property constitutes "Collateral" under and as defined in the Fox River Security
Agreement.
3.2
Exception to Last Day. The security interest
granted hereby shall not extend or apply to, and Collateral shall not include,
the last day of the term of any lease or agreement therefor, but upon
enforcement of the security interest, each Grantor shall stand possessed of such
last day in trust or assign the same to any person acquiring such term.
3.3
Attachment. Each Grantor acknowledges that
(i) value has been given, (ii) it has rights in the Collateral, (iii) it has not
agreed to postpone the time for attachment of the Lien granted hereunder, and
(iv) it has received a copy of this Agreement.
3.4
Intercreditor Agreement Governs.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL TERMS OF THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, THE REPRESENTATIONS AND WARRANTIES MADE HEREIN,
THE LIENS AND SECURITY INTERESTS GRANTED TO THE COLLATERAL AGENT PURSUANT TO
THIS AGREEMENT, THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND
THE OTHER SECURED PARTIES HEREUNDER, ALL OTHER RIGHTS AND BENEFITS AFFORDED
HEREUNDER TO THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES AND ALL
OBLIGATIONS OF THE GRANTORS HEREUNDER) ARE SUBJECT IN ALL RESPECTS TO THE TERMS,
CONDITIONS AND PROVISIONS OF THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF
FEBRUARY 8, 2010 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM
TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, THE "INTERCREDITOR
AGREEMENT") BY AND AMONG FIFTH THIRD BANK, AS RCF REPRESENTATIVE FOR THE BENEFIT
OF THE RCF SECURED PARTIES (AS DEFINED THEREIN), U.S. BANK NATIONAL ASSOCIATION,
AS NOTE REPRESENTATIVE FOR THE NOTE SECURED PARTIES (AS DEFINED THEREIN), FIFTH
THIRD BANK, IN ITS CAPACITY AS FIRST LIEN REPRESENTATIVE (AS DEFINED THEREIN),
AND CERTAIN OTHER PERSONS PARTY OR THAT MAY BECOME PARTY THERETO FROM TIME TO
TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND THE TERMS OF THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL.
SECTION
4.
REPRESENTATIONS AND WARRANTIES
Each Grantor hereby represents and warrants to the Collateral Agent and each
other Secured Party that:
4.1
Title; No Other Liens. Except for the
security interest granted to the Collateral Agent for the ratable benefit of the
Secured Parties pursuant to this Agreement and the other Liens permitted to
exist on the Collateral by the Note Documents, such Grantor owns its Collateral
in all material respects free and clear of any and all Liens or claims of
others. For the avoidance of doubt, it is understood and agreed that any Grantor
may, as part of its business,
7
grant licenses to third parties to use Intellectual Property owned or developed
by a Grantor. For purposes of this Agreement and the other Note Documents, such
licensing activity shall not constitute a "Lien" or a "claim" on such
Intellectual Property. Each of the Collateral Agent and each Secured Party
understands that any such licenses may be exclusive to the applicable licensees,
and such exclusivity provisions may