term in Section 8-102 of the New York UCC.


 


“Security” has the meaning assigned to
such term in Section 8-102 of the New York UCC.


 


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


 


“Subsidiary Guarantors” means (a) the
Subsidiaries identified on Schedule I and (b) each other Subsidiary that
becomes a party to this Agreement as a Subsidiary Guarantor 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.


 


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


 


“Vehicles” means all cars, trucks,
trailers, construction and earth moving equipment and other vehicles covered by
a certificate of title law of any state.


 


ARTICLE II


 


Guarantee


 


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


 


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


 


SECTION 2.03.  No
Limitations, Etc. 
(a)  Except for termination of a Guarantor’s obligations
hereunder as expressly provided in Section 7.15, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations or
otherwise.  Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by (i) the failure of
the Administrative Agent or any other Secured Party to assert any claim or
demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise; (ii) any rescission, waiver, amendment or modification
of, or any release from any of the terms or provisions of, any Loan Document or
any other agreement, including with respect to any other Guarantor under this
Agreement; (iii) the release of any security held by the Administrative
Agent or any other Secured Party for the Obligations or any of them;
(iv) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations; or (v) any other act or omission that may
or might in any manner or to any extent vary the risk of any Guarantor or otherwise
operate as a discharge of any


 


7

















 


Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of all the Obligations).  Each Guarantor expressly authorizes the Administrative Agent to
take and hold security for the payment and performance of the Obligations, to
exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and
manner of any sale thereof in its sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of the
Obligations, all without affecting the obligations of any Guarantor hereunder.


 


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


 


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


 


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


 


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


 


8

















 


ARTICLE III


 


Pledge of
Securities


 


SECTION 3.01.  Pledge.  As security for the payment or performance,
as the case may be, in full of the Obligations, 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 in,
all of such Grantor’s right, title and interest in, to and under
(a) Equity Interests owned by it and listed on Schedule II and any
other Equity Interests obtained in the future by such Grantor and the
certificates representing all such Equity Interests (the “Pledged Stock”);
provided,
however,
that the Pledged Stock shall not include more than 66% of the issued and
outstanding voting Equity Interests of any Foreign Subsidiary; (b)(i) the
debt securities listed opposite the name of such Grantor on Schedule II,
(ii) any debt securities in the future issued to such Grantor and
(iii) the promissory notes and any other instruments evidencing such debt
securities (the “Pledged Debt
Securities”); (c) all other property that may be
delivered to and held by the Administrative Agent pursuant to the terms of this
Section 3.01; (d) subject to Section 3.06, all payments of
principal or interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of, in
exchange for or upon the conversion of, and all other Proceeds received in
respect of, the securities referred to in clauses (a) and (b) above;
(e) subject to Section 3.06, all rights and privileges of such
Grantor with respect to the securities and other property referred to in clauses (a),
(b), (c) and (d) above; and (f) all Proceeds of any of the foregoing (the
items referred to in clauses (a) through (f) above being collectively referred
to as the “Pledged
Collateral”).


 


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


 


SECTION 3.02.  Delivery of
the Pledged Collateral. 
(a)  Each Grantor agrees promptly to deliver or cause to be
delivered to the Administrative Agent any and all Pledged Securities; provided,
that, notwithstanding anything herein to the contrary, Daramic, Inc. (“Daramic”)
shall be under no obligation to pledge 66% of its shares of Daramic
Separadores de Baterias Ltd. (“Daramic
Brazil”) during the period commencing on the Closing
Date and ending on the two-month anniversary of the Closing Date; provided,
further,
that if the Proposed Reorganization does not occur on or prior to such
two-month anniversary, Daramic shall be required to promptly (and, in any event
within five (5) Business Days after such two-month anniversary) deliver 66% of
its shares in Daramic Brazil to the Administrative Agent.


 


(b) Each Grantor will cause any Indebtedness for borrowed money owed to
such Grantor by any person in an amount that exceeds $200,000 that is evidenced
by a duly executed promissory note to be pledged and delivered to the
Administrative Agent, duly endorsed in a manner satisfactory to the
Administrative Agent.  Without limiting
the foregoing, all promissory notes in favor of any Grantor shall be delivered
to the Administrative Agent promptly after request of the Administrative Agent.


 


(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 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


 


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Pledged Collateral shall be accompanied by proper instruments of
assignment duly executed by the applicable Grantor and such other instruments
or documents as the Administrative Agent may reasonably request.  Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities, which
schedule shall be attached hereto as Schedule II and made a part
hereof; provided that failure to attach any such schedule hereto
shall not affect the validity of such pledge of such Pledged Securities.  Each schedule so delivered shall
supplement any prior schedules so delivered.


 


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


 


(a) Schedule II correctly
sets forth the percentage of the issued and outstanding shares of each class of
the Equity Interests of the issuer thereof represented by such Pledged Stock
and includes all Equity Interests, debt securities and promissory notes
required to be pledged hereunder;


 


(b) except for the security
interests granted hereunder, each of the Grantors (i) is and, subject to
any transfers made in compliance with the Credit Agreement, will continue to be
the direct owner, beneficially and of record, of the Pledged Securities
indicated on Schedule II as owned by such Grantor, (ii) holds the
same free and clear of all Liens, (iii) will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security
interest in or other Lien on, the Pledged Collateral, other than Liens created
by this Agreement or as permitted by the Credit Agreement and transfers made in
compliance with the Credit Agreement, and (iv) subject to
Section 3.06, will cause any and all Pledged Collateral, whether for value
paid by the Grantor or otherwise, to be forthwith deposited with the
Administrative Agent and pledged or assigned hereunder;


 


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


 


(d) each of the Grantors
(i) has the power and authority to pledge the Pledged Collateral pledged
by it hereunder in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other than
Liens created by this Agreement or as permitted by the Credit Agreement),
however arising, of all persons whomsoever;


 


(e) no consent or approval of
any Governmental Authority, any securities exchange or any other person was or
is necessary to the validity of the pledge of the Pledged Collateral effected
hereby (other than such as have been obtained and are in full force and effect
and except with respect to Pledged Collateral in the form of Equity Interests
in joint ventures);


 


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


 


(g) the pledge effected hereby
is effective to vest in the Administrative Agent, for the benefit of the
Secured Parties, the rights of the Administrative Agent in the Pledged
Collateral as set forth herein.


 


SECTION 3.04.  Certification
of Limited Liability Company Interests and Limited Partnership Interests.  Each interest in any limited liability
company or limited partnership controlled by any Grantor and pledged hereunder
shall be represented by a certificate, shall be a “security” within the meaning
of Article 8 of the New York UCC and shall be governed by Article 8
of the New York UCC;


 


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


 


SECTION 3.06.  Voting Rights;
Dividends and Interest, etc. 
(a)  Unless and until an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the Grantors at
least two Business Days’ notice of its intent to exercise its rights under this
Agreement (which notice shall be deemed to have been given immediately upon the
occurrence of an Event of Default with respect to Holdings or the Borrower
under paragraph (g) or (h) of Article VII of the Credit Agreement):


 


(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, however,
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 or the Credit Agreement or any other
Loan Document or the ability of the Secured Parties to exercise the same.


 


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


 


(iii)                               Each
Grantor shall be entitled to receive and retain any and all dividends, interest,
principal and other distributions paid on or distributed in respect of the
Pledged Securities to the extent and only to the extent that such


 


11

















 


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, however, that any
noncash dividends, interest, principal or other distributions that would
constitute Pledged Stock or Pledged Debt Securities, whether resulting from a
subdivision, combination or reclassification of the outstanding Equity
Interests of the issuer of any Pledged Securities or received in exchange for
Pledged Securities or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange of assets to
which such issuer may be a party or otherwise, shall be and become part of the
Pledged Collateral, and, if received by any Grantor, shall not be commingled by
such Grantor with any of its other funds or property but shall be held separate
and apart therefrom, shall be held in trust for the benefit of the
Administrative Agent and shall be forthwith delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement).  This paragraph (iii) shall not apply to
dividends between or among the Borrower and the Subsidiary Guarantors only of
property subject to a perfected security interest under this Agreement; provided
that the Borrower notifies the Administrative Agent in writing, specifically
referring to this Section 3.06 at the time of such dividend and takes any
actions the Administrative Agent reasonably specifies to ensure the continuance
of its perfected security interest in such property under this Agreement.


 


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


 


(c) Upon the occurrence and during the continuance of an Event of
Default, after the Administrative Agent shall have notified (or shall be deemed
to have notified) the Grantors of the suspension of their rights under
paragraph (a)(i) of this Section 3.06, 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 3.06, and the
obligations of the Administrative Agent under paragraph (a)(ii) of this
Section 3.06, shall cease, and all such rights shall thereupon become


 


12

















 


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.


 


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


 


ARTICLE IV


 


Security
Interests in Personal Property


 


SECTION 4.01.  Security
Interest.  (a)  As
security for the payment or performance, as the case may be, in full of the
Obligations, each Grantor hereby assigns and pledges to the Administrative
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, and hereby grants to the Administrative Agent, its successors and
assigns, for the ratable 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
“Article 9 Collateral”):


 


(i)                                     all
Accounts;


 


(ii)                                  all
Chattel Paper;


 


(iii)                               all
cash and Deposit Accounts;


 


(iv)                              all
Documents;


 


(v)                                 all
Equipment;


 


(vi)                              all
General Intangibles;


 


(vii)                           all
Instruments;


 


(viii)                        all
Inventory;


 


(ix)                                all
Investment Property;


 


(x)                                   all
Letter-of-Credit Rights;


 


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


 


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


 


Notwithstanding the foregoing, the
Article 9 Collateral shall not include any of the following assets now
owned or hereafter acquired which would otherwise be included in the
Article 9 Collateral: (a) assets sold to a person which is not a Grantor in
compliance with the Credit Agreement, (b) assets owned by a Guarantor after the
release of the guarantee of such Guarantor pursuant to Section 7.15, (c)
assets subject to a Lien permitted by Sections 6.02(a), (c), (i) and (u) of the
Credit Agreement, (d) assets which contain a valid and enforceable prohibition
on the creation of a security interest therein so long as such prohibition
remains in effect and is valid notwithstanding Sections 9-406 and 9-408 of the
applicable Uniform Commercial Code, (e)  Vehicles, (f) real estate leasehold
interests, (g) Investment Property solely to the extent excluded by the proviso
in Section 3.01 and (h) any other asset, if any, specifically
identified from time to time by the Administrative Agent and the Borrower in
writing in connection with the determination by the Administrative Agent
pursuant to the last sentence of Section 5.9 of the Credit Agreement.


 


(b) Each Grantor hereby irrevocably authorizes the Administrative Agent
at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings) and amendments thereto
that contain the information required by Article 9 of the Uniform
Commercial Code of each applicable jurisdiction for the filing of any financing
statement or amendment, including (i) whether such Grantor is an organization,
the type of organization and any organizational identification number issued to
such Grantor and (ii) in the case of a financing statement filed as a fixture filing,
a sufficient description of the real property to which such Article 9
Collateral relates.  Each Grantor agrees
to provide such information to the Administrative Agent promptly upon request.  Each Grantor authorizes the Administrative
Agent to use the collateral description “all personal property” in any such
financing statements.  Each Grantor also
ratifies its authorization for the Administrative Agent to file in any relevant
jurisdiction any initial financing statements or amendments thereto if filed
prior to the date hereof.


 


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


 


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


 


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


 


(a) Each Grantor has good and
valid rights in and title to the Article 9 Collateral with respect to
which it has purported to grant a Security Interest hereunder and has full
power and authority to grant to the Administrative Agent the Security Interest
in such Article 9 Collateral pursuant hereto and to execute, deliver and
perform


 


14

















 


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 (including (x) the exact legal name of each Grantor and (y) the
jurisdiction of organization of each Grantor) is correct and complete as of the
Closing Date.  Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations containing a description of the
Article 9 Collateral have been prepared by the Administrative Agent based
upon the information provided to the Administrative Agent in the Perfection
Certificate for filing in each governmental, municipal or other office
specified in Schedule 2 to the Perfection Certificate (or specified by notice
from the Borrower to the Administrative Agent after the Closing Date in the
case of filings, recordings or registrations required by Sections 5.6 or
5.9 of the Credit Agreement, which are all the filings, recordings and
registrations (other than filings required to be made in the United States
Patent and Trademark Office and the United States Copyright Office in order to
perfect the Security Interest in Article 9 Collateral consisting of United
States Patents, Trademarks and Copyrights) that are necessary as of the Closing
Date to publish notice of and protect the validity of and to establish a legal,
valid and perfected security interest in favor of the Administrative Agent (for
the ratable benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements.  Each
Grantor represents and warrants that a fully executed agreement in the form
hereof and containing a description of all Article 9 Collateral consisting
of Intellectual Property with respect to United States Patents and United
States registered Trademarks (and Trademarks for which United States
registration applications are pending) and United States registered Copyrights
have been delivered to the Administrative Agent for recording by the United
States Patent and Trademark Office and the United States Copyright Office
pursuant to 35 U.S.C. §261, 15 U.S.C. §1060 or 17 U.S.C.
§205 and the regulations thereunder, as applicable, and otherwise as may be
required pursuant to the laws of any other necessary jurisdiction, to protect
the validity of and to establish a legal, valid and perfected security interest
in favor of the Administrative Agent (for the ratable benefit of the Secured
Parties) in respect of all Article 9 Collateral consisting of Patents,
Trademarks and Copyrights 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 (other than such actions as are necessary to
perfect the Security Interest with respect to any Article 9 Collateral
consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the date
hereof).


 


(c) The Security Interest
constitutes (i) a legal and valid security interest in all the
Article 9 Collateral securing the payment and performance of the
Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9
Collateral in which a security interest may be perfected by filing, recording
or registering a financing statement or analogous document in the United States
(or any political subdivision thereof) and its territories and possessions
pursuant to the Uniform


 


15

















 


Commercial Code or other applicable law in
such jurisdictions and (iii) a security interest that shall be perfected
in all Article 9 Collateral in which a security interest may be perfected
upon the receipt and recording of this Agreement with the United States Patent
and Trademark Office and the United States Copyright Office, as
applicable.  The Security Interest is
and shall be prior to any other Lien on any of the Article 9 Collateral,
other than Liens expressly permitted pursuant to Section 6.2 of the Credit
Agreement.


 


(d) The Article 9
Collateral is owned by the Grantors free and clear of any Lien, except for
Liens expressly permitted pursuant to Section 6.2 of the Credit
Agreement.  None of the Grantors has
filed or consented to the filing of (i) any financing statement or
analogous document under the Uniform Commercial Code or any other applicable
laws covering any Article 9 Collateral, (ii) any assignment in which
any Grantor assigns any Collateral or any security agreement or similar instrument
covering any Article 9 Collateral with the United States Patent and
Trademark Office or the United States Copyright Office or (iii) any
assignment in which any Grantor assigns any Article 9 Collateral or any
security agreement or similar instrument covering any Article 9 Collateral
with any foreign governmental, municipal or other office, which financing
statement or analogous document, assignment, security agreement or similar
instrument is still in effect, except, in each case, for Liens expressly permitted
pursuant to Section 6.2 of the Credit Agreement.  None of the Grantors hold any Commercial Tort Claim except as
indicated on the Perfection Certificate.


 


(e)


 


(f)


 


SECTION 4.03.  Covenants.  (a) 
Each Grantor agrees to maintain, at its own cost and expense, such
complete and accurate records with respect to the Article 9 Collateral as
is prudent in the conduct of its business, but in any event to include complete
accounting records indicating all payments and proceeds received with respect
to any part of the Article 9 Collateral, and, at such time or times as the
Administrative Agent may request, to prepare and deliver as soon as reasonably
practicable to the Administrative Agent a duly certified schedule or
schedules in form and detail satisfactory to the Administrative Agent showing
the identity, amount and location of any and all Article 9 Collateral.


 


(b) Each Grantor shall, at its own expense, take any and all actions
necessary to defend title to the Article 9 Collateral against all persons
and to defend the Security Interest of the Administrative Agent in the
Article 9 Collateral and the priority thereof against any Lien not
expressly permitted pursuant to Section 6.2 of the Credit Agreement.


 


(c) Each Grantor agrees, at its own expense, to execute, acknowledge,
deliver and cause to be duly filed all such further instruments and documents
and take all such actions as the Administrative Agent may from time to time
request to better assure, preserve, protect and perfect the Security Interest
and the rights and remedies created hereby, including the payment of any fees
and Taxes required in connection with the execution and delivery of this
Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith or therewith.  If
any amount payable to any Grantor under or in connection with any of the
Article 9 Collateral shall be or become evidenced by any promissory note
or other instrument in excess of $200,000, such note or instrument shall be
promptly pledged and delivered to the Administrative Agent, duly endorsed in a
manner satisfactory to the Administrative Agent.


 


16

















 


Without limiting the generality of the foregoing,
each Grantor hereby authorizes the Administrative Agent, with prompt notice
thereof to the Grantors, to supplement this Agreement by supplementing
Schedule III or adding additional schedules hereto to specifically
identify any asset or item that may, in the Administrative Agent’s judgment,
constitute Copyrights, Licenses, Patents or Trademarks; provided that
any Grantor shall have the right, exercisable within 10 days after it has
been notified by the Administrative Agent of the specific identification of
such Collateral, to advise the Administrative Agent in writing of any material
inaccuracy of the representations and warranties made by such Grantor hereunder
with respect to such Collateral.  Each
Grantor agrees that it will use its best 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.


 


(d) The Administrative Agent and such persons as the Administrative
Agent may designate shall have the right, at the Grantors’ own cost and
expense, to inspect the Article 9 Collateral, all records related thereto
(and to make extracts and copies from such records) and the premises upon which
any of the Article 9 Collateral is located, to discuss the Grantors’
affairs with the officers of the Grantors and their independent accountants and
to verify under reasonable procedures, in accordance with Section 5.7 of
the Credit Agreement, the validity, amount, quality, quantity, value, condition
and status of, or any other matter relating to, the Article 9 Collateral,
including, in the case of Accounts or Article 9 Collateral in the
possession of any third person, by contacting Account Debtors (only during the
existence of a Default) or the third person possessing such Article 9
Collateral for the purpose of making such a verification.  The Administrative Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party.


 


(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 Article 9 Collateral and
not expressly permitted pursuant to Section 6.2 of the Credit Agreement,
and may pay for the maintenance and preservation of the Article 9
Collateral to the extent any Grantor fails to do so as required by the Credit
Agreement or this Agreement, and each Grantor jointly and severally agrees to
reimburse the Administrative Agent on demand for any payment made or any
expense incurred by the Administrative Agent pursuant to the foregoing
authorization; provided, however, that nothing in this paragraph
shall be interpreted as excusing any Grantor from the performance of, or
imposing any obligation on the 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) If at any time any Grantor shall take a security interest in any
property of an Account Debtor or any other person to secure payment and
performance of an Account in excess of $200,000, such Grantor shall promptly
assign such security interest to the Administrative Agent.  Such assignment need not be filed of public
record unless necessary to continue the perfected status of the security
interest against creditors of and transferees from the Account Debtor or other
person granting the security interest.


 


(g) As between each Grantor, the Administrative Agent and the Secured
Parties, each Grantor shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Article 9 Collateral,
all in accordance with the terms and conditions thereof, and each Grantor


 


17

















 


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.


 


(h) None of the Grantors shall make or permit to be made an assignment,
pledge or hypothecation of the Article 9 Collateral or shall grant any
other Lien in respect of the Article 9 Collateral, except as expressly
permitted by Section 6.2 of the Credit Agreement.  None of the Grantors shall make or permit to
be made any transfer of the Article 9 Collateral, except as expressly
permitted by Sections 6.3 and 6.5 of the Credit Agreement.


 


(i) None of the Grantors will, without the Administrative Agent’s prior
written consent, grant any extension of the time of payment of any Accounts
included in the Article 9 Collateral, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partly, any person
liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises, compoundings
or settlements granted or made in good faith in the prudent conduct of the
business of such Grantor.


 


(j) The Grantors, at their own expense, shall maintain or cause to be
maintained insurance covering physical loss or damage to the Inventory and
Equipment in accordance with the requirements set forth in Section 5.2 of
the Credit Agreement.  Each Grantor
irrevocably makes, constitutes and appoints the Administrative Agent (and all
officers, employees or agents designated by the Administrative Agent) as such
Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon
the occurrence and during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Article 9 Collateral under
policies of insurance, endorsing the name of such Grantor on any check, draft,
instrument or other item of payment for the proceeds of such policies of
insurance and for making all determinations and decisions with respect
thereto.  In the event that any Grantor
at any time or times shall fail to obtain or maintain any of the policies of
insurance required hereby or under the Credit Agreement or to pay any premium
in whole or part relating thereto, the Administrative Agent may, without
waiving or releasing any obligation or liability of the Grantors hereunder or
any Event of Default, in its sole discretion, obtain and maintain such policies
of insurance and pay such premium and take any other actions with respect
thereto as the Administrative Agent deems advisable.  All sums disbursed by the Administrative Agent in connection with
this paragraph, including attorneys’ fees, court costs, expenses and other
charges relating thereto, shall be payable, upon demand, by the Grantors to the
Administrative Agent and shall be additional Obligations secured hereby.


 


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


 


(l) Each Grantor agrees to notify the Administrative Agent promptly in
writing upon learning that any of the Article 9 Collateral constitutes, or
is the Proceeds of, Farm Products.


 


(m) Each Grantor agrees to notify the Administrative Agent promptly in
writing upon learning that any of obligor on any Receivable is a Governmental
Authority.


 


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


 


18

















 


(a) Instruments.  If any Grantor shall at any time hold or
acquire any Instruments in excess of $200,000, such Grantor shall forthwith
endorse, assign and deliver the same to the Administrative Agent, accompanied
by such instruments of transfer or assignment duly executed in blank as the
Administrative Agent may from time to time specify.


 


(b) Deposit Accounts.  For each Deposit Account that any Grantor at
any time opens or maintains, such Grantor shall, on or prior to July 31,
2004 (or such later date not beyond September 30, 2004 as the
Administrative Agent may agree in its sole discretion) either (i) cause
the depositary bank to agree to comply at any time with instructions from the
Administrative Agent to such depositary bank directing the disposition of funds
from time to time credited to such Deposit Account, without further consent of
such Grantor or any other person, pursuant to an agreement in form and
substance satisfactory to the Administrative Agent, or (ii) arrange for
the Administrative Agent to become the customer of the depositary bank with
respect to the Deposit Account, with the Grantor being permitted, only with the
consent of the Administrative Agent, to exercise rights to withdraw funds from
such Deposit Account.  The
Administrative Agent agrees with each Grantor that the Administrative Agent
shall not give any such instructions or withhold any withdrawal rights from any
Grantor, unless an Event of Default has occurred and is continuing, or, after
giving effect to any withdrawal, would occur. 
The provisions of this paragraph shall not apply to (A) any Deposit
Account for which any Grantor, the depositary bank and the Administrative Agent
have entered into a cash collateral agreement specially negotiated among such
Grantor, the depositary bank and the Administrative Agent for the specific
purpose set forth therein, (B) Deposit Accounts for which the Administrative
Agent is the depositary, (C) Deposit Accounts of which all or a substantial
portion of the funds on deposit are used for funding (i) payroll, (ii) 401(k)
and other retirement plans and employee benefits, including rabbi trusts for
deferred compensation, (iii) health care benefits (e.g., imprest accounts) and (iv) escrow arrangements (e.g., environmental indemnity accounts)
and (D) other Deposit Accounts with an aggregate balance of all funds in all
such other Deposit Accounts for all Grantors not in excess of $3,000,000 at any
time.


 


(c) Investment Property.  Except to the extent otherwise provided in
Article III, if any Grantor shall at any time hold or acquire any
certificated securities, such Grantor shall forthwith endorse, assign and
deliver the same to the Administrative Agent, accompanied by such instruments
of transfer or assignment duly executed in blank as the Administrative Agent
may from time to time specify.  If any
securities now or hereafter acquired by any Grantor are uncertificated and are
issued to such Grantor or its nominee directly by the issuer thereof, such
Grantor shall immediately notify the Administrative Agent thereof and, at the
Administrative Agent’s request and option, pursuant to an agreement in form and
substance satisfactory to the Administrative Agent, either (a) 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
(b) arrange for the Administrative Agent to become the registered owner of
the securities.  If any securities,
whether certificated or uncertificated, or other Investment Property now or
hereafter acquired by any Grantor are held by such Grantor or its nominee
through a Securities Intermediary or Commodity Intermediary, such Grantor shall
immediately notify the Administrative Agent thereof and, at the Administrative
Agent’s request and option, pursuant to an agreement in form and substance
satisfactory to the Administrative Agent, either (a) cause such Securities
Intermediary or Commodity Intermediary, as the case may be, to agree to comply
with Entitlement Orders or other instructions from the


 


19

















 


Administrative Agent to such Securities
Intermediary as to such securities or other Investment Property, 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 (b) in the case of Financial Assets (as governed by
Article 8 of the New York UCC) 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, or, after giving effect to any
such investment and withdrawal rights would occur.  The provisions of this paragraph shall not apply to any Financial
Assets credited to a Securities Account for which the Administrative Agent is
the Securities Intermediary.


 


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


 


(e) Letter-of-Credit Rights.  If any Grantor is at any time a beneficiary
under a letter of credit now or hereafter issued in favor of such Grantor, such
Grantor shall promptly notify the Administrative Agent thereof and, at the
request and option of the Administrative Agent, such Grantor shall, pursuant to
an agreement in form and substance satisfactory to the Administrative Agent,
either (i) arrange for the issuer and any confirmer of such letter of
credit to consent to an assignment to the Administrative Agent of the proceeds
of any drawing under the letter of credit or (ii) arrange for the
Administrative Agent to become the transferee beneficiary of the letter of
credit, with the Administrative Agent agreeing, in each case, that the proceeds
of any drawing under the letter of credit are to be paid to the applicable
Grantor unless an Event of Default has occurred or is continuing.


 


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


 


SECTION 4.05.  Covenants
regarding Patent, Trademark and Copyright Collateral.  (a)  Each Grantor agrees that it
will not, and will not permit any of its licensees to, do any act, or omit do
to any act, whereby any Patent that is material to the conduct of the business
of the Borrower and its Subsidiaries, taken as a whole, may become invalidated
or dedicated to the public, and agrees that it shall continue to mark any
products covered by a Patent with the relevant patent number as necessary and
sufficient to establish and preserve its maximum rights under applicable patent
laws.


 


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


 


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


 


(d) Each Grantor shall notify the Administrative Agent immediately if
it knows or has reason to know that any Patent, Trademark or Copyright that is
material to the conduct of the business of the Borrower and its Subsidiaries,
taken as a whole, may become abandoned, lost or dedicated to the public, or of
any adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States
Patent and Trademark Office, United States Copyright Office or any court or
similar office of any country) regarding such Grantor’s ownership of any such
Patent, Trademark or Copyright, its right to register the same, or its right to
keep and maintain the same.


 


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


 


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


 


(g) In the event that any Grantor knows or has reason to believe that
any Article 9 Collateral consisting of a Patent, Trademark or Copyright
that is material to the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Administrative Agent and shall, if consistent with good business judgment,
promptly sue for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Article 9 Collateral.  Such Grantor
may discontinue or settle any such suit or other action if the Grantor deems
such discontinuance or settlement to be appropriate in its reasonable business
judgment.


 


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


 


ARTICLE V


 


Remedies


 


SECTION 5.01.  Remedies upon
Default.  Upon the occurrence and
during the continuance of an Event of Default, each Grantor agrees to deliver
each item of Collateral to the Administrative Agent on demand, and it is agreed
that the Administrative Agent shall have the right to take any of or all the
following actions at the same or different times:  (a) with respect to any Article 9 Collateral consisting
of Intellectual Property, on demand, to cause the Security Interest to become
an assignment, transfer and conveyance of any of or all such Article 9
Collateral by the applicable Grantors to the Administrative Agent, or to
license or sublicense, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any such Article 9 Collateral throughout
the world on such terms and conditions and in such manner as the Administrative
Agent shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers cannot be obtained), and (b) with
or without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9
Collateral may be located for the purpose of taking possession of or removing
the Article 9 Collateral and, generally, to exercise any and all rights
afforded to a secured party under the Uniform Commercial Code or other
applicable law.  Without limiting the
generality of the foregoing, each Grantor agrees that the Administrative Agent
shall have the right, subject to the mandatory requirements of applicable


 


22

















 


law, to sell or otherwise dispose of all or any part of the Collateral
at a public or private sale or at any broker’s board or on any securities
exchange, for cash, upon credit or for future delivery as the Administrative
Agent shall deem appropriate.  The
Administrative Agent shall be authorized at any such sale (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 such sale shall hold the property sold
absolutely, free from any claim or right on the part of any Grantor, and the
Grantors hereby waive (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.


 


The Administrative Agent shall give the
applicable Grantors 10 days’ written notice (which each Grantor agrees is
reasonable notice within the meaning of Section 9-611 of the New York
UCC or its equivalent in other jurisdictions) of the Administrative Agent’s
intention to make any sale of Collateral. 
Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker’s board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. 
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the 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
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Grantor (all said rights being also hereby waived and released
to the extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to any
Grantor therefor.  For purposes hereof,
a written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Administrative Agent shall be free to carry out such
sale pursuant to such agreement and no Grantor shall be entitled to the return
of the Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Administrative Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
paid in full.  As an alternative to
exercising the power of sale herein conferred upon it, the Administrative Agent
may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. 
Any sale


 


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pursuant to the provisions of this Section 5.01 shall be deemed to
conform to the commercially reasonable standards as provided in
Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.


 


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


 


FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent (in its capacity as such hereunder or under any other Loan
Document) in connection with such collection, sale, foreclosure or realization
or otherwise in connection with this Agreement, any other Loan Document or any
of the Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Administrative Agent hereunder or under any other Loan Document on behalf of
any Grantor and any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan Document;


 


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


 


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


 


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


 


SECTION 5.03.  Grant of
License to Use Intellectual Property. 
For the purpose of enabling the Administrative Agent to exercise rights
and remedies under this Article at such time as the Administrative Agent
shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to the Administrative Agent an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to the Grantors)
to use, license or sublicense any of the Article 9 Collateral consisting
of Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license 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 shall be exercised, at the option of the Administrative
Agent, only upon the occurrence and during the continuation of an Event of
Default; provided, however, that any license, sublicense or other
transaction entered into by the Administrative Agent in accordance herewith
shall be binding upon the Grantors notwithstanding any subsequent cure of an
Event of Default.


 


SECTION 5.04.  Securities
Act, etc.  In view of the position
of the Grantors in relation to the Pledged Collateral, or because of other
current or future circumstances, a question may arise under the Securities Act
of 1933, as now or hereafter in effect, or any similar statute hereafter
enacted analogous in purpose


 


24

















 


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


 


SECTION 5.05. Certain Matters Relating to Receivables.  (a) 
At any time during the continuance of an Event of Default, the
Administrative Agent shall have the right to make test verifications of the
Receivables in any manner and through any medium that it reasonably considers
advisable, and each Grantor shall furnish all such assistance and information
as the Administrative Agent may require in connection with such test
verifications.  At any time during the
continuance of an Event of Default, upon the Administrative Agent’s request and
at the expense of the relevant Grantor, such Grantor shall cause independent
public accountants or others satisfactory to the Administrative Agent to
furnish to the Administrative Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the Receivables.


 


(b)                                 The
Administrative Agent hereby authorizes each Grantor to collect such Grantor’s
Receivables, and the Administrative Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance of an
Event of Default.  If required by the
Administrative Agent at any time after the occurrence and during the
continuance of an Event of Default, any payments of Receivables, when collected
by any Grantor, (i) shall be forthwith (and, in any event, within two Business
Days) deposited by such Grantor in the exact form received, duly indorsed by
such Grantor to the Administrative Agent if required, in a Collateral Account
maintained under the sole dominion and control of the Administrative Agent,
subject to withdrawal by the Administrative Agent for the account of the
Secured Parties only as provided in Section 5.02, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of such Grantor.  Each such


 


25

















 


deposit of Proceeds of Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included
in the deposit.


 


SECTION 5.06.  Communications
with Obligors; Grantors Remain Liable. (a) 
The Administrative Agent in its own name or in the name of others may at
any time after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Administrative Agent’s satisfaction the existence, amount and terms of any
Receivables.


 


(b)                                 Upon
the request of the Administrative Agent at any time after the occurrence and
during the continuance of an Event of Default, each Grantor shall notify
obligors on the Receivables that the Receivables have been assigned to the
Administrative Agent for the ratable benefit of the Secured Parties and that
payments in respect thereof shall be made directly to the Administrative Agent.


 


(c)                                  Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise thereto.  Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any Receivable (or any agreement giving rise thereto)
by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any Lender of any payment relating thereto, nor shall
the Administrative Agent or any Lender be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or
any agreement giving rise thereto), to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.


 


SECTION 5.07.  Proceeds to be
Turned Over To Administrative Agent. 
In addition to the rights of the Administrative Agent and the Secured
Parties specified in Section 5.05 with respect to payments of Receivables,
if an Event of Default shall occur and be continuing, all Proceeds received by
any Grantor consisting of cash, checks and other near-cash items shall be held
by such Grantor in trust for the Administrative Agent and the Secured Parties,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Administrative Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Administrative
Agent, if required).  All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Collateral Account maintained under its sole dominion
and control.  All Proceeds while held by
the Administrative Agent in a Collateral Account (or by such Grantor in trust
for the Administrative Agent and the Secured Parties) shall continue to be held
as collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 5.02.


 


SECTION 5.08.  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 or any Lender to collect such
deficiency.


 


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ARTICLE VI


 


Indemnity,
Subrogation and Subordination


 


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


 


SECTION 6.02.  Contribution
and Subrogation.  Each Guarantor (a
“Contributing Guarantor”) agrees (subject to Section 6.03) that, in
the event a payment shall be made by any other Guarantor hereunder in respect
of any Obligation or assets of any other Guarantor shall be sold pursuant to
any Security Document to satisfy any Obligation owed to any Secured Party and
such other Guarantor (the “Claiming Guarantor”) shall not have been
fully indemnified by the Borrower as provided in Section 6.01, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount
equal to the amount of such payment or the greater of the book value or the
fair market value of such assets, as the case may be, in each case multiplied
by a fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any
Guarantor becoming a party hereto pursuant to Section 7.16, the date of
the Supplement hereto executed and delivered by such Guarantor).  Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this Section 6.02 shall be
subrogated to the rights of such Claiming Guarantor under Section 6.01 to
the extent of such payment.


 


SECTION 6.03.  Subordination.  (a) 
Notwithstanding any provision of this Agreement to the contrary, all
rights of the Guarantors under Sections 6.01 and 6.02 and all other rights
of indemnity, contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full in cash of the
Obligations.  No failure on the part of
the Borrower or any Guarantor to make the payments required by
Sections 6.01 and 6.02 (or any other payments required under applicable
law or otherwise) shall in any respect limit the obligations and liabilities of
any Guarantor with respect to its obligations hereunder, and each Guarantor shall
remain liable for the full amount of the obligations of such Guarantor
hereunder.


 


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


 


ARTICLE VII


 


Miscellaneous


 


SECTION 7.01.  Notices.  All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 9.1 of the Credit Agreement.  All communications and notices hereunder to
any Subsidiary Guarantor shall be given to it in care of the Borrower as
provided in Section 9.1 of the Credit Agreement.


 


27

















 


SECTION 7.02.  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 7.03.  Survival of
Agreement.  All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto 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 such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under any Loan Document is
outstanding and unpaid or the Aggregate L/C Exposure does not equal zero and so
long as the Commitments have not expired or terminated.


 


SECTION 7.04.  Binding
Effect; Several Agreement.  This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan Party shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on
behalf of the Administrative Agent, and thereafter shall be binding upon such
Loan Party and the Administrative Agent and their respective permitted
successors and assigns, and shall inure to the benefit of such Loan Party, the
Administrative Agent and the other Secured Parties and their respective
successors and assigns, except that no Loan Party shall have the right to
assign or transfer its rights or obligations hereunder or any interest herein
or in the Collateral (and any such assignment or transfer shall be void) except
as expressly contemplated by this Agreement or the Credit Agreement.  This Agreement shall be construed as a
separate agreement with respect to each Loan Party and may be amended, modified,
supplemented, waived or released with respect to any Loan Party without the
approval of any other Loan Party and without affecting the obligations of any
other Loan Party hereunder.


 


SECTION 7.05.  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 7.06.  Administrative
Agent’s Fees and Expenses; Indemnification.  (a)  The parties hereto agree that the Administrative
Agent shall be entitled to reimbursement of its expenses incurred hereunder as
provided in Section 9.5 of the Credit Agreement.


 


28

















 


(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify
the Administrative Agent and the other Indemnitees against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related out of pocket expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of, the
execution, delivery or performance of this Agreement or any agreement or
instrument contemplated hereby or any claim, litigation, investigation or
proceeding relating to any of the foregoing agreement or instrument
contemplated hereby or thereby, or to the Collateral, whether or not any
Indemnitee is a party thereto; provided, however, that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.


 


(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents.  The provisions of this Section 7.06
shall remain operative and in full force and effect regardless of the
termination of this Agreement or any other Loan Document, the consummation of
the transactions contemplated hereby, the repayment of any of the Obligations,
the invalidity or unenforceability of any term or provision of this Agreement
or any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent or any other Secured Party.  All amounts due under this Section 7.06 shall be payable on
written demand therefor and shall bear interest at the rate specified in
Section 2.6 of the Credit Agreement.


 


SECTION 7.07.  Administrative
Agent Appointed Attorney-in-Fact. 
Each Grantor hereby appoints the Administrative Agent as the
attorney-in-fact of such Grantor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest.  Without limiting the generality of the
foregoing, the Administrative Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Administrative Agent’s name or in the name of such
Grantor (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment
relating to the Collateral or any part thereof; (b) to demand, collect,
receive payment of, give receipt for and give discharges and releases of all or
any of the Collateral; (c) to sign the name of any Grantor on any invoice
or bill of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize
on all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all 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, however, that nothing herein contained shall be construed
as requiring or obligating the Administrative Agent to make any commitment or
to make any inquiry as to the nature or sufficiency of any payment received by
the Administrative Agent, or to present or file any claim or notice, or to take
any action with respect to the Collateral or any part thereof or the moneys due
or to become due in respect thereof or any property covered thereby.  The Administrative Agent and the other
Secured Parties shall be accountable only for amounts


 


29

















 


actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or wilful misconduct.


 


SECTION 7.08.  Applicable
Law.  THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.09.  Waivers;
Amendment.  (a)  No
failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent, the Issuing Bank
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 any
Loan Document or consent to any departure by any Loan Party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, 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 the Issuing Bank may have had notice or knowledge of such
Default at the time.  No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.


 


(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 9.8 of the
Credit Agreement.


 


SECTION 7.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.10.


 


SECTION 7.11.  Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of 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.


 


30

















 


SECTION 7.12.  Counterparts.  This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which
shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in
Section 7.04.  Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.


 


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


 


SECTION 7.14.  Jurisdiction;
Consent to Service of Process. 
(a)  Each of the Loan Parties
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America, sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any other Loan Document, or for recognition or enforcement of
any judgment, and each of the Loan Parties hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court.  Each of the Loan Parties agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Loan Party or
its properties in the courts of any jurisdiction.


 


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


 


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


 


SECTION 7.15.  Termination or
Release.  (a)  This Agreement, the Guarantees, the Security
Interest and all other security interests granted hereby shall terminate when
all the Loan Document Obligations then due and owing have been indefeasibly
paid in full and the Lenders have no further commitment to lend under the
Credit Agreement, the aggregate L/C Exposure has been reduced to zero and the
Issuing Bank has no further obligations to issue Letters of Credit under the
Credit Agreement.


 


(b) A Subsidiary Guarantor shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Subsidiary Guarantor shall be automatically released upon the consummation of
any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary of the Borrower.


 


31

















 


(c) Upon any sale or other transfer by any Grantor of any Collateral
that is permitted under the Credit Agreement to any person that is not the
Borrower or a Guarantor, or, upon the effectiveness of any written consent to
the release of the security interest granted hereby in any Collateral pursuant
to Section 9.8 of the Credit Agreement, the security interest in such
Collateral shall be automatically released and the Administrative Agent will
confirm such release in writing promptly after written request therefor.


 


(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) above, the Administrative Agent shall execute
and deliver to any Grantor, at such Grantor’s expense, all documents that such
Grantor shall reasonably request to evidence such termination or release.  Any execution and delivery of documents
pursuant to this Section 7.15 shall be without recourse to or warranty by
the Administrative Agent.  Without
limiting the provisions of Section 7.06, the Borrower shall reimburse the
Administrative Agent upon demand for all costs and out of pocket expenses,
including the fees, charges and disbursements of counsel, incurred by it in
connection with any action contemplated by this Section 7.15.


 


                                SECTION
7.16  Additional Grantors.  Pursuant to Section 5.9 of the Credit
Agreement, each Domestic Subsidiary of a Loan Party that was not in existence
or not a Subsidiary on the date of the Credit Agreement is required to enter in
this Agreement as a Subsidiary Guarantor upon becoming such a Subsidiary.  Upon execution and delivery by the Administrative
Agent and a Domestic Subsidiary of a supplement in the form of Exhibit A
hereto, such Domestic Subsidiary shall become a Subsidiary Guarantor hereunder
with the same force and effect as if originally named as a Subsidiary Guarantor
herein.  The execution and delivery of
any such instrument shall not require the consent of any other Loan Party
hereunder.  The rights and obligations
of each Subsidiary Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Loan Party as a party to this
Agreement.


 


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


 


                                SECTION
7.18  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 Lender 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.  The powers conferred on the Administrative
Agent and the Lenders hereunder are solely to protect the Administrative
Agent’s and the Lenders’ interests in the Collateral and shall not impose any
duty upon the Administrative Agent or any Lender to exercise any such
powers.  The Administrative Agent and
the Lenders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they


 


32

















 


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 own gross negligence or willful misconduct.


 


SECTION 7.19.  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 Lenders, 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 Lenders 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 7.20.  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 Lender 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 Lenders, 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
Lenders or among the Grantors and the Lenders.


 


33

















 


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


 


	
   

  	
  PP HOLDING CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Treasurer

  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  PP ACQUISITION CORPORATION,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Treasurer

  and Secretary

  
	
   

  	
   

  
	
   

  	
  DARAMIC, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by 

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive

  Vice President, Treasurer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  DARAMIC INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive

  Vice President, Treasurer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  CELGARD, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive

  Vice President, Treasurer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  DARAMIC ASIA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive

  Vice President, Treasurer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  POLYPORE HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Lynn Amos

  	
   

  
	
   

  	
   

  	
  Name: Lynn Amos

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive

  Vice President, Treasurer and Secretary

  



 

















 


 


	
  The undersigned hereby acknowledges and agrees that, upon the
  effectiveness of the Merger, it will succeed by operation of law to all of
  the rights and obligations of the Borrower set forth herein and that all
  references herein to the “Borrower” shall thereupon be deemed to be
  references to the undersigned.

  	
   

  
	
   

  	
   

  
	
  POLYPORE, INC.,

  
	
   

  
	
  by

  	
   /s/ Lynn Amos

  	
   

  
	
   

  	
  Name: Lynn Amos

  
	
   

  	
  Title:

  
				



 


2

















 


Schedule I to

the Guarantee and

Collateral Agreement


 


SUBSIDIARY GUARANTORS


 


 


	
  Name of Subsidiary

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Form of
  Organization

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule II to

the Guarantee and

Collateral Agreement


 


CAPITAL STOCK


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  Of Equity Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


DEBT
SECURITIES


 


	
  Issuer

  	
   

  	
  Principal
  Amount

  	
   

  	
  Date of
  Note

  	
   

  	
  Maturity
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


U.S.
COPYRIGHTS OWNED BY [PP HOLDING CORPORATION]


 


 


U.S. Copyright Registrations


 


 


Pending U.S. Copyright Applications for Registration


 


.


 


 


Non-U.S. Copyright Registrations


 


 


Non-U.S. Pending Copyright Applications for Registration


 


1

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


LICENSES


 


PART 1


 


LICENSES/SUBLICENSEES
OF [PP HOLDING CORPORATION]

AS LICENSOR ON DATE HEREOF


 


A.  Copyrights


 


U.S. Copyrights


 


 


Non-U.S. Copyrights


 


 


B.  Patents


 


U.S. Patents


 


 


U.S. Patent Applications


 


     .


 


 


Non-U.S. Patents


 


     .


 


 


Non-U.S. Patent Applications


 


     .


 


2

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


C.  Trademarks


 


U.S. Trademarks


 


  
  .


 


 


U.S. Trademark Applications


 


     .


 


 


Non-U.S. Trademarks


 


     .


 


 


Non-U.S. Trademark Applications


 


     .


 


 


D.  Others


 


     .


 


3

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


PART 2


 


LICENSEES/SUBLICENSES
OF [PP HOLDING CORPORATION]

AS LICENSEE ON DATE HEREOF


 


A.  Copyrights


 


U.S. Copyrights


 


     .


 


 


Non-U.S. Copyrights


 


     .


 


 


B.  Patents


 


U.S. Patents


 


     .


 


 


U.S. Patent Applications


 


     .


 


 


Non-U.S. Patents


 


     .


 


 


Non-U.S. Patent Applications


 


     .


 


 


C.  Trademarks


 


4

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


U.S. Trademarks


 


     .


 


 


U.S. Trademark Applications


 


     .


 


Non-U.S. Trademarks


 


     .


 


 


Non-U.S. Trademark Applications


 


 


     .


 


 


D.  Others


 


     .


 


5

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


PATENTS OWNED
BY [PP HOLDING CORPORATION]


 


U.S. Patent Registrations


 


     .


 


 


U.S. Patent Applications


 


     .


 


 


Non-U.S. Patent Registrations


 


     .


 


 


Non-U.S. Patent Applications


 


     .


 


6

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


TRADEMARK/TRADE
NAMES OWNED BY [PP HOLDING CORPORATION]


 


 


U.S. Trademark Registrations


 


     .


 


 


U.S. Trademark Applications


 


     .


 


 


State Trademark Registrations


 


     .


 


 


Non-U.S. Trademark Registrations


 


     .


 


 


Non-U.S. Trademark Applications


 


     .


Trade Names


 


     .


 


7

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


U.S.
COPYRIGHTS OWNED BY [PP ACQUISITION CORPORATION]


 


 


U.S. Copyright Registrations


 


     .


 


 


Pending U.S. Copyright Applications for Registration


 


     .


 


 


Non-U.S. Copyright Registrations


 


     .


 


 


Non-U.S. Pending Copyright Applications for Registration


 


     .


 


8

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


LICENSES


 


PART 1


 


LICENSES/SUBLICENSEES
OF [PP ACQUISITION CORPORATION]

AS LICENSOR ON DATE HEREOF


 


A.  Copyrights


 


     .


 


U.S. Copyrights


 


     .


 


 


Non-U.S. Copyrights


 


 


     .


 


 


B.  Patents


 


U.S. Patents


 


     .


 


 


U.S. Patent Applications


 


     .


 


 


Non-U.S. Patents


 


     .


 


 


Non-U.S. Patent Applications


 


     .


 


 


C.  Trademarks


 


9

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


U.S. Trademarks


 


     .


 


 


U.S. Trademark Applications


 


     .


 


 


Non-U.S. Trademarks


 


     .


 


 


Non-U.S. Trademark Applications


 


 
   .


 


 


D.  Others


 


     .


 


10

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


PART 2


 


LICENSEES/SUBLICENSES
OF [PP ACQUISITION CORPORATION]

AS LICENSEE ON DATE HEREOF


 


A.  Copyrights


 


U.S. Copyrights


 


     .


 


Non-U.S. Copyrights


 


 


     .


 


 


B.  Patents


 


U.S. Patents


 


U.S. Patent Applications


 


     .


 


 


Non-U.S. Patents


 


 


Non-U.S. Patent Applications


 


 


     .


 


 


C.  Trademarks


 


U.S. Trademarks


 


     .


 


 


U.S. Trademark Applications


 


     .


 


11

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


Non-U.S. Trademarks


 


     .


 


 


Non-U.S. Trademark Applications


 


 


     .


 


 


D.  Others


 


     .


 


12

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


PATENTS OWNED
BY [PP ACQUISITION CORPORATION]


 


U.S. Patent Registrations


 


	
  Patent Numbers

  	
   

  	
  Issue Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


U.S. Patent Applications


 


	
  Application Numbers

  	
   

  	
  Filing
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patent Registrations


 


	
  Country

  	
   

  	
  Issue Date

  	
   

  	
  Patent No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


13

















 


Schedule III to

the Guarantee and

Collateral Agreement


 


Non-U.S. Patent Applications


 


	
  Country

  	
   

  	
  Filing
  Date

  	
   

  	
  Application
  No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


14

















 


Exhibit A to the

Guarantee and

Collateral Agreement


 


SUPPLEMENT NO.
[•]
dated as of [•], to
the Guarantee and Collateral Agreement dated as of May 13, 2004 (the “Guarantee
and Collateral Agreement”), among PP HOLDING CORPORATION., a Delaware
corporation (“Holdings”), PP ACQUISITION CORPORATION, a Delaware
corporation (the “Borrower”), each subsidiary of the Borrower listed on
Schedule I thereto (each such subsidiary individually a “Subsidiary
Guarantor” and collectively, the “Subsidiary Guarantors”; the
Subsidiary Guarantors, Holdings and the Borrower are referred to collectively
herein as the “Grantors”).


 


A. 
Reference is made to the Credit Agreement dated as of May 13, 2004 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, Holdings, the lenders named therein (the “Lenders”),
and JPMorgan Chase Bank, as administrative agent (in such capacity, the “Administrative
Agent”).


 


B. 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement or the
Guarantee and Collateral Agreement referred to therein, as applicable.


 


C. 
The Grantors have entered into the Guarantee and Collateral Agreement in
order to induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit.  Section 7.16 of the
Guarantee and Collateral Agreement provides that additional Domestic
Subsidiaries of the Loan Parties may become Subsidiary Guarantors and Grantors
under the Guarantee and Collateral Agreement by execution and delivery of an
instrument in the form of this Supplement. 
The undersigned Subsidiary (the “New Subsidiary”) is executing
this Supplement in accordance with the requirements of the Credit Agreement to
become a Subsidiary Guarantor and a Grantor under the Guarantee and Collateral
Agreement in order to induce the Lenders to make additional Loans and the
Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.


 


Accordingly, the New Subsidiary agrees as
follows:


 


SECTION 1.  In accordance with Section 7.16 of the Guarantee and Collateral
Agreement, the New Subsidiary by its signature below becomes a Grantor and
Subsidiary Guarantor under the Guarantee and Collateral Agreement with the same
force and effect as if originally named therein as a Grantor and Subsidiary
Guarantor and the New Subsidiary hereby (a) agrees to all the terms and
provisions of the Guarantee and Collateral Agreement applicable to it as a
Grantor and Subsidiary Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Grantor and
Subsidiary Guarantor thereunder are true and correct in all material respects
on and as of the date hereof.  In
furtherance of the foregoing, the New Subsidiary, as security for the payment
and performance in full of the Obligations (as defined in the Guarantee and
Collateral Agreement), does hereby create and grant to the Administrative
Agent, its successors and assigns, for the benefit of the Secured Parties,
their successors and assigns, a security interest in and lien on all of the New
Subsidiary’s right, title and interest in and to the Collateral (as defined in
the Guarantee and Collateral Agreement) of the New Subsidiary.  Each reference to a “Grantor” or a “Subsidiary
Guarantor” in the Guarantee and Collateral Agreement shall be deemed to
include the New Subsidiary.  The
Guarantee and Collateral Agreement is hereby incorporated herein by reference.


 


1

















 


SECTION 2.  The New Subsidiary represents and warrants to the Administrative
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.


 


SECTION 3.  This Supplement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Supplement shall become effective when the Administrative Agent
shall have received counterparts of this Supplement that bear the signature of
the New Subsidiary.  Delivery of an
executed signature page to this Supplement by facsimile transmission shall be
as effective as delivery of a manually signed counterpart of this Supplement.


 


SECTION 4.  The New Subsidiary hereby represents and warrants that
(a) set forth on Schedule I attached hereto is a true and correct
schedule of the location of any and all Collateral of the New Subsidiary
and (b) set forth under its signature hereto, is the true and correct
legal name of the New Subsidiary, its jurisdiction of formation and the
location of its chief executive office.


 


SECTION 5.  Except as expressly supplemented hereby, the Guarantee and
Collateral Agreement shall remain in full force and effect.


 


SECTION 6.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.  In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee and Collateral Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


SECTION 8.  All communications and notices hereunder shall be in writing and
given as provided in Section 7.01 of the Guarantee and Collateral
Agreement. All communications and notices hereunder to the New Subsidiary shall
be given to it at the address set forth under its signature below.


 


SECTION 9.  The New Subsidiary agrees to reimburse the Administrative Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Administrative Agent.


 


IN WITNESS WHEREOF, the New Subsidiary has
duly executed this Supplement to the Guarantee and Collateral Agreement as of
the day and year first above written.


 


2

















 


	
   

  	
  [NAME OF NEW SUBSIDIARY],

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
  Legal Name:

  
	
   

  	
   

  	
  Jurisdiction

  of Formation:

  
	
   

  	
   

  	
  Location of
  Chief

  Executive Office:

  



 


3

















 


Schedule I to

Supplement No.       to the

Guarantee and

Collateral Agreement


 


LOCATION OF
COLLATERAL


 


	
  Description

  	
   

  	
  Location

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


JURISDICTION OF FORMATION


 

















 


Schedule II to

Supplement No.       

to the Guarantee and

Collateral Agreement


 


Pledged Securities of the New Subsidiary


 


CAPITAL STOCK


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interests

  	
   

  	
  Percentage

  of Equity Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


DEBT
SECURITIES


 


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of
  Note

  	
   

  	
  Maturity
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


INTELLECTUAL
PROPERTY


 

















 


Exhibit B to

Guarantee and

Collateral Agreement


 


FORM OF
PERFECTION CERTIFICATE


 


Reference is made to (a) the Credit Agreement dated as of May 13, 2004
(as amended, supplemented, or otherwise modified from time to time, the “Credit
Agreement”), among PP Holding Corporation (“Holdings”), PP
Acquisition Corporation, (the “Borrower”), the lenders named therein (the
“Lenders”) and Credit Suisse First Boston, a bank organized under the
laws of Switzerland, acting through its Cayman Islands branch, as
Administrative Agent for the Lenders (in such capacity, the “Administrative
Agent”) and (b) the Guarantee and Collateral Agreement dated as of May 13,
2004 among the Borrower, Holdings and the Subsidiaries identified therein (the
“Guarantors”).  Capitalized terms
used but not defined herein have the meanings assigned in the Credit Agreement
or the Security Documents referred to therein, as applicable.


 


The undersigned, a Financial Officer and general counsel, respectively,
of the Borrower, hereby certify to the Administrative Agent and each other
Secured Party as follows:


 


1.  Names.  (a) 
The exact legal name of each Grantor, as such name appears in its
respective certificate of formation, is as follows:


 


(b) Set forth below is each other legal name each Grantor has had in
the past five years, together with the date of the relevant change:


 


(c) Except as set forth in Schedule 1 hereto, no Grantor has
changed its identity or corporate structure in any way within the past five
years.  Changes in identity or corporate
structure would include mergers, consolidations and acquisitions, as well as
any change in the form, nature or jurisdiction of organization.  If any such change has occurred, include in
Schedule 1 the information required by Sections 1 and 2 of this
certificate as to each acquiree or constituent party to a merger or
consolidation.


 


(d) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:


 


(e) Set forth below is the Organizational Identification Number, if
any, issued by the jurisdiction of formation of each Grantor that is a
registered organization:


 


2.  Current
Locations.  (a)  The chief executive office of each Grantor
is located at the address set forth opposite its name below:


 


	
  Grantor

  	
   

  	
  Mailing
  Address

  	
   

  	
  County

  	
   

  	
  State

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(b) Set forth below opposite the name of each Grantor are all locations
where such Grantor maintains any books or records relating to any Accounts
Receivable (with each location at which chattel paper, if any, is kept being
indicated by an “*”):


 


	
  Grantor

  	
   

  	
  Mailing
  Address

  	
   

  	
  County

  	
   

  	
  State

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


(c) The jurisdiction of formation of each Grantor that is a registered
organization is set forth opposite its name below:


 


	
  Grantor:

  	
   

  	
  Jurisdiction:

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


(d) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Equipment or other Collateral not
identified above:


 


	
  Grantor

  	
   

  	
  Mailing
  Address

  	
   

  	
  County

  	
   

  	
  State

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(e) Set forth below opposite the name of each Grantor are all the
places of business of such Grantor not identified in paragraph (a), (b), (c) or
(d) above:


 


	
  Grantor

  	
   

  	
  Mailing
  Address

  	
   

  	
  County

  	
   

  	
  State

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(f) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor that have possession of any of
the Collateral of such Grantor:


 


	
  Grantor

  	
   

  	
  Mailing
  Address

  	
   

  	
  County

  	
   

  	
  State

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3.  Unusual
Transactions.  All Accounts have
been originated by the Grantors and all Inventory has been acquired by the
Grantors in the ordinary course of business.


 


4.  File
Search Reports.  File search reports
have been obtained from each Uniform Commercial Code filing office identified
with respect to such Grantor in Section 2 hereof, and such search reports
reflect no liens against any of the Collateral other than those permitted under
the Credit Agreement.


 


5.  UCC
Filings.  Financing statements in
substantially the form of Schedule 5 hereto have been prepared for filing
in the proper Uniform Commercial Code filing office in the jurisdiction in
which each Grantor is located and, to the extent any of the collateral is
comprised of fixtures, timber to be cut or as extracted collateral from the
wellhead or minehead, in the proper local jurisdiction, in each case as set
forth with respect to such Grantor in Section 2 hereof.


 


6.  Schedule of
Filings.  Attached hereto as
Schedule 6 is a schedule setting forth, with respect to the filings
described in Section 5 above, each filing and the filing office in which
such filing is to be made.


 


7.  Stock
Ownership and other Equity Interests. 
Attached hereto as Schedule 7 is a true and correct list of all the
issued and outstanding stock, partnership interests, limited liability company
membership interests or other equity interest of the Borrower and each
Subsidiary and the record and beneficial owners of such stock, partnership
interests, membership interests or other equity interests. Also set forth on
Schedule 7 is each equity investment of Holdings, the Borrower or any
Subsidiary that represents 50% or less of the equity of the entity in which
such investment was made.


 


2

















 


8.  Debt
Instruments.  Attached hereto as
Schedule 8 is a true and correct list of all promissory notes and other
evidence of indebtedness held by Holdings, the Borrower and each Subsidiary
that are required to be pledged under the Guarantee and Collateral Agreement,
including all applicable intercompany notes between Holdings and each
Subsidiary of Holdings and each Subsidiary of Holdings and each other such
Subsidiary.


 


9.  Advances.  Attached hereto as Schedule 9 is (a) a
true and correct list of all advances made by the Borrower to any Subsidiary of
the Borrower or made by any Subsidiary of the Borrower to the Borrower or to
any other Subsidiary of the Borrower (other than those identified on
Schedule 8), which advances are on the date hereof evidenced by one or
more intercompany notes pledged to the Administrative Agent pursuant to the
requirements of the Guarantee and Collateral Agreement and (b) a true and
correct list of all unpaid intercompany transfers of goods sold and delivered
by or to the Borrower or any Subsidiary of the Borrower.


 


10.  Intellectual
Property.  Attached hereto as
Schedule 10(A) in proper form for filing with the United States Patent and
Trademark Office is a schedule setting forth all of each Grantor’s
Patents, Patent Licenses, Trademarks and Trademark Licenses, including the name
of the registered owner, the registration number and the expiration date of
each Patent, Patent License, Trademark and Trademark License owned by any
Grantor. Attached hereto as Schedule 10(B) in proper form for filing with
the United States Copyright Office is a schedule setting forth all of each
Grantor’s Copyrights and Copyright Licenses, including the name of the
registered owner, the registration number and the expiration date of each
Copyright or Copyright License owned by any Grantor.


 


3

















 


IN WITNESS WHEREOF, the undersigned have duly executed this certificate
on this      day of May 2004.


 


	
   

  	
  PP ACQUISITION CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


4