WAIVER OF JURY TRIAL<\/strong><\/p>\n<\/td>\n| \n 23<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n ii<\/p>\n
\n<\/p>\n GUARANTEE AND COLLATERAL AGREEMENT<\/p>\n GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 30, 2011, made by
\neach of the signatories hereto (together with any other entity that may become a
\nparty hereto as provided herein, the “Grantors<\/u>“), in favor of JPMORGAN
\nCHASE BANK, N.A., as Administrative Agent (in such capacity, the
\n“Administrative Agent<\/u>“) for the banks and other financial institutions or
\nentities (the “Lenders<\/u>“) from time to time parties to the Credit
\nAgreement, dated as of November 30, 2011 (as amended, supplemented or otherwise
\nmodified from time to time, the “Credit Agreement<\/u>“), among Advent
\nSoftware, Inc. (the “Borrower<\/u>“), the Lenders and the Administrative
\nAgent.<\/p>\n W<\/u> I<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u>
\nE<\/u> T<\/u> H<\/u>:<\/p>\n WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed
\nto make extensions of credit to the Borrower upon the terms and subject to the
\nconditions set forth therein;<\/p>\n WHEREAS, the Borrower is a member of an affiliated group of companies that
\nincludes each other Grantor;<\/p>\n WHEREAS, the proceeds of the extensions of credit under the Credit Agreement
\nwill be used in part to enable the Borrower to make valuable transfers to one or
\nmore of the other Grantors in connection with the operation of their respective
\nbusinesses;<\/p>\n WHEREAS, the Borrower and the other Grantors are engaged in related
\nbusinesses, and each Grantor will derive substantial direct and indirect benefit
\nfrom the making of the extensions of credit under the Credit Agreement; and<\/p>\n WHEREAS, it is a condition precedent to the obligation of the Lenders to make
\ntheir respective extensions of credit to the Borrower under the Credit Agreement
\nthat the Grantors shall have executed and delivered this Agreement to the
\nAdministrative Agent for the ratable benefit of the Secured Parties;<\/p>\n NOW, THEREFORE, in consideration of the premises and to induce the
\nAdministrative Agent and the Lenders to enter into the Credit Agreement and to
\ninduce the Lenders to make their respective extensions of credit to the Borrower
\nthereunder, each Grantor hereby agrees with the Administrative Agent, for the
\nratable benefit of the Secured Parties, as follows:<\/p>\n SECTION 1. DEFINED TERMS<\/p>\n 1.1 Definitions<\/u>. (a) Unless otherwise defined herein, terms defined in
\nthe Credit Agreement and used herein shall have the meanings given to them in
\nthe Credit Agreement, and the following terms are used herein as defined in the
\nNew York UCC: Accounts, Certificated Security, Chattel Paper, Commercial Tort
\nClaims, Documents, Equipment, Farm Products, General Intangibles, Instruments,
\nInventory, Letter-of-Credit Rights and Supporting Obligations.<\/p>\n (b) The following terms shall have the following meanings:<\/p>\n “Agreement<\/u>“: this Guarantee and Collateral Agreement, as the same may
\nbe amended, supplemented or otherwise modified from time to time.<\/p>\n 1<\/p>\n
\n<\/p>\n “Borrower Obligations<\/u>“: the collective reference to the unpaid
\nprincipal of and interest on the Loans and Reimbursement Obligations and all
\nother obligations and liabilities of the Borrower (including, without
\nlimitation, interest accruing at the then applicable rate provided in the Credit
\nAgreement after the maturity of the Loans and Reimbursement Obligations and
\ninterest accruing at the then applicable rate provided in the Credit Agreement
\nafter the filing of any petition in bankruptcy, or the commencement of any
\ninsolvency, reorganization or like proceeding, relating to the Borrower, whether
\nor not a claim for post-filing or post-petition interest is allowed in such
\nproceeding) to the Administrative Agent or any Lender (or, in the case of any
\nSpecified Swap Agreement or Specified Cash Management Agreement, any Affiliate
\nof any Lender), whether direct or indirect, absolute or contingent, due or to
\nbecome due, or now existing or hereafter incurred, which may arise under, out
\nof, or in connection with, the Credit Agreement, this Agreement, the other Loan
\nDocuments, any Letter of Credit, any Specified Swap Agreement, any Specified
\nCash Management Agreement or any other document made, delivered or given in
\nconnection with any of the foregoing, in each case whether on account of
\nprincipal, interest, reimbursement obligations, fees, indemnities, costs,
\nexpenses or otherwise (including, without limitation, all fees and disbursements
\nof counsel to the Administrative Agent or to the Lenders that are required to be
\npaid by the Borrower pursuant to the terms of any of the foregoing agreements).\n<\/p>\n “Collateral<\/u>“: as defined in Section 3.<\/p>\n “Collateral Account<\/u>“: any collateral account established by the
\nAdministrative Agent as provided in Section 6.1 or 6.4.<\/p>\n “Copyrights<\/u>“: (i) all copyrights arising under the laws of the United
\nStates, any other country or any political subdivision thereof, whether
\nregistered or unregistered and whether published or unpublished (including,
\nwithout limitation, those listed in Schedule 6<\/u> to the Disclosure Letter),
\nall registrations and recordings thereof, and all applications in connection
\ntherewith, including, without limitation, all registrations, recordings and
\napplications in the United States Copyright Office, and (ii) the right to obtain
\nall renewals thereof.<\/p>\n “Copyright Licenses<\/u>“: any written agreement naming any Grantor as
\nlicensor or licensee (including, without limitation, those listed in
\nSchedule 6<\/u> to the Disclosure Letter), granting any right under any
\nCopyright, including, without limitation, the grant of rights to manufacture,
\ndistribute, exploit and sell materials derived from any Copyright.<\/p>\n “Deposit Account<\/u>“: as defined in the Uniform Commercial Code of any
\napplicable jurisdiction and, in any event, including, without limitation, any
\ndemand, time, savings, passbook or like account maintained with a depositary
\ninstitution.<\/p>\n “Foreign Subsidiary<\/u>“: any Subsidiary organized under the laws of any
\njurisdiction outside the United States of America.<\/p>\n “Foreign Subsidiary Voting Stock<\/u>“: the voting Capital Stock of any
\nForeign Subsidiary.<\/p>\n “Guarantor Obligations<\/u>“: with respect to any Guarantor, all
\nobligations and liabilities of such Guarantor which may arise under or in
\nconnection with this Agreement (including, without limitation, Section 2) or any
\nother Loan Document, any Specified Swap Agreement or any Specified Cash
\nManagement Agreement to which such Guarantor is a party, in each case whether on
\naccount of guarantee obligations, reimbursement obligations, fees, indemnities,
\ncosts, expenses or otherwise (including, without limitation, all fees and
\ndisbursements of counsel to the Administrative Agent or to the Lenders that are
\nrequired to be paid by such Guarantor pursuant to the terms of this Agreement or
\nany other Loan Document).<\/p>\n 2<\/p>\n
\n<\/p>\n “Guarantors<\/u>“: the collective reference to each Grantor other than the
\nBorrower.<\/p>\n “Intellectual Property<\/u>“: the collective reference to all rights,
\npriorities and privileges relating to intellectual property, whether arising
\nunder United States, multinational or foreign laws or otherwise, including,
\nwithout limitation, the Copyrights, the Copyright Licenses, the Patents, the
\nPatent Licenses, the Trademarks and the Trademark Licenses, and all rights to
\nsue at law or in equity for any infringement or other impairment thereof,
\nincluding the right to receive all proceeds and damages therefrom.<\/p>\n “Intercompany Note<\/u>“: any promissory note evidencing loans made by any
\nGrantor to the Borrower or any of its Subsidiaries.<\/p>\n “Investment Property<\/u>“: the collective reference to (i) all “investment
\nproperty” as such term is defined in Section 9-102(a)(49) of the New York UCC
\n(other than any Foreign Subsidiary Voting Stock excluded from the definition of
\n“Pledged Stock”) and (ii) whether or not constituting “investment property” as
\nso defined, all Pledged Notes and all Pledged Stock.<\/p>\n “Issuers<\/u>“: the collective reference to each issuer of any Investment
\nProperty.<\/p>\n “New York UCC<\/u>“: the Uniform Commercial Code as from time to time in
\neffect in the State of New York.<\/p>\n “Obligations<\/u>“: (i) in the case of the Borrower, the Borrower
\nObligations, and (ii) in the case of each Guarantor, its Guarantor Obligations.\n<\/p>\n “Patents<\/u>“: (i) all letters patent of the United States, any other
\ncountry or any political subdivision thereof, all reissues and extensions
\nthereof and all goodwill associated therewith, including, without limitation,
\nany of the foregoing referred to in Schedule 6<\/u> to the Disclosure Letter,
\n(ii) all applications for letters patent of the United States or any other
\ncountry and all divisions, continuations and continuations-in-part thereof,
\nincluding, without limitation, any of the foregoing referred to in Schedule
\n6<\/u> to the Disclosure Letter, and (iii) all rights to obtain any reissues or
\nextensions of the foregoing.<\/p>\n “Patent License<\/u>“: all agreements, whether written or oral, providing
\nfor the grant by or to any Grantor of any right to manufacture, use or sell any
\ninvention covered in whole or in part by a Patent, including, without
\nlimitation, any of the foregoing referred to in Schedule F<\/u> to the
\nDisclosure Letter.<\/p>\n “Pledged Notes<\/u>“: all promissory notes listed on Schedule B<\/u> to
\nthe Disclosure Letter, all Intercompany Notes at any time issued to any Grantor
\nand all other promissory notes issued to or held by any Grantor (other than
\npromissory notes issued in connection with extensions of trade credit by any
\nGrantor in the ordinary course of business).<\/p>\n “Pledged Stock<\/u>“: the shares of Capital Stock listed on Schedule
\nB<\/u> to the Disclosure Letter, together with any other shares, stock
\ncertificates, options, interests or rights of any nature whatsoever in respect
\nof the Capital Stock of any Person that may be issued or granted to, or held by,
\nany Grantor while this Agreement is in effect; provided<\/u> that in no event
\nshall more than 66% of the total outstanding Foreign Subsidiary Voting Stock of
\nany Foreign Subsidiary be required to be pledged hereunder.<\/p>\n 3<\/p>\n
\n<\/p>\n “Proceeds<\/u>“: all “proceeds” as such term is defined in Section
\n9-102(a)(64) of the New York UCC and, in any event, shall include, without
\nlimitation, all dividends or other income from the Investment Property,
\ncollections thereon or distributions or payments with respect thereto.<\/p>\n “Receivable<\/u>“: any right to payment for goods sold or leased or for
\nservices rendered, whether or not such right is evidenced by an Instrument or
\nChattel Paper and whether or not it has been earned by performance (including,
\nwithout limitation, any Account).<\/p>\n “Secured Parties<\/u>“: the collective reference to the Administrative
\nAgent, the Lenders and any Affiliate of any Lender to which Borrower Obligations
\nor Guarantor Obligations, as applicable, are owed.<\/p>\n “Securities Act<\/u>“: the Securities Act of 1933, as amended.<\/p>\n “Trademarks<\/u>“: (i) all trademarks, trade names, corporate names,
\ncompany names, business names, fictitious business names, trade styles, service
\nmarks, logos and other source or business identifiers, and all goodwill
\nassociated therewith, now existing or hereafter adopted or acquired, all
\nregistrations and recordings thereof, and all applications in connection
\ntherewith, whether in the United States Patent and Trademark Office or in any
\nsimilar office or agency of the United States, any State thereof or any other
\ncountry or any political subdivision thereof, or otherwise, and all common-law
\nrights related thereto, including, without limitation, any of the foregoing
\nreferred to in Schedule F<\/u> to the Disclosure Letter, and (ii) the right to
\nobtain all renewals thereof.<\/p>\n “Trademark License<\/u>“: any agreement, whether written or oral, providing
\nfor the grant by or to any Grantor of any right to use any Trademark, including,
\nwithout limitation, any of the foregoing referred to in Schedule F<\/u> to the
\nDisclosure Letter.<\/p>\n “Vehicles<\/u>“: all cars, trucks, trailers, construction and earth moving
\nequipment and other vehicles covered by a certificate of title law of any state
\nand all tires and other appurtenances to any of the foregoing.<\/p>\n 1.2 Other Definitional Provisions<\/u>. (a) The words “hereof,” “herein”,
\n“hereto” and “hereunder” and words of similar import when used in this Agreement
\nshall refer to this Agreement as a whole and not to any particular provision of
\nthis Agreement, and Section and Schedule references are to this Agreement unless
\notherwise specified.<\/p>\n (b) The meanings given to terms defined herein shall be equally applicable to
\nboth the singular and plural forms of such terms.<\/p>\n (c) Where the context requires, terms relating to the Collateral or any part
\nthereof, when used in relation to a Grantor, shall refer to such Grantor’s
\nCollateral or the relevant part thereof.<\/p>\n SECTION 2. GUARANTEE<\/p>\n 2.1 Guarantee<\/u>. (a) Each of the Guarantors hereby, jointly and
\nseverally, unconditionally and irrevocably, guarantees to the Administrative
\nAgent, for the ratable benefit of the Secured Parties and their respective
\nsuccessors, indorsees, transferees and assigns, the prompt and complete payment
\nand performance by the Borrower when due (whether at the stated maturity, by
\nacceleration or otherwise) of the Borrower Obligations.<\/p>\n 4<\/p>\n
\n<\/p>\n (b) Anything herein or in any other Loan Document to the contrary
\nnotwithstanding, the maximum liability of each Guarantor hereunder and under the
\nother Loan Documents shall in no event exceed the amount which can be guaranteed
\nby such Guarantor under applicable federal and state laws relating to the
\ninsolvency of debtors (after giving effect to the right of contribution
\nestablished in Section 2.2).<\/p>\n (c) Each Guarantor agrees that the Borrower Obligations may at any time and
\nfrom time to time exceed the amount of the liability of such Guarantor hereunder
\nwithout impairing the guarantee contained in this Section 2 or affecting the
\nrights and remedies of the Administrative Agent or any Lender hereunder.<\/p>\n (d) The guarantee contained in this Section 2 shall remain in full force and
\neffect until all the Borrower Obligations and the obligations of each Guarantor
\nunder the guarantee contained in this Section 2 shall have been satisfied by
\npayment in full (other than unasserted contingent indemnification obligations
\nand, in the absence of a Default or Event of Default, obligations under or in
\nrespect of Specified Swap Agreements or Specified Cash Management Agreements),
\nno Letter of Credit shall be outstanding (unless it has been cash collateralized
\nin a manner satisfactory to the Administrative Agent) and the Commitments shall
\nbe terminated, notwithstanding that from time to time during the term of the
\nCredit Agreement the Borrower may be free from any Borrower Obligations.<\/p>\n (e) No payment made by the Borrower, any of the Guarantors, any other
\nguarantor or any other Person or received or collected by the Administrative
\nAgent or any Lender from the Borrower, any of the Guarantors, any other
\nguarantor or any other Person by virtue of any action or proceeding or any
\nset-off or appropriation or application at any time or from time to time in
\nreduction of or in payment of the Borrower Obligations shall be deemed to
\nmodify, reduce, release or otherwise affect the liability of any Guarantor
\nhereunder which shall, notwithstanding any such payment (other than any payment
\nmade by such Guarantor in respect of the Borrower Obligations or any payment
\nreceived or collected from such Guarantor in respect of the Borrower
\nObligations), remain liable for the Borrower Obligations up to the maximum
\nliability of such Guarantor hereunder until the Borrower Obligations are paid in
\nfull (other than unasserted contingent indemnification obligations and, in the
\nabsence of a Default or Event of Default, obligations under or in respect of
\nSpecified Swap Agreements or Specified Cash Management Agreements), no Letter of
\nCredit shall be outstanding (unless it has been cash collateralized in a manner
\nsatisfactory to the Administrative Agent) and the Commitments are terminated.\n<\/p>\n 2.2 Right of Contribution<\/u>. Each Subsidiary Guarantor hereby agrees
\nthat to the extent that a Subsidiary Guarantor shall have paid more than its
\nproportionate share of any payment made hereunder, such Subsidiary Guarantor
\nshall be entitled to seek and receive contribution from and against any other
\nSubsidiary Guarantor hereunder which has not paid its proportionate share of
\nsuch payment. Each Subsidiary Guarantor’s right of contribution shall be subject
\nto the terms and conditions of Section 2.3. The provisions of this Section 2.2
\nshall in no respect limit the obligations and liabilities of any Subsidiary
\nGuarantor to the Administrative Agent and the Lenders, and each Subsidiary
\nGuarantor shall remain liable to the Administrative Agent and the Lenders for
\nthe full amount guaranteed by such Subsidiary Guarantor hereunder.<\/p>\n 2.3 No Subrogation<\/u>. Notwithstanding any payment made by any Guarantor
\nhereunder or any set-off or application of funds of any Guarantor by the
\nAdministrative Agent or any Lender, no Guarantor shall be entitled to be
\nsubrogated to any of the rights of the Administrative Agent or any Lender
\nagainst the Borrower or any other Guarantor or any collateral security or
\nguarantee or right of offset held by the Administrative Agent or any Lender for
\nthe payment of the Borrower Obligations, nor shall any Guarantor seek or be
\nentitled to seek any contribution or reimbursement from the Borrower or any
\nother Guarantor in respect of payments made by such Guarantor hereunder, until
\nall amounts owing to the<\/p>\n 5<\/p>\n
\n<\/p>\n Administrative Agent and the Lenders by the Borrower on account of the
\nBorrower Obligations are paid in full (other than unasserted contingent
\nindemnification obligations and, in the absence of a Default or Event of
\nDefault, obligations under or in respect of Specified Swap Agreements or
\nSpecified Cash Management Agreements), no Letter of Credit shall be outstanding
\n(unless it has been cash collateralized in a manner satisfactory to the
\nAdministrative Agent) and the Commitments are terminated. If any amount shall be
\npaid to any Guarantor on account of such subrogation rights in violation of the
\nimmediately preceding sentence, such amount shall be held by such Guarantor in
\ntrust for the Administrative Agent and the Lenders, segregated from other funds
\nof such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
\nturned over to the Administrative Agent in the exact form received by such
\nGuarantor (duly indorsed by such Guarantor to the Administrative Agent, if
\nrequired), to be applied against the Borrower Obligations, whether matured or
\nunmatured, in such order as the Administrative Agent may determine.<\/p>\n 2.4 Amendments, etc. with respect to the Borrower Obligations<\/u>. Each
\nGuarantor shall remain obligated hereunder notwithstanding that, without any
\nreservation of rights against any Guarantor and without notice to or further
\nassent by any Guarantor, any demand for payment of any of the Borrower
\nObligations made by the Administrative Agent or any Lender may be rescinded by
\nthe Administrative Agent or such Lender and any of the Borrower Obligations
\ncontinued, and the Borrower Obligations, or the liability of any other Person
\nupon or for any part thereof, or any collateral security or guarantee therefor
\nor right of offset with respect thereto, may, from time to time, in whole or in
\npart, be renewed, extended, amended, modified, accelerated, compromised, waived,
\nsurrendered or released by the Administrative Agent or any Lender, and the
\nCredit Agreement and the other Loan Documents and any other documents executed
\nand delivered in connection therewith may be amended, modified, supplemented or
\nterminated, in whole or in part, as the Administrative Agent (or the Required
\nLenders or all Lenders, as the case may be) may deem advisable from time to
\ntime, and any collateral security, guarantee or right of offset at any time held
\nby the Administrative Agent or any Lender for the payment of the Borrower
\nObligations may be sold, exchanged, waived, surrendered or released.<\/p>\n 2.5 Guarantee Absolute and Unconditional<\/u>. Each Guarantor waives any
\nand all notice of the creation, renewal, extension or accrual of any of the
\nBorrower Obligations and notice of or proof of reliance by the Administrative
\nAgent or any Lender upon the guarantee contained in this Section 2 or acceptance
\nof the guarantee contained in this Section 2; the Borrower Obligations, and any
\nof them, shall conclusively be deemed to have been created, contracted or
\nincurred, or renewed, extended, amended or waived, in reliance upon the
\nguarantee contained in this Section 2; and all dealings between the Borrower and
\nany of the Guarantors, on the one hand, and the Administrative Agent and the
\nLenders, on the other hand, likewise shall be conclusively presumed to have been
\nhad or consummated in reliance upon the guarantee contained in this Section 2.
\nEach Guarantor waives diligence, presentment, protest, demand for payment and
\nnotice of default or nonpayment to or upon the Borrower or any of the Guarantors
\nwith respect to the Borrower Obligations. Each Guarantor understands and agrees
\nthat the guarantee contained in this Section 2 shall be construed as a
\ncontinuing, absolute and unconditional guarantee of payment without regard to
\n(a) the validity or enforceability of the Credit Agreement or any other Loan
\nDocument, any of the Borrower Obligations or any other collateral security
\ntherefor or guarantee or right of offset with respect thereto at any time or
\nfrom time to time held by the Administrative Agent or any Lender, (b) any
\ndefense, set-off or counterclaim (other than a defense of payment or
\nperformance) which may at any time be available to or be asserted by the
\nBorrower or any other Person against the Administrative Agent or any Lender, or
\n(c) any other circumstance whatsoever (with or without notice to or knowledge of
\nthe Borrower or such Guarantor) which constitutes, or might be construed to
\nconstitute, an equitable or legal discharge of the Borrower for the Borrower
\nObligations, or of such Guarantor under the guarantee contained in this Section
\n2, in bankruptcy or in any other instance. When making any demand hereunder or
\notherwise pursuing its rights and remedies hereunder against any Guarantor, the
\nAdministrative Agent or any Lender may, but shall be under no obligation to,
\nmake a similar demand on or otherwise pursue<\/p>\n 6<\/p>\n
\n<\/p>\n such rights and remedies as it may have against the Borrower, any other
\nGuarantor or any other Person or against any collateral security or guarantee
\nfor the Borrower Obligations or any right of offset with respect thereto, and
\nany failure by the Administrative Agent or any Lender to make any such demand,
\nto pursue such other rights or remedies or to collect any payments from the
\nBorrower, any other Guarantor or any other Person or to realize upon any such
\ncollateral security or guarantee or to exercise any such right of offset, or any
\nrelease of the Borrower, any other Guarantor or any other Person or any such
\ncollateral security, guarantee or right of offset, shall not relieve any
\nGuarantor of any obligation or liability hereunder, and shall not impair or
\naffect the rights and remedies, whether express, implied or available as a
\nmatter of law, of the Administrative Agent or any Lender against any Guarantor.
\nFor the purposes hereof “demand” shall include the commencement and continuance
\nof any legal proceedings.<\/p>\n 2.6 Reinstatement<\/u>. The guarantee contained in this Section 2 shall
\ncontinue to be effective, or be reinstated, as the case may be, if at any time
\npayment, or any part thereof, of any of the Borrower Obligations is rescinded or
\nmust otherwise be restored or returned by the Administrative Agent or any Lender
\nupon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
\nthe Borrower or any Guarantor, or upon or as a result of the appointment of a
\nreceiver, intervenor or conservator of, or trustee or similar officer for, the
\nBorrower or any Guarantor or any substantial part of its property, or otherwise,
\nall as though such payments had not been made.<\/p>\n 2.7 Payments<\/u>. Each Guarantor hereby guarantees that payments hereunder
\nwill be paid to the Administrative Agent without set-off or counterclaim in
\nDollars at the Funding Office.<\/p>\n SECTION 3. GRANT OF SECURITY INTEREST<\/p>\n Each Grantor hereby grants to the Administrative Agent, for the ratable
\nbenefit of the Secured Parties, a security interest in, all of the following
\nproperty now owned or at any time hereafter acquired by such Grantor or in which
\nsuch Grantor now has or at any time in the future may acquire any right, title
\nor interest (collectively, the “Collateral<\/u>“), as collateral security for
\nthe prompt and complete payment and performance when due (whether at the stated
\nmaturity, by acceleration or otherwise) of such Grantor’s Obligations:<\/p>\n (a) all Accounts;<\/p>\n (b) all Chattel Paper;<\/p>\n (c) all Contracts;<\/p>\n (d) all Deposit Accounts;<\/p>\n (e) all Documents (other than title documents with respect to Vehicles);<\/p>\n (f) all Equipment;<\/p>\n (g) all Fixtures;<\/p>\n (h) all General Intangibles;<\/p>\n (i) all Instruments;<\/p>\n (j) all Intellectual Property;<\/p>\n 7<\/p>\n
\n<\/p>\n (k) all Inventory;<\/p>\n (l) all Investment Property;<\/p>\n (m) all Letter-of-Credit Rights;<\/p>\n (n) all Commercial Tort Claims specified on Schedule G<\/u> to the
\nDisclosure Letter;<\/p>\n (o) all other property not otherwise described above (except for any property
\nspecifically excluded from any clause in this section above, and any property
\nspecifically excluded from any defined term used in any clause of this section
\nabove);<\/p>\n (p) all books and records pertaining to the Collateral; and<\/p>\n (q) to the extent not otherwise included, all Proceeds, Supporting
\nObligations and products of any and all of the foregoing and all collateral
\nsecurity and guarantees given by any Person with respect to any of the
\nforegoing;<\/p>\n provided, however<\/u>, that notwithstanding any of the other provisions
\nset forth in this Section 3, this Agreement shall not constitute a grant of a
\nsecurity interest in (i) any property to the extent that such grant of a
\nsecurity interest is prohibited by any Requirements of Law of a Governmental
\nAuthority, requires a consent not obtained of any Governmental Authority
\npursuant to such Requirement of Law or is prohibited by, or constitutes a breach
\nor default under or results in the termination of or requires any consent not
\nobtained under, any contract, license, agreement, instrument or other document
\nevidencing or giving rise to such property or, in the case of any Investment
\nProperty, Pledged Stock or Pledged Note, any applicable shareholder or similar
\nagreement, except to the extent that such Requirement of Law or the term in such
\ncontract, license, agreement, instrument or other document or shareholder or
\nsimilar agreement providing for such prohibition, breach, default or termination
\nor requiring such consent is ineffective under applicable law or (ii)
\n“intent-to-use” trademark applications filed in the United States Patent and
\nTrademark Office unless and until acceptable evidence of first use thereof,
\nwhether by the actual use thereof in commerce, the recording of a statement of
\nuse with the United States Patent and Trademark Office or otherwise, exists,
\nsolely to the extent that granting a security interest in such applications
\nprior to such time would adversely affect the enforceability or validity of such
\napplications.<\/p>\n SECTION 4. REPRESENTATIONS AND WARRANTIES<\/p>\n To induce the Administrative Agent and the Lenders to enter into the Credit
\nAgreement and to induce the Lenders to make their respective extensions of
\ncredit to the Borrower thereunder, each Grantor hereby represents and warrants
\nto the Administrative Agent and each Lender that:<\/p>\n 4.1 Title; No Other Liens<\/u>. Except for the security interest granted to
\nthe Administrative Agent for the ratable benefit of the Secured Parties pursuant
\nto this Agreement and the other Liens permitted to exist on the Collateral by
\nthe Credit Agreement, such Grantor owns each item of the Collateral free and
\nclear of any and all Liens or claims of others. No financing statement or other
\npublic notice with respect to all or any part of the Collateral is on file or of
\nrecord in any public office, except such as have been filed in favor of the
\nAdministrative Agent, for the ratable benefit of the Secured Parties, pursuant
\nto this Agreement or as are permitted by the Credit Agreement. For the avoidance
\nof doubt, it is understood and agreed that any Grantor may, as part of its
\nbusiness, grant licenses to third parties to use Intellectual Property owned or
\ndeveloped by a Grantor. For purposes of this Agreement and the other Loan
\nDocuments, such licensing activity shall not constitute a “Lien” on such
\nIntellectual Property. Each<\/p>\n 8<\/p>\n
\n<\/p>\n of the Administrative Agent and each Lender understands that any such
\nlicenses may be exclusive to the applicable licensees, and such exclusivity
\nprovisions may limit the ability of the Administrative Agent to utilize, sell,
\nlease or transfer the related Intellectual Property or otherwise realize value
\nfrom such Intellectual Property pursuant hereto.<\/p>\n 4.2 Perfected First Priority Liens<\/u>. The security interests granted
\npursuant to this Agreement (a) upon completion of the filings and other actions
\nspecified on Schedule C<\/u> to the Disclosure Letter (which, in the case of
\nall filings and other documents referred to on said Schedule, have been
\ndelivered to the Administrative Agent in completed and duly executed form) will
\nconstitute valid perfected security interests in all of the Collateral in favor
\nof the Administrative Agent, for the ratable benefit of the Secured Parties, as
\ncollateral security for such Grantor’s Obligations, enforceable in accordance
\nwith the terms hereof against all creditors of such Grantor and any Persons
\npurporting to purchase any Collateral from such Grantor and (b) are prior to all
\nother Liens on the Collateral in existence on the date hereof except for Liens
\npermitted by the Credit Agreement which have priority over the Liens on the
\nCollateral by operation of law, in each case to the extent that the security
\ninterest in the Collateral can be perfected by the taking of actions specified
\non Schedule C<\/u> to the Disclosure Letter.<\/p>\n 4.3 Jurisdiction of Organization; Chief Executive Office<\/u>. On the
\nClosing Date, such Grantor’s name, jurisdiction of organization, identification
\nnumber from the jurisdiction of organization (if any), and the location of such
\nGrantor’s chief executive office or sole place of business or principal
\nresidence, as the case may be, are specified on Schedule D<\/u> to the
\nDisclosure Letter.<\/p>\n 4.4 Inventory and Equipment<\/u>. On the Closing Date, the Inventory and
\nthe Equipment (other than mobile goods) are kept at the locations listed on
\nSchedule E<\/u> to the Disclosure Letter.<\/p>\n 4.5 Farm Products<\/u>. None of the Collateral constitutes, or is the
\nProceeds of, Farm Products.<\/p>\n 4.6 Investment Property<\/u>. (a) The shares of Pledged Stock pledged by
\nsuch Grantor hereunder constitute all the issued and outstanding shares of all
\nclasses of the Capital Stock of each Issuer owned by such Grantor or, in the
\ncase of Foreign Subsidiary Voting Stock, if less, 66% (or, if so indicated on
\nSchedule B<\/u> to the Disclosure Letter, 65%) of the outstanding Foreign
\nSubsidiary Voting Stock of each relevant Issuer.<\/p>\n (b) All the shares of the Pledged Stock have been, or, in the case of Pledged
\nStock issued by Issuers that are not Subsidiaries, to such Grantor’s knowledge
\nhave been, duly and validly issued and are fully paid and nonassessable.<\/p>\n (c) To such Grantor’s knowledge, each of the Pledged Notes pledged by such
\nGrantor constitutes the legal, valid and binding obligation of the obligor with
\nrespect thereto, enforceable in accordance with its terms, subject to the
\neffects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
\nmoratorium and other similar laws relating to or affecting creditors’ rights
\ngenerally, general equitable principles (whether considered in a proceeding in
\nequity or at law) and an implied covenant of good faith and fair dealing.<\/p>\n (d) Such Grantor is the record and beneficial owner of, and has good and
\nmarketable title to, the Investment Property pledged by it hereunder, free of
\nany and all Liens except the security interest created by this Agreement.<\/p>\n 4.7 Receivables<\/u>. (a) No amount payable to such Grantor under or in
\nconnection with any Receivable is evidenced by any Instrument or Chattel Paper
\nwhich has not been delivered to the Administrative Agent, except as permitted by
\nSection 5.1.<\/p>\n 9<\/p>\n
\n<\/p>\n (b) None of the obligors on any Receivables is a United States federal
\nGovernmental Authority.<\/p>\n (c) The amounts represented by such Grantor to the Administrative Agent from
\ntime to time as owing to such Grantor in respect of the Receivables will at such
\ntimes be determined in good faith.<\/p>\n 4.8 Intellectual Property<\/u>. (a) Schedule F<\/u> to the Disclosure
\nLetter lists all registered Intellectual Property owned by such Grantor in its
\nown name on the Closing Date.<\/p>\n (b) On the date hereof, all Intellectual Property owned by such Grantor is
\nvalid, subsisting, unexpired and enforceable, has not been abandoned and does
\nnot infringe the intellectual property rights of any other Person, in each case
\nexcept as could not reasonably be expected to have a Material Adverse Effect.\n<\/p>\n (c) No holding, decision or judgment has been rendered by any Governmental
\nAuthority which would limit, cancel or invalidate any Intellectual Property
\nowned by such Grantor or such Grantor’s ownership interest therein in any
\nrespect that could reasonably be expected to have a Material Adverse Effect.\n<\/p>\n (d) No action or proceeding is pending, or, to the knowledge of such Grantor,
\nthreatened in writing, on the date hereof, seeking to limit, cancel or
\ninvalidate any material Intellectual Property owned by such Grantor or such
\nGrantor’s ownership interest therein.<\/p>\n 4.9 Commercial Tort Claims<\/u><\/p>\n (a) On the Closing Date, except to the extent listed in Schedule C<\/u> to
\nthe Disclosure Letter, no Grantor has rights in any Commercial Tort Claim with
\npotential value in excess of $250,000.<\/p>\n (b) Upon the filing of a financing statement covering any Commercial Tort
\nClaim referred to in Section 5.11 hereof against such Grantor in the
\njurisdiction specified in Schedule 3 hereto, the security interest granted in
\nsuch Commercial Tort Claim will constitute a valid perfected security interest
\nin favor of the Administrative Agent, for the ratable benefit of the Secured
\nParties, as collateral security for such Grantor’s Obligations, enforceable in
\naccordance with the terms hereof against all creditors of such Grantor and any
\nPersons purporting to purchase such Collateral from Grantor, which security
\ninterest shall be prior to all other Liens on such Collateral except for
\nunrecorded liens permitted by the Credit Agreement which have priority over the
\nLiens on such Collateral by operation of law.<\/p>\n SECTION 5. COVENANTS<\/p>\n Each Grantor covenants and agrees with the Administrative Agent and the
\nLenders that, from and after the date of this Agreement until the Obligations
\nshall have been paid in full, no Letter of Credit shall be outstanding and the
\nCommitments shall have terminated:<\/p>\n 5.1 Delivery of Instruments, Certificated Securities and Chattel
\nPaper<\/u>. If any amount in excess of $1,000,000 in the aggregate payable under
\nor in connection with any of the Collateral shall be or become evidenced by any
\nInstrument, Certificated Security or Chattel Paper, such Instrument,
\nCertificated Security or Chattel Paper shall be promptly delivered to the
\nAdministrative Agent, duly indorsed in a manner satisfactory to the
\nAdministrative Agent, to be held as Collateral pursuant to this Agreement.<\/p>\n 10<\/p>\n
\n<\/p>\n 5.2 Maintenance of Insurance<\/u>. (a) Such Grantor will maintain the
\ninsurance of the type and in the amounts required by Section 6.5 of the Credit
\nAgreement.<\/p>\n (b) Such Grantor’s insurance policies shall (i) provide that no cancellation,
\nmaterial reduction in amount or material change in coverage thereof shall be
\neffective until at least 30 days after receipt by the Administrative Agent of
\nwritten notice thereof, (ii) name the Administrative Agent as insured party or
\nloss payee, (iii) if reasonably requested by the Administrative Agent, include a
\nbreach of warranty clause and (iv) be reasonably satisfactory in all other
\nrespects to the Administrative Agent.<\/p>\n (c) The Borrower shall deliver to the Administrative Agent and the Lenders a
\nreport of a reputable insurance broker with respect to such insurance as the
\nAdministrative Agent may from time to time reasonably request (but not more
\nfrequently than once per calendar year unless a Default or Event of Default
\nexists).<\/p>\n 5.3 [Reserved<\/u>].<\/p>\n 5.4 Maintenance of Perfected Security Interest; Further
\nDocumentation<\/u>. (a) Such Grantor shall maintain the security interest created
\nby this Agreement as a perfected security interest having at least the priority
\ndescribed in Section 4.2 and shall defend such security interest against any
\nclaims and demands of any Person at any time claiming any interest in the
\nCollateral that is adverse to the Administrative Agent or the Lenders, subject
\nto the rights of such Grantor under the Loan Documents to dispose of the
\nCollateral. Neither the Administrative Agent nor any Lender shall have any
\nobligation to protect, secure, perfect or insure any Lien at any time held by it
\nas security for the Borrower Obligations or for the guarantee contained in
\nSection 2 or any property subject thereto.<\/p>\n (b) Such Grantor will furnish to the Administrative Agent and the Lenders
\nfrom time to time statements and schedules further identifying and describing
\nthe assets and property of such Grantor and such other reports in connection
\ntherewith as the Administrative Agent may reasonably request, all in reasonable
\ndetail.<\/p>\n (c) At any time and from time to time, upon the written request of the
\nAdministrative Agent, and at the sole expense of such Grantor, such Grantor will
\npromptly and duly execute and deliver, and have recorded, such further
\ninstruments and documents and take such further actions as the Administrative
\nAgent may reasonably request for the purpose of obtaining or preserving the full
\nbenefits of this Agreement and of the rights and powers herein granted,
\nincluding, without limitation, (i) filing any financing or continuation
\nstatements under the Uniform Commercial Code (or other similar laws) in effect
\nin any jurisdiction with respect to the security interests created hereby and
\n(ii) in the case of Investment Property, Deposit Accounts, Letter-of-Credit
\nRights and any other relevant Collateral, taking any actions necessary to enable
\nthe Administrative Agent to obtain “control” (within the meaning of the
\napplicable Uniform Commercial Code) with respect thereto, subject to the
\nexceptions contained in Sections 5.1 and 5.7.<\/p>\n (d) Notwithstanding anything contained in this Agreement to the contrary, the
\nAdministrative Agent shall not require any Grantor to take any action with
\nrespect to the Collateral or the security interest granted therein to the extent
\nthe Administrative Agent determines, in its sole discretion, that the cost of
\ntaking such action is excessive in relation to the value of the security to be
\nafforded thereby.<\/p>\n 5.5 Changes in Name, etc<\/u>. Such Grantor will not, except upon 15 days’
\nprior written notice to the Administrative Agent (or such other period of time
\nas agreed to by the Administrative Agent) and delivery to the Administrative
\nAgent of all additional executed financing statements and other documents<\/p>\n 11<\/p>\n
\n<\/p>\n reasonably requested by the Administrative Agent to maintain the validity,
\nperfection and priority of the security interests provided for herein, (i)
\nchange its jurisdiction of organization or the location of its chief executive
\noffice or sole place of business or principal residence from that referred to in
\nSection 4.3 or (ii) change its name.<\/p>\n 5.6 Notices<\/u>. Such Grantor will advise the Administrative Agent
\npromptly, in reasonable detail, of:<\/p>\n (a) any Lien (other than security interests created hereby or Liens permitted
\nunder the Credit Agreement) on any of the Collateral which would materially and
\nadversely affect the ability of the Administrative Agent to exercise any of its
\nremedies hereunder; and<\/p>\n (b) of the occurrence of any other event which could reasonably be expected
\nto have a material adverse effect on the aggregate value of the Collateral or on
\nthe security interests created hereby.<\/p>\n 5.7 Investment Property<\/u>. (a) Subject to the exceptions contained in
\nSection 5.1, if such Grantor shall receive any certificate (including, without
\nlimitation, any certificate representing a dividend or a distribution in
\nconnection with any reclassification, increase or reduction of capital or any
\ncertificate issued in connection with any reorganization), option or rights in
\nrespect of the Capital Stock of any Issuer, whether in addition to, in
\nsubstitution of, as a conversion of, or in exchange for, any shares of the
\nPledged Stock, or otherwise in respect thereof, such Grantor shall accept the
\nsame as the agent of the Administrative Agent and the Lenders, hold the same in
\ntrust for the Administrative Agent and the Lenders and, in the case of a
\ncertificate or instrument, deliver the same forthwith to the Administrative
\nAgent in the exact form received, duly indorsed by such Grantor to the
\nAdministrative Agent, if required, together with an undated stock power covering
\nsuch certificate duly executed in blank by such Grantor and with, if the
\nAdministrative Agent so requests, signature guaranteed, to be held by the
\nAdministrative Agent, subject to the terms hereof, as additional collateral
\nsecurity for the Obligations. Any sums paid upon or in respect of the Investment
\nProperty upon the liquidation or dissolution of any Issuer, unless otherwise
\nsubject to a perfected security interest in favor of the Administrative Agent,
\nshall be paid over to the Administrative Agent to be held by it hereunder as
\nadditional collateral security for the Obligations, and in case any distribution
\nof capital shall be made on or in respect of the Investment Property or any
\nproperty shall be distributed upon or with respect to the Investment Property
\npursuant to the recapitalization or reclassification of the capital of any
\nIssuer or pursuant to the reorganization thereof, the property so distributed
\nshall, unless otherwise subject to a perfected security interest in favor of the
\nAdministrative Agent, be delivered to the Administrative Agent to be held by it
\nhereunder as additional collateral security for the Obligations. If any sums of
\nmoney or property so paid or distributed in respect of the Investment Property
\nshall be received by such Grantor, such Grantor shall, until such money or
\nproperty is paid or delivered to the Administrative Agent, hold such money or
\nproperty in trust for the Administrative Agent and the Lenders, segregated from
\nother funds of such Grantor, as additional collateral security for the
\nObligations.<\/p>\n (b) Without the prior written consent of the Administrative Agent, such
\nGrantor will not (i) vote to enable, or take any other action to permit, any
\nIssuer that is a Subsidiary to issue any Capital Stock of any nature or to issue
\nany other securities convertible into or granting the right to purchase or
\nexchange for any Capital Stock of any nature of any Issuer that is a Subsidiary,
\n(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
\noption with respect to, the Investment Property or Proceeds thereof (except
\npursuant to a transaction expressly permitted by the Credit Agreement), (iii)
\ncreate, incur or permit to exist any Lien or option in favor of, or any claim of
\nany Person with respect to, any of the Investment Property or Proceeds thereof,
\nor any interest therein, except for the security interests created by this
\nAgreement or (iv) enter into any agreement or undertaking restricting the right
\nor ability of such<\/p>\n 12<\/p>\n
\n<\/p>\n Grantor or the Administrative Agent to sell, assign or transfer any of the
\nInvestment Property or Proceeds thereof.<\/p>\n (c) In the case of each Grantor which is an Issuer, such Issuer agrees that
\n(i) it will be bound by the terms of this Agreement relating to the Investment
\nProperty issued by it and will comply with such terms insofar as such terms are
\napplicable to it, (ii) it will notify the Administrative Agent promptly in
\nwriting of the occurrence of any of the events described in Section 5.7(a) with
\nrespect to the Investment Property issued by it and (iii) the terms of Sections
\n6.3(c) and 6.7 shall apply to it, mutatis<\/u> mutandis<\/u>, with respect
\nto all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
\nrespect to the Investment Property issued by it.<\/p>\n (d) Unless an Event of Default shall have occurred and be continuing and the
\nAdministrative Agent shall have given notice to the relevant Grantor of the
\nAdministrative Agent’s intent to exercise its corresponding rights pursuant to
\nSection 6.3(b), each Grantor shall be permitted to receive all cash dividends
\npaid in respect of the Pledged Stock and all payments made in respect of the
\nPledged Notes, to the extent permitted in the Credit Agreement, and to exercise
\nall voting and corporate or other organizational rights with respect to the
\nInvestment Property; provided, however, that no vote shall be cast or corporate
\nor other organizational right exercised or other action taken which, in such
\nGrantor’s good faith judgment, would impair the Collateral or which would result
\nin any violation of any provision of the Credit Agreement, this Agreement or any
\nother Loan Document.<\/p>\n 5.8 Receivables<\/u>. (a) Other than in the ordinary course of business,
\nsuch Grantor will not (i) grant any extension of the time of payment of any
\nReceivable, (ii) compromise or settle any Receivable for less than the full
\namount thereof, (iii) release, wholly or partially, any Person liable for the
\npayment of any Receivable, (iv) allow any credit or discount whatsoever on any
\nReceivable or (v) amend, supplement or modify any Receivable in any manner that
\ncould reasonably be expected to materially and adversely affect the value
\nthereof.<\/p>\n 5.9 Intellectual Property<\/u>. (a) Such Grantor will (i) maintain each
\nmaterial Trademark in full force free from any claim of abandonment for non-use,
\n(ii) use such Trademark with the appropriate notice of registration and all
\nother notices and legends required by applicable Requirements of Law, and (iii)
\nnot do any act or knowingly omit to do any act whereby such Trademark could
\nreasonably be expected to become invalidated or impaired in material respect.\n<\/p>\n (b) Such Grantor will not do any act, or omit to do any act, whereby any
\nmaterial Patent could reasonably be expected to become forfeited, abandoned or
\ndedicated to the public.<\/p>\n (c) Such Grantor (i) will employ each material Copyright and (ii) will not do
\nany act or knowingly omit to do any act whereby any material portion of the
\nCopyrights could reasonably be expected to become invalidated or otherwise
\nimpaired. Such Grantor will not do any act whereby any material portion of the
\nCopyrights could reasonably be expected to fall into the public domain.<\/p>\n (d) Such Grantor will not do any act that knowingly uses any material
\nIntellectual Property to infringe the Intellectual Property rights of any other
\nPerson.<\/p>\n (e) Such Grantor will notify the Administrative Agent and the Lenders
\npromptly if it knows, or has reason to know, that any application or
\nregistration relating to any material Intellectual Property may become
\nforfeited, abandoned or dedicated to the public, or of any adverse determination
\nor development (including, without limitation, the institution of, or any such
\ndetermination or development in, any proceeding in the United States Patent and
\nTrademark Office, the United States Copyright Office or any court or tribunal in
\nany country) regarding such Grantor’s ownership of, or the validity of, any<\/p>\n 13<\/p>\n
\n<\/p>\n material Intellectual Property or such Grantor’s right to register the same
\nor to own and maintain the same.<\/p>\n (f) Whenever such Grantor, either by itself or through any agent, employee,
\nlicensee or designee, shall become an exclusive licensee of any U.S.
\nIntellectual Property application or registration, or acquire or file an
\napplication or registration of any Intellectual Property with the United States
\nPatent and Trademark Office, the United States Copyright Office or any similar
\noffice or agency in any other country or any political subdivision thereof, such
\nGrantor shall report such filing to the Administrative Agent as required by
\nSection 6.2 of the Credit Agreement. Upon request of the Administrative Agent,
\nsuch Grantor shall execute and deliver, and have recorded, any and all
\nagreements, instruments, documents, and papers as the Administrative Agent may
\nrequest to evidence and perfect the Administrative Agent’s and the Lenders’
\nsecurity interest in any Copyright, Patent or Trademark and the goodwill and
\ngeneral intangibles of such Grantor relating thereto or represented thereby.\n<\/p>\n (g) Such Grantor will take all reasonable and necessary steps, including,
\nwithout limitation, in any proceeding before the United States Patent and
\nTrademark Office, the United States Copyright Office or any similar office or
\nagency in any other country or any political subdivision thereof, to maintain
\nand pursue each application (and to obtain the relevant registration) and to
\nmaintain each registration of the material Intellectual Property, including,
\nwithout limitation, filing of applications for renewal, affidavits of use and
\naffidavits of incontestability.<\/p>\n (h) In the event that any material Intellectual Property is infringed,
\nmisappropriated or diluted by a third party, such Grantor shall (i) take such
\nactions as such Grantor shall reasonably deem appropriate under the
\ncircumstances to protect such Intellectual Property and (ii) if such
\nIntellectual Property is of material economic value, promptly notify the
\nAdministrative Agent after it learns thereof.<\/p>\n 5.10 Commercial Tort Claims<\/u>. If such Grantor shall obtain an interest
\nin any Commercial Tort Claim with a potential value in excess of $500,000, such
\nGrantor shall within 30 days of obtaining such interest sign and deliver
\ndocumentation reasonably acceptable to the Administrative Agent granting a
\nsecurity interest under the terms and provisions of this Agreement in and to
\nsuch Commercial Tort Claim.<\/p>\n SECTION 6. REMEDIAL PROVISIONS<\/p>\n 6.1 Certain Matters Relating to Receivables<\/u>. (a) If required by the
\nAdministrative Agent at any time after the occurrence and during the continuance
\nof an Event of Default, any Receivable may be collected by or on behalf of the
\nAdministrative Agent and any payments of Receivables, when collected by any
\nGrantor, (i) shall be forthwith (and, in any event, within two Business Days)
\ndeposited by such Grantor in the exact form received, duly indorsed by such
\nGrantor to the Administrative Agent if required, in a Collateral Account
\nmaintained under the sole dominion and control of the Administrative Agent,
\nsubject to withdrawal by the Administrative Agent for the account of the Lenders
\nonly as provided in Section 6.5, and (ii) until so turned over, shall be held by
\nsuch Grantor in trust for the Administrative Agent and the Lenders, segregated
\nfrom other funds of such Grantor. Each such deposit of Proceeds of Receivables
\nshall be accompanied by a report identifying in reasonable detail the nature and
\nsource of the payments included in the deposit.<\/p>\n (b) After the occurrence and during the continuation of an Event of Default,
\nat the Administrative Agent’s request, each Grantor shall deliver to the
\nAdministrative Agent all original and other documents evidencing, and relating
\nto, the agreements and transactions which gave rise to the Receivables,
\nincluding, without limitation, all original orders, invoices and shipping
\nreceipts.<\/p>\n 14<\/p>\n
\n<\/p>\n 6.2 Communications with Obligors; Grantors Remain Liable<\/u>. (a) The
\nAdministrative Agent in its own name may at any time after the occurrence and
\nduring the continuance of an Event of Default communicate with obligors under
\nthe Receivables to verify with them to the Administrative Agent’s satisfaction
\nthe existence, amount and terms of any Receivables.<\/p>\n (b) Upon the request of the Administrative Agent at any time after the
\noccurrence and during the continuance of an Event of Default, each Grantor shall
\nnotify obligors on the Receivables that the Receivables have been assigned to
\nthe Administrative Agent for the ratable benefit of the Secured Parties and that
\npayments in respect thereof shall be made directly to the Administrative Agent.\n<\/p>\n (c) Anything herein to the contrary notwithstanding, each Grantor shall
\nremain liable under each of the Receivables to observe and perform all the
\nconditions and obligations to be observed and performed by it thereunder, all in
\naccordance with the terms of any agreement giving rise thereto. Neither the
\nAdministrative Agent nor any Lender shall have any obligation or liability under
\nany Receivable (or any agreement giving rise thereto) by reason of or arising
\nout of this Agreement or the receipt by the Administrative Agent or any Lender
\nof any payment relating thereto, nor shall the Administrative Agent or any
\nLender be obligated in any manner to perform any of the obligations of any
\nGrantor under or pursuant to any Receivable (or any agreement giving rise
\nthereto), to make any payment, to make any inquiry as to the nature or the
\nsufficiency of any payment received by it or as to the sufficiency of any
\nperformance by any party thereunder, to present or file any claim, to take any
\naction to enforce any performance or to collect the payment of any amounts which
\nmay have been assigned to it or to which it may be entitled at any time or
\ntimes.<\/p>\n 6.3 Pledged Stock<\/u>. (a) If an Event of Default shall occur and be
\ncontinuing and the Administrative Agent shall give notice of its intent to
\nexercise such rights to the relevant Grantor or Grantors, (i) the Administrative
\nAgent shall have the right to receive any and all cash dividends, payments or
\nother Proceeds paid in respect of the Investment Property and make application
\nthereof to the Obligations in such order as the Administrative Agent may
\ndetermine, and (ii) any or all of the Investment Property shall be registered in
\nthe name of the Administrative Agent or its nominee, and the Administrative
\nAgent or its nominee may thereafter exercise (x) all voting, corporate and other
\nrights pertaining to such Investment Property at any meeting of shareholders of
\nthe relevant Issuer or Issuers or otherwise and (y) any and all rights of
\nconversion, exchange and subscription and any other rights, privileges or
\noptions pertaining to such Investment Property as if it were the absolute owner
\nthereof (including, without limitation, the right to exchange at its discretion
\nany and all of the Investment Property upon the merger, consolidation,
\nreorganization, recapitalization or other fundamental change in the corporate or
\nother organizational structure of any Issuer, or upon the exercise by any
\nGrantor or the Administrative Agent of any right, privilege or option pertaining
\nto such Investment Property, and in connection therewith, the right to deposit
\nand deliver any and all of the Investment Property with any committee,
\ndepositary, transfer agent, registrar or other designated agency upon such terms
\nand conditions as the Administrative Agent may determine), all without liability
\nexcept to account for property actually received by it, but the Administrative
\nAgent shall have no duty to any Grantor to exercise any such right, privilege or
\noption and shall not be responsible for any failure to do so or delay in so
\ndoing.<\/p>\n (b) Each Grantor hereby authorizes and instructs each Issuer of any
\nInvestment Property pledged by such Grantor hereunder to (i) comply with any
\ninstruction received by it from the Administrative Agent in writing that (x)
\nstates that an Event of Default has occurred and is continuing and (y) is
\notherwise in accordance with the terms of this Agreement, without any other or
\nfurther instructions from such Grantor, and each Grantor agrees that each Issuer
\nshall be fully protected in so complying, and (ii) unless otherwise expressly
\npermitted hereby, pay any dividends or other payments with respect to the
\nInvestment Property directly to the Administrative Agent.<\/p>\n 15<\/p>\n
\n<\/p>\n 6.4 Proceeds to be Turned Over To Administrative Agent<\/u>. In addition to
\nthe rights of the Administrative Agent and the Lenders specified in Section 6.1
\nwith respect to payments of Receivables, if an Event of Default shall occur and
\nbe continuing, all Proceeds received by any Grantor consisting of cash, checks
\nand other near-cash items shall be held by such Grantor in trust for the
\nAdministrative Agent and the Lenders, segregated from other funds of such
\nGrantor, and shall, forthwith upon receipt by such Grantor, be turned over to
\nthe Administrative Agent in the exact form received by such Grantor (duly
\nindorsed by such Grantor to the Administrative Agent, if required). All Proceeds
\nreceived by the Administrative Agent hereunder shall be held by the
\nAdministrative Agent in a Collateral Account maintained under its sole dominion
\nand control. All Proceeds while held by the Administrative Agent in a Collateral
\nAccount (or by such Grantor in trust for the Administrative Agent and the
\nLenders) shall continue to be held as collateral security for all the
\nObligations and shall not constitute payment thereof until applied as provided
\nin Section 6.5.<\/p>\n 6.5 Application of Proceeds<\/u>. If an Event of Default shall have
\noccurred and be continuing, at any time at the Administrative Agent’s election,
\nthe Administrative Agent may apply all or any part of Proceeds constituting
\nCollateral, whether or not held in any Collateral Account, and any proceeds of
\nthe guarantee set forth in Section 2, in payment of the Obligations in the
\nfollowing order:<\/p>\n First<\/u>, to pay incurred and unpaid fees and expenses of the
\nAdministrative Agent under the Loan Documents;<\/p>\n Second<\/u>, to the Administrative Agent, for application by it towards
\npayment of amounts then due and owing and remaining unpaid in respect of the
\nObligations, pro<\/u> rata<\/u> among the Secured Parties according to the
\namounts of the Obligations then due and owing and remaining unpaid to the
\nSecured Parties;<\/p>\n Third<\/u>, to the Administrative Agent, for application by it towards
\nprepayment of the Obligations, pro<\/u> rata<\/u> among the Secured Parties
\naccording to the amounts of the Obligations then held by the Secured Parties;
\nand<\/p>\n Fourth<\/u>, any balance remaining after the Obligations (other than
\nunasserted contingent indemnification obligations) shall have been paid in full,
\nno Letters of Credit shall be outstanding (unless cash collateralized in a
\nmanner satisfactory to the Administrative Agent) and the Commitments shall have
\nterminated shall be paid over to the Borrower or to whomsoever may be lawfully
\nentitled to receive the same.<\/p>\n 6.6 Code and Other Remedies<\/u>. If an Event of Default shall occur and be
\ncontinuing, the Administrative Agent, on behalf of the Lenders, may exercise, in
\naddition to all other rights and remedies granted to them in this Agreement and
\nin any other instrument or agreement securing, evidencing or relating to the
\nObligations, all rights and remedies of a secured party under the New York UCC
\nor any other applicable law. Without limiting the generality of the foregoing,
\nthe Administrative Agent, without demand of performance or other demand,
\npresentment, protest, advertisement or notice of any kind (except any notice
\nrequired by law referred to below) to or upon any Grantor or any other Person
\n(all and each of which demands, defenses, advertisements and notices are hereby
\nwaived), may in such circumstances forthwith collect, receive, appropriate and
\nrealize upon the Collateral, or any part thereof, and\/or may forthwith sell,
\nlease, assign, give option or options to purchase, or otherwise dispose of and
\ndeliver the Collateral or any part thereof (or contract to do any of the
\nforegoing), in one or more parcels at public or private sale or sales, at any
\nexchange, broker’s board or office of the Administrative Agent or any Lender or
\nelsewhere upon such terms and conditions as it may deem advisable and at such
\nprices as it may deem best, for cash or on credit or for future delivery without
\nassumption of any credit risk. The Administrative Agent or any Lender shall have
\nthe right upon any such public sale or sales, and, to the<\/p>\n 16<\/p>\n
\n<\/p>\n extent permitted by law, upon any such private sale or sales, to purchase the
\nwhole or any part of the Collateral so sold, free of any right or equity of
\nredemption in any Grantor, which right or equity is hereby waived and released.
\nEach Grantor further agrees, at the Administrative Agent’s request, to assemble
\nthe Collateral and make it available to the Administrative Agent at places which
\nthe Administrative Agent shall reasonably select, whether at such Grantor’s
\npremises or elsewhere. The Administrative Agent shall apply the net proceeds of
\nany action taken by it pursuant to this Section 6.6, after deducting all
\nreasonable costs and expenses to which it is entitled pursuant to Section 10.5
\nof the Credit Agreement and Section 8.4 hereof incurred in connection therewith
\nor incidental to the care or safekeeping of any of the Collateral or in any way
\nrelating to the Collateral or the rights of the Administrative Agent and the
\nLenders hereunder, including, without limitation, reasonable attorneys’ fees and
\ndisbursements to the extent required by Section 10.5 of the Credit Agreement and
\nSection 8.4 hereof, to the payment in whole or in part of the Obligations, in
\nsuch order as the Administrative Agent may elect, and only after such
\napplication and after the payment by the Administrative Agent of any other
\namount required by any provision of law, including, without limitation, Section
\n9-615(a)(3) of the New York UCC, need the Administrative Agent account for the
\nsurplus, if any, to any Grantor. To the extent permitted by applicable law, each
\nGrantor waives all claims, damages and demands it may acquire against the
\nAdministrative Agent or any Lender arising out of the exercise by them of any
\nrights hereunder. If any notice of a proposed sale or other disposition of
\nCollateral shall be required by law, such notice shall be deemed reasonable and
\nproper if given at least 10 days before such sale or other disposition.<\/p>\n 6.7 Registration Rights<\/u>. (a) If the Administrative Agent shall
\ndetermine to exercise its right to sell any or all of the Pledged Stock pursuant
\nto Section 6.6, and if in the opinion of the Administrative Agent it is
\nnecessary or advisable to have the Pledged Stock, or that portion thereof to be
\nsold, registered under the provisions of the Securities Act, the relevant
\nGrantor will cause the Issuer thereof to (i) execute and deliver, and cause the
\ndirectors and officers of such Issuer to execute and deliver, all such
\ninstruments and documents, and do or cause to be done all such other acts as may
\nbe, in the opinion of the Administrative Agent, necessary or advisable to
\nregister the Pledged Stock, or that portion thereof to be sold, under the
\nprovisions of the Securities Act, (ii) use its best efforts to cause the
\nregistration statement relating thereto to become effective and to remain
\neffective for a period of one year from the date of the first public offering of
\nthe Pledged Stock, or that portion thereof to be sold, and (iii) make all
\namendments thereto and\/or to the related prospectus which, in the opinion of the
\nAdministrative Agent, are necessary or advisable, all in conformity with the
\nrequirements of the Securities Act and the rules and regulations of the
\nSecurities and Exchange Commission applicable thereto. Each Grantor agrees to
\ncause such Issuer to comply with the provisions of the securities or “Blue Sky”
\nlaws of any and all jurisdictions which the Administrative Agent shall designate
\nand to make available to its security holders, as soon as practicable, an
\nearnings statement (which need not be audited) which will satisfy the provisions
\nof Section 11(a) of the Securities Act.<\/p>\n (b) Each Grantor recognizes that the Administrative Agent may be unable to
\neffect a public sale of any or all the Pledged Stock, by reason of certain
\nprohibitions contained in the Securities Act and applicable state securities
\nlaws or otherwise, and may be compelled to resort to one or more private sales
\nthereof to a restricted group of purchasers which will be obliged to agree,
\namong other things, to acquire such securities for their own account for
\ninvestment and not with a view to the distribution or resale thereof. Each
\nGrantor acknowledges and agrees that any such private sale may result in prices
\nand other terms less favorable than if such sale were a public sale and,
\nnotwithstanding such circumstances, agrees that any such private sale shall be
\ndeemed to have been made in a commercially reasonable manner. The Administrative
\nAgent shall be under no obligation to delay a sale of any of the Pledged Stock
\nfor the period of time necessary to permit the Issuer thereof to register such
\nsecurities for public sale under the Securities Act, or under applicable state
\nsecurities laws, even if such Issuer would agree to do so.<\/p>\n 17<\/p>\n
\n<\/p>\n (c) Each Grantor agrees to use its commercially reasonable efforts to do or
\ncause to be done all such other acts as may be necessary to make such sale or
\nsales of all or any portion of the Pledged Stock pursuant to this Section 6.7
\nvalid and binding and in compliance with any and all other applicable
\nRequirements of Law. Each Grantor further agrees that a breach of any of the
\ncovenants contained in this Section 6.7 will cause irreparable injury to the
\nAdministrative Agent and the Lenders, that the Administrative Agent and the
\nLenders have no adequate remedy at law in respect of such breach and, as a
\nconsequence, that each and every covenant contained in this Section 6.7 shall be
\nspecifically enforceable against such Grantor, and such Grantor hereby waives
\nand agrees not to assert any defenses against an action for specific performance
\nof such covenants except for a defense that no Event of Default has occurred
\nunder the Credit Agreement.<\/p>\n (d) For the avoidance of doubt, this Section 6.7 shall not apply to Pledged
\nStock to the extent that the Issuer thereof is not a Subsidiary of a Grantor.\n<\/p>\n 6.8 Subordination<\/u>. Each Grantor hereby agrees that, upon the
\noccurrence and during the continuance of an Event of Default, unless otherwise
\nagreed by the Administrative Agent, all Indebtedness owing by it to any
\nSubsidiary of the Borrower shall be fully subordinated to the payment in full in
\ncash of such Grantor’s Obligations (other than unasserted contingent
\nindemnification obligations).<\/p>\n 6.9 Deficiency<\/u>. Each Grantor shall remain liable for any deficiency if
\nthe proceeds of any sale or other disposition of the Collateral are insufficient
\nto pay its Obligations and the fees and disbursements of any attorneys employed
\nby the Administrative Agent or any Lender to collect such deficiency (to the
\nextent that the Administrative Agent and the Lenders are entitled to
\nreimbursement pursuant to Section 10.5 of the Credit Agreement and Section 8.4
\nhereof).<\/p>\n SECTION 7. THE ADMINISTRATIVE AGENT<\/p>\n 7.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc<\/u>. (a)
\nEach Grantor hereby irrevocably constitutes and appoints the Administrative
\nAgent and any officer or agent thereof, with full power of substitution, as its
\ntrue and lawful attorney-in-fact with full irrevocable power and authority in
\nthe place and stead of such Grantor and in the name of such Grantor or in its
\nown name, for the purpose of carrying out the terms of this Agreement, to take
\nany and all appropriate action and to execute any and all documents and
\ninstruments which may be necessary or desirable to accomplish the purposes of
\nthis Agreement, and, without limiting the generality of the foregoing, each
\nGrantor hereby gives the Administrative Agent the power and right, on behalf of
\nsuch Grantor, without notice to or assent by such Grantor, to do any or all of
\nthe following:<\/p>\n (i) in the name of such Grantor or its own name, or otherwise, take
\npossession of and indorse and collect any checks, drafts, notes, acceptances or
\nother instruments for the payment of moneys due under any Receivable or Contract
\nor with respect to any other Collateral and file any claim or take any other
\naction or proceeding in any court of law or equity or otherwise deemed
\nappropriate by the Administrative Agent for the purpose of collecting any and
\nall such moneys due under any Receivable or Contract or with respect to any
\nother Collateral whenever payable;<\/p>\n (ii) in the case of any Intellectual Property, execute and deliver, and have
\nrecorded, any and all agreements, instruments, documents and papers as the
\nAdministrative Agent may request to evidence and perfect the Administrative
\nAgent’s and the Lenders’ security interest in such Intellectual Property and the
\ngoodwill and general intangibles of such Grantor relating thereto or represented
\nthereby;<\/p>\n 18<\/p>\n
\n<\/p>\n (iii) pay or discharge taxes and Liens levied or placed on or threatened
\nagainst the Collateral, effect any repairs or any insurance called for by the
\nterms of this Agreement and pay all or any part of the premiums therefor and the
\ncosts thereof;<\/p>\n (iv) execute, in connection with any sale provided for in Section 6.6 or 6.7,
\nany indorsements, assignments or other instruments of conveyance or transfer
\nwith respect to the Collateral; and<\/p>\n (v) (1) direct any party liable for any payment under any of the Collateral
\nto make payment of any and all moneys due or to become due thereunder directly
\nto the Administrative Agent or as the Administrative Agent shall direct; (2) ask
\nor demand for, collect, and receive payment of and receipt for, any and all
\nmoneys, claims and other amounts due or to become due at any time in respect of
\nor arising out of any Collateral; (3) sign and indorse any invoices, freight or
\nexpress bills, bills of lading, storage or warehouse receipts, drafts against
\ndebtors, assignments, verifications, notices and other documents in connection
\nwith any of the Collateral; (4) commence and prosecute any suits, actions or
\nproceedings at law or in equity in any court of competent jurisdiction to
\ncollect the Collateral or any portion thereof and to enforce any other right in
\nrespect of any Collateral; (5) defend any suit, action or proceeding brought
\nagainst such Grantor with respect to any Collateral; (6) settle, compromise or
\nadjust any such suit, action or proceeding and, in connection therewith, give
\nsuch discharges or releases as the Administrative Agent may deem appropriate;
\n(7) assign any Copyright, Patent or Trademark (along with the goodwill of the
\nbusiness to which any such Copyright, Patent or Trademark pertains), throughout
\nthe world for such term or terms, on such conditions, and in such manner, as the
\nAdministrative Agent shall in its sole discretion determine; and (8) generally,
\nsell, transfer, pledge and make any agreement with respect to or otherwise deal
\nwith any of the Collateral as fully and completely as though the Administrative
\nAgent were the absolute owner thereof for all purposes, and do, at the
\nAdministrative Agent’s option and such Grantor’s expense, at any time, or from
\ntime to time, all acts and things which the Administrative Agent deems necessary
\nto protect, preserve or realize upon the Collateral and the Administrative
\nAgent’s and the Lenders’ security interests therein and to effect the intent of
\nthis Agreement, all as fully and effectively as such Grantor might do.<\/p>\n Anything in this Section 7.1(a) to the contrary notwithstanding, the
\nAdministrative Agent agrees that it will not exercise any rights under the power
\nof attorney provided for in this Section 7.1(a) unless an Event of Default shall
\nhave occurred and be continuing.<\/p>\n (b) If any Grantor fails to perform or comply with any of its agreements
\ncontained herein, the Administrative Agent, at its option, but without any
\nobligation so to do, may perform or comply, or otherwise cause performance or
\ncompliance, with such agreement.<\/p>\n (c) Each Grantor hereby ratifies all that said attorneys shall lawfully do or
\ncause to be done by virtue hereof. All powers, authorizations and agencies
\ncontained in this Agreement are coupled with an interest and are irrevocable
\nuntil this Agreement is terminated and the security interests created hereby are
\nreleased.<\/p>\n 7.2 Duty of Administrative Agent<\/u>. The Administrative Agent’s sole duty
\nwith respect to the custody, safekeeping and physical preservation of the
\nCollateral in its possession, under Section 9-207 of the New York UCC or
\notherwise, shall be to deal with it in the same manner as the Administrative
\nAgent deals with similar property for its own account. Neither the
\nAdministrative Agent, any Lender nor any of their respective officers,
\ndirectors, employees or agents shall be liable for failure to demand, collect or
\nrealize upon any of the Collateral or for any delay in doing so or shall be
\nunder any obligation to sell or otherwise dispose of any Collateral upon the
\nrequest of any Grantor or any other Person or to take any other action
\nwhatsoever with regard to the Collateral or any part thereof. The powers
\nconferred on the<\/p>\n 19<\/p>\n
\n<\/p>\n Administrative Agent and the Lenders hereunder are solely to protect the
\nAdministrative Agent’s and the Lenders’ interests in the Collateral and shall
\nnot impose any duty upon the Administrative Agent or any Lender to exercise any
\nsuch powers. The Administrative Agent and the Lenders shall be accountable only
\nfor amounts that they actually receive as a result of the exercise of such
\npowers, and neither they nor any of their officers, directors, employees or
\nagents shall be responsible to any Grantor for any act or failure to act
\nhereunder, except for their own gross negligence or willful misconduct.<\/p>\n 7.3 Execution of Financing Statements<\/u>. Pursuant to any applicable law,
\neach Grantor authorizes the Administrative Agent to file or record financing
\nstatements and other filing or recording documents or instruments with respect
\nto the Collateral without the signature of such Grantor in such form and in such
\noffices as the Administrative Agent determines appropriate to perfect the
\nsecurity interests of the Administrative Agent under this Agreement. Each
\nGrantor authorizes the Administrative Agent to use the collateral description
\n“all personal property” in any such financing statements. Each Grantor hereby
\nratifies and authorizes the filing by the Administrative Agent of any financing
\nstatement with respect to the Collateral made prior to the date hereof.<\/p>\n 7.4 Authority of Administrative Agent<\/u>. Each Grantor acknowledges that
\nthe rights and responsibilities of the Administrative Agent under this Agreement
\nwith respect to any action taken by the Administrative Agent or the exercise or
\nnon-exercise by the Administrative Agent of any option, voting right, request,
\njudgment or other right or remedy provided for herein or resulting or arising
\nout of this Agreement shall, as between the Administrative Agent and the
\nLenders, be governed by the Credit Agreement and by such other agreements with
\nrespect thereto as may exist from time to time among them, but, as between the
\nAdministrative Agent and the Grantors, the Administrative Agent shall be
\nconclusively presumed to be acting as agent for the Lenders with full and valid
\nauthority so to act or refrain from acting, and no Grantor shall be under any
\nobligation, or entitlement, to make any inquiry respecting such authority.<\/p>\n SECTION 8. MISCELLANEOUS<\/p>\n 8.1 Amendments in Writing<\/u>. None of the terms or provisions of this
\nAgreement may be waived, amended, supplemented or otherwise modified except in
\naccordance with Section 10.1 of the Credit Agreement.<\/p>\n 8.2 Notices<\/u>. All notices, requests and demands to or upon the
\nAdministrative Agent or any Grantor hereunder shall be effected in the manner
\nprovided for in Section 10.2 of the Credit Agreement; provided that any such
\nnotice, request or demand to or upon any Guarantor shall be addressed to such
\nGuarantor at its notice address set forth on Schedule A<\/u> to the Disclosure
\nLetter or such other address as may be notified to the Administrative Agent from
\ntime to time.<\/p>\n 8.3 No Waiver by Course of Conduct; Cumulative Remedies<\/u>. Neither the
\nAdministrative Agent nor any Lender shall by any act (except by a written
\ninstrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
\ndeemed to have waived any right or remedy hereunder or to have acquiesced in any
\nDefault or Event of Default. No failure to exercise, nor any delay in
\nexercising, on the part of the Administrative Agent or any Lender, any right,
\npower or privilege hereunder shall operate as a waiver thereof. No single or
\npartial exercise of any right, power or privilege hereunder shall preclude any
\nother or further exercise thereof or the exercise of any other right, power or
\nprivilege. A waiver by the Administrative Agent or any Lender of any right or
\nremedy hereunder on any one occasion shall not be construed as a bar to any
\nright or remedy which the Administrative Agent or such Lender would otherwise
\nhave on any future occasion. The rights and remedies herein provided are
\ncumulative, may be exercised singly or concurrently and are not exclusive of any
\nother rights or remedies provided by law.<\/p>\n 20<\/p>\n
\n<\/p>\n 8.4 Enforcement Expenses; Indemnification<\/u>. (a) Each Guarantor agrees
\nto pay or reimburse each Lender and the Administrative Agent for all its
\nreasonable and (if required) documented costs and out-of-pocket expenses
\nincurred in collecting against such Guarantor under the guarantee contained in
\nSection 2 or otherwise enforcing or preserving any rights under this Agreement
\nand the other Loan Documents to which such Guarantor is a party, including,
\nwithout limitation, the reasonable and documented fees and disbursements of one
\nfirm of counsel to the Lenders and the Administrative Agent, one local counsel,
\nas necessary, in each appropriate jurisdiction and, in the case of an actual or
\nperceived conflict of interest where the Person affected by such conflict
\ninforms such Guarantor of such conflict and thereafter retains its own counsel,
\nof another firm of counsel for each such affected Person.<\/p>\n (b) Each Guarantor agrees to pay, and to save the Administrative Agent and
\nthe Lenders harmless from, any and all liabilities with respect to, or resulting
\nfrom any delay in paying, any and all stamp, excise, sales or other taxes which
\nmay be payable or determined to be payable with respect to any of the Collateral
\nor in connection with any of the transactions contemplated by this Agreement.\n<\/p>\n (c) Each Guarantor agrees to pay, and to save the Administrative Agent and
\nthe Lenders harmless from, any and all liabilities, obligations, losses,
\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements
\nof any kind or nature whatsoever with respect to the execution, delivery,
\nenforcement, performance and administration of this Agreement to the extent the
\nBorrower would be required to do so pursuant to Section 10.5 of the Credit
\nAgreement.<\/p>\n (d) The agreements in this Section 8.4 shall survive repayment of the
\nObligations and all other amounts payable under the Credit Agreement and the
\nother Loan Documents.<\/p>\n 8.5 Successors and Assigns<\/u>. This Agreement shall be binding upon the
\nsuccessors and assigns of each Grantor and shall inure to the benefit of the
\nAdministrative Agent and the Lenders and their successors and assigns; provided
\nthat no Grantor may assign, transfer or delegate any of its rights or
\nobligations under this Agreement without the prior written consent of the
\nAdministrative Agent.<\/p>\n 8.6 Set-Off<\/u>. In addition to any rights and remedies of the Lenders
\nprovided by law, each Lender shall have the right, without prior notice to any
\nGrantor, any such notice being expressly waived by each Grantor to the extent
\npermitted by applicable law, upon any Obligations becoming due and payable by
\nany Grantor (whether at the stated maturity, by acceleration or otherwise), to
\napply to the payment of such Obligations, by setoff or otherwise, any and all
\ndeposits (general or special, time or demand, provisional or final), in any
\ncurrency, and any other credits, indebtedness or claims, in any currency, in
\neach case whether direct or indirect, absolute or contingent, matured or
\nunmatured, at any time held or owing by such Lender, any affiliate thereof or
\nany of their respective branches or agencies to or for the credit or the account
\nof such Grantor. Each Lender agrees promptly to notify the relevant Grantor and
\nthe Administrative Agent after any such application made by such Lender,
\nprovided<\/u> that the failure to give such notice shall not affect the
\nvalidity of such application.<\/p>\n 8.7 Counterparts<\/u>. This Agreement may be executed by one or more of the
\nparties to this Agreement on any number of separate counterparts (including by
\ntelecopy), and all of said counterparts taken together shall be deemed to
\nconstitute one and the same instrument.<\/p>\n 8.8 Severability<\/u>. Any provision of this Agreement which is prohibited
\nor unenforceable in any jurisdiction shall, as to such jurisdiction, be
\nineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction.<\/p>\n 21<\/p>\n
\n<\/p>\n 8.9 Section Headings<\/u>. The Section headings used in this Agreement are
\nfor convenience of reference only and are not to affect the construction hereof
\nor be taken into consideration in the interpretation hereof.<\/p>\n 8.10 Integration<\/u>. This Agreement and the other Loan Documents
\nrepresent the agreement of the Grantors, the Administrative Agent and the
\nLenders with respect to the subject matter hereof and thereof, and there are no
\npromises, undertakings, representations or warranties by the Administrative
\nAgent or any Lender relative to subject matter hereof and thereof not expressly
\nset forth or referred to herein or in the other Loan Documents.<\/p>\n 8.11<\/strong> GOVERNING LAW<\/u><\/strong>. THIS
\nAGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
\nWITH, THE LAW OF THE STATE OF NEW YORK.<\/strong><\/p>\n8.12 Submission To Jurisdiction; Waivers<\/u>. Each party hereto hereby
\nirrevocably and unconditionally:<\/p>\n (a) submits for itself and its property in any legal action or proceeding
\nrelating to this Agreement and the other Loan Documents to which it is a party,
\nor for recognition and enforcement of any judgment in respect thereof, to the
\nexclusive general jurisdiction of the courts of the State of New York, the
\ncourts of the United States of America for the Southern District of New York,
\nand appellate courts from any thereof;<\/p>\n (b) consents that any such action or proceeding may be brought in such courts
\nand waives any objection that it may now or hereafter have to the venue of any
\nsuch action or proceeding in any such court or that such action or proceeding
\nwas brought in an inconvenient court and agrees not to plead or claim the same;\n<\/p>\n (c) agrees that service of process in any such action or proceeding may be
\neffected by mailing a copy thereof by registered or certified mail (or any
\nsubstantially similar form of mail), postage prepaid, to a Grantor at its
\naddress referred to in Section 8.2 or at such other address of which the
\nAdministrative Agent shall have been notified pursuant thereto or to the
\nAdministrative Agent at its address referred to in Section 10.2 of the Credit
\nAgreement;<\/p>\n (d) agrees that nothing herein shall affect the right to effect service of
\nprocess in any other manner permitted by law or shall limit the right to sue in
\nany other jurisdiction; and<\/p>\n (e) waives, to the maximum extent not prohibited by law, any right it may
\nhave to claim or recover in any legal action or proceeding referred to in this
\nSection any special, exemplary, punitive or consequential damages.<\/p>\n 8.13 Acknowledgements<\/u>. Each Grantor hereby acknowledges that:<\/p>\n (a) it has been advised by counsel in the negotiation, execution and delivery
\nof this Agreement and the other Loan Documents to which it is a party;<\/p>\n (b) neither the Administrative Agent nor any Lender has any fiduciary
\nrelationship with or duty to any Grantor arising out of or in connection with
\nthis Agreement or any of the other Loan Documents, and the relationship between
\nthe Grantors, on the one hand, and the Administrative Agent and Lenders, on the
\nother hand, in connection herewith or therewith is solely that of debtor and
\ncreditor; and<\/p>\n 22<\/p>\n
\n<\/p>\n (c) no joint venture is created hereby or by the other Loan Documents or
\notherwise exists by virtue of the transactions contemplated hereby among the
\nLenders or among the Grantors and the Lenders.<\/p>\n 8.14 Additional Grantors<\/u>. Each Subsidiary of the Borrower that is
\nrequired to become a party to this Agreement pursuant to Section 6.9 of the
\nCredit Agreement shall become a Grantor for all purposes of this Agreement upon
\nexecution and delivery by such Subsidiary of an Assumption Agreement in the form
\nof Annex 1 hereto.<\/p>\n 8.15 Releases<\/u>. (a) At such time as the Loans, the Reimbursement
\nObligations and the other Obligations (other than unasserted contingent
\nindemnification obligations and, in the absence of a Default or Event of
\nDefault, obligations under or in respect of Specified Swap Agreements or
\nSpecified Cash Management Agreements) shall have been paid in full, the
\nCommitments have been terminated and no Letters of Credit shall be outstanding
\n(unless they have been cash collateralized in a manner reasonably satisfactory
\nto the Administrative Agent), the Collateral shall be released from the Liens
\ncreated hereby, and this Agreement and all obligations (other than those
\nexpressly stated to survive such termination) of the Administrative Agent and
\neach Grantor hereunder shall terminate, all without delivery of any instrument
\nor performance of any act by any party, and all rights to the Collateral shall
\nrevert to the Grantors. At the request and sole expense of any Grantor following
\nany such termination, the Administrative Agent shall deliver to such Grantor any
\nCollateral held by the Administrative Agent hereunder, and execute and deliver
\nto such Grantor such documents as such Grantor shall reasonably request to
\nevidence such termination.<\/p>\n (b) If any of the Collateral shall be sold, transferred or otherwise disposed
\nof by any Grantor in a transaction permitted by the Credit Agreement, then such
\nCollateral shall be deemed released from the security interest granted herein,
\nand the Administrative Agent, at the request and sole expense of such Grantor,
\nshall execute and deliver to such Grantor all releases or other documents
\nreasonably necessary or desirable for the release of the Liens created hereby on
\nsuch Collateral. At the request and sole expense of the Borrower, a Subsidiary
\nGuarantor shall be released from its obligations hereunder in the event that all
\nthe Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
\notherwise disposed of in a transaction permitted by the Credit Agreement.<\/p>\n 8.16<\/strong> WAIVER OF JURY TRIAL<\/u><\/strong>.
\nEACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
\nLEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
\nAND FOR ANY COUNTERCLAIM THEREIN.<\/strong><\/p>\n23<\/p>\n
\n<\/p>\n IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
\nCollateral Agreement to be duly executed and delivered as of the date first
\nabove written.<\/p>\n \n\n\n| <\/td>\n | \n ADVENT SOFTWARE, INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n HUB DATA INCORPORATED<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Chief Financial Officer, Treasurer and Secretary<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BLACK DIAMOND PERFORMANCE REPORTING, LLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: President and Secretary<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n JPMORGAN CHASE BANK, N.A.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n As Administrative Agent<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Gerardo B. Loera<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Gerardo B. Loera<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Authorized Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 24<\/p>\n
\n<\/p>\n Annex 1 to
\nGuarantee and Collateral Agreement<\/u><\/p>\n ASSUMPTION AGREEMENT, dated as of , 2011, made by (the “Additional
\nGrantor<\/u>“), in favor of JPMorgan Chase Bank, N.A., as administrative agent
\n(in such capacity, the “Administrative Agent<\/u>“) for the banks and other
\nfinancial institutions or entities (the “Lenders<\/u>“) parties to the Credit
\nAgreement referred to below. All capitalized terms not defined herein shall have
\nthe meaning ascribed to them in such Credit Agreement.<\/p>\n W<\/u> I<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u>
\nE<\/u> T<\/u> H<\/u> :<\/p>\n WHEREAS, Advent Software, Inc. (the “Borrower<\/u>“), the Lenders and the
\nAdministrative Agent have entered into the Credit Agreement, dated as of
\nNovember , 2011 (as amended, supplemented or otherwise modified from time to
\ntime, the “Credit Agreement<\/u>“);<\/p>\n WHEREAS, in connection with the Credit Agreement, the Borrower and certain of
\nits Affiliates (other than the Additional Grantor) have entered into the
\nGuarantee and Collateral Agreement, dated as of November __, 2011 (as amended,
\nsupplemented or otherwise modified from time to time, the “Guarantee and
\nCollateral Agreement<\/u>“) in favor of the Administrative Agent for the ratable
\nbenefit of the Secured Parties;<\/p>\n WHEREAS, the Credit Agreement requires the Additional Grantor to become a
\nparty to the Guarantee and Collateral Agreement; and<\/p>\n WHEREAS, the Additional Grantor has agreed to execute and deliver this
\nAssumption Agreement in order to become a party to the Guarantee and Collateral
\nAgreement;<\/p>\n NOW, THEREFORE, IT IS AGREED:<\/p>\n 1. Guarantee and Collateral Agreement<\/u>. By executing and delivering
\nthis Assumption Agreement, the Additional Grantor, as provided in Section 8.14
\nof the Guarantee and Collateral Agreement, hereby becomes a party to the
\nGuarantee and Collateral Agreement as a Grantor thereunder with the same force
\nand effect as if originally named therein as a Grantor and, without limiting the
\ngenerality of the foregoing, hereby expressly assumes all obligations and
\nliabilities of a Grantor thereunder. The information set forth in Annex 1-A
\nhereto is hereby added to the information set forth in the Disclosure Letters.
\nThe Additional Grantor hereby represents and warrants that each of the
\nrepresentations and warranties contained in Section 4 of the Guarantee and
\nCollateral Agreement is true and correct on and as the date hereof (after giving
\neffect to this Assumption Agreement) as if made on and as of such date (except,
\nto the extent such representations and warranties specifically refer to an
\nearlier date, in which case such representations and warranties shall be true
\nand correct in all material respects as if made on and as of such earlier date).\n<\/p>\n 2. Governing Law<\/u>. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
\nBY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
\nNEW YORK.<\/strong><\/p>\n1<\/p>\n
\n<\/p>\n IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to
\nbe duly executed and delivered as of the date first above written.<\/p>\n \n\n\n| <\/td>\n | \n [ADDITIONAL GRANTOR]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 2<\/p>\n
\n<\/p>\n Annex 1-A to
\nAssumption Agreement<\/u><\/p>\n Supplement to Schedule A<\/u><\/p>\n Supplement to Schedule B<\/u><\/p>\n Supplement to Schedule C<\/u><\/p>\n Supplement to Schedule D<\/u><\/p>\n Supplement to Schedule E<\/u><\/p>\n Supplement to Schedule F<\/u><\/p>\n Supplement to Schedule G<\/u><\/p>\n
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