a4q21exhibit107






LEGAL_US_E # 155827293.3    Execution Version    1006148456v9            SECOND AMENDED AND RESTATED  GUARANTEE AND COLLATERAL AGREEMENT    made by    ATKORE INC.,    ATKORE INTERNATIONAL HOLDINGS INC.,    ATKORE INTERNATIONAL, INC.,    and certain of its Subsidiaries,    in favor of    WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Collateral Agent and Administrative Agent    Dated as of May 26, 2021        





 






LEGAL_US_E # 155827293.3      i    1006148456v9    TABLE OF CONTENTS     Section 1. DEFINED TERMS ..................................................................................................2  1.1 Definitions................................................................................................................2  1.2 Other Definitional Provisions ................................................................................10  Section 2. GUARANTEE .......................................................................................................11  2.1 Guarantee ...............................................................................................................11  2.2 Right of Contribution .............................................................................................12  2.3 No Subrogation ......................................................................................................13  2.4 Amendments, etc. with respect to the Obligations ................................................13  2.5 Guarantee Absolute and Unconditional .................................................................14  2.6 Reinstatement .........................................................................................................15  2.7 Payments ................................................................................................................15  Section 3. GRANT OF SECURITY INTEREST ...................................................................16  3.1 Grant ......................................................................................................................16  3.2 Pledged Collateral ..................................................................................................17  3.3 Certain Limited Exceptions ...................................................................................17  3.4 Intercreditor Relations ...........................................................................................21  3.5 No New Liens ........................................................................................................22  Section 4. REPRESENTATIONS AND WARRANTIES......................................................22  4.1 Representations and Warranties of Each Guarantor ..............................................22  4.2 Representations and Warranties of Each Grantor ..................................................23  4.3 Representations and Warranties of Each Pledgor ..................................................26  Section 5. COVENANTS .......................................................................................................27  5.1 Covenants of Each Guarantor ................................................................................27  5.2 Covenants of Each Grantor ....................................................................................27  5.3 Covenants of Each Pledgor ....................................................................................32  Section 6. REMEDIAL PROVISIONS ..................................................................................34  6.1 Certain Matters Relating to Accounts ....................................................................34  6.2 Communications with Obligors; Grantors Remain Liable ....................................35  6.3 Pledged Stock.........................................................................................................36  6.4 Proceeds to be Turned Over to the Collateral Agent .............................................37  6.5 Application of Proceeds .........................................................................................37  6.6 Code and Other Remedies .....................................................................................38  6.7 Registration Rights.................................................................................................39  6.8 Waiver; Deficiency ................................................................................................40  6.9 License ...................................................................................................................40  Section 7. THE COLLATERAL AGENT ..............................................................................40  7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. ....................................40  





 






LEGAL_US_E # 155827293.3      ii    1006148456v9    7.2 Duty of Collateral Agent ........................................................................................42  7.3 Financing Statements .............................................................................................43  7.4 Authority of Collateral Agent ................................................................................43  7.5 Right of Inspection .................................................................................................43  Section 8. NON-LENDER SECURED PARTIES .................................................................44  8.1 Rights to Collateral ................................................................................................44  8.2 Appointment of Agent ...........................................................................................45  8.3 Waiver of Claims ...................................................................................................45  8.4 Bank Products Affiliates, Hedging Affiliates, Management Credit  Affiliates and Vendor Affiliates.............................................................................46  Section 9. MISCELLANEOUS ..............................................................................................46  9.1 Amendments in Writing .........................................................................................46  9.2 Notices ...................................................................................................................46  9.3 No Waiver by Course of Conduct; Cumulative Remedies ....................................47  9.4 Enforcement Expenses; Indemnification ...............................................................47  9.5 Successors and Assigns..........................................................................................47  9.6 Set-Off....................................................................................................................48  9.7 Counterparts ...........................................................................................................48  9.8 Severability ............................................................................................................48  9.9 Section Headings ...................................................................................................48  9.10 Integration ..............................................................................................................48  9.11 GOVERNING LAW ..............................................................................................49  9.12 Submission to Jurisdiction; Waivers ......................................................................49  9.13 Acknowledgments..................................................................................................50  9.14 WAIVER OF JURY TRIAL ..................................................................................50  9.15 Additional Granting Parties ...................................................................................50  9.16 Releases..................................................................................................................50  9.17 Judgment ................................................................................................................53  9.18 Amendment and Restatement ................................................................................54  9.19 Transfer Tax Acknowledgment .............................................................................54        SCHEDULES      1   Notice Addresses of Granting Parties  2   Pledged Securities  3   Perfection Matters  4   Location of Jurisdiction of Organization  5   Intellectual Property  6   [Reserved]  7   Commercial Tort Claims      





 






LEGAL_US_E # 155827293.3      iii    1006148456v9      ANNEXES     1   Acknowledgement and Consent of Issuers who are not Granting Parties  2   Assumption Agreement  3   Supplemental Agreement  4   Joinder and Release    





 






LEGAL_US_E # 155827293.3        1006148456v9    SECOND AMENDED AND RESTATED   GUARANTEE AND COLLATERAL AGREEMENT  SECOND AMENDED AND RESTATED GUARANTEE AND COLLATERAL  AGREEMENT, dated as of May 26, 2021, made by ATKORE INC., a Delaware corporation  (“Ultimate Parent”) ATKORE INTERNATIONAL HOLDINGS INC., a Delaware corporation  (the “Holdings”), ATKORE INTERNATIONAL INC., a Delaware corporation (the “Parent  Borrower”), and certain Subsidiaries of the Parent Borrower from time to time party hereto, in  favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (in such  capacity, the “Collateral Agent”) and administrative agent (in such capacity, the “Administrative  Agent”) for the banks and other financial institutions (collectively, the “Lenders”; individually, a  “Lender”) from time to time parties to the Credit Agreement described below.   W I T N E S S E T H:  WHEREAS, pursuant to that certain Amended and Restated Credit Agreement, dated as  of August 28, 2020 (as amended, supplemented, waived or otherwise modified from time to time,  together with any agreement extending the maturity of, or restructuring, refunding, refinancing  or increasing the Indebtedness under such agreement or successor agreements, the “Credit  Agreement”), among the Parent Borrower, the Subsidiary Borrowers (as defined in the Credit  Agreement) (together with the Parent Borrower, jointly and severally, collectively the  “Borrowers” and each individually a “Borrower”) from time to time party thereto, the Collateral  Agent, the Administrative Agent, and the other parties party thereto, the Lenders have severally  agreed to make extensions of credit to the Borrowers upon the terms and subject to the  conditions set forth therein;   WHEREAS, the Borrowers are members of an affiliated group of companies that  includes the other Granting Parties (as defined below);   WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be  used in part to enable the Borrowers to make valuable transfers to one or more of the other  Granting Parties in connection with the operation of their respective businesses;   WHEREAS, the Borrowers and the other Granting Parties are engaged in related  businesses, and each such Granting Party will derive substantial direct and indirect benefit from  the making of the extensions of credit under the Credit Agreement;   WHEREAS, it is a condition to the obligation of the Lenders to make their respective  extensions of credit under the Credit Agreement that the Granting Parties shall execute and  deliver this Agreement to the Collateral Agent for the benefit of the Secured Parties;  WHEREAS, the certain parties hereto are parties to that certain Amended and Restated  Guarantee and Collateral Agreement, dated as of August 28, 2020 (as amended, supplemented,  waiver or otherwise modified from time to time prior to the date hereof, the “Existing Collateral  Agreement”);   WHEREAS, each party to the Existing Collateral Agreement desires to amend and restate  the Existing Collateral Agreement in its entirety on the terms and conditions set forth herein, it  





 






LEGAL_US_E # 155827293.3      2    1006148456v9    being understood that no novation of the obligations under the Existing Collateral Agreement is  being effected hereby, but merely an amendment and restatement in accordance with the terms  hereof;  WHEREAS, pursuant to that certain Guarantee and Collateral Agreement, dated as of the  date hereof (as amended, supplemented, waived or otherwise modified from time to time, the  “Term Loan Collateral Agreement”), among Holdings, Parent Borrower, certain of their  subsidiaries and the Term Loan Agent (as defined herein), the Parent Borrower and such  subsidiaries have granted a first priority Lien to the Term Loan Agent for the benefit of the Term  Loan Lenders (as defined herein) on the Term Loan Priority Collateral (as defined herein) and a  second priority Lien for the benefit of the Term Loan Lenders (as defined herein) on the ABL  Priority Collateral (as defined herein) (subject in each case to Permitted Liens); and  WHEREAS, the Collateral Agent and the Term Loan Agent are party to an Intercreditor  Agreement, acknowledged by Ultimate Parent, Holdings, the Parent Borrower and the Granting  Parties, dated as of the date hereof (as amended, supplemented, waived or otherwise modified  from time to time (subject to Section 9.1 hereof), the “Intercreditor Agreement”).  NOW, THEREFORE, in consideration of the premises and to induce the Administrative  Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make  their respective extensions of credit to the Borrowers thereunder, each Granting Party hereby  agrees with the Administrative Agent and the Collateral Agent, for the benefit of the Secured  Parties (as defined below), as follows:   SECTION 1. DEFINED TERMS  1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the  Credit Agreement and used herein shall have the meanings given to them in the Credit  Agreement, and the following terms that are defined in the Code (as in effect on the date hereof)  are used herein as so defined: Cash Proceeds, Chattel Paper, Commercial Tort Claims, Deposit  Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General  Intangibles, Letter-of-Credit Rights, Money, Promissory Notes, Records, Securities, Securities  Accounts, Security Entitlements, Supporting Obligations and Tangible Chattel Paper.   (b) The following terms shall have the following meanings:   “ABL Priority Collateral”: as defined in the Intercreditor Agreement.   “Accounts”: all accounts (as defined in the Code) of each Grantor, all Accounts (as  defined in the Credit Agreement) and all Accounts Receivable of such Grantor.  “Accounts Receivable”: any right to payment for goods sold or leased or for services  rendered.   “Additional Agent”: as defined in the Intercreditor Agreement.   “Additional Collateral Documents”: as defined in the Intercreditor Agreement.   





 






LEGAL_US_E # 155827293.3      3    1006148456v9    “Additional Obligations”: as defined in the Intercreditor Agreement.   “Adjusted Net Worth”: of any Guarantor at any time, shall mean the greater of (x) $0 and  (y) the amount by which the fair saleable value of such Guarantor’s assets on the date of the  respective payment hereunder exceeds its debts and other liabilities (including contingent  liabilities, but without giving effect to any of its obligations under this Agreement or any other  Loan Document, or pursuant to its guarantee with respect to any Indebtedness then outstanding  under the Term Loan Agreement or any Assumed Indebtedness) on such date.   “Administrative Agent”: as defined in the preamble hereto.   “Agreement”: this Second Amended and Restated Guarantee and Collateral Agreement,  as the same may be amended, supplemented, waived or otherwise modified from time to time.   “Applicable Law”: as defined in Section 9.8 hereto.   “Bankruptcy Case”: (i) Holdings or any of its Subsidiaries commencing any case,  proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or  foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors,  seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt  or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,  dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment  of a receiver, trustee, custodian, conservator or other similar official for it or for all or any  substantial part of its assets, or Holdings or any of its Subsidiaries making a general assignment  for the benefit of its creditors; or (ii) there being commenced against Holdings or any of its  Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which  (A) results in the entry of an order for relief or any such adjudication or appointment or (B)  remains undismissed, undischarged or unbonded for a period of 60 days.   “Borrower Obligations”: with respect to any Borrower, the collective reference to: (i) the  Obligations (as defined in the Credit Agreement), and (ii) all other obligations and liabilities of  such Borrower in respect of the unpaid principal of and interest on (including, without limitation,  interest and fees accruing after the maturity of the Loans and Reimbursement Obligations and  interest and fees accruing after (or would accrue but for) the filing of any petition in bankruptcy,  or the commencement of any insolvency, reorganization or like proceeding, relating to such  Borrower, whether or not a claim for post-filing or post-petition interest or fees is allowed in  such proceeding) the Loans, the Reimbursement Obligations, and all other obligations and  liabilities of such Borrower to the Secured Parties, whether direct or indirect, absolute or  contingent, due or to become due, or now existing or hereafter incurred, which may arise under,  out of, or in connection with, the Credit Agreement, the Loans, the Letters of Credit, the other  Loan Documents, any Interest Rate Protection Agreement, Permitted Hedging Arrangement,  Bank Products Agreement or Vendor Financing Arrangement entered into with (x) Wells Fargo  Bank, National Association or any affiliate thereof (including, for the avoidance of doubt, prior  to the Closing Date) or (y) any other Person who was at the time of entry into such agreement a  Lender or an affiliate of any Lender (provided that such Lender or affiliate is designated as a  “Hedging Affiliate” with respect to such Interest Rate Protection Agreement or Permitted  





 






LEGAL_US_E # 155827293.3      4    1006148456v9    Hedging Arrangement, a “Bank Products Affiliate” with respect to such Bank Products  Agreement or a “Vendor Affiliate” with respect to such Vendor Financing Arrangement by the  Parent Borrower in accordance with Section 8.4 hereof) (provided, however, that the definition  of “Borrower Obligations” shall not create any guarantee by any Guarantor of (or grant of  security interest by any Granting Party to support, as applicable) any Excluded Swap Obligations  of a Borrower or any other Loan Party for purposes of determining any obligations of any  Guarantor or other Granting Party), any Guarantee Obligation of Holdings or any of its  Subsidiaries as to which any Secured Party is a beneficiary, the provision of cash management  services by any Lender or an Affiliate thereof to the Parent Borrower or any Subsidiary thereof  (provided that such Lender or affiliate is designated as a “Bank Products Affiliate” with respect  to such Bank Products Agreement by the Parent Borrower in accordance with Section 8.4 hereof),  or any other document made, delivered or given in connection therewith, in each case whether on  account of principal, interest, reimbursement obligations, amounts payable in connection with  the provision of such cash management services or a termination of any transaction entered into  pursuant to any such Interest Rate Protection Agreement or Permitted Hedging Arrangement,  fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees,  expenses and disbursements of counsel to the Administrative Agent or any other Secured Party  that are required to be paid by such Borrower pursuant to the terms of the Credit Agreement or  any other Loan Document).    “Borrowers”: has the meaning provided in the recitals hereto.   “Code”: the Uniform Commercial Code as from time to time in effect in the State of New  York.  “Collateral”: as defined in Section 3; provided that, for purposes of Subsection 6.5,  Section 8 and Subsection 9.16(b), “Collateral” shall have the meaning assigned to such term in  the Credit Agreement.   “Collateral Account Bank”: a bank which at all times is a Lender or an affiliate thereof as  selected by the relevant Grantor and consented to in writing by the Collateral Agent (such  consent not to be unreasonably withheld or delayed).   “Collateral Agent”: as defined in the preamble hereto.  “Collateral Proceeds Account”: a non-interest bearing cash collateral account established  and maintained by the relevant Grantor at an office of the Collateral Account Bank in the name,  and in the sole dominion and control of, the Collateral Agent for the benefit of the Secured  Parties.  “Collateral Representative”:  as defined in the Term Loan Collateral Agreement.   “Commercial Tort Action”: any action, other than an action primarily seeking declaratory  or injunctive relief with respect to claims asserted or expected to be asserted by Persons other  than the Grantors, that is commenced by a Grantor in the courts of the United States of America,  any state or territory thereof or any political subdivision of any such state or territory, in which  





 






LEGAL_US_E # 155827293.3      5    1006148456v9    any Grantor seeks damages arising out of torts committed against it that would reasonably be  expected to result in a damage award to it exceeding $7,500,000.   “Contracts”: with respect to any Grantor, all contracts, agreements, instruments and  indentures in any form and portions thereof, to which such Grantor is a party or under which  such Grantor or any property of such Grantor is subject, as the same may from time to time be  amended, supplemented, waived or otherwise modified, including, without limitation, (i) all  rights of such Grantor to receive moneys due and to become due to it thereunder or in connection  therewith, (ii) all rights of such Grantor to damages arising thereunder and (iii) all rights of such  Grantor to perform and to exercise all remedies thereunder.   “Copyright Licenses”: with respect to any Grantor, all United States written license  agreements of such Grantor providing for the grant by or to such Grantor of any right under any  United States copyright of such Grantor, other than agreements with any Person who is an  Affiliate or a Subsidiary of the Parent Borrower or such Grantor, including, without limitation,  any material license agreements listed on Schedule 5 hereto, subject, in each case, to the terms of  such license agreements, and the right to prepare for sale, sell and advertise for sale, all  Inventory now or hereafter covered by such licenses.   “Copyrights”: with respect to any Grantor, all of such Grantor’s right, title and interest in  and to all United States copyrights, whether or not the underlying works of authorship have been  published or registered, all United States copyright registrations and copyright applications,  including, without limitation, any copyright registrations and copyright applications listed on  Schedule 5 hereto, and (i) all renewals thereof, (ii) all income, royalties, damages and payments  now and hereafter due and/or payable with respect thereto, including, without limitation,  payments under all licenses entered into in connection therewith, and damages and payments for  past or future infringements thereof and (iii) the right to sue or otherwise recover for past,  present and future infringements and misappropriations thereof.   “Credit Agreement”: has the meaning provided in the recitals hereto.   “Excluded Assets”: as defined in Section 3.3.   “Foreign Intellectual Property”: any right, title or interest in or to any copyrights,  copyright licenses, patents, patent applications, patent licenses, trade secrets, trade secret licenses,  trademarks, trademark applications, trade names, trademark licenses, technology, know-how and  processes or any other intellectual property governed by or arising or existing under, pursuant to  or by virtue of the laws of any jurisdiction other than the United States of America or state  thereof.  “Granting Parties”: Ultimate Parent, Holdings (unless and until Holdings is released from  all of its obligations hereunder pursuant to Subsection 9.16(h)), the Borrowers, the Guarantors,  the Parent Borrower’s other Subsidiaries that are party hereto and any other Subsidiary of the  Parent Borrower that becomes a party hereto from time to time after the date hereof.  





 






LEGAL_US_E # 155827293.3      6    1006148456v9    “Grantor”: Holdings (unless and until Holdings is released from all of its obligations  hereunder pursuant to Subsection 9.16(h)), Ultimate Parent, the Borrowers, the Parent  Borrower’s other Subsidiaries that are party hereto and any other Subsidiary of the Borrowers  that becomes a party hereto from time to time after the date hereof.   “Guarantor Obligations”: with respect to any Guarantor, the collective reference to (i) the  Borrower Obligations guaranteed by such Guarantor pursuant to Section 2, and (ii) all other  obligations and liabilities of such Guarantor, whether direct or indirect, absolute or contingent,  due or to become due, or now existing or hereafter incurred, which may arise under or in  connection with this Agreement or any other Loan Document to which such Guarantor is a party,  any Interest Rate Protection Agreement, Permitted Hedging Arrangement, Bank Products  Agreement or Vendor Financing Arrangement entered into with (x) Wells Fargo Bank, National  Association or any affiliate thereof (including, for the avoidance of doubt, prior to the Closing  Date) or (y) any other Person who was at the time of entry into such agreement a Lender or an  affiliate of any Lender (provided that such Lender or affiliate is designated as a “Hedging  Affiliate” with respect to such Interest Rate Protection Agreement or Permitted Hedging  Arrangement, a “Bank Products Affiliate” with respect to such Bank Products Agreement or a  “Vendor Affiliate” with respect to such Vendor Financing Arrangement by the Parent Borrower  in accordance with Section 8.4 hereof) (provided, however, that the definition of “Guarantor  Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by  any Granting Party to support, as applicable) any Excluded Swap Obligations of a Borrower or  any other Loan Party for purposes of determining any obligations of any Guarantor or other  Granting Party), any Guarantee Obligation of Holdings or any of its Subsidiaries as to which any  Secured Party is a beneficiary, the provision of cash management services by any Lender or an  Affiliate thereof to the Parent Borrower or any Subsidiary thereof (provided that such Lender or  affiliate is designated as a “Bank Products Affiliate” with respect to such Bank Products  Agreement by the Parent Borrower in accordance with Section 8.4 hereof), or any other  document made, delivered or given in connection therewith of such Guarantor, in each case  whether on account of guarantee obligations, reimbursement obligations, amounts payable in  connection with the provision of such cash management services or a termination of any  transaction entered into pursuant to any such Interest Rate Protection Agreement or Permitted  Hedging Agreement, fees, indemnities, costs, expenses or otherwise (including, without  limitation, all fees, expenses and disbursements of counsel to the Administrative Agent or any  other Secured Party that are required to be paid by such Guarantor pursuant to the terms of this  Agreement or any other Loan Document and interest and fees accruing after (or would accrue  but for) the filing of any petition in bankruptcy, or the commencement of any insolvency,  reorganization or like proceeding, relating to such Guarantor, whether or not a claim for post- filing or post-petition interest or fees is allowed in such proceeding).   “Guarantors”: the collective reference to each Granting Party, other than each Borrower  as to its Borrower Obligations.   “Holdings”: as defined in the recitals hereto.   “Instruments”: has the meaning specified in Article 9 of the Code, but excluding the  Pledged Securities.   





 






LEGAL_US_E # 155827293.3      7    1006148456v9    “Intellectual Property”: with respect to any Grantor, the collective reference to such  Grantor’s Copyrights, Copyright Licenses, Patents, Patent Licenses, Trade Secrets, Trade Secret  Licenses, Trademarks and Trademark Licenses.   “Intercompany Note”: with respect to any Grantor, any promissory note in a principal  amount in excess of $7,500,000 evidencing loans made by such Grantor to Holdings, the Parent  Borrower or any of its Restricted Subsidiaries.  “Intercreditor Agreement”: as defined in the recitals hereto.   “Inventory”: with respect to any Grantor, all inventory (as defined in the Code) of such  Grantor, including, without limitation, all Inventory (as defined in the Credit Agreement) of such  Grantor.   “Investment Property”: the collective reference to (i) all “investment property” as such  term is defined in Section 9-102(a)(49) of the Code (other than any Capital Stock of any Foreign  Subsidiary (other than a Foreign Subsidiary that is or becomes a Loan Party) in excess of 65% of  any series of such stock in such Foreign Subsidiary and other than any Capital Stock excluded  from the definition of “Pledged Stock”) and (ii) whether or not constituting “investment  property” as so defined, all Pledged Securities.   “Issuers”: the collective reference to the Persons identified on Schedule 2 as the issuers of  Pledged Stock, together with any successors to such companies (including, without limitation,  any successors contemplated by Subsection 8.2 of the Credit Agreement).   “Lender”: as defined in the preamble hereto.   “Management Loans”: Indebtedness (including any extension, renewal or refinancing  thereof) outstanding at any time incurred by any Management Investors in connection with any  Management Subscription Agreements or other purchases by them or Capital Stock of any  Parent Entity or Holdings, which Indebtedness is entitled to the benefit of any Guarantee  Obligation of the Parent Borrower or any of its Restricted Subsidiaries.  “Non-Lender Secured Parties”: the collective reference to any person who, at the time of  entering into any Interest Rate Protection Agreement, Permitted Hedging Arrangement, Banks  Products Agreement, Management Loan or Vendor Financing Arrangement secured hereby, was  a Lender or an affiliate of any Lender and who has been designated a “Hedging Affiliate” with  respect to such Interest Rate Protection Agreement or Permitted Hedging Arrangement, a “Bank  Products Affiliate” with respect to such Bank Products Agreement, a “Management Credit  Affiliate” with respect to such Management Loan, or a “Vendor Affiliate” with respect to such  Vendor Financing Arrangement, in each case in accordance with Section 8.4, for so long as so  designated by the Parent Borrower, and their respective successors and assigns.  “Obligations”: (i) in the case of each Borrower, its Borrower Obligations and (ii) in the  case of each other Guarantor, its Guarantor Obligations.   “Parent Borrower”: as defined in the preamble hereto.  





 






LEGAL_US_E # 155827293.3      8    1006148456v9    “Patent Licenses”: with respect to any Grantor, all United States written license  agreements of such Grantor providing for the grant by or to such Grantor of any right under any  United States patent, patent application, or patentable invention other than agreements with any  Person who is an Affiliate or a Subsidiary of the Parent Borrower or such Grantor, including,  without limitation, the material license agreements listed on Schedule 5 hereto, subject, in each  case, to the terms of such license agreements, and the right to prepare for sale, sell and advertise  for sale, all Inventory now or hereafter covered by such licenses.   “Patents”: with respect to any Grantor, all of such Grantor’s right, title and interest in and  to all United States patents, patent applications and patentable inventions and all reissues and  extensions thereof, including, without limitation, all patents and patent applications identified in  Schedule 5 hereto, and including, without limitation, (i) all inventions and improvements  described and claimed therein, (ii) the right to sue or otherwise recover for any and all past,  present and future infringements and misappropriations thereof, (iii) all income, royalties,  damages and other payments now and hereafter due and/or payable with respect thereto  (including, without limitation, payments under all licenses entered into in connection therewith,  and damages and payments for past, present or future infringements thereof), and (iv) all other  rights corresponding thereto in the United States and all reissues, divisions, continuations,  continuations-in-part, substitutes, renewals, and extensions thereof, all improvements thereon,  and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining  thereto.   “Pledged Collateral”: as to any Pledgor, the Pledged Securities now owned or at any time  hereafter acquired by such Pledgor, and any Proceeds thereof.   “Pledged Notes”: with respect to any Pledgor, all Intercompany Notes at any time issued  to, or held or owned by, such Pledgor.  “Pledged Securities”: the collective reference to the Pledged Notes and the Pledged Stock.   “Pledged Stock”: with respect to any Pledgor, the shares of Capital Stock listed on  Schedule 2 as held by such Pledgor, together with any other shares of Capital Stock required to  be pledged by such Pledgor pursuant to Subsection 7.9 of the Credit Agreement, as well as any  other shares, stock certificates, options or rights of any nature whatsoever in respect of the  Capital Stock of any Issuer that may be issued or granted to, or held by, such Pledgor while this  Agreement is in effect, in each case unless and until such time as the respective pledge of such  Capital Stock under this Agreement is released in accordance with the terms hereof and of the  Credit Agreement (provided that in no event shall there be pledged, nor shall any Pledgor be  required to pledge, directly or indirectly, (i) more than 65% of any series of the outstanding  Capital Stock (including for these purposes any investment deemed to be Capital Stock for U.S.  tax purposes) of any Foreign Subsidiary, (ii) any of the Capital Stock of a Subsidiary of a  Foreign Subsidiary, (iii) de minimis shares of a Foreign Subsidiary held by any Pledgor as a  nominee or in a similar capacity, (iv) any Capital Stock of any Excluded Subsidiary (other than,  but without limiting clause (i) above, a Subsidiary defined in clause (d) of the definition thereof)  and (v) without duplication, any Excluded Assets).   





 






LEGAL_US_E # 155827293.3      9    1006148456v9    “Pledgor”: Holdings (with respect to the Pledged Stock held by Holdings in the Parent  Borrower and all other Pledged Collateral of Holdings (unless and until Holdings is released  from all of its obligations hereunder pursuant to Subsection 9.16(h))), the Borrowers (with  respect to Pledged Stock of the entities listed on Schedule 2 hereto held by the applicable  Borrower and all other Pledged Collateral of such applicable Borrower) and each other Granting  Party (with respect to Pledged Securities held by such Granting Party and all other Pledged  Collateral of such Granting Party).   “Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the Code  and, in any event, Proceeds of Pledged Securities shall include, without limitation, all dividends  or other income from the Pledged Securities, collections thereon or distributions or payments  with respect thereto.   “Restrictive Agreements”: as defined in Subsection 3.3(a).   “Secured Parties”: the collective reference to (i) the Administrative Agent, the Collateral  Agent and each Other Representative, (ii) the Lenders (including, without limitation, the Issuing  Lenders and the Swingline Lender), (iii) the Non-Lender Secured Parties and (v) their respective  successors and assigns and their permitted transferees and endorsees.   “Security Collateral”: with respect to any Granting Party, means, collectively, the  Collateral (if any) and the Pledged Collateral (if any) of such Granting Party.   “Specified Asset”: as defined in Subsection 4.2.2 hereof.   “Term Loan Agent”: as defined in the Intercreditor Agreement.   “Term Loan Agreement”:  the Term Loan Credit Agreement, dated as of the date hereof,  among the Ultimate Parent, Parent Borrower, the lenders party thereto from time to time and  JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as may be amended,  supplemented, waived or otherwise modified from time to time.  “Term Loan Collateral Agreement”: as defined in the recitals hereto.  “Term Loan Priority Collateral”: as defined in the Intercreditor Agreement.   “Term Loan Lenders”: as defined in the Intercreditor Agreement.  “Trade Secret Licenses”: with respect to any Grantor, all United States written license  agreements of such Grantor providing for the grant by or to such Grantor of any right under any  United States trade secrets, including, without limitation, know how, processes, formulae,  compositions, designs, and confidential business and technical information, and all rights of any  kind whatsoever accruing thereunder or pertaining thereto, other than agreements with any  Person who is an Affiliate or a Subsidiary of the Parent Borrower or such Grantor, subject, in  each case, to the terms of such license agreements, and the right to prepare for sale, sell and  advertise for sale, all Inventory now or hereafter covered by such licenses.   





 






LEGAL_US_E # 155827293.3      10    1006148456v9    “Trade Secrets”: with respect to any Grantor, all of such Grantor’s right, title and interest  in and to all United States trade secrets, including, without limitation, know-how, processes,  formulae, compositions, designs, and confidential business and technical information, and all  rights of any kind whatsoever accruing thereunder or pertaining thereto, including, without  limitation, (i) all income, royalties, damages and payments now and hereafter due and/or payable  with respect thereto, including, without limitation, payments under all licenses, non-disclosure  agreements and memoranda of understanding entered into in connection therewith, and damages  and payments for past or future misappropriations thereof, and (ii) the right to sue or otherwise  recover for past, present or future misappropriations thereof.   “Trademark Licenses”: with respect to any Grantor, all United States written license  agreements of such Grantor providing for the grant by or to such Grantor of any right under any  United States trademarks, service marks, trade names, trade dress or other indicia of trade origin  or business identifiers, other than agreements with any Person who is an Affiliate or a Subsidiary  of the Parent Borrower or such Grantor, including, without limitation, the material license  agreements listed on Schedule 5 hereto, subject, in each case, to the terms of such license  agreements, and the right to prepare for sale, sell and advertise for sale, all Inventory now or  hereafter covered by such licenses.   “Trademarks”: with respect to any Grantor, all of such Grantor’s right, title and interest in  and to all United States trademarks, service marks, trade names, trade dress or other indicia of  trade origin or business identifiers, trademark and service mark registrations, and applications for  trademark or service mark registrations (except for “intent to use” applications for trademark or  service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051,  unless and until an Amendment to Allege Use or a Statement of Use under Sections 1(c) and 1(d)  of said Act has been filed, it being understood and agreed that the carve out in this parenthetical  shall be applicable only if and for so long as a grant of a security interest in such intent to use  application would invalidate or otherwise jeopardize Grantor’s rights therein), and any renewals  thereof, including, without limitation, each registration and application identified in Schedule 5  hereto, and including, without limitation, (i) the right to sue or otherwise recover for any and all  past, present and future infringements or dilutions thereof, (ii) all income, royalties, damages and  other payments now and hereafter due and/or payable with respect thereto (including, without  limitation, payments under all licenses entered into in connection therewith, and damages and  payments for past or future infringements thereof), and (iii) all other rights corresponding thereto  and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining  thereto in the United States, together in each case with the goodwill of the business connected  with the use of, and symbolized by, each such trademark, service mark, trade name, trade dress  or other indicia of trade origin or business identifiers.   “Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and other  vehicles covered by a certificate of title law of any state and all tires and other appurtenances to  any of the foregoing.   1.2 Other Definitional Provisions. (a) The words “hereof”, “herein”, “hereto”  and “hereunder” and words of similar import when used in this Agreement shall refer to this  Agreement as a whole and not to any particular provision of this Agreement, and Section,  





 






LEGAL_US_E # 155827293.3      11    1006148456v9    Schedule and Annex references are to this Agreement unless otherwise specified.  The words  “include”, “includes”, and “including” shall be deemed to be followed by the phrase “without  limitation”.  (b) The meanings given to terms defined herein shall be equally  applicable to both the singular and plural forms of such terms.   (c) Where the context requires, terms relating to the Collateral, Pledged  Collateral or Security Collateral, or any part thereof, when used in relation to a Granting Party  shall refer to such Granting Party’s Collateral, Pledged Collateral or Security Collateral or the  relevant part thereof.   (d) All references in this Agreement to any of the property described in  the definition of the term “Collateral” or “Pledged Collateral”, or to any Proceeds thereof, shall  be deemed to be references thereto only to the extent the same constitute Collateral or Pledged  Collateral, respectively.   SECTION 2. GUARANTEE  2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,  unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit  of the applicable Secured Parties, the prompt and complete payment and performance by each  Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of  the Borrower Obligations; provided, however, that nothing herein or in the definition of  “Borrower Obligations” shall create any guarantee by any Guarantor of (or grant of security  interest by any Granting Party to support, as applicable) any Excluded Swap Obligations of a  Loan Party for purposes of determining any obligations of such Guarantor (or Granting Party)  hereunder owed to the applicable Secured Parties.  (b) Anything herein or in any other Loan Document to the contrary  notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan  Documents shall in no event exceed the amount that can be guaranteed by such Guarantor under  applicable law, including applicable federal and state laws relating to the insolvency of debtors;  provided that, to the maximum extent permitted under applicable law, it is the intent of the  parties hereto that the rights of contribution of each Guarantor provided in following Subsection  2.2 be included as an asset of the respective Guarantor in determining the maximum liability of  such Guarantor hereunder.   (c) Each Guarantor agrees that the Borrower Obligations guaranteed by  it hereunder may at any time and from time to time exceed the amount of the liability of such  Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the  rights and remedies of the Administrative Agent or any other Secured Party hereunder.   (d) The guarantee contained in this Section 2 shall remain in full force  and effect until the earlier to occur of (i) the first date on which all the Loans, any  Reimbursement Obligations, and all other Borrower Obligations then due and owing, and the  





 






LEGAL_US_E # 155827293.3      12    1006148456v9    obligations of each Guarantor under the guarantee contained in this Section 2 then due and  owing shall have been satisfied by payment in full in cash, no Letter of Credit shall be  outstanding (except for Letters of Credit that have been cash collateralized in a manner  satisfactory to the applicable Issuing Lenders) and the Commitments shall be terminated,  notwithstanding that from time to time during the term of the Credit Agreement any of the  Borrowers may be free from any Borrower Obligations, (ii) as to any Guarantor, the sale or other  disposition of all of the Capital Stock of such Guarantor (other than to Holdings, the Parent  Borrower or any Restricted Subsidiary), or, in the case of any Guarantor that is a Subsidiary of  the Parent Borrower, any other transaction or occurrence as a result of which such Guarantor  ceases to be a Restricted Subsidiary of the Parent Borrower, in each case, that is permitted under  the  Credit Agreement, (iii) as to any Guarantor that is a Subsidiary of the Parent Borrower, such  Guarantor becoming an Excluded Subsidiary and (iv) as to Holdings, Holdings is released from  its obligations hereunder pursuant to Subsection 9.16(h).  (e) The liability of each Guarantor hereunder is primary and  independent of any security for or other guaranty of the Guarantor Obligations, whether executed  by any other Guarantor or by any other Person. No payment made by any Borrower, any of the  Guarantors, any other guarantor or any other Person or received or collected by the  Administrative Agent or any other Secured Party from any of the Borrowers, any of the  Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any  set-off or appropriation or application at any time or from time to time in reduction of or in  payment of any of the Borrower Obligations shall be deemed to modify, reduce, release or  otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such  payment (other than any payment made by such Guarantor in respect of the Borrower  Obligations or any payment received or collected from such Guarantor in respect of any of the  Borrower Obligations), remain liable for the Borrower Obligations of each Borrower guaranteed  by it hereunder up to the maximum liability of such Guarantor hereunder until the earlier to  occur of (i) the first date on which all the Loans, any Reimbursement Obligations and all other  Borrower Obligations then due and owing are paid in full in cash, no Letter of Credit shall be  outstanding (except for Letters of Credit that have been cash collateralized in a manner  satisfactory to the applicable Issuing Lenders) and the Commitments are terminated, (ii) the sale  or other disposition of all of the Capital Stock of such Guarantor (other than to Holdings, the  Parent Borrower or any Restricted Subsidiary), or, if such Guarantor is a Subsidiary of the Parent  Borrower, any other transaction or occurrence as a result of which such Guarantor ceases to be a  Restricted Subsidiary of the Parent Borrower, in each case that is permitted under the Credit  Agreement, (iii) as to any Guarantor, such Guarantor becoming an Excluded Subsidiary and (iv)  as to Holdings, Holdings is released from its obligations hereunder pursuant to Subsection  9.16(h).   2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that  a Guarantor shall have paid more than its proportionate share (based, to the maximum extent  permitted by law, on the respective Adjusted Net Worths of the Guarantors on the date the  respective payment is made) of any payment made hereunder, such Guarantor shall be entitled to  seek and receive contribution from and against any other Guarantor hereunder that has not paid  its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject  to the terms and conditions of Subsection 2.3. The provisions of this Subsection 2.2 shall in no  





 






LEGAL_US_E # 155827293.3      13    1006148456v9    respect limit the obligations and liabilities of any Guarantor to the Administrative Agent and the  other Secured Parties, and each Guarantor shall remain liable to the Administrative Agent and  the other Secured Parties for the full amount guaranteed by such Guarantor hereunder.   2.3 No Subrogation. Notwithstanding any payment made by any Guarantor  hereunder or any set-off or application of funds of any Guarantor by the Administrative Agent or  any other Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of  the Administrative Agent or any other Secured Party against any Borrower or any other  Guarantor or any collateral security or guarantee or right of offset held by the Administrative  Agent or any other Secured Party for the payment of the Borrower Obligations, nor shall any  Guarantor seek or be entitled to seek any contribution or reimbursement from any Borrower or  any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts  owing to the Administrative Agent and the other Secured Parties by the Borrowers on account of  the Borrower Obligations are paid in full in cash, no Letter of Credit shall be outstanding and the  Commitments are terminated. If any amount shall be paid to any Guarantor on account of such  subrogation rights at any time when all of the Borrower Obligations shall not have been paid in  full in cash or any Letter of Credit shall remain outstanding (and shall not have been cash  collateralized in a manner satisfactory to the applicable Issuing Lenders) or any of the  Commitments shall remain in effect, such amount shall be held by such Guarantor in trust for the  Administrative Agent and the other Secured Parties, segregated from other funds of such  Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the  Administrative Agent in the exact form received by such Guarantor (duly indorsed by such  Guarantor to the Administrative Agent, if required), to be held as collateral security for all of the  Borrower Obligations (whether matured or unmatured) guaranteed by such Guarantor and/or  then or at any time thereafter may be applied against any Borrower Obligations, whether matured  or unmatured, in such order as the Administrative Agent may determine.   2.4 Amendments, etc. with respect to the Obligations. To the maximum extent  permitted by law, each Guarantor shall remain obligated hereunder notwithstanding that, without  any reservation of rights against any Guarantor and without notice to or further assent by any  Guarantor, any demand for payment of any of the Borrower Obligations made by the Collateral  Agent, the Administrative Agent or any other Secured Party may be rescinded by the Collateral  Agent, the Administrative Agent or such other Secured Party and any of the Borrower  Obligations continued, and the Borrower Obligations, or the liability of any other Person upon or  for any part thereof, or any collateral security or guarantee therefor or right of offset with respect  thereto, may, from time to time, in whole or in part, be renewed, extended, amended, waived,  modified, accelerated, compromised, subordinated, waived, surrendered or released by the  Collateral Agent, the Administrative Agent or any other Secured Party, and the Credit  Agreement and the other Loan Documents and any other documents executed and delivered in  connection therewith may be amended, waived, modified, supplemented or terminated, in whole  or in part, as the Collateral Agent or the Administrative Agent (or the Required Lenders or the  applicable Lenders(s), as the case may be) may deem advisable from time to time, and any  collateral security, guarantee or right of offset at any time held by the Collateral Agent, the  Administrative Agent or any other Secured Party for the payment of any of the Borrower  Obligations may be sold, exchanged, waived, surrendered or released. None of the Collateral  Agent, the Administrative Agent and each other Secured Party shall have any obligation to  





 






LEGAL_US_E # 155827293.3      14    1006148456v9    protect, secure, perfect or insure any Lien at any time held by it as security for any of the  Borrower Obligations or for the guarantee contained in this Section 2 or any property subject  thereto, except to the extent required by applicable law.   2.5 Guarantee Absolute and Unconditional. Each Guarantor waives, to the  maximum extent permitted by applicable law, any and all notice of the creation, renewal,  extension or accrual of any of the Borrower Obligations and notice of or proof of reliance by the  Collateral Agent, the Administrative Agent or any other Secured Party upon the guarantee  contained in this Section 2 or acceptance of the guarantee contained in this Section 2; each of the  Borrower Obligations, and any obligation contained therein, shall conclusively be deemed to  have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance  upon the guarantee contained in this Section 2; and all dealings between any of the Borrowers  and any of the Guarantors, on the one hand, and the Collateral Agent, the Administrative Agent  and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have  been had or consummated in reliance upon the guarantee contained in this Section 2. Each  Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment,  protest, demand for payment and notice of default or nonpayment to or upon any Borrower or  any of the other Guarantors with respect to any of the Borrower Obligations. Each Guarantor  understands and agrees, to the extent permitted by law, that the guarantee contained in this  Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment  and not of collection. The obligations of each of the Guarantors hereunder are independent of the  obligations of any other Guarantor or Grantor or any other Person and a separate action or  actions may be brought and prosecuted against one or more of the Guarantors whether or not  action is brought against any other Guarantor or Grantor or any other Person and whether or not  any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each  Guarantor hereby waives, to the maximum extent permitted by applicable law, any and all  defenses (other than any claim against a Secured Party alleging breach of a contractual provision  of any of the Loan Documents) that it may have arising out of or in connection with any and all  of the following: (a) the validity or enforceability of the Credit Agreement or any other Loan  Document, any of the Borrower Obligations or any other collateral security therefor or guarantee  or right of offset with respect thereto at any time or from time to time held by the Collateral  Agent, the Administrative Agent or any other Secured Party, (b) any defense, set-off or  counterclaim (other than a defense of payment or performance) that may at any time be available  to or be asserted by any of the Borrowers against the Collateral Agent, the Administrative Agent  or any other Secured Party, (c) any change in the time, place, manner or place of payment,  amendment, or waiver or increase in any of the Obligations, (d) any exchange, taking, release or  non-perfection of Security Collateral, (e) any change in the structure or existence of any of the  Borrowers, (f) any application of Security Collateral to any of the Obligations, (g) any law,  regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation  or the rights of the Collateral Agent, the Administrative Agent or any other Secured Party with  respect thereto, including, without limitation: (i) the application of any such law, regulation,  decree or order, including any prior approval, which would prevent the exchange of any currency  (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the  unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with  normal commercial practice, (ii) a declaration of banking moratorium or any suspension of  





 






LEGAL_US_E # 155827293.3      15    1006148456v9    payments by banks in such jurisdiction or the imposition by such jurisdiction or any  Governmental Authority thereof of any moratorium on, the required rescheduling or  restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii)  any expropriation, confiscation, nationalization or requisition by such country or any  Governmental Authority that directly or indirectly deprives any Borrower of any assets or their  use, or of the ability to operate its business or a material part thereof, or (iv) any war (whether or  not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such  jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in  each of the cases contemplated in clauses (i) through (iv) above, to the extent occurring or  existing on or at any time after the date of this Agreement), or (h) any other circumstance  whatsoever (other than payment in full in cash of the Borrower Obligations guaranteed by it  hereunder) (with or without notice to or knowledge of any of the Borrowers or such Guarantor)  that constitutes, or might be construed to constitute, an equitable or legal discharge of any of the  Borrowers for the Borrower Obligations, or of such Guarantor under the guarantee contained in  this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or  otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent,  the Administrative Agent and any other Secured Party may, but shall be under no obligation to,  make a similar demand on or otherwise pursue such rights and remedies as it may have against  any of the Borrowers, any other Guarantor or any other Person or against any collateral security  or guarantee for the Borrower Obligations guaranteed by such Guarantor hereunder or any right  of offset with respect thereto, and any failure by the Collateral Agent, the Administrative Agent  or any other Secured Party to make any such demand, to pursue such other rights or remedies or  to collect any payments from any Borrower, any other Guarantor or any other Person or to  realize upon any such collateral security or guarantee or to exercise any such right of offset, or  any release of any of the Borrowers, any other Guarantor or any other Person or any such  collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation  or liability hereunder, and shall not impair or affect the rights and remedies, whether express,  implied or available as a matter of law, of the Collateral Agent, the Administrative Agent or any  other Secured Party against any Guarantor. For the purposes hereof “demand” shall include the  commencement and continuance of any legal proceedings.   2.6 Reinstatement. The guarantee of any Guarantor contained in this Section 2  shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any  part thereof, of any of the Borrower Obligations guaranteed by such Guarantor hereunder is  rescinded or must otherwise be restored or returned by the Collateral Agent, the Administrative  Agent or any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or  reorganization of any Borrower or any Guarantor, or upon or as a result of the appointment of a  receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any  Guarantor or any substantial part of its property, or otherwise, all as though such payments had  not been made.   2.7 Payments. Each Guarantor hereby guarantees that payments hereunder  will be paid to the Administrative Agent without set-off or counterclaim, in Dollars (or in the  case of any amount required to be paid in any other currency pursuant to the requirements of the  Credit Agreement or other agreement relating to the respective Obligations, such other currency),  at the Administrative Agent’s office specified in Subsection 11.2 of the Credit Agreement or  





 






LEGAL_US_E # 155827293.3      16    1006148456v9    such other address as may be designated in writing by the Administrative Agent to such  Guarantor from time to time in accordance with Subsection 11.2 of the Credit Agreement.   SECTION 3. GRANT OF SECURITY INTEREST  3.1 Grant. Each Grantor hereby unconditionally grants, collaterally assigns,  and pledges to the Collateral Agent, for the benefit of the Secured Parties, a continuing security  interest in all of such Grantor’s right, title, and interest in and to the Collateral of such Grantor,  as collateral security for the prompt and complete payment and performance when due (whether  at the stated maturity, by acceleration or otherwise) of the Obligations (provided, however, that  nothing herein or in the definition of “Obligations” shall grant any security interest to secure any  obligations or liabilities of a Loan Party under or in connection with any Excluded Swap  Obligations for purposes of determining any obligations of a Grantor hereunder) of such Grantor.  The term “Collateral”, as to any Grantor, means the following property (wherever located) now  owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at  any time in the future may acquire any right, title or interest, except as provided in Subsection  3.3:  (a) all Accounts;   (b) all Money and all cash;  (c) all Cash Equivalents;   (d) all Chattel Paper;   (e) all Contracts;   (f) all Deposit Accounts (including, for the avoidance of doubt, DDAs  and Concentration Accounts);  (g) all Documents;   (h) all Equipment;   (i) all General Intangibles;   (j) all Goods;  (k) all Instruments;   (l) all Intellectual Property;   (m) all Inventory;   (n) all Investment Property;   (o) all letters of credit or Letter-of-Credit Rights;  





 






LEGAL_US_E # 155827293.3      17    1006148456v9    (p) all Fixtures;   (q) all Commercial Tort Claims constituting Commercial Tort Actions  described in Schedule 7 (together with any Commercial Tort Actions subject to a further writing  provided in accordance with Subsection 5.2.12);   (r) all accessions to, substitutions for and replacements, proceeds,  insurance proceeds and products of the foregoing, together with all books and records, customer  lists, credit files, computer files, programs, printouts and other computer materials and records  related thereto and any General Intangible at any time evidencing or relation to any of the  foregoing;  (s) all books and records pertaining to any of the foregoing;   (t) the Collateral Proceeds Account; and   (u) to the extent not otherwise included, all Proceeds and products of  any and all of the foregoing, and all Supporting Obligations, collateral security and guarantees  given by any Person with respect to any of the foregoing;  provided that, in the case of each Grantor, Collateral shall not include any Pledged Collateral  (which, for the avoidance of doubt, is subject to the security interest granted pursuant to  Subsection 3.2).  3.2 Pledged Collateral. Each Granting Party that is a Pledgor, hereby grants to  the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the  Pledged Collateral of such Pledgor now owned or at any time hereafter acquired by such Pledgor,  and any Proceeds thereof, as collateral security for the prompt and complete performance when  due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of such  Pledgor, except as provided in Subsection 3.3.  3.3 Certain Limited Exceptions. No security interest is or will be granted  pursuant to this Agreement or any other Security Document other than the security interest  granted in the Canadian Guarantee and Collateral Agreement in any right, title or interest of any  Granting Party under or in and “Collateral” and “Pledged Collateral” shall not include the  following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):  (a) any Instruments, Contracts, Chattel Paper, General Intangibles,  Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other  contracts or agreements with or issued by Persons other than Ultimate Parent, a Subsidiary of  Ultimate Parent or an Affiliate thereof, (collectively, “Restrictive Agreements”) that would  otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be  deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the  granting of such a security interest pursuant hereto would result in a breach, default or  termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to  the Code or other applicable law, the granting of security interests therein can be made without  resulting in a breach, default or termination of such Restrictive Agreements); provided, that (A)  





 






LEGAL_US_E # 155827293.3      18    1006148456v9    the foregoing exclusions of this clause (a) shall in no way be construed to apply to the extent that  (1) any described breach, default or termination is ineffective under Section 9-406, 9-407, 9-408  or 9-409 of the Code or other applicable law or (2)  any consent or waiver has been obtained that  would permit Collateral Agent’s security interest or lien to attach notwithstanding the breach,  default, or termination of such Restrictive Agreement (it being understood and agreed that  Holdings and its Subsidiaries shall not be required to seek any such consent or waiver) and (B)  the foregoing exclusions of this clause (a) shall in no way be construed to limit, impair or  otherwise affect Collateral Agent’s or any other Secured Party’s continuing security interests in  and liens upon any rights or interests of any Grantor in or to (1) monies due or to become due  under or in connection with any described Restrictive Agreement or (2) any proceeds from the  sale, license, lease or other dispositions of any such Restrictive Agreement;  (b)   (1) any Equipment that would otherwise be included in  the Security Collateral (and such Equipment shall not be deemed to constitute a  part of the Security Collateral) if such Equipment (A) is subject to a Lien  described in Subsection 8.14(d) or (e) (with respect to a Lien described in  Subsection 8.14(d)) of the Credit Agreement or (B) clause (h) or (o) (with respect  to a Lien described in clause (h)) of the definition of “Permitted Liens” in the  Term Loan Agreement as in effect on the date hereof (or any corresponding  provision of the Credit Agreement, the Term Loan Agreement or any Additional  Credit Facility; provided that such provision (other than any as in effect on the  date hereof) is not materially less favorable to the Lenders than the corresponding  provision in the Credit Agreement (but in each case only for so long as such Liens  are in place)); or  (2) any other property consisting solely of (i) cash, Cash  Equivalents, Temporary Cash Investments or Investment Grade Securities,  together with proceeds, dividends and distributions in respect thereof, (ii) any  assets relating to such assets, proceeds, dividends or distributions or to Hedging  Obligations that are the subject of a Lien as described in this clause, and/or (iii)  any other assets consisting of, relating to or arising under or in connection with (1)  Hedging Obligations that are the subject of a Lien as described in this clause or (2)  any agreements, instruments or documents governing or evidencing Hedging  Obligations that are the subject of a Lien as described in this clause or to any of  the assets referred to in any of subclauses (i) through (iii), that would otherwise be  included in the Security Collateral (and such other property shall not be deemed  to constitute a part of the Security Collateral) if such other property (A) is subject  to any Lien in described in Subsection 8.14(v) of the Credit Agreement or (B) is  subject to any Lien in respect of Hedging Obligations (as defined in the Term  Loan Agreement as in effect on the date hereof) permitted by Section 8.6 of the  Term Loan Agreement as in effect on the date hereof as a “Permitted Lien”  pursuant to clause (h), or (with respect to such a Lien described clause (h) of such  term) clause (o) of the definition of such term (or any corresponding provision of  the Credit Agreement, the Term Loan Agreement or any Additional Credit  





 






LEGAL_US_E # 155827293.3      19    1006148456v9    Facility; provided that such provision (other than any as in effect on the date  hereof) is not materially less favorable to the Lenders than the corresponding  provision in the Credit Agreement (but in each case only for so long as such Liens  are in place));  (c) any property that would otherwise be included in the Security  Collateral (and such property shall not be deemed to constitute a part of the Security Collateral)  if such property (x) has been sold or otherwise transferred in connection with a Special Purpose  Financing (as defined in the Term Loan Agreement as in effect on the date hereof), or (y)  constitutes the proceeds or products of any property that has been sold or otherwise transferred  pursuant to such Special Purpose Financing (other than any payments received by any Granting  Party in payment for the sale and transfer of such property in such Special Purpose Financing),  or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section  8.1(b)(ix) of the Term Loan Agreement as in effect on the date hereof or permitted by Section  8.6 of the Term Loan Agreement as in effect on the date hereof as “Permitted Liens” permitted  pursuant to clause (r) of the definition of such term (or any corresponding provision of the Credit  Agreement, the Term Loan Agreement or any Additional Credit Facility; provided that such  provision (other than any as in effect on the date hereof) is not materially less favorable to the  Lenders than the corresponding provision in the Credit Agreement (but in each case only for so  long as such Liens are in place));  (d) any property that would otherwise be included in the Security  Collateral (and such property shall not be deemed to constitute a part of the Security Collateral)  if such property has been sold or otherwise transferred in connection with a sale and leaseback  transaction permitted under (x) Subsection 8.5 of the Credit Agreement, or is subject to any  Liens permitted under Subsection 8.14 of the Credit Agreement and consists of property subject  to any such sale and leaseback transaction or general intangibles related thereto (or any  corresponding provision of the Credit Agreement, the Term Loan Agreement or any Additional  Credit Facility; provided that such provision (other than any as in effect on the date hereof) is not  materially less favorable to the Lenders than the corresponding provision in the Credit  Agreement (but in each case only for so long as such Liens are in place)) or (y) Section 8.4 of the  Term Loan Agreement as in effect on the date hereof, or is subject to any Liens permitted under  Section 8.6 of the Term Loan Agreement as in effect on the date hereof and consists of property  subject to any such sale and leaseback transaction or general intangibles related thereto (or any  corresponding provision of the Credit Agreement, the Term Loan Agreement or any Additional  Credit Facility; provided that such provision (other than any as in effect on the date hereof) is not  materially less favorable to the Lenders than the corresponding provision in the Credit  Agreement in any material respect which relate to property subject to any such sale and  leaseback transaction or general intangibles related thereto (but in each case only for so long as  such Liens are in place)); provided that, notwithstanding the foregoing, the security interest of  the Collateral Agent shall attach to any money, securities or other consideration received by any  Grantor as consideration for the sale or other disposition of such property as and to the extent  such consideration would otherwise constitute Collateral;  





 






LEGAL_US_E # 155827293.3      20    1006148456v9    (e) Capital Stock (including for these purposes any investment deemed  to be Capital Stock for United States tax purposes) which is described in the proviso to the  definition of Pledged Stock;  (f) any Money, cash, checks, other negotiable instruments, funds and  other evidence of payment held in any Deposit Account of the Parent Borrower or any of its  Subsidiaries constituting a security deposit constituting a Permitted Lien with respect to  obligations not in violation of the Credit Agreement for the benefit of the Parent Borrower or any  of its Subsidiaries, which must be held for or returned to the applicable counterparty under  applicable law or pursuant to Contractual Obligations;  (g) Excluded Accounts;  (h) any interest in leased real property;  (i) any fee interest in owned real property;  (j) any Vehicles and any assets subject to certificate of title;  (k) Letter-of-Credit Rights and Commercial Tort Claims individually  with a value of less than $7,500,000;  (l) assets to the extent the granting or perfecting of a security interest in  such assets would result in costs or other consequences to Ultimate Parent or any of its  Subsidiaries as reasonably determined in writing by the Parent Borrower and the Collateral  Agent is excessive in view of the benefits that would be obtained by the Secured Parties;  (m) those assets over which the granting of security interests in such  assets would be prohibited by contract permitted under the Credit Agreement, applicable law or  regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary  (including permitted liens, leases and licenses) (in each case, after giving effect to the applicable  anti-assignment provisions of the Code and in each case, for the avoidance of doubt, Collateral  shall include proceeds and receivables of the assets described in this clause (m) to the extent that  their assignment is expressly deemed effective under the Code notwithstanding such prohibitions,  other than proceeds and receivables thereof to the extent that their assignment is expressly  deemed effective under the Code notwithstanding such prohibitions) (provided, that (A) the  foregoing exclusions of this clause (m) shall in no way be construed to apply to the extent that (1)  any described breach, default or termination is ineffective under Section 9-406, 9-407, 9-408 or  9-409 of the Code or other applicable law or (2) any consent or waiver has been obtained that  would permit Collateral Agent’s security interest or lien to attach notwithstanding the breach,  default, or termination of such contract or document (it being understood and agreed that  Ultimate Parent and its Subsidiaries shall not be required to seek any such consent or waiver) and  (B) the foregoing exclusions of this clause (m) shall in no way be construed to limit, impair or  otherwise affect Collateral Agent’s or any other Secured Party’s continuing security interests in  and liens upon any rights or interests of any Grantor in or to (1) monies due or to become due  under or in connection with any such contract or document or (2) any proceeds from the sale,  





 






LEGAL_US_E # 155827293.3      21    1006148456v9    license, lease or other dispositions of any such contract or document), or to the extent that such  security interests would result in material adverse tax consequences to Ultimate Parent, Holdings,  or any one or more of its Subsidiaries as reasonably determined in writing by the Parent  Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders  shall not require Ultimate Parent or any of its subsidiaries to enter into any security agreements  or pledge agreements governed by foreign law (other than the laws of Canada and any of its  provinces));  (n) Foreign Intellectual Property;  (o) any aircrafts, airframes, aircraft engines, helicopters, vessels or  rolling stock or any Equipment or other assets constituting a part thereof;   (p) [reserved];  (q) any Capital Stock and other securities of a Subsidiary to the extent  that the pledge of or grant of any other Lien on such Capital Stock or other securities for the  benefit of any holders of securities results in Ultimate Parent or any of its Subsidiaries being  required to file separate financial statements for such Subsidiary with the Securities and  Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3- 16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect  from time to time, but only to the extent necessary to not be subject to such requirement; and  (r) Margin Stock.   For purposes of this Subsection 3.3, the terms “Cash Equivalents”, “Hedging  Obligations” and “Investment Grade Securities” shall have the meanings given to such terms in  the Term Loan Agreement as in effect on the date hereof.   Notwithstanding the foregoing clauses (a) through (r), prior to the Discharge of the Term  Loan Obligations (as defined in the Intercreditor Agreement), “Excluded Assets” shall not  include any property or asset that is Term Loan Priority Collateral at any time such property or  asset (i) constitutes “Collateral” or “Pledged Collateral” under the Term Loan Collateral  Agreement and (ii) for the avoidance of doubt, is not an “Excluded Asset” under the Term Loan  Collateral Agreement.  3.4 Intercreditor Relations. Notwithstanding anything herein to the contrary, it  is the understanding of the parties that the Liens granted pursuant to Subsection 3.1 and 3.2  herein shall with respect to all Security Collateral other than Security Collateral constituting  ABL Priority Collateral, (x) prior to the Discharge of the Term Loan Obligations (as defined in  the Intercreditor Agreement), be subject and subordinate to the Liens granted to the Term Loan  Agent for the benefit of the Term Loan Lenders to secure the Indebtedness under the applicable  Term Loan Agreement pursuant to the Term Loan Collateral Agreement and (y) prior to the  applicable Discharge of Additional Obligations (as defined in the Intercreditor Agreement), be  subject and subordinate to the Liens granted to any Additional Agent for the benefit of the  holders of the applicable Additional Obligations to secure such Additional Obligations pursuant  





 






LEGAL_US_E # 155827293.3      22    1006148456v9    to the applicable Additional Collateral Documents. The Collateral Agent acknowledges and  agrees that the relative priority of the Liens granted to the Collateral Agent, the Term Loan  Agent and any Additional Agent may be determined solely pursuant to the Intercreditor  Agreement, and not by priority as a matter of law or otherwise. Notwithstanding anything herein  to the contrary, the Liens and security interest granted to the Collateral Agent pursuant to this  Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject  to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms  of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement  shall govern and control as among the Collateral Agent, the Term Loan Agent and any  Additional Agent. In the event of any such conflict, each Grantor may act (or omit to act) in  accordance with such Intercreditor Agreement, and shall not be in breach, violation or default of  its obligations hereunder by reason of doing so. Notwithstanding any other provision hereof,  prior to the Discharge of the Term Loan Obligations (as defined in the Intercreditor Agreement)  and the Discharge of Additional Obligations (as defined in the Intercreditor Agreement), any  obligation hereunder to deliver to the Collateral Agent any Security Collateral constituting Term  Loan Priority Collateral shall be satisfied by causing such Term Loan Priority Collateral to be  delivered to the Term Loan Agent, or the applicable Collateral Representative or any Additional  Agent, as applicable, to be held in accordance with the Intercreditor Agreement.  3.5 No New Liens.  Notwithstanding anything herein to the contrary, to the  extent that the Collateral Agent receives a security interest in any Security Collateral as a result  of any discrepancies between Subsection 3.1 and Subsection 3.3 herein and Subsection 3.1 and  Subsection 3.3 of the Term Loan Collateral Agreement, which assets are not also subject to the  Lien of the Term Loan Agent under the Term Loan Collateral Agreement, each Granting Party  hereby grants a security interest in such Security Collateral to the Term Loan Agent to secure the  Term Loan Obligations (as defined in the Intercreditor Agreement) and the Collateral Agent  shall be deemed to also hold and have held a security interest on such assets for the benefit of the  Term Loan Agent (which security interest shall be subject to the terms of the Intercreditor  Agreement) as security for the Term Loan Obligations (as defined in the Intercreditor Agreement)  and shall promptly notify the Term Loan Agent in writing of the existence of such Lien in  accordance with Section 2.5 of the Intercreditor Agreement.  SECTION 4. REPRESENTATIONS AND WARRANTIES  4.1 Representations and Warranties of Each Guarantor. To induce the  Collateral Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to  make their respective extensions of credit to the Borrowers thereunder, each Guarantor hereby  represents and warrants to the Collateral Agent and each other Secured Party that the  representations and warranties set forth in Section 5 of the Credit Agreement as they relate to  such Guarantor or to the Loan Documents to which such Guarantor is a party, each of which  representations and warranties is hereby incorporated herein by reference, are true and correct in  all material respects, and the Collateral Agent and each other Secured Party shall be entitled to  rely on each of such representations and warranties as if fully set forth herein; provided that each  reference in each such representation and warranty to the Parent Borrower’s knowledge shall, for  the purposes of this Subsection 4.1, be deemed to be a reference to such Guarantor’s knowledge.   





 






LEGAL_US_E # 155827293.3      23    1006148456v9    4.2 Representations and Warranties of Each Grantor. To induce the Collateral  Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make  their respective extensions of credit to the Borrowers thereunder, each Grantor hereby represents  and warrants to the Collateral Agent and each other Secured Party that, in each case after giving  effect to the Transactions:   4.2.1 Title; No Other Liens. Except for the security interests granted to the  Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and the other  Liens permitted to exist on such Grantor’s Collateral by the Credit Agreement, such Grantor  owns each item of such Grantor’s Collateral free and clear of any and all Liens. Except as set  forth on Schedule 3, (x) in the case of the ABL Priority Collateral, no currently effective  financing statement or other similar public notice with respect to all or any part of such Grantor’s  ABL Priority Collateral is on file or of record in any public office in the United States of  America, any state, territory or dependency thereof or the District of Columbia and (y) in the  case of the Term Loan Priority Collateral, to the knowledge of such Grantor, no currently  effective financing statement or other similar public notice with respect to any Lien securing  Indebtedness on all or any part of such Grantor’s Term Loan Priority Collateral is on file or of  record in any public office in the United States of America, any state, territory or dependency  thereof or the District of Columbia, except, in each case, such as have been filed in favor of the  Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement or as are  permitted by the Credit Agreement or any other Loan Document or for which termination  statements will be delivered on the Closing Date.   4.2.2 Perfected First Priority Liens (a) This Agreement is effective to create, as  collateral security for the Obligations of such Grantor, valid and enforceable Liens on such  Grantor’s Security Collateral in favor of the Collateral Agent for the benefit of the Secured  Parties, except as to enforcement, as may be limited by applicable domestic or foreign  bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar  laws relating to or affecting creditors’ rights’ generally, general equitable principles (whether  considered in a proceeding in equity or at law) and an implied covenant of good faith and fair  dealing.  (b) Except with regard to (i) Liens (if any) on Specified Assets and (ii)  any rights in favor of the United States government as required by law (if any), upon the  completion of the Filings and, with respect to Instruments, Chattel Paper and Documents upon  the earlier of such Filing or the delivery to and continuing possession by the Collateral Agent,  the Term Loan Agent, the applicable Collateral Representative or any Additional Agent, as  applicable, in accordance with the Intercreditor Agreement, of all Instruments, Chattel Paper and  Documents a security interest in which is perfected by possession, and the obtaining and  maintenance of “control” (as described in the Code) by the Collateral Agent, the Term Loan  Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their  respective agents appointed for purposes of perfection), in accordance with the Intercreditor  Agreement of all Deposit Accounts, Blocked Accounts, the Collateral Proceeds Account,  Electronic Chattel Paper and Letter-of-Credit Rights a security interest in which is perfected by  “control” and in the case of Commercial Tort Actions (other than such Commercial Tort Actions  listed on Schedule 7 on the date of this Agreement), the taking of the actions required by  





 






LEGAL_US_E # 155827293.3      24    1006148456v9    Subsection 5.2.12 herein, the Liens created pursuant to this Agreement will constitute valid Liens  on and (to the extent provided herein) perfected security interests in such Grantor’s Collateral in  favor of the Collateral Agent for the benefit of the Secured Parties, and will be prior to all other  Liens of all other Persons securing Indebtedness, in each case other than Permitted Liens (and  subject to the Intercreditor Agreement), and enforceable as such as against all other Persons  other than Ordinary Course Transferees, except to the extent that the recording of an assignment  or other transfer of title to the Collateral Agent, the Term Loan Agent, the applicable Collateral  Representative or any Additional Agent (in accordance with the applicable Intercreditor  Agreement) or the recording of other applicable documents in the United States Patent and  Trademark Office or United States Copyright Office may be necessary for perfection or  enforceability, and except as to enforcement, as may be limited by applicable domestic or foreign  bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar  laws relating to or affecting creditors’ rights’ generally, general equitable principles (whether  considered in a proceeding in equity or at law) and an implied covenant of good faith and fair  dealing. As used in this Subsection 4.2.2(b), the following terms shall have the following  meanings:   “Filings”: the filing or recording of (i) the Financing Statements as set forth in Schedule 3,  (ii) this Agreement or a notice thereof with respect to Intellectual Property as set forth in  Schedule 3, and (iii) any filings after the Closing Date in any other jurisdiction as may be  necessary under any Requirement of Law.   “Financing Statements”: the financing statements delivered to the Collateral Agent by  such Grantor on the Closing Date for filing in the jurisdictions listed in Schedule 4.   “Ordinary Course Transferees”: (i) with respect to goods only, buyers in the ordinary  course of business and lessees in the ordinary course of business to the extent provided in  Section 9-320(a) and 9-321 of the Uniform Commercial Code as in effect from time to time in  the relevant jurisdiction, (ii) with respect to general intangibles only, licensees in the ordinary  course of business to the extent provided in Section 9-321 of the Uniform Commercial Code as  in effect from time to time in the relevant jurisdiction and (iii) any other Person who is entitled to  take free of the Lien pursuant to the Uniform Commercial Code as in effect from time to time in  the relevant jurisdiction.   “Specified Assets”: the following property and assets of such Grantor:   (1) Patents, Patent Licenses, Trademarks and Trademark  Licenses to the extent that (a) Liens thereon cannot be perfected by the filing of  financing statements under the Uniform Commercial Code or by the filing and  acceptance thereof in the United States Patent and Trademark Office or (b) such  Patents, Patent Licenses, Trademarks and Trademark Licenses are not,  individually or in the aggregate, material to the business of the Parent Borrower  and its Subsidiaries taken as a whole;   (2) Copyrights and Copyright Licenses with respect  thereto and Accounts or receivables arising therefrom to the extent that the  





 






LEGAL_US_E # 155827293.3      25    1006148456v9    Uniform Commercial Code as in effect from time to time in the relevant  jurisdiction is not applicable to the creation or perfection of Liens thereon;   (3) Collateral for which the perfection of Liens thereon  requires filings in or other actions under the laws of jurisdictions outside of the  United States of America, any State, territory or dependency thereof or the  District of Columbia;   (4) Goods included in Collateral received by any Person  from any Grantor for “sale or return” within the meaning of Section 2-326 of the  Uniform Commercial Code of the applicable jurisdiction, to the extent of claims  of creditors of such Person;   (5) Fixtures, Vehicles, any other assets subject to  certificates of title and Money; and Cash Equivalents (except to the extent  maintained in a Blocked Account and other than Cash Equivalents constituting  Investment Property to the extent a security interest is perfected by the filing of a  financing statement);  (6) Proceeds of Accounts or Inventory which do not  themselves constitute Collateral or which do not constitute identifiable Cash  Proceeds or which have not yet been transferred to or deposited in the Collateral  Proceeds Account (if any) or to a Blocked Account; and,  (7) Uncertificated securities (to the extent a security  interest is not perfected by the filing of a financing statement).  4.2.3 Jurisdiction of Organization. On the date hereof, such Grantor’s  jurisdiction of organization is specified on Schedule 4.   4.2.4 Farm Products. None of such Grantor’s Collateral constitutes, or is the  Proceeds of, Farm Products.   4.2.5 Accounts Receivable. The amounts represented by such Grantor to the  Administrative Agent or the other Secured Parties from time to time as owing by each account  debtor or by all account debtors in respect of such Grantor’s Accounts Receivable constituting  Security Collateral will at such time be the correct amount, in all material respects, actually  owing by such account debtor or debtors thereunder, except to the extent that appropriate  reserves therefor have been established on the books of such Grantor in accordance with GAAP.  Unless otherwise indicated in writing to the Administrative Agent, each Account Receivable of  such Grantor arises out of a bona fide sale and delivery of goods or rendition of services by such  Grantor. Such Grantor has not given any account debtor any deduction in respect of the amount  due under any such Account, except in the ordinary course of business or as such Grantor may  otherwise advise the Administrative Agent in writing.   4.2.6 Patents, Copyrights and Trademarks. Schedule 5 lists all material  Trademarks, material Copyrights and material Patents, in each case, registered in the United  





 






LEGAL_US_E # 155827293.3      26    1006148456v9    States Patent and Trademark Office or the United States Copyright Office, as applicable, and  owned by such Grantor in its own name as of the date hereof, and all material Trademark  Licenses, all material Copyright Licenses and all material Patent Licenses (including, without  limitation, material Trademark Licenses for registered Trademarks, material Copyright Licenses  for registered Copyrights and material Patent Licenses for registered Patents) owned by such  Grantor in its own name as of the date hereof, in each case, that is solely United States  Intellectual Property.   4.3 Representations and Warranties of Each Pledgor. To induce the Collateral  Agent, the Administrative Agent and the Lenders to enter into the Credit Agreement and to  induce the Lenders to make their respective extensions of credit to the Borrowers thereunder,  each Pledgor hereby represents and warrants to the Collateral Agent and each other Secured  Party that:   4.3.1 Except as provided in Subsection 3.3, the shares of Pledged Stock pledged  by such Pledgor hereunder constitute (i) in the case of shares of a Domestic Subsidiary, all the  issued and outstanding shares of all classes of the Capital Stock of such Domestic Subsidiary  owned by such Pledgor and (ii) in the case of any Pledged Stock constituting Capital Stock of  any Foreign Subsidiary (other than a Foreign Subsidiary that is or becomes a Loan Party), such  percentage (not more than 65%) as is specified on Schedule 2 of all the issued and outstanding  shares of all classes of the Capital Stock of each such Foreign Subsidiary owned by such Pledgor.   4.3.2 [Reserved].   4.3.3 Such Pledgor is the record and beneficial owner of, and has good title to, the  Pledged Securities pledged by it hereunder, free of any and all Liens securing Indebtedness  owing to any other Person, except the security interest created by this Agreement and Permitted  Liens.   4.3.4 Upon the delivery to the Collateral Agent, the Term Loan Agent, the  applicable Collateral Representative or any Additional Agent, as applicable, in accordance with  the Intercreditor Agreement, of the certificates evidencing the Pledged Securities held by such  Pledgor together with executed undated stock powers or other instruments of transfer, the  security interest created in such Pledged Securities constituting certificated securities by this  Agreement, assuming the continuing possession of such Pledged Securities by the Collateral  Agent, the Term Loan Agent, the applicable Collateral Representative or any Additional Agent,  as applicable, in accordance with the Intercreditor Agreement, will constitute a valid, perfected  first priority (subject, in terms of priority only, to the priority of the Liens of the Term Loan  Agent, the applicable Collateral Representative and any Additional Agent) security interest in  such Pledged Securities to the extent provided in and governed by the Code, enforceable in  accordance with its terms against all creditors of such Pledgor and any Persons purporting to  purchase such Pledged Securities from such Pledgor to the extent provided in and governed by  the Code, in each case subject to Permitted Liens (and the Intercreditor Agreement), and except  as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency,  fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting  





 






LEGAL_US_E # 155827293.3      27    1006148456v9    creditors’ rights’ generally, general equitable principles (whether considered in a proceeding in  equity or at law) and an implied covenant of good faith and fair dealing.   4.3.5 Upon the earlier of (x) (to the extent a security interest in uncertificated  securities may be perfected by the filing of a financing statement) the filing of the financing  statements listed on Schedule 3 hereto and (y) the obtaining and maintenance of “control” (as  described in the Code) by the Collateral Agent, the Term Loan Agent, the applicable Collateral  Representative or any Additional Agent (or their respective agents appointed for purposes of  perfection), as applicable, in accordance with the Intercreditor Agreement, of all Pledged  Securities that constitute uncertificated securities, the security interest created by this Agreement  in such Pledged Securities that constitute uncertificated securities, will constitute a valid,  perfected first priority (subject, in terms of priority only, to the priority of the Liens of the Term  Loan Agent, the applicable Collateral Representative and any Additional Agent) security interest  in such Pledged Securities constituting uncertificated securities to the extent provided in and  governed by the Code, enforceable in accordance with its terms against all creditors of such  Pledgor and any persons purporting to purchase such Pledged Securities from such Pledgor, to  the extent provided in and governed by the Code, in each case subject to Permitted Liens (and  the Intercreditor Agreement), and except as to enforcement, as may be limited by applicable  domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium  and other similar laws relating to or affecting creditors’ rights’ generally, general equitable  principles (whether considered in a proceeding in equity or at law) and an implied covenant of  good faith and fair dealing.   SECTION 5. COVENANTS  5.1 Covenants of Each Guarantor. Each Guarantor covenants and agrees with  the Collateral Agent and the other Secured Parties that, from and after the date of this Agreement  until the earliest to occur of (i) the date upon which the Loans, any Reimbursement Obligations,  and all other Obligations then due and owing, shall have been paid in full in cash, no Letter of  Credit shall be outstanding (except for Letters of Credit that have been cash collateralized in a  manner satisfactory to the applicable Issuing Lenders) and the Commitments shall have  terminated, (ii) the sale or other disposition of all of the Capital Stock of such Guarantor (other  than to Holdings, the Parent Borrower or any Restricted Subsidiary), or, if such Guarantor is a  Subsidiary of the Parent Borrower, any other transaction or occurrence as a result of which such  Guarantor ceases to be a Restricted Subsidiary of the Parent Borrower, in each case that is  permitted under the Credit Agreement, (iii) such Guarantor becoming an Excluded Subsidiary,  such Guarantor shall take, or shall refrain from taking, as the case may be, each action that is  necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is  caused by the failure to take such action or to refrain from taking such action by such Guarantor  or any of its Restricted Subsidiaries or (iv) as to Holdings, Holdings is released from its  obligations hereunder pursuant to Subsection 9.16(h).   5.2 Covenants of Each Grantor. Each Grantor covenants and agrees with the  Collateral Agent and the other Secured Parties that, from and after the date of this Agreement  until the earliest to occur of (i) the date upon which the Loans, any Reimbursement Obligations,  and all other Obligations then due and owing shall have been paid in full in cash, no Letter of  





 






LEGAL_US_E # 155827293.3      28    1006148456v9    Credit shall be outstanding (except for Letters of Credit that have been cash collateralized in a  manner satisfactory to the applicable Issuing Lenders) and the Commitments shall have  terminated, (ii) a sale or other disposition of all of the Capital Stock of such Grantor (other than  to Holdings, the Parent Borrower or any Restricted Subsidiary), or, if such Grantor is a  Subsidiary of the Parent Borrower, any other transaction or occurrence as a result of which such  Grantor ceases to be a Restricted Subsidiary of the Parent Borrower, in each case that is  permitted under the Credit Agreement, (iii) such Grantor becoming an Excluded Subsidiary or  (iv) as to Holdings, Holdings is released from its obligations hereunder pursuant to Subsection  9.16(h).   5.2.1 Delivery of Instruments and Chattel Paper. If any amount payable under or  in connection with any of such Grantor’s Collateral shall be or become evidenced by any  Instrument or Chattel Paper, such Grantor shall (except as provided in the following sentence) be  entitled to retain possession of all Collateral of such Grantor evidenced by any Instrument or  Chattel Paper, and shall hold all such Collateral in trust for the Collateral Agent, for the benefit  of the Secured Parties. In the event that an Event of Default shall have occurred and be  continuing, upon the request of the Collateral Agent, the Term Loan Agent, the applicable  Collateral Representative or any Additional Agent, as applicable, in accordance with the  Intercreditor Agreement, such Instrument or Chattel Paper shall be promptly delivered to the  Collateral Agent, the Term Loan Agent, the applicable Collateral Representative or any  Additional Agent, as applicable, in accordance with the Intercreditor Agreement, duly indorsed  in a manner reasonably satisfactory to the Collateral Agent, the Term Loan Agent, the applicable  Collateral Representative or any Additional Agent, as applicable, in accordance with the  Intercreditor Agreement, to be held as Collateral pursuant to this Agreement. Such Grantor shall  not permit any other Person to possess any such Collateral at any time other than in connection  with any sale or other disposition of such Collateral in a transaction permitted by the Credit  Agreement or as contemplated by the Intercreditor Agreement.   5.2.2 [Reserved].  5.2.3 Payment of Obligations. Such Grantor will pay and discharge or otherwise  satisfy at or before maturity or before they become delinquent, as the case may be, all material  taxes, assessments and governmental charges or levies imposed upon such Grantor’s Collateral  or in respect of income or profits therefrom, as well as all material claims of any kind (including,  without limitation, material claims for labor, materials and supplies) against or with respect to  such Grantor’s Collateral, except that no such tax, assessment, charge, levy or claim need be paid  or satisfied if the amount or validity thereof is currently being contested in good faith by  appropriate proceedings and reserves in conformity with GAAP with respect thereto have been  provided on the books of such Grantor and except to the extent that the failure to do so, in the  aggregate, would not reasonably be expected to have a Material Adverse Effect.  5.2.4 Maintenance of Perfected Security Interest; Further Documentation.  (a) Such Grantor shall use commercially reasonable efforts to maintain the security interest  created by this Agreement in such Grantor’s Collateral as a perfected security interest as  described in Subsection 4.2.2 and to defend the security interest created by this Agreement in  





 






LEGAL_US_E # 155827293.3      29    1006148456v9    such Grantor’s Collateral against the claims and demands of all Persons whomsoever (subject to  the other provisions hereof).   (b) Such Grantor will furnish to the Collateral Agent from time to time  statements and schedules further identifying and describing such Grantor’s ABL Priority  Collateral and such other reports in connection with such Grantor’s ABL Priority Collateral, in  each case, as the Collateral Agent may reasonably request in writing, all in reasonable detail.   (c) At any time and from time to time, upon the written request of the  Collateral Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly  execute and deliver such further instruments and documents and take such further actions as the  Collateral Agent may reasonably request for the purpose of obtaining or preserving the full  benefits of this Agreement and of the rights and powers herein granted by such Grantor,  including, without limitation, the filing of any financing or continuation statements under the  Uniform Commercial Code (or other similar laws) in effect in any United States jurisdiction with  respect to the security interests created hereby; provided that the Parent Borrower or such  Grantor will not be required to (x) take any action in any jurisdiction other than the United States  of America, or required by the laws of any such jurisdiction, in order to create any security  interests (or other Liens) in assets located or titled outside of the United States of America or to  perfect any security interests (or other Liens) in any Collateral (other than with respect to a  Foreign Subsidiary which is a Subsidiary Guarantor as of the date hereof or becomes a  Subsidiary Guarantor pursuant to Subsection 7.9(b) of the Credit Agreement), (y)  deliver control  agreements with respect to, or confer perfection by “control” over, any deposit accounts, bank or  securities account or other Collateral, except (A) as required by Subsection 4.16 of the Credit  Agreement and (B) in the case of Collateral that constitutes Capital Stock or Pledged Notes in  certificated form, delivering such Capital Stock or Pledged Notes to the Collateral Agent (or  another Person as required under the Intercreditor Agreement) or (z) deliver landlord lien  waivers, estoppels or collateral access letters.  (d) The Collateral Agent may grant extensions of time for the creation  and perfection of security interests in, or the obtaining a delivery of documents or other  deliverables with respect to, particular assets of any Grantor where it determines that such action  cannot be accomplished without undue effort or expense by the time or times at which it would   otherwise be required to be accomplished by this Agreement or any other Security Documents.  5.2.5 Changes in Name, Jurisdiction of Organization, etc. Such Grantor will  give prompt written notice to the Collateral Agent, of any change in its name or jurisdiction of  organization (whether by merger of otherwise) (and in any event within 30 days of such change);  provided that, promptly thereafter such Grantor shall deliver to the Collateral Agent copies (or  other evidence of filing) of all additional filed financing statements and other documents  reasonably necessary to maintain the validity, perfection and priority of the security interests  created hereunder and other documents reasonably requested by the Collateral Agent to maintain  the validity, perfection and priority of the security interests as and to the extent provided for  herein.   





 






LEGAL_US_E # 155827293.3      30    1006148456v9    5.2.6 Notices. Such Grantor will advise the Administrative Agent promptly, in  reasonable detail, of:   (a) any Lien (other than security interests created hereby or Permitted  Liens) on any of such Grantor’s ABL Priority Collateral which would materially adversely affect  the ability of the Collateral Agent to exercise any of its remedies hereunder; and   (b) the occurrence of any other event which would reasonably be  expected to have a material adverse effect on the security interests in the ABL Priority Collateral  created hereby.   5.2.7 Pledged Stock. In the case of each Grantor that is an Issuer, such Issuer  agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Stock  issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will  notify the Collateral Agent promptly in writing of the occurrence of any of the events described  in Subsection 5.3.1 with respect to the Pledged Stock issued by it and (iii) the terms of  Subsections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions that may  be required of it pursuant to Subsection 6.3(c) or 6.7 with respect to the Pledged Stock issued by  it.   5.2.8 Accounts Receivable. (a) With respect to Accounts Receivable  constituting ABL Priority Collateral, other than in the ordinary course of business or as permitted  by the Loan Documents, such Grantor will not (i) grant any extension of the time of payment of  any of such Grantor’s Accounts Receivable, (ii) compromise or settle any such Account  Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person  liable for the payment of any Account Receivable, (iv) allow any credit or discount whatsoever  on any such Account Receivable or (v) amend, supplement or modify any Account Receivable  unless such extensions, compromises, settlements, releases, credits or discounts would not  reasonably be expected to materially adversely affect the value of the Accounts Receivable  constituting ABL Priority Collateral taken as a whole.   (b) Such Grantor will deliver to the Collateral Agent a copy of each  material demand, notice or document received by it from any obligor under the Accounts  Receivable constituting ABL Priority Collateral that disputes the validity or enforceability of  more than 5% of the aggregate amount of the then outstanding Accounts Receivable.   5.2.9 Maintenance of Records. (a) Such Grantor will keep and maintain at its  own cost and expense reasonably satisfactory and complete records of its Collateral, including,  without limitation, a record of all payments received and all credits granted with respect to such  Collateral; provided that with respect to the Term Loan Priority Collateral, the satisfactory  maintenance of such records shall be determined in good faith by such Grantor or the Parent  Borrower.  (b) In the case of ABL Priority Collateral, such Grantor shall mark the  records referred to in the preceding clause (a) to evidence this Agreement and the Liens and the  security interests created hereby.  





 






LEGAL_US_E # 155827293.3      31    1006148456v9    5.2.10 Acquisition of Intellectual Property. Concurrently with the delivery of the  annual Compliance Certificate pursuant to Subsection 7.2(b) of the Credit Agreement, such  Grantor will notify the Collateral Agent of any acquisition by such Grantor of (i) any registration  of any material United States Copyright, Patent or Trademark or (ii) any exclusive rights under a  material United States Copyright License, Patent License or Trademark License constituting  Collateral, and shall take such actions as may be reasonably necessary (but only to the extent  such actions are within such Grantor’s control) to perfect the security interest granted to the  Collateral Agent and the other Secured Parties therein, to the extent provided herein in respect of  any United States Copyright, Patent or Trademark constituting Collateral on the date hereof, by  (x) the execution and delivery of an amendment or supplement to this Agreement (or  amendments to any such agreement previously executed or delivered by such Grantor) and/or (y)  the making of appropriate filings (I) of financing statements under the Uniform Commercial  Code of any applicable jurisdiction and/or (II) in the United States Patent and Trademark Office,  or with respect to Copyrights and Copyright Licenses, another applicable United States office).   5.2.11 [Reserved].  5.2.12 Commercial Tort Actions. All Commercial Tort Actions of each Grantor  in existence on the date of this Agreement in an amount of $7,500,000 or greater, known to such  Grantor on the date hereof, are described in Schedule 7 hereto. If any Grantor shall at any time  after the date of this Agreement acquire a Commercial Tort Action in an amount of $7,500,000,  such Grantor shall promptly notify the Collateral Agent thereof in a writing signed by such  Grantor and describing the details thereof and shall grant to the Collateral Agent in such writing  a security interest therein and in the proceeds thereof, all upon the terms of this Agreement.   5.2.13 Deposit Accounts; Etc. Such Grantor shall take, or refrain from taking, as  the case may be, each action that is necessary to be taken or not taken, as the case may be, so that  no breach of Subsection 4.16 of the Credit Agreement is caused by the failure to take such action  or to refrain from taking such action by such Grantor or any of its Subsidiaries.  5.2.14 Protection of Trademarks. Such Grantor shall, with respect to any  Trademarks that are material to the business of such Grantor, use commercially reasonable  efforts not to cease the use of any of such Trademarks or fail to maintain the level of the quality  of products sold and services rendered under any of such Trademarks at a level at least  substantially consistent with the quality of such products and services as of the date hereof, and  shall use commercially reasonable efforts to take all steps reasonably necessary to ensure that  licensees of such Trademarks use such consistent standards of quality, except as would not  reasonably be expected to have a Material Adverse Effect.  5.2.15 Protection of Intellectual Property. Subject to and except as permitted by  the Term Loan Agreement as in effect on the date hereof, such Grantor shall use commercially  reasonable efforts not to do any act or omit to do any act whereby any of the Intellectual Property  that is material to the business of Grantor may lapse, expire, or become abandoned, or  unenforceable, except as would not reasonably be expected to have a Material Adverse Effect.   





 






LEGAL_US_E # 155827293.3      32    1006148456v9    5.2.16 Assignment of Letter-of-Credit Rights. In the case of any Letter-of-Credit  Rights of any Grantor in any letter of credit exceeding $7,500,000 in value acquired following  the Closing Date, such Grantor shall use its commercially reasonable efforts to promptly obtain  the consent of the issuer thereof and any nominated person thereon to the assignment of the  proceeds of the related letter of credit in accordance with Section 5-114(c) of the UCC.   5.3 Covenants of Each Pledgor. Each Pledgor covenants and agrees with the  Collateral Agent and the other Secured Parties that, from and after the date of this Agreement  until the earlier to occur of (i) the Loans, any Reimbursement Obligations, and all other  Obligations then due and owing shall have been paid in full in cash, no Letter of Credit shall be  outstanding (except for Letters of Credit that have been cash collateralized in a manner  satisfactory to the applicable Issuing Lenders) and the Commitments shall have terminated, (ii)  the sale or other disposition of all of the Capital Stock of such Pledgor (other than to Holdings,  the Parent Borrower or any Restricted Subsidiary), or, if such Pledgor is a Subsidiary of the  Parent Borrower, any other transaction or occurrence as a result of which such Pledgor ceases to  be a Restricted Subsidiary of the Parent Borrower, in each case that is permitted under the Credit  Agreement, (iii) such Pledgor becoming an Excluded Subsidiary or (iv) as to Holdings, Holdings  is released from its obligations hereunder pursuant to Subsection 9.16(h).  5.3.1 Additional Shares. If such Pledgor shall, as a result of its ownership of its  Pledged Stock, become entitled to receive or shall receive any stock certificate (including,  without limitation, any stock certificate representing a stock dividend or a distribution in  connection with any reclassification, increase or reduction of capital or any certificate issued in  connection with any reorganization), stock option or similar rights in respect of the Capital Stock  of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for,  any shares of the Pledged Stock, or otherwise in respect thereof, such Pledgor shall accept the  same as the agent of the Collateral Agent and the other Secured Parties, hold the same in trust for  the Collateral Agent and the other Secured Parties and deliver the same forthwith to the  Collateral Agent (who will hold the same on behalf of the Secured Parties), or the Term Loan  Agent, any applicable Collateral Representative or any Additional Agent, as applicable, in  accordance with the Intercreditor Agreement, in the exact form received, duly indorsed by such  Pledgor to the Collateral Agent, or the Term Loan Agent, any applicable Collateral  Representative or any Additional Agent, as applicable, in accordance with the Intercreditor  Agreement, if required, together with an undated stock power covering such certificate duly  executed in blank by such Grantor, to be held by the Collateral Agent, or the Term Loan Agent,  any applicable Collateral Representative  or any Additional Agent, as applicable, in accordance  with the Intercreditor Agreement, subject to the terms hereof, as additional collateral security for  the Obligations (subject to Subsection 3.3 and provided that in no event shall there be pledged,  nor shall any Pledgor be required to pledge, more than 65% of any series of the outstanding  Capital Stock of any Foreign Subsidiary (other than a Foreign Subsidiary that is or becomes a  Loan Party) pursuant to this Agreement). If an Event of Default shall have occurred and be  continuing, any sums paid upon or in respect of the Pledged Stock upon the liquidation or  dissolution of any Issuer (except any liquidation or dissolution of any Subsidiary of the Parent  Borrower in accordance with the Credit Agreement) shall be paid over to the Collateral Agent, or  the Term Loan Agent, any applicable Collateral Representative or any Additional Agent, as  applicable, in accordance with the Intercreditor Agreement to be held by the Collateral Agent, or  





 






LEGAL_US_E # 155827293.3      33    1006148456v9    the Term Loan Agent, any applicable Collateral Representative or any Additional Agent, as  applicable, in accordance with the Intercreditor Agreement subject to the terms hereof as  additional collateral security for the Obligations, and in case any distribution of capital shall be  made on or in respect of the Pledged Stock or any property shall be distributed upon or with  respect to the Pledged Stock pursuant to the recapitalization or reclassification of the capital of  any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless  otherwise subject to a perfected security interest in favor of the Collateral Agent, be delivered to  the Collateral Agent, or the Term Loan Agent, the applicable Collateral Representative or any  Additional Agent, as applicable, in accordance with the Intercreditor Agreement, to be held by  the Collateral Agent, or the Term Loan Agent, the applicable Collateral Representative or any  Additional Agent, as applicable, in accordance with the Intercreditor Agreement subject to the  terms hereof as additional collateral security for the Obligations, in each case except as otherwise  provided by the Intercreditor Agreement. If any sums of money or property so paid or distributed  in respect of the Pledged Stock shall be received by such Pledgor, such Pledgor shall, until such  money or property is paid or delivered to the Collateral Agent, the Term Loan Agent, the  applicable Collateral Representative or any Additional Agent, as applicable, in accordance with  the Intercreditor Agreement hold such money or property in trust for the Secured Parties,  segregated from other funds of such Pledgor, as additional collateral security for the Obligations.   5.3.2 [Reserved].  5.3.3 Pledged Notes. Such Pledgor shall, on the date of this Agreement (or on  such later date upon which it becomes a party hereto pursuant to Subsection 9.15), deliver to the  Collateral Agent, or the Term Loan Agent, the applicable Collateral Representative or any  Additional Agent, as applicable, in accordance with the Intercreditor Agreement, all Pledged  Notes then held by such Pledgor (excluding any Pledged Note the principal amount of which  does not exceed $7,500,000), endorsed in blank or, at the request of the Collateral Agent,  endorsed to the Collateral Agent. Furthermore, within ten Business Days (or such longer period  as may be agreed by the Collateral Agent in its sole discretion) after any Pledgor obtains a  Pledged Note with a principal amount in excess of $7,500,000, such Pledgor shall cause such  Pledged Note to be delivered to the Collateral Agent, the Term Loan Agent, the applicable  Collateral Representative or any Additional Agent, as applicable, in accordance with the  Intercreditor Agreement, endorsed in blank or, at the request of the Collateral Agent, or the Term  Loan Agent, the applicable Collateral Representative or any Additional Agent, as applicable, in  accordance with the Intercreditor Agreement, endorsed to the Collateral Agent, or the Term Loan  Agent, or the applicable Collateral Representative or any Additional Agent, as applicable, in  accordance with the Intercreditor Agreement.   5.3.4 Maintenance of Security Interest. Such Pledgor shall use commercially  reasonable efforts to defend the security interest created by this Agreement in such Pledgor’s  Pledged Collateral against the claims and demands of all Persons whomsoever. At any time and  from time to time, upon the written request of the Collateral Agent and at the sole expense of  such Pledgor, such Pledgor will promptly and duly execute and deliver such further instruments  and documents and take such further actions as the Collateral Agent may reasonably request for  the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and  powers herein granted by such Pledgor provided further that the Parent Borrower or such Pledgor  





 






LEGAL_US_E # 155827293.3      34    1006148456v9    will not be required to (x) take any action in any jurisdiction other than the United States of  America, or required by the laws of any such jurisdiction, in order to create any security interests  (or other Liens) in assets located or titled outside of the United States of America or to perfect  any security interests (or other Liens) in any Collateral (other than with respect to a Foreign  Subsidiary which is a Subsidiary Guarantor as of the date hereof or becomes a Subsidiary  Guarantor pursuant to Subsection 7.9(b) of the Credit Agreement), (y) deliver control agreements  with respect to, or confer perfection by “control” over, any deposit accounts, bank or securities  account or other Collateral, except (A) as required by Subsection 4.16 of the Credit Agreement  and (B) in the case of Collateral that constitutes Capital Stock or intercompany notes in  certificated form, delivering such Capital Stock or intercompany notes (in the case of  intercompany notes, limited to any such note with a principal amount in excess of $7,500,000) to  the Collateral Agent (or another Person as required under the Intercreditor Agreement) or (z)  deliver landlord lien waivers, estoppels or collateral access letters.   SECTION 6. REMEDIAL PROVISIONS  6.1 Certain Matters Relating to Accounts. (a) At any time and from time to  time after the occurrence and during the continuance of an Event of Default, the Collateral Agent  shall have the right to make test verifications of the Accounts Receivable constituting Collateral  in any reasonable manner and through any reasonable medium that it reasonably considers  advisable, and the relevant Grantor shall furnish all such assistance and information as the  Collateral Agent may reasonably require in connection with such test verifications. At any time  and from time to time after the occurrence and during the continuance of an Event of Default,  upon the Collateral Agent’s reasonable request and at the expense of the relevant Grantor, such  Grantor shall cause independent public accountants or others reasonably satisfactory to the  Collateral Agent to furnish to the Collateral Agent reports showing reconciliations, aging and test  verifications of, and trial balances for, the Accounts Receivable constituting Collateral.  (b) The Collateral Agent hereby authorizes each Grantor to collect such  Grantor’s Accounts Receivable constituting Collateral and the Collateral Agent may curtail or  terminate said authority at any time, without limiting the Collateral Agent’s rights under  Subsection 4.16 of the Credit Agreement, after the occurrence and during the continuance of an  Event of Default. If required by the Collateral Agent at any time, without limiting the Collateral  Agent’s rights under Subsection 4.16 of the Credit Agreement, after the occurrence and during  the continuance of an Event of Default, any Proceeds constituting payments or other cash  proceeds of Accounts Receivables constituting Collateral, when collected by such Grantor, (i)  shall be forthwith (and, in any event, within two (2) Business Days of receipt by such Grantor)  deposited in, or otherwise transferred by such Grantor to, the Collateral Proceeds Account,  subject to withdrawal by the Collateral Agent for the account of the Secured Parties only as  provided in Subsection 6.5, and (ii) until so turned over, shall be held by such Grantor in trust for  the Collateral Agent and the other Secured Parties, segregated from other funds of such Grantor.  All Proceeds constituting collections or other cash proceeds of Accounts Receivable constituting  Collateral while held by the Collateral Account Bank (or by any Grantor in trust for the benefit  of the Collateral Agent and the other Secured Parties) shall continue to be collateral security for  all of the Obligations and shall not constitute payment thereof until applied as hereinafter  provided. At any time when an Event of Default has occurred and is continuing, at the Collateral  





 






LEGAL_US_E # 155827293.3      35    1006148456v9    Agent’s election, each of the Collateral Agent and the Administrative Agent may apply all or any  part of the funds on deposit in the Collateral Proceeds Account established by the relevant  Grantor to the payment of the Obligations of such Grantor then due and owing, such application  to be made as set forth in Subsection 6.5 hereof. So long as no Event of Default has occurred and  is continuing, the funds on deposit in the Collateral Proceeds Account shall be remitted as  provided in Subsection 6.1(d) hereof.  (c) At any time and from time to time after the occurrence and during  the continuance of an Event of Default, at the Collateral Agent’s request, each Grantor shall  deliver to the Collateral Agent copies or, if required by the Collateral Agent for the enforcement  thereof or foreclosure thereon, originals of all documents held by such Grantor evidencing, and  relating to, the agreements and transactions which gave rise to such Grantor’s Accounts  Receivable constituting Collateral, including, without limitation, all statements relating to such  Grantor’s Accounts Receivable constituting Collateral and all orders, invoices and shipping  receipts.   (d) So long as no Event of Default has occurred and is continuing, the  Collateral Agent shall instruct the Collateral Account Bank to promptly remit any funds on  deposit in each Grantor’s Collateral Proceeds Account to a Blocked Account of such Grantor,  maintained in compliance with the provisions of Subsection 4.16 of the Credit Agreement. In the  event that an Event of Default has occurred and is continuing, the Collateral Agent and the  Grantors agree that the Collateral Agent, at its option, may require that each Collateral Proceeds  Account of each Grantor be established at the Collateral Agent. Subject to Subsection 4.16 of the  Credit Agreement, each Grantor shall have the right, at any time and from time to time, to  withdraw such of its own funds from its own Blocked Accounts, and to maintain such balances  in its Blocked Accounts, as it shall deem to be necessary or desirable.  6.2 Communications with Obligors; Grantors Remain Liable (a) The  Collateral Agent in its own name or in the name of others, may at any time and from time to time  after the occurrence and during the continuance of an Event of Default, communicate with  obligors under the Accounts Receivable constituting Collateral and parties to the Contracts (in  each case, to the extent constituting Collateral) to verify with them to the Collateral Agent’s  satisfaction the existence, amount and terms of any Accounts Receivable or Contracts.   (b) Upon the request of the Collateral Agent at any time after the  occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors  on such Grantor’s Accounts Receivable and parties to such Grantor’s Contracts (in each case, to  the extent constituting Collateral) that such Accounts Receivable and such Contracts have been  assigned to the Collateral Agent, for the benefit of the Secured Parties, and that payments in  respect thereof shall be made directly to the Collateral Agent.   (c) Anything herein to the contrary notwithstanding, each Grantor shall  remain liable under each of such Grantor’s Accounts Receivable to observe and perform all the  conditions and obligations to be observed and performed by it thereunder, all in accordance with  the terms of any agreement giving rise thereto. None of the Collateral Agent, the Administrative  Agent or any other Secured Party shall have any obligation or liability under any Account  





 






LEGAL_US_E # 155827293.3      36    1006148456v9    Receivable (or any agreement giving rise thereto) by reason of or arising out of this Agreement  or the receipt by the Collateral Agent or any other Secured Party of any payment relating thereto,  nor shall the Collateral Agent or any other Secured Party be obligated in any manner to perform  any of the obligations of any Grantor under or pursuant to any Account Receivable (or any  agreement giving rise thereto) to make any payment, to make any inquiry as to the nature or the  sufficiency of any payment received by it or as to the sufficiency of any performance by any  party thereunder, to present or file any claim, to take any action to enforce any performance or to  collect the payment of any amounts that may have been assigned to it or to which it may be  entitled at any time or times.   6.3 Pledged Stock (a) Unless an Event of Default shall have occurred and be  continuing and the Collateral Agent shall have given notice to the relevant Pledgor of the  Collateral Agent’s intent to exercise its corresponding rights pursuant to Subsection 6.3(b), each  Pledgor shall be permitted to receive all cash dividends and distributions paid in respect of the  Pledged Stock and all payments made in respect of the Pledged Notes, and to exercise all voting  and corporate rights with respect to the Pledged Stock.  (b) If an Event of Default shall occur and be continuing and the  Collateral Agent shall give written notice of its intent to exercise such rights to the relevant  Pledgor or Pledgors (which notice may be delivered substantially concurrently with any such  exercise), (i) the Collateral Agent, or the Term Loan Agent, the applicable Collateral  Representative or any Additional Agent, as applicable, in accordance with the terms of the  Intercreditor Agreement, shall have the right to receive any and all cash dividends, payments or  other Proceeds paid in respect of the Pledged Stock and make application thereof to the  Obligations of the relevant Pledgor as provided in the Credit Agreement consistent with  Subsection 6.5, and (ii) any or all of the Pledged Stock shall be registered in the name of the  Collateral Agent, the Term Loan Agent, the applicable Collateral Representative or any  Additional Agent or the respective nominee thereof, and the Collateral Agent, the Term Loan  Agent, the applicable Collateral Representative or any Additional Agent, as applicable or acting  through its respective nominee, if applicable, in accordance with the terms of the Intercreditor  Agreement, may thereafter exercise (x) all voting, corporate and other rights pertaining to such  Pledged Stock at any meeting of shareholders of the relevant Issuer or Issuers or otherwise  (including, for the avoidance of doubt, by written consent in lieu of a meeting) and (y) any and  all rights of conversion, exchange, subscription and any other rights, privileges or options  pertaining to such Pledged Stock as if it were the absolute owner thereof (including, without  limitation, the right to exchange at its discretion any and all of the Pledged Stock upon the  merger, consolidation, reorganization, recapitalization or other fundamental change in the  corporate structure of any Issuer, or upon the exercise by the relevant Pledgor or the Collateral  Agent, or the Term Loan Agent, the applicable Collateral Representative or any Additional  Agent, as applicable, in accordance with the terms of the Intercreditor Agreement, of any right,  privilege or option pertaining to such Pledged Stock, and in connection therewith, the right to  deposit and deliver any and all of the Pledged Stock with any committee, depositary, transfer  agent, registrar or other designated agency upon such terms and conditions as the Collateral  Agent, the Term Loan Agent, the applicable Collateral Representative or any Additional Agent,  as applicable, in accordance with the terms of the Intercreditor Agreement, may reasonably  determine), all without liability to the maximum extent permitted by applicable law (other than  





 






LEGAL_US_E # 155827293.3      37    1006148456v9    for its gross negligence or willful misconduct) except to account for property actually received  by it, but the Collateral Agent, or the Term Loan Agent, the applicable Collateral Representative  or any Additional Agent, as applicable, in accordance with the terms of the Intercreditor  Agreement, shall have no duty, to any Pledgor to exercise any such right, privilege or option and  shall not be responsible for any failure to do so or delay in so doing, provided that the Collateral  Agent, or the Term Loan Agent, the applicable Collateral Representative or any Additional  Agent, as applicable, in accordance with the terms of the Intercreditor Agreement, shall not  exercise any voting or other consensual rights pertaining to the Pledged Stock in any way that  would constitute an exercise of the remedies described in Subsection 6.6 other than in  accordance with Subsection 6.6.   (c) Each Pledgor hereby authorizes and instructs each Issuer or maker of  any Pledged Securities pledged by such Pledgor hereunder to (i) comply with any instruction  received by it from the Collateral Agent in writing with respect to Capital Stock in such Issuer  that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in  accordance with the terms of this Agreement, without any other or further instructions from such  Pledgor, and each Pledgor agrees that each Issuer or maker shall be fully protected in so  complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other  payments with respect to the Pledged Securities directly to the Collateral Agent.   6.4 Proceeds to be Turned Over to the Collateral Agent. In addition to the  rights of the Collateral Agent specified in Subsection 6.1 with respect to payments of Accounts  Receivable constituting Collateral, if an Event of Default shall occur and be continuing, and the  Collateral Agent shall have instructed any Grantor to do so, all Proceeds of Collateral received  by such Grantor consisting of cash, checks and other Cash Equivalent items shall be held by such  Grantor in trust for the Collateral Agent and the other Secured Parties hereto, or the Term Loan  Agent and the other Secured Parties (as defined in the Term Loan Collateral Agreement) or any  Additional Agent and the other applicable Additional Secured Parties (as defined in the  Intercreditor Agreement), or the applicable Collateral Representative, as applicable, in  accordance with the terms of the Intercreditor Agreement, segregated from other funds of such  Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent,  or the Term Loan Agent, the applicable Collateral Representative or any Additional Agent, as  applicable, in accordance with the terms of the Intercreditor Agreement (or their respective  agents appointed for purposes of perfection), in the exact form received by such Grantor (duly  indorsed by such Grantor to the Collateral Agent, the Term Loan Agent, the applicable Collateral  Representative or any Additional Agent, as applicable, in accordance with the terms of the  Intercreditor Agreement, if required). All Proceeds of Collateral received by the Collateral Agent  hereunder shall be held by the Collateral Agent in the relevant Collateral Proceeds Account  maintained under its sole dominion and control. All Proceeds of Collateral while held by the  Collateral Agent in such Collateral Proceeds Account (or by the relevant Grantor in trust for the  Collateral Agent and the other Secured Parties) shall continue to be held as collateral security for  all the Obligations of such Grantor and shall not constitute payment thereof until applied as  provided in Subsection 6.5.   6.5 Application of Proceeds. It is agreed that if an Event of Default shall occur  and be continuing, any and all Proceeds of the relevant Granting Party’s Collateral (as defined in  





 






LEGAL_US_E # 155827293.3      38    1006148456v9    the Credit Agreement) received by the Collateral Agent (whether from the relevant Granting  Party or otherwise) shall be held by the Collateral Agent for the benefit of the Secured Parties as  collateral security for the Obligations of the relevant Granting Party (whether matured or  unmatured), and/or then or at any time thereafter may, in the sole discretion of the Collateral  Agent, subject to the Intercreditor Agreement, shall be applied by the Collateral Agent against  the Obligations of the relevant Granting Party then due and owing in the order of priority set  forth in the Credit Agreement.  6.6 Code and Other Remedies. If an Event of Default shall occur and be  continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all  other rights and remedies granted to them in this Agreement and in any other instrument or  agreement securing, evidencing or relating to the Obligations to the extent permitted by  applicable law, all rights and remedies of a secured party under the Code and under any other  applicable law and in equity. Without limiting the generality of the foregoing, to the extent  permitted by applicable law, the Collateral Agent, without demand of performance or other  demand, presentment, protest, advertisement or notice of any kind (except any notice required by  law referred to below) to or upon any Granting Party or any other Person (all and each of which  demands, defenses, advertisements and notices are hereby waived), may in such circumstances,  forthwith collect, receive, appropriate and realize upon the Security Collateral, or any part  thereof, and/or may forthwith, subject to any existing reserved rights or licenses, sell, lease,  assign, give option or options to purchase, or otherwise dispose of and deliver the Security  Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at  public or private sale or sales, at any exchange, broker’s board or office of the Collateral Agent  or any other Secured Party or elsewhere upon such terms and conditions as it may deem  advisable and at such prices as it may deem best, for cash or on credit or for future delivery  without assumption of any credit risk. To the extent permitted by law, the Collateral Agent or  any other Secured Party shall have the right, upon any such sale or sales, to purchase the whole  or any part of the Security Collateral so sold, free of any right or equity of redemption in such  Granting Party, which right or equity is hereby waived and released. Each Granting Party further  agrees, at the Collateral Agent’s request (subject to the Intercreditor Agreement), to assemble the  Security Collateral and make it available to the Collateral Agent at places which the Collateral  Agent shall reasonably select, whether at such Granting Party’s premises or elsewhere. The  Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Subsection  6.6, after deducting all reasonable costs and expenses of every kind incurred in connection  therewith or incidental to the care or safekeeping of any of the Security Collateral or in any way  relating to the Security Collateral or the rights of the Collateral Agent and the other Secured  Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to  the payment in whole or in part of the Obligations of the relevant Granting Party then due and  owing, in the order of priority specified in Subsection 6.5 above, and only after such application  and after the payment by the Collateral Agent of any other amount required by any provision of  law, including, without limitation, Section 9-615(a)(3) of the Code, need the Collateral Agent  account for the surplus, if any, to such Granting Party. To the extent permitted by applicable law,  (i) such Granting Party waives all claims, damages and demands it may acquire against the  Collateral Agent or any other Secured Party arising out of the repossession, retention or sale of  the Security Collateral, other than any such claims, damages and demands that may arise from  





 






LEGAL_US_E # 155827293.3      39    1006148456v9    the gross negligence or willful misconduct of any of the Collateral Agent or such other Secured  Party (as determined by a court of competent jurisdiction in a final and non-appealable decision),  and (ii) if any notice of a proposed sale or other disposition of Security Collateral shall be  required by law, such notice shall be deemed reasonable and proper if given at least 10 days  before such sale or other disposition.  6.7 Registration Rights (a) If the Collateral Agent shall determine to exercise  its right to sell any or all of the Pledged Stock pursuant to Subsection 6.6, and if in the  reasonable opinion of the Collateral Agent it is necessary or reasonably advisable to have the  Pledged Stock, or that portion thereof to be sold, registered under the provisions of the Securities  Act, the relevant Pledgor will use its reasonable best efforts to cause the Issuer thereof to (i)  execute and deliver, and use its reasonable best efforts to cause the directors and officers of such  Issuer to execute and deliver, all such instruments and documents, and do or cause to be done all  such other acts as may be, in the reasonable opinion of the Collateral Agent, necessary or  advisable to register such Pledged Stock, or that portion thereof to be sold, under the provisions  of the Securities Act, (ii) use its reasonable best efforts to cause the registration statement  relating thereto to become effective and to remain effective for a period of not more than one  year from the date of the first public offering of such Pledged Stock, or that portion thereof to be  sold, and (iii) make all amendments thereto and/or to the related prospectus which, in the  reasonable opinion of the Collateral Agent, are necessary or advisable, all in conformity with the  requirements of the Securities Act and the rules and regulations of the Securities and Exchange  Commission applicable thereto. Such Pledgor agrees to use its reasonable best efforts to cause  such Issuer to comply with the provisions of the securities or “Blue Sky” laws of any and all  states and the District of Columbia that the Collateral Agent shall reasonably designate and to  make available to its security holders, as soon as practicable, an earnings statement (which need  not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act.   (b) Such Pledgor recognizes that the Collateral Agent may be unable to  effect a public sale of any or all such Pledged Stock, by reason of certain prohibitions contained  in the Securities Act and applicable state securities laws or otherwise, and may be compelled to  resort to one or more private sales thereof to a restricted group of purchasers which will be  obliged to agree, among other things, to acquire such securities for their own account for  investment and not with a view to the distribution or resale thereof. Such Pledgor acknowledges  and agrees that any such private sale may result in prices and other terms less favorable than if  such sale were a public sale and, notwithstanding such circumstances, to the extent permitted by  applicable law, agrees that any such private sale shall be deemed to have been made in a  commercially reasonable manner. The Collateral Agent shall not be under any obligation to  delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer  thereof to register such securities for public sale under the Securities Act, or under applicable  state securities laws, even if such Issuer would agree to do so.   (c) Such Pledgor agrees to use its reasonable best efforts to do or cause  to be done all such other acts as may be necessary to make such sale or sales of all or any portion  of such Pledged Stock pursuant to this Subsection 6.7 valid and binding and in compliance with  any and all other applicable Requirements of Law. Such Pledgor further agrees that a breach of  any of the covenants contained in this Subsection 6.7 will cause irreparable injury to the  





 






LEGAL_US_E # 155827293.3      40    1006148456v9    Collateral Agent and the Lenders, that the Collateral Agent and the Lenders have no adequate  remedy at law in respect of such breach and, as a consequence, that each and every covenant  contained in this Subsection 6.7 shall be specifically enforceable against such Pledgor, and to the  extent permitted by applicable law, such Pledgor hereby waives and agrees not to assert any  defenses against an action for specific performance of such covenants except for a defense that  no Event of Default has occurred or is continuing under the Credit Agreement.   6.8 Waiver; Deficiency. Each Granting Party shall remain liable for any  deficiency if the proceeds of any sale or other disposition of the Security Collateral are  insufficient to pay in full, the Loans, Reimbursement Obligations constituting Obligations of  such Granting Party and, to the extent then due and owing, all other Obligations of such Granting  Party and the reasonable fees and disbursements of any attorneys employed by the Collateral  Agent or any other Secured Party to collect such deficiency.  6.9 License. Each Granting Party hereby grants to the Collateral Agent a  royalty-free license and right to use the Intellectual Property, including but not limited to, any  labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights,  and advertising matter, whether owned by such Granting Party or with respect to which such  Granting Party has rights under license, sublicense, or other agreements (including any  Intellectual Property license), but only to the extent (i) such license, sublicense or agreement  does not prohibit such license to or use by the Collateral Agent, and (ii) such Grantor will not be  in default under such license, sublicense, or other agreement as a result of such license to or use  by the Collateral Agent, solely for the purposes of preparing for sale, advertising for sale and  selling or otherwise disposing of any Collateral after the occurrence of an Event of Default that is  continuing, and each Granting Party’s rights under all licenses and all franchise agreements shall  inure to the benefit of Collateral Agent.  SECTION 7. THE COLLATERAL AGENT  7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. (a) Each  Granting Party hereby irrevocably constitutes and appoints the Collateral Agent and any  authorized officer or agent thereof, with full power of substitution, as its true and lawful  attorney-in-fact with full irrevocable power and authority in the place and stead of such Granting  Party and in the name of such Granting Party or in its own name, for the purpose of carrying out  the terms of this Agreement, to take any and all appropriate action and to execute any and all  documents and instruments that may be reasonably necessary or desirable to accomplish the  purposes of this Agreement to the extent permitted by applicable law, provided that the  Collateral Agent agrees not to exercise such power except upon the occurrence and during the  continuance of any Event of Default, and in accordance with and subject to the Intercreditor  Agreement. Without limiting the generality of the foregoing, at any time when an Event of  Default has occurred and is continuing (in each case to the extent permitted by applicable law  and subject to the Intercreditor Agreement), (x) each Pledgor hereby gives the Collateral Agent  the power and right, on behalf of such Pledgor, without notice or assent by such Pledgor, to  execute, in connection with any sale provided for in Subsection 6.6(a) or 6.7, any indorsements,  assessments or other instruments of conveyance or transfer with respect to such Pledgor’s  Pledged Collateral, and (y) each Grantor hereby gives the Collateral Agent the power and right,  





 






LEGAL_US_E # 155827293.3      41    1006148456v9    on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the  following:   (i) in the name of such Grantor or its own name, or  otherwise, take possession of and indorse and collect any checks, drafts, notes,  acceptances or other instruments for the payment of moneys due under any  Account Receivable of such Grantor that constitutes Collateral or with respect to  any other Collateral of such Grantor and file any claim or take any other action or  institute any proceeding in any court of law or equity or otherwise deemed  appropriate by the Collateral Agent for the purpose of collecting any and all such  moneys due under any Account Receivable of such Grantor that constitutes  Collateral or with respect to any other Collateral of such Grantor whenever  payable;   (ii) in the case of any Copyright, Patent, or  Trademark constituting Collateral of such Grantor, execute and deliver any and all  agreements, instruments, documents and papers as the Collateral Agent may  reasonably request to such Grantor to evidence the Collateral Agent’s and the  Lenders’ security interest in such Copyright, Patent, or Trademark and the  goodwill and general intangibles of such Grantor relating thereto or represented  thereby, and such Grantor hereby consents to the non-exclusive royalty free use  by the Collateral Agent of any Copyright, Patent or Trademark owned by such  Grantor included in the Collateral for the purposes of disposing of any ABL  Priority Collateral;   (iii) pay or discharge taxes and Liens, other than  Liens permitted under this Agreement or the other Loan Documents, levied or  placed on the Collateral of such Grantor, effect any repairs or any insurance called  for by the terms of this Agreement and pay all or any part of the premiums  therefor and the costs thereof; and   (iv) (A) direct any party liable for any payment  under any of the Collateral of such Grantor to make payment of any and all  moneys due or to become due thereunder directly to the Collateral Agent or as the  Collateral Agent shall direct; (B) ask or demand for, collect, receive payment of  and receipt for, any and all moneys, claims and other amounts due or to become  due at any time in respect of or arising out of any Collateral of such Grantor; (C)  sign and indorse any invoices, freight or express bills, bills of lading, storage or  warehouse receipts, drafts against debtors, assignments, verifications, notices and  other documents in connection with any of the Collateral of such Grantor; (D)  commence and prosecute any suits, actions or proceedings at law or in equity in  any court of competent jurisdiction to collect the Collateral of such Grantor or any  portion thereof and to enforce any other right in respect of any Collateral of such  Grantor; (E) defend any suit, action or proceeding brought against such Grantor  with respect to any Collateral of such Grantor; (F) settle, compromise or adjust  any such suit, action or proceeding described in clause (E) above and, in  





 






LEGAL_US_E # 155827293.3      42    1006148456v9    connection therewith, to give such discharges or releases as the Collateral Agent  may deem appropriate; (G) subject to any existing reserved rights or licenses,  assign any Copyright, Patent or Trademark constituting Collateral of such Grantor  (along with the goodwill of the business to which any such Copyright, Patent or  Trademark pertains), for such term or terms, on such conditions, and in such  manner, as the Collateral Agent shall in its sole discretion determine; and (H)  generally, sell, transfer, pledge and make any agreement with respect to or  otherwise deal with any of the Collateral of such Grantor as fully and completely  as though the Collateral Agent were the absolute owner thereof for all purposes,  and do, at the Collateral Agent’s option and such Grantor’s expense, at any time,  or from time to time, all acts and things which the Collateral Agent deems  necessary to protect, preserve or realize upon the Collateral of such Grantor and  the Collateral Agent’s and the other Secured Parties’ security interests therein and  to effect the intent of this Agreement, all as fully and effectively as such Grantor  might do.   (c) The reasonable expenses of the Collateral Agent incurred in  connection with actions undertaken as provided in this Subsection 7.1, together with interest  thereon at a rate per annum equal to the rate per annum at which interest would then be payable  on past due ABR Loans that are Revolving Credit Loans under the Credit Agreement, from the  date of payment by the Collateral Agent to the date reimbursed by the relevant Granting Party,  shall be payable by such Granting Party to the Collateral Agent on demand.   (d) Each Granting Party hereby ratifies all that said attorney shall  lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies  contained in this Agreement are coupled with an interest and are irrevocable as to the relevant  Granting Party until this Agreement is terminated as to such Granting Party, and the security  interests in the Security Collateral of such Granting Party created hereby are released.   7.2 Duty of Collateral Agent. The Collateral Agent’s sole duty with respect to  the custody, safekeeping and physical preservation of the Security Collateral in its possession,  under Section 9-207 of the Code or otherwise, shall be to deal with it in the same manner as the  Collateral Agent deals with similar property for its own account. None of the Collateral Agent or  any other Secured Party nor any of their respective officers, directors, employees or agents shall  be liable for failure to demand, collect or realize upon any of the Security Collateral or for any  delay in doing so or shall be under any obligation to sell or otherwise dispose of any Security  Collateral upon the request of any Granting Party or any other Person or, except as otherwise  provided herein, to take any other action whatsoever with regard to the Security Collateral or any  part thereof. The powers conferred on the Collateral Agent and the other Secured Parties  hereunder are solely to protect the Collateral Agent’s and the other Secured Parties’ interests in  the Security Collateral and shall not impose any duty upon the Collateral Agent or any other  Secured Party to exercise any such powers. The Collateral Agent and the other Secured Parties  shall be accountable only for amounts that they actually receive as a result of the exercise of such  powers, and to the maximum extent permitted by applicable law, neither they nor any of their  officers, directors, employees or agents shall be responsible to any Granting Party for any act or  failure to act hereunder, except as otherwise provided herein or for their own gross negligence or  





 






LEGAL_US_E # 155827293.3      43    1006148456v9    willful misconduct (as determined by a court of competent jurisdiction in a final and non- appealable decision).   7.3 Financing Statements. Pursuant to any applicable law, each Granting Party  authorizes the Collateral Agent to file or record financing statements and other filing or  recording documents or instruments with respect to such Granting Party’s Security Collateral  without the signature of such Granting Party in such form and in such filing offices as the  Collateral Agent reasonably determines appropriate to perfect the security interests of the  Collateral Agent under this Agreement. Each Granting Party authorizes the Collateral Agent to  use any collateral description reasonably determined by the Collateral Agent, including, without  limitation, the collateral description “all personal property” or “all assets” or words of similar  meaning in any such financing statements. The Collateral Agent agrees to use its commercially  reasonable efforts to notify the relevant Granting Party of any financing or continuation  statement filed by it, provided that any failure to give such notice shall not affect the validity or  effectiveness of any such filing.   7.4 Authority of Collateral Agent. Each Granting Party acknowledges that the  rights and responsibilities of the Collateral Agent under this Agreement with respect to any  action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of  any option, voting right, request, judgment or other right or remedy provided for herein or  resulting or arising out of this Agreement or any amendment, supplement or other modification  of this Agreement shall, as between the Collateral Agent and the Secured Parties, be governed by  the Credit Agreement and by such other agreements with respect thereto as may exist from time  to time among them, but, as between the Collateral Agent and the Granting Parties, the Collateral  Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and  valid authority so to act or refrain from acting, and no Granting Party shall be under any  obligation, or entitlement, to make any inquiry respecting such authority.   7.5 Right of Inspection. Upon reasonable written advance notice to any  Grantor and as often as may reasonably be desired, or at any time and from time to time after the  occurrence and during the continuation of an Event of Default, the Collateral Agent shall have  access at reasonable times during normal business hours to all the books, correspondence and  records of such Grantor, and the Collateral Agent and its representatives may examine the same,  and to the extent reasonable take extracts therefrom and make photocopies thereof, and such  Grantor agrees to render to the Collateral Agent at such Grantor’s reasonable cost and expense,  such clerical and other assistance as may be reasonably requested with regard thereto. The  Collateral Agent and its representatives shall also have the right, upon reasonable advance  written notice to such Grantor subject to any lease restrictions, to enter during normal business  hours into and upon any premises owned, leased or operated by such Grantor where any of such  Grantor’s Inventory or Equipment is located for the purpose of inspecting the same, observing its  use or otherwise protecting its interests therein to the extent not inconsistent with the provisions  of the Credit Agreement.  





 






LEGAL_US_E # 155827293.3      44    1006148456v9    SECTION 8. NON-LENDER SECURED PARTIES  8.1 Rights to Collateral (a) The Non-Lender Secured Parties shall not have  any right whatsoever to do any of the following: (i) exercise any rights or remedies with respect  to the Collateral (such term, as used in this Section 8, having the meaning assigned to it in the  Credit Agreement) or to direct the Collateral Agent to do the same, including, without limitation,  the right to (A) enforce any Liens or sell or otherwise foreclose on any portion of the Collateral,  (B) request any action, institute any proceedings, exercise any voting rights, give any instructions,  make any election, notify account debtors or make collections with respect to all or any portion  of the Collateral or (C) release any Granting Party under this Agreement or release any Collateral  from the Liens of any Security Document or consent to or otherwise approve any such release; (ii)  demand, accept or obtain any Lien on any Collateral (except for Liens arising under, and subject  to the terms of, this Agreement); (iii) vote in any Bankruptcy Case or similar proceeding in  respect of Holdings or any of its Subsidiaries (any such proceeding, for purposes of this clause  (a), a “Bankruptcy”) with respect to, or take any other actions concerning the Collateral; (iv)  receive any proceeds from any sale, transfer or other disposition of any of the Collateral (except  in accordance with this Agreement); (v) oppose any sale, transfer or other disposition of the  Collateral; (vi) object to any debtor-in-possession financing in any Bankruptcy which is provided  by one or more Lenders among others (including on a priming basis under Section 364(d) of the  Bankruptcy Code); (vii) object to the use of cash collateral in respect of the Collateral in any  Bankruptcy; or (viii) seek, or object to the Lenders seeking on an equal and ratable basis, any  adequate protection or relief from the automatic stay with respect to the Collateral in any  Bankruptcy.   (b) Each Non-Lender Secured Party, by its acceptance of the benefits of  this Agreement and the other Security Documents, agrees that in exercising rights and remedies  with respect to the Collateral, the Collateral Agent and the Lenders, with the consent of the  Collateral Agent, may enforce the provisions of the Security Documents and exercise remedies  thereunder and under any other Loan Documents (or refrain from enforcing rights and exercising  remedies), all in such order and in such manner as they may determine in the exercise of their  sole business judgment. Such exercise and enforcement shall include, without limitation, the  rights to collect, sell, dispose of or otherwise realize upon all or any part of the Collateral, to  incur expenses in connection with such collection, sale, disposition or other realization and to  exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of  any applicable jurisdiction. The Non-Lender Secured Parties by their acceptance of the benefits  of this Agreement and the other Security Documents hereby agree not to contest or otherwise  challenge any such collection, sale, disposition or other realization of or upon all or any of the  Collateral. Whether or not a Bankruptcy Case has been commenced, the Non-Lender Secured  Parties shall be deemed to have consented to any sale or other disposition of any property,  business or assets of Holdings or any of its Subsidiaries and the release of any or all of the  Collateral from the Liens of any Security Document in connection therewith.   (c) Notwithstanding any provision of this Subsection 8.1, the Non- Lender Secured Parties shall be entitled subject to the Intercreditor Agreement to file any  necessary responsive or defensive pleadings in opposition to any motion, claim, adversary  proceeding or other pleadings (A) in order to prevent any Person from seeking to foreclose on  





 






LEGAL_US_E # 155827293.3      45    1006148456v9    the Collateral or supersede the Non-Lender Secured Parties’ claim thereto or (B) in opposition to  any motion, claim, adversary proceeding or other pleading made by any Person objecting to or  otherwise seeking the disallowance of the claims of the Non-Lender Secured Parties. Each Non- Lender Secured Party, by its acceptance of the benefits of this Agreement, agrees to be bound by  and to comply with each applicable Intercreditor Agreement and authorizes the Collateral Agent  to enter into the Interest Agreement on its behalf.   (d) Each Non-Lender Secured Party, by its acceptance of the benefit of  this Agreement, agrees that the Collateral Agent and the Lenders may deal with the Collateral,  including any exchange, taking or release of Collateral, may change or increase the amount of  the Borrower Obligations and/or the Guarantor Obligations, and may release any Granting Party  from its Obligations hereunder, all without any liability or obligation (except as may be  otherwise expressly provided herein) to the Non-Lender Secured Parties.   8.2 Appointment of Agent. Each Non-Lender Secured Party, by its acceptance  of the benefits of this Agreement and the other Security Documents, shall be deemed irrevocably  to make, constitute and appoint the Collateral Agent, as agent under the Credit Agreement (and  all officers, employees or agents designated by the Collateral Agent) as such Person’s true and  lawful agent and attorney-in-fact, and in such capacity, the Collateral Agent shall have the right,  with power of substitution for the Non-Lender Secured Parties and in each such Person’s name  or otherwise, to effectuate any sale, transfer or other disposition of the Collateral. It is understood  and agreed that the appointment of the Collateral Agent as the agent and attorney-in-fact of the  Non-Lender Secured Parties for the purposes set forth herein is coupled with an interest and is  irrevocable. It is understood and agreed that the Collateral Agent has appointed the  Administrative Agent as its agent for purposes of perfecting certain of the security interests  created hereunder and for otherwise carrying out certain of its obligations hereunder.   8.3 Waiver of Claims. To the maximum extent permitted by law, each Non- Lender Secured Party waives any claim it might have against the Collateral Agent or the Lenders  with respect to, or arising out of, any action or failure to act or any error of judgment, negligence,  or mistake or oversight whatsoever on the part of the Collateral Agent or the Lenders or their  respective directors, officers, employees or agents with respect to any exercise of rights or  remedies under the Loan Documents or any transaction relating to the Collateral (including,  without limitation, any such exercise described in Subsection 8.1(b) above), except for any such  action or failure to act that constitutes willful misconduct or gross negligence of such Person (as  determined by a court of competent jurisdiction in a final and non-appealable decision). To the  maximum extent permitted by applicable law, none of the Collateral Agent or any Lender or any  of their respective directors, officers, employees or agents shall be liable for failure to demand,  collect or realize upon any of the Collateral or for any delay in doing so or shall be under any  obligation to sell or otherwise dispose of any Collateral upon the request of Holdings, any  Subsidiary of Holdings, any Non-Lender Secured Party or any other Person or to take any other  action or forbear from doing so whatsoever with regard to the Collateral or any part thereof,  except for any such action or failure to act that constitutes willful misconduct or gross negligence  of such Person (as determined by a court of competent jurisdiction in a final and non-appealable  decision).  





 






LEGAL_US_E # 155827293.3      46    1006148456v9    8.4 Bank Products Affiliates, Hedging Affiliates, Management Credit  Affiliates and Vendor Affiliates. The Parent Borrower may from time to time designate a Person  as a “Hedging Affiliate”, “Bank Products Affiliate”, “Management Credit Affiliate” or “Vendor  Affiliate” for purposes hereof by written notice to the Collateral Agent; provided that, at the time  of such designation, the obligations of the relevant Grantor under the applicable Interest Rate  Protection Agreement, Permitted Hedging Agreement, Bank Products Agreement, Management  Loans or Vendor Financing Arrangement (as the case may be) have not been designated as Term  Loan Obligations (as defined in the Intercreditor Agreement) or Additional Obligations.   Following any such designation by the Parent Borrower, the Parent Borrower shall not rescind  such designation without (x) the prior written consent of the applicable “Hedging Affiliate”,  “Bank Products Affiliate”, “Management Credit Affiliate” or “Vendor Affiliate” or (y) with  respect to any such Person described in clause (x) which is not a Lender or an Affiliate of a  Lender, evidence satisfactory to the Collateral Agent that the obligations owing to any such  Person have been satisfied and discharged in full.  As of the Closing Date, each of Wells Fargo  Bank, National Association and each of its affiliates constituting a Hedging Party or Cash  Management Party shall be “Hedging Affiliates” or “Bank Products Affiliates”, as applicable.  SECTION 9. MISCELLANEOUS  9.1 Amendments in Writing. None of the terms or provisions of this  Agreement may be waived, amended, supplemented or otherwise modified except by a written  instrument executed by each affected Granting Party and the Collateral Agent, provided that (a)  any provision of this Agreement imposing obligations on any Granting Party may be waived by  the Collateral Agent in a written instrument executed by the Collateral Agent and (b)  notwithstanding anything to the contrary in Subsection 11.1 of the Credit Agreement, no such  waiver and no such amendment or modification shall amend, modify or waive the definition of  “Secured Party” or Subsection 6.5 if such waiver, amendment, or modification would adversely  affect a Secured Party without the written consent of each such affected Secured Party. For the  avoidance of doubt, it is understood and agreed that any amendment, amendment and  restatement, waiver, supplement or other modification of or to the Intercreditor Agreement that  would have the effect, directly or indirectly, through any reference herein to the Intercreditor  Agreement or otherwise, of waiving, amending, supplementing or otherwise modifying this  Agreement, or any term or provision hereof, or any right or obligation of any Granting Party  hereunder or in respect hereof, shall not be given such effect except pursuant to a written  instrument executed by each affected Granting Party and the Collateral Agent in accordance with  this Subsection 9.1.   9.2 Notices. All notices, requests and demands to or upon the Collateral Agent  or any Granting Party hereunder shall be effected in the manner provided for in Subsection 11.2  of the Credit Agreement; provided that any such notice, request or demand to or upon any  Granting Party shall be addressed to such Granting Party at its notice address set forth on  Schedule 1, unless and until such Granting Party shall change such address by notice to the  Collateral Agent and the Administrative Agent given in accordance with Subsection 11.2 of the  Credit Agreement.   





 






LEGAL_US_E # 155827293.3      47    1006148456v9    9.3 No Waiver by Course of Conduct; Cumulative Remedies. None of the  Collateral Agent or any other Secured Party shall by any act (except by a written instrument  pursuant to Subsection 9.1), delay, indulgence, omission or otherwise be deemed to have waived  any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No  failure to exercise, nor any delay in exercising, on the part of the Collateral Agent or any other  Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No  single or partial exercise of any right, power or privilege hereunder shall preclude any other or  further exercise thereof or the exercise of any other right, power or privilege. A waiver by the  Collateral Agent or any other Secured Party of any right or remedy hereunder on any one  occasion shall not be construed as a bar to any right or remedy that the Collateral Agent or such  other Secured Party would otherwise have on any future occasion. The rights and remedies  herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of  any other rights or remedies provided by law.   9.4 Enforcement Expenses; Indemnification (a) Each Granting Party jointly  and severally agrees to pay or reimburse each Secured Party and the Collateral Agent for all their  respective reasonable costs and expenses incurred in collecting against such Granting Party  under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under  this Agreement against such Granting Party and the other Loan Documents to which such  Granting Party is a party, including, without limitation, the reasonable fees and disbursements of  counsel to the Secured Parties, the Collateral Agent and the Administrative Agent.   (b) Each Grantor jointly and severally agrees to pay, and to save the  Collateral Agent, the Administrative Agent and the other Secured Parties harmless from, (x) any  and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise,  sales or other similar taxes which may be payable or determined to be payable with respect to  any of the Security Collateral or in connection with any of the transactions contemplated by this  Agreement and (y) any and all liabilities, obligations, losses, damages, penalties, actions,  judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect  to the execution, delivery, enforcement, performance and administration of this Agreement  (collectively, the “indemnified liabilities”), in each case to the extent the Parent Borrower would  be required to do so pursuant to Subsection 11.5 of the Credit Agreement, and in any event  excluding any taxes or other indemnified liabilities arising from gross negligence, bad faith or  willful misconduct of the Collateral Agent or any other Secured Party (as determined by a court  of competent jurisdiction in a final and non-appealable decision).  (c) The agreements in this Subsection 9.4 shall survive repayment of the  Obligations and all other amounts payable under the Credit Agreement and the other Loan  Documents.   9.5 Successors and Assigns. This Agreement shall be binding upon and shall  inure to the benefit of the Granting Parties, the Collateral Agent and the Secured Parties and their  respective successors and assigns; provided that no Granting Party may assign, transfer or  delegate any of its rights or obligations under this Agreement without the prior written consent of  the Collateral Agent, except as permitted by the Credit Agreement.   





 






LEGAL_US_E # 155827293.3      48    1006148456v9    9.6 Set-Off. Each Granting Party hereby irrevocably authorizes each of the  Administrative Agent and the Collateral Agent and each other Secured Party at any time and  from time to time without notice to such Granting Party or any other Granting Party, any such  notice being expressly waived by each Granting Party, to the extent permitted by applicable law,  upon the occurrence and during the continuance of an Event of Default so long as any amount  remains unpaid after it becomes due and payable by such Granting Party hereunder, to set-off  and appropriate and apply against any such amount any and all deposits (general or special, time  or demand, provisional or final) (other than the Collateral Proceeds Account), in any currency,  and any other credits, indebtedness or claims, in any currency, in each case whether direct or  indirect, absolute or contingent, matured or unmatured, at any time held or owing by the  Collateral Agent, the Administrative Agent or such other Secured Party to or for the credit or the  account of such Granting Party, or any part thereof in such amounts as the Collateral Agent, the  Administrative Agent or such other Secured Party may elect. The Collateral Agent, the  Administrative Agent and each other Secured Party shall notify such Granting Party promptly of  any such set-off and the application made by the Collateral Agent, the Administrative Agent or  such other Secured Party of the proceeds thereof; provided that the failure to give such notice  shall not affect the validity of such set-off and application. The rights of the Collateral Agent, the  Administrative Agent and each other Secured Party under this Subsection 9.6 are in addition to  other rights and remedies (including, without limitation, other rights of set-off) which the  Collateral Agent, the Administrative Agent or such other Secured Party may have.   9.7 Counterparts. This Agreement may be executed by one or more of the  parties to this Agreement on any number of separate counterparts, and all of said counterparts  taken together shall be deemed to constitute one and the same instrument.   9.8 Severability. Any provision of this Agreement which is prohibited or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  prohibition or unenforceability without invalidating the remaining provisions hereof, and any  such prohibition or unenforceability in any jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction; provided that, with respect to any Pledged  Stock issued by a Foreign Subsidiary, all rights, powers and remedies provided in this  Agreement may be exercised only to the extent that they do not violate any provision of any law,  rule or regulation of any Governmental Authority applicable to any such Pledged Stock or  affecting the legality, validity or enforceability of any of the provisions of this Agreement  against the Pledgor (such laws, rules or regulations, “Applicable Law”) and are intended to be  limited to the extent necessary so that they will not render this Agreement invalid, unenforceable  or not entitled to be recorded, registered or filed under the provisions of any Applicable Law.   9.9 Section Headings. The Section headings used in this Agreement are for  convenience of reference only and are not to affect the construction hereof or be taken into  consideration in the interpretation hereof.   9.10 Integration. This Agreement and the other Loan Documents represent the  entire agreement of the Granting Parties, the Collateral Agent and the other Secured Parties with  respect to the subject matter hereof, and there are no promises, undertakings, representations or  





 






LEGAL_US_E # 155827293.3      49    1006148456v9    warranties by the Granting Parties, the Collateral Agent or any other Secured Party relative to  subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.   9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM OR  CONTROVERSY RELATING HERETO SHALL BE GOVERNED BY, AND  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE  STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR  RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES  ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE  OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.   9.12 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably  and unconditionally:   (b) submits for itself and its property in any legal action or proceeding  relating to this Agreement and the other Loan Documents to which it is a party to the exclusive  general jurisdiction of the Supreme Court of the State of New York for the County of New York  (the “New York Supreme Court”), and the United States District Court for the Southern District  of New York (the “Federal District Court,” and together with the New York Supreme Court, the  “New York Courts”) and appellate courts from either of them; provided that nothing in this  Agreement shall be deemed or operate to preclude (i) the Collateral Agent from bringing suit or  taking other legal action in any other jurisdiction to realize on the Collateral or any other security  for the Obligations (in which case any party shall be entitled to assert any claim or defense,  including any claim or defense that this Subsection 9.12 would otherwise require to be asserted  in a legal action or proceeding in a New York Court), or to enforce a judgment or other court  order in favor of the Administrative Agent or the Collateral Agent, (ii) any party from bringing  any legal action or proceeding in any jurisdiction for the recognition and enforcement of any  judgment, (iii) if all such New York Courts decline jurisdiction over any Person, or decline (or in  the case of the Federal District Court, lack) jurisdiction over any subject matter of such action or  proceeding, a legal action or proceeding may be brought with respect thereto in another court  having jurisdiction and (iv) in the event a legal action or proceeding is brought against any party  hereto or involving any of its assets or property in another court (without any assistance by such  party or any of its Subsidiaries or Affiliates), such party from asserting a claim or defense  (including any claim or defense that this Subsection 9.12(a) would otherwise require to be  asserted in a legal proceeding in a New York Court) in any such action or proceeding;  (c) consents that any such action or proceeding may be brought in such  courts and waives any objection that it may now or hereafter have to the venue of any such  action or proceeding in any such court or that such action or proceeding was brought in an  inconvenient court and agrees not to plead or claim the same;   (d) agrees that service of process in any such action or proceeding may  be effected by mailing a copy thereof by registered or certified mail (or any substantially similar  form of mail), postage prepaid, to such party at its address referred to in Subsection 9.2 or at  such other address of which the Collateral Agent and the Administrative Agent (in the case of  





 






LEGAL_US_E # 155827293.3      50    1006148456v9    any other party hereto) or the Parent Borrower (in the case of the Collateral Agent and the  Administrative Agent) shall have been notified pursuant thereto;   (e) agrees that nothing herein shall affect the right to effect service of  process in any other manner permitted by law or (subject to clause (a) above) shall limit the right  to sue in any other jurisdiction; and   (f) waives, to the maximum extent not prohibited by law, any right it  may have to claim or recover in any legal action or proceeding referred to in this Section any  consequential or punitive damages.  9.13 Acknowledgments. Each Granting Party hereby acknowledges that:   (b) it has been advised by counsel in the negotiation, execution and  delivery of this Agreement and the other Loan Documents to which it is a party;   (c) none of the Collateral Agent, the Administrative Agent or any other  Secured Party has any fiduciary relationship with or duty to any Granting Party arising out of or  in connection with this Agreement or any of the other Loan Documents, and the relationship  between the Granting Parties, on the one hand, and the Collateral Agent, the Administrative  Agent and the other Secured Parties, on the other hand, in connection herewith or therewith is  solely that of debtor and creditor; and   (d) no joint venture is created hereby or by the other Loan Documents or  otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or  among the Granting Parties and the Secured Parties.   9.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY  IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY  LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY  OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.   9.15 Additional Granting Parties. Each new Subsidiary of the Parent Borrower  that is required to become a party to this Agreement pursuant to Subsection 7.9(b) of the Credit  Agreement shall become a Granting Party for all purposes of this Agreement upon execution and  delivery by such Subsidiary of an Assumption Agreement substantially in the form of Annex 2  hereto. Each existing Granting Party that is required to become a Pledgor with respect to Capital  Stock of any new Subsidiary of the Parent Borrower pursuant to Subsection 7.9(b) of the Credit  Agreement shall become a Pledgor with respect thereto upon execution and delivery by such  Granting Party of a Supplemental Agreement substantially in the form of Annex 3 hereto.   9.16 Releases. (a) At such time as the Loans, the Reimbursement Obligations  and the other Obligations (other than any Obligations owing to a Non-Lender Secured Party)  then due and owing shall have been paid in full, the Commitments have been terminated and no  Letters of Credit shall be outstanding (except for Letters of Credit that have been cash  collateralized or otherwise provided for in a manner reasonably satisfactory to the applicable  Issuing Lenders), all Security Collateral shall be released from the Liens created hereby, and this  





 






LEGAL_US_E # 155827293.3      51    1006148456v9    Agreement and all obligations (other than those expressly stated to survive such termination) of  the Collateral Agent and each Granting Party hereunder shall terminate, all without delivery of  any instrument or performance of any act by any party, and all rights to the Security Collateral  shall revert to the Granting Parties. At the request and sole expense of any Granting Party  following any such termination, the Collateral Agent shall execute, acknowledge and deliver to  such Granting Party any Security Collateral held by the Collateral Agent hereunder, and execute,  acknowledge and deliver to such Granting Party such releases, instruments and other documents  (including without limitation UCC termination statements), and do or cause to be done all other  acts, as such Granting Party shall reasonably request to evidence such termination.  (b) Upon any sale or other disposition of Security Collateral permitted  by the Credit Agreement (other than any sale or disposition to another Grantor), the Lien  pursuant to this Agreement on such sold or disposed of Security Collateral shall be automatically  released.  In connection with the sale or other disposition of all of the Capital Stock of any  Granting Party (other than to Holdings, the Parent Borrower or any Restricted Subsidiary) or any  other transaction or occurrence as a result of which such Granting Party ceases to be a Restricted  Subsidiary of the Parent Borrower, or the sale or other disposition of Security Collateral (other  than a sale or disposition to another Grantor) permitted under the Credit Agreement, the  Collateral Agent shall, upon receipt from the Parent Borrower of a written request for the release  of such Granting Party from its Guarantee or the release of the Security Collateral subject to such  sale, disposition or other transaction, identifying such Granting Party or the relevant Security  Collateral, together with a certification by the Parent Borrower stating that such transaction is in  compliance with the Credit Agreement and the other Loan Documents, deliver to the Parent  Borrower or the relevant Granting Party, at the sole cost and expense of such Granting Party, any  Security Collateral of such relevant Granting Party held by the Collateral Agent, or the Security  Collateral subject to such sale or disposition (as applicable), and, at the sole cost and expense of  such Granting Party, execute, acknowledge and deliver to the Parent Borrower or such Granting  Party such releases, instruments or other documents (including without limitation UCC  termination statements), and do or cause to be done all other acts, as the Parent Borrower or such  Granting Party shall reasonably request (x) to evidence or effect the release of such Granting  Party from its Guarantee (if any) and of the Liens created hereby (if any) on such Granting  Party’s Security Collateral or (y) to evidence the release of the Security Collateral subject to such  sale or disposition.  (c) Upon any Granting Party becoming an Excluded Subsidiary in  accordance with the provisions of the Credit Agreement, the Lien pursuant to this Agreement on  all Security Collateral of such Granting Party (if any) shall be automatically released, and the  Guarantee (if any) of such Granting Party, and all obligations of such Granting Party hereunder,  shall, terminate, all without delivery of any instrument or performance of any act by any party,  and the Collateral Agent shall, upon the request of the Parent Borrower or such Granting Party,  deliver to the Parent Borrower or such Granting Party any Security Collateral of such Granting  Party held by the Collateral Agent hereunder and the Collateral Agent and the Administrative  Agent shall execute, acknowledge and deliver to the Parent Borrower or such Granting Party (at  the sole cost and expense of the Parent Borrower or such Granting Party) all releases,  instruments or other documents (including without limitation UCC termination statements), and  do or cause to be done all other acts, necessary or reasonably desirable for the release of such  





 






LEGAL_US_E # 155827293.3      52    1006148456v9    Granting Party from its Guarantee (if any) or the Liens created hereby (if any) on such Granting  Party’s Security Collateral, as applicable, as the Borrower or such Granting Party may  reasonably request.  (d) Upon any Security Collateral being or becoming an Excluded Asset,  the Lien pursuant to this Agreement on such Security Collateral shall be automatically released.   At the request and sole expense of any Granting Party, the Collateral Agent shall deliver such  Security Collateral (if held by the Collateral Agent) to such Granting Party and execute,  acknowledge and deliver to such Granting Party such releases, instruments or other documents  (including without limitation UCC termination statements), and do or cause to be done all other  acts, as such Granting Party shall reasonably request to evidence such release.  (e) Notwithstanding any other provision of this Agreement or any other  Loan Document, Holdings shall have the right to transfer all of the Capital Stock of the Parent  Borrower held by it (including, for the avoidance of doubt, any such transfer in connection with  any change in the Parent Borrower’s legal structure to a corporation, limited liability company or  other entity) to any Parent Entity (including Holdings) or any Subsidiary of any Parent Entity (a  “Successor Holding Company”) that (i) is a Person organized and existing under the laws of the  United States of America, any State thereof or the District of Columbia and (ii) assumes all of  the obligations of Holdings under this Agreement and the other Loan Documents to which  Holdings is a party by executing and delivering to the Administrative Agent and the Collateral  Agent a joinder substantially in the form of Annex 4 hereto, or one or more other documents or  instruments, together with a financing statement in appropriate form for filing under the Uniform  Commercial Code of the relevant jurisdiction, in form and substance reasonably satisfactory to  the Collateral Agent, upon which (x) such Successor Holding Company will succeed to, and be  substituted for, and may exercise every right and power of Holdings under this Agreement and  the other Loan Documents, and shall thereafter be deemed to be “Holdings” for purposes of this  Agreement and the other Loan Documents, (y) Holdings, as predecessor to the Successor  Holding Company (“Predecessor Holding Company”), shall be irrevocably and unconditionally  released from its Guarantee and all other obligations hereunder and under the other Loan  Documents, and (z) the Lien pursuant to this Agreement on all Security Collateral of Predecessor  Holding Company, and any Lien pursuant to any other Loan Document on any other property or  assets of Predecessor Holding Company, shall be automatically released (it being understood that  such transfer of Capital Stock of the Parent Borrower to and assumption of rights and obligations  of Holdings by such Successor Holding Company shall not constitute a Change of Control under  clause (ii) of the definition of “Change of Control” in the Credit Agreement).  At the request and  the sole expense of Predecessor Holding Company or the Parent Borrower, the Collateral Agent  shall deliver to Predecessor Holding Company any Security Collateral and other property or  assets of Predecessor Holding Company held by the Collateral Agent that is not required to be  pledged under this Agreement or any other Loan Document by Successor Holding Company  (including the Capital Stock of the Parent Borrower) and execute, acknowledge and deliver to  Predecessor Holding Company (subject to Subsection 7.2, without recourse and without  representation or warranty) such releases, instruments or other documents (including without  limitation UCC termination statements), and do or cause to be done all other acts, as Predecessor  Holding Company or the Parent Borrower shall reasonably request to evidence or effect the  release of Predecessor Holding Company from its Guarantee and other obligations hereunder and  





 






LEGAL_US_E # 155827293.3      53    1006148456v9    under the other Loan Documents, and the release of the Liens created hereby on Predecessor  Holding Company’s Security Collateral (other than the Capital Stock of the Parent Borrower)  and by any other Loan Document on any other property or assets of Predecessor Holding  Company.   (f) So long as no Event of Default has occurred and is continuing, the  Collateral Agent and the Administrative Agent shall at the direction of any applicable Granting  Party return to such Granting Party any proceeds or other property received by it during any  Event of Default pursuant to either Subsection 5.3.1 or 6.4 and not otherwise applied in  accordance with Subsection 6.5.   (g) The Collateral Agent shall have no liability whatsoever to any other  Secured Party as the result of any release of Security Collateral by it in accordance with (or  which the Collateral Agent in good faith believes to be in accordance with) this Subsection 9.16.   (h) Upon the listing of the Capital Stock of the Parent Borrower on a  nationally recognized stock exchange in the U.S. (whether through a Qualified IPO or otherwise),  the Lien pursuant to this Agreement on all of the shares of Capital Stock of the Parent Borrower,  as well as any other shares, stock certificates, options or rights of any nature whatsoever in  respect of the capital stock of the Parent Borrower, owned by Holdings shall be automatically  released, and the Guarantee of Holdings, and all obligations of Holdings hereunder shall  terminate, all without delivery of any instrument or performance of any act by any party, and the  Administrative Agent and the Collateral Agent shall, upon the request of the Parent Borrower or  Holdings, deliver to the Parent Borrower, or Holdings (subject to Subsection 7.2, without  recourse and without representation or warranty) any Pledged Stock of Holdings held by the  Collateral Agent hereunder and the Collateral Agent and the Administrative Agent shall execute,  acknowledge and deliver to the Parent Borrower or Holdings (at the sole cost and expense of the  Parent Borrower or Holdings) all releases, instruments or other documents (including UCC  termination statements), and do or cause to be done all other acts, necessary or reasonably  desirable for the release of Holdings from its Guarantee (if any) or the Liens created hereby (if  any) on Holdings’ Pledged Stock, as applicable, as the Parent Borrower or Holdings may  reasonably request.  9.17 Judgment. (a) If for the purpose of obtaining judgment in any court it is  necessary to convert a sum due hereunder in one currency into another currency, the parties  hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used  shall be that at which in accordance with normal banking procedures the Collateral Agent could  purchase the first currency with such other currency on the Business Day preceding the day on  which final judgment is given.  (b) The obligations of any Granting Party in respect of this Agreement  to the Collateral Agent, for the benefit of each holder of Secured Obligations, shall,  notwithstanding any judgment in a currency (the “judgment currency”) other than the currency in  which the sum originally due to such holder is denominated (the “original currency”), be  discharged only to the extent that on the Business Day following receipt by the Collateral Agent  of any sum adjudged to be so due in the judgment currency, the Collateral Agent may in  





 






LEGAL_US_E # 155827293.3      54    1006148456v9    accordance with normal banking procedures purchase the original currency with the judgment  currency; if the amount of the original currency so purchased is less than the sum originally due  to such holder in the original currency, such Granting Party agrees, as a separate obligation and  notwithstanding any such judgment, to indemnify the Collateral Agent for the benefit of such  holder, against such loss, and if the amount of the original currency so purchased exceeds the  sum originally due to the Collateral Agent, the Collateral Agent agrees to remit to the Parent  Borrower, such excess. This covenant shall survive the termination of this Agreement and  payment of the Obligations and all other amounts payable hereunder.  9.18 Amendment and Restatement. This Agreement amends and restates the  Existing Collateral Agreement in its entirety and, upon the date hereof, the terms and provisions  of the Existing Collateral Agreement shall be superseded hereby. Upon the date hereof: (i) all  terms and conditions of the Existing Collateral Agreement, as amended and restated by this  Agreement, shall be and remain in full force and effect, as so amended, and shall constitute the  legal, valid, binding and enforceable obligations of the Granting Parties; (ii) the terms and  conditions of the Existing Collateral Agreement shall be amended as set forth herein and, as so  amended and restated, shall be restated in their entirety, but shall be amended only with respect  to the rights, duties and obligations among the Granting Parties accruing from and after the date  hereof; (iii) this Agreement shall not in any way release or impair the rights, duties, Obligations,  Liens or security interests created pursuant to the Existing Collateral Agreement or affect the  relative priorities thereof, in each case to the extent in force and effect thereunder as of the date  hereof, except as modified hereby or by documents, instruments and agreements executed and  delivered in connection herewith, and all of such rights, duties, Obligations and Liens are  assumed, ratified and affirmed by the Granting Parties; (iv) this Agreement shall not constitute a  substitution or novation  of any Granting Parties’ Obligations or any of the other rights, duties  and obligations of the parties hereunder; (v) the execution, delivery and effectiveness of this  Agreement shall not operate as a waiver of any right, power or remedy of Agent or any other  Secured Party under the Existing Collateral Agreement, nor constitute a waiver of any covenant,  agreement or obligation under the Existing Collateral Agreement, except to the extent that any  such covenant, agreement or obligation is no longer set forth herein or is modified hereby; (vi)  any and all references in the Loan Documents to the Existing Collateral Agreement shall,  without further action of the parties, be deemed a reference to the Existing Collateral Agreement,  as amended and restated by this Agreement, and as this Agreement shall be further amended,  restated, modified, supplemented or amended and restated from time to time hereafter in  accordance with the terms of this Agreement; and (vii) each Granting Party represents and  warrants that, as of the date hereof, there are no claims or offsets against, or defenses or  counterclaims to, its obligations under the Existing Collateral Agreement  9.19 Transfer Tax Acknowledgment. Each party hereto acknowledges that the  shares delivered hereunder are being transferred to and deposited with the Collateral Agent (or  other Person in accordance with the Intercreditor Agreement) as security for the Obligations and  that this Subsection 9.19 is intended to be the certificate of exemption from the New York stock  transfer taxes for the purposes of complying with Section 270.5(b) of the Tax Law of the State of  New York.      





 






LEGAL_US_E # 155827293.3      55    1006148456v9    [Remainder of page left blank intentionally; Signature page to follow.] 





 






 





 






 





 






 





 






 





 






  1      Schedule 1  Notice Addresses of Granting Parties    Guarantor Notice Address  Atkore Inc. 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  AFC Cable Systems, Inc. 960 Flaherty Drive  New Bedford, Massachusetts 02745  Attn: General Counsel  Allied Tube & Conduit Corporation 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore International Holdings, Inc. 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore International, Inc. 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore Plastic Pipe Corporation c/o Atkore International, Inc.  16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore Plastics Southeast, LLC c/o Atkore International, Inc.  16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore Southwest, LLC c/o Atkore International, Inc.  16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore RMCP, Inc. 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Atkore Steel Components, Inc. 16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  Calpipe Industries, LLC 12160 Woodruff Avenue  Downey, CA 90241  Attn: General Counsel  





 






   2          Guarantor Notice Address  Georgia Pipe Company c/o Atkore International, Inc.   16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  TKN, INC. c/o Atkore International, Inc.   960 Flaherty Drive   New Bedford, Massachusetts 02745  Attn: General Counsel  Unistrut International Corporation c/o Atkore International, Inc.   16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  US Tray, Inc. c/o Atkore International, Inc.   16100 S. Lathrop Avenue  Harvey, IL 60426  Attn: General Counsel  WPFY, Inc. c/o Atkore International, Inc.   960 Flaherty Drive   New Bedford, Massachusetts 02745  Attn: General Counsel  





 






LEGAL_US_E # 150343706.2      3        Schedule 2  Pledged Securities    1. Pledged Stock    Pledgor Issuer Class of Stock/  Type of Interest  Owned  Certificate  Number  Par Value Number of  shares  outstanding  Percentage  Pledged  Atkore Inc. Atkore  International  Holdings Inc.  Common Stock 1 $0.01 100 100  Atkore  International  Holdings Inc.  Atkore  International,  Inc.  Common Stock 1 $0.01 100 100  Atkore  International, Inc.  Atkore Plastic  Pipe  Corporation  Common Stock 1 $0.01 100 100  Atkore  International, Inc.  Allied Tube &  Conduit  Corporation  Common Stock 9 $1.00 1000 100  Atkore  International, Inc.  Unistrut  International  Corporation  Common Stock 7 $0.01 1 100  Atkore  International, Inc.  Atkore Steel  Components,  Inc.  Common Stock 1 $0.01 100 100  Atkore  International, Inc.  AFC Cable  Systems, Inc.  Common Stock 1 $0.01 100 100  Atkore  International, Inc.  Calpipe  Industries, LLC  Membership  Interests  N/A N/A N/A 100  Atkore Plastic  Pipe Corporation  Atkore RMCP,  Inc.  Common Stock 1 $0.01 100 100  Atkore Plastic  Pipe Corporation  Atkore Plastic  Southeast, LLC  Membership  Interests  N/A N/A N/A 100  Atkore Plastic  Pipe Corporation  Atkore  Southwest,  LLC  Membership  Interests  N/A N/A N/A 100  AFC Cable  Systems, Inc.  WPFY, Inc. Common Stock 2 $0.01 100 100  AFC Cable  Systems, Inc.  TKN, INC. Common Stock 6 $1.00 90 100  AFC Cable  Systems, Inc.  Georgia Pipe  Company  Common Stock 11 no par  value  1,000 100  





 






LEGAL_US_E # 150343706.2           4        Pledgor Issuer Class of Stock/  Type of Interest  Owned  Certificate  Number  Par Value Number of  shares  outstanding  Percentage  Pledged  Atkore Inc. Atkore  International  Holdings Inc.  Common Stock 1 $0.01 100 100  AFC Cable  Systems, Inc.  US Tray, Inc. Common Stock 1 $0.01 100 100    





 






LEGAL_US_E # 150343706.2           5        2. Pledged Notes  1.  unsecured Promissory Note, dated December 22, 2010, issued by Atkore International (NV) Inc.  f/k/a Tyco International (NV) Inc. to Atkore International, Inc. in the original principal amount of  $159,515,092.  2.  unsecured Promissory Note, dated December 22, 2010, issued by Allied Tube & Conduit  Corporation to Atkore International, Inc. in the original principal amount of $240,484,908. 





 






LEGAL_US_E # 150343706.2        6        Schedule 3  Perfection Matters    I. Existing Security Interests   Debtor/Defendant Search  Jurisdiction  Scope  of  Search  Type  of  Filing  Found  Secured  Party/Plaintiff  Collateral  Type  Original  File Date  Original  File #  Amdt. File  Date  Amdt. File  #  1.  AFC Cable  Systems, Inc.  Delaware UCC  Debtor  Search  UCC1 Arbill  Industries, Inc.  Inventory  7/2/2014 2014  2633154  6/13/2019 2019  4072604  2.  Allied Tube &  Conduit  Corporation  Delaware UCC  Debtor  Search  UCC1 Samuel  Strapping  Systems, Inc.  Inventory 7/20/2015 2015  3124525  N/A N/A  





 






LEGAL_US_E # 150343706.2         7       Debtor/Defendant Search  Jurisdiction  Scope  of  Search  Type  of  Filing  Found  Secured  Party/Plaintiff  Collateral  Type  Original  File Date  Original  File #  Amdt. File  Date  Amdt. File  #  3.  Allied Tube &  Conduit  Corporation  Delaware UCC  Debtor  Search  UCC1 Arcelormittal  Burns Harbor  LLC  Arcelormittal  Cleveland  LLC  Arcelormittal  USA LLC  Arcelormittal  Indiana Harbor  LLC   Arcelormittal  Plate LLC  Bank of  America, N.A.,  as Agent  Inventory 11/14/2017 2017  7547419  11/14/2017 2017  7565031  4.  Allied Tube &  Conduit  Corporation;  Atkore  International, Inc.  Delaware UCC  Debtor  Search  UCC1 Kloeckner  Metals  Corporation    Wells Fargo  Bank, N.A., as  Agent  Inventory 6/21/2018 2018  4253569  N/A N/A  





 






LEGAL_US_E # 150343706.2         8       Debtor/Defendant Search  Jurisdiction  Scope  of  Search  Type  of  Filing  Found  Secured  Party/Plaintiff  Collateral  Type  Original  File Date  Original  File #  Amdt. File  Date  Amdt. File  #  5.  Allied Tube &  Conduit  Corporation  Delaware UCC  Debtor  Search  UCC1 Steel  Warehouse of  Illinois LLC  Inventory 7/31/2019 2019  5305771  N/A N/A  6.  Allied Tube &  Conduit  Corporation  Delaware UCC  Debtor  Search  UCC1 Mitsui & Co.  (U.S.A.), Inc.  Inventory 12/17/2019 2019  8996873  N/A N/A  7. Atkore Plastic Pipe  Corporation  Delaware UCC  Debtor  Search  UCC1 Formosa  Plastics  Corporation,  U.S.A.  Formosa  Plastics  Corporation,  Louisiana  Formosa  Plastics  Corporation,  Texas  Inventory 1/2/2018 2018  0037644  N/A N/A    II. Closing Date UCC Filings     Granting Party State Filing Office Document Filed  Atkore International  Holdings Inc.  Delaware Secretary of State  UCC-1 financing  statement and UCC-3  assignment  





 






LEGAL_US_E # 150343706.2         9      Granting Party State Filing Office Document Filed  Atkore  International, Inc.  Delaware Secretary of State  UCC-1 financing  statement and UCC-3  assignment   Allied Tube &  Conduit  Corporation  Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   Unistrut  International  Corporation  Nevada Secretary of State UCC-1 financing  statement and UCC-3  assignment   AFC Cable  Systems, Inc.  Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   WPFY, Inc. Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   TKN, INC. Rhode Island Secretary of State UCC-1 financing  statement and UCC-3  assignment   Georgia Pipe  Company  Georgia Thomas County Superior  Court Clerk  UCC-1 financing  statement and UCC-3  assignment   Atkore Plastic Pipe  Corporation  Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   Atkore RMCP, Inc. Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   Atkore Steel  Components, Inc.  Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment   





 






LEGAL_US_E # 150343706.2         10      Granting Party State Filing Office Document Filed  Calpipe Industries,  LLC  California Secretary of State UCC-1 financing  statement and UCC-3  assignment   US Tray, Inc. Delaware Secretary of State UCC-1 financing  statement and UCC-3  assignment       III. First Amendment Effective Date Intellectual Property Filings    Notice and Confirmation of Grant of Security Interest in Trademarks, dated as of May 26, 2021 made by the Grantors party  thereto in favor of Wells Fargo National Association as collateral agent, to be filed with the Trademark Division of the  United States Patent and Trademark Office.     Notice and Confirmation of Grant of Security Interest in Patents, dated as of May 26, 2021 made by the Grantors party  thereto in favor of Wells Fargo National Association as collateral agent, to be filed with the Patent Division of the United  States Patent and Trademark Office.      





 






LEGAL_US_E # 150343706.2      11      Schedule 4  Jurisdiction of Organization    Granting Party Location  Atkore Inc. Delaware   AFC Cable Systems, Inc. Delaware  Allied Tube & Conduit Corporation Delaware  Atkore International Holdings Inc. Delaware  Atkore International, Inc. Delaware  Atkore Plastic Pipe Corporation Delaware  Atkore Plastics Southeast, LLC Delaware  Atkore Southwest, LLC Delaware  Atkore RMCP, Inc. Delaware  Atkore Steel Components, Inc. Delaware  Calpipe Industries, LLC California  Georgia Pipe Company Georgia  TKN, INC. Rhode Island  Unistrut International Corporation Nevada  US Tray, Inc. Delaware  WPFY, Inc. Delaware      





 






LEGAL_US_E # 150343706.2    12        Schedule 5  Intellectual Property        Patents, Copyrights, and Trademarks  I. COPYRIGHTS  GRANTOR:  Allied Tube & Conduit Corporation    Title of Work  Registration  Number  Registration  Date  Let’s Build A Fence, the Easy Way!  TX-640-457 02-Mar-1981      GRANTOR:  Unistrut International Corporation    Title of Work  Registration  Number  Registration  Date  UNISTRUT Diversified Products Company: Technical Bulletin  TX3-981-792 03-Mar-1995    II. PATENTS  GRANTOR: Atkore Steel Components, Inc.  





 






LEGAL_US_E # 150343706.2     13        Title Status App. No. File Date Patent No. Issue Date  NON-METALLIC LIQUID-TIGHT CONDUIT  CONNECTOR  Granted 15/914278 3/7/2018 10851926 01-Dec-2020  COUPLING FOR ELECTRICAL METALLIC  TUBING  Granted 15/879574 1/25/2018 10879681 29-Dec-2020  Conduit support assembly Granted 15/471746 3/28/2017 10320173 11-Jun-2019  Conduit body with super fitting Granted 15/177005 6/8/2016 10295094 21-May-2019  Conduit Fitting Suited for Wet Locations Granted 15/665490 8/1/2017 10683953 16-Jun-2020  Coupling assembly with watertight feature for securing  conduits together  Granted 14/723741 5/28/2015 9995419 12-Jun-2018  Compression coupling assembly for securing conduits  together  Granted 14/556534 12/1/2014 9920867 20-Mar-2018  Electrical conduit connector with two- point engagement Granted 12/756,610 4/8/2010 8,646,813 2/11/2014  Connector assembly suited for wet locations Granted 13/114,527 5/24/2011 8,586,881 11/19/2013  Cam lock mechanism for securing a conduit cover to a  conduit body  Granted 13/446,330 4/13/2012 8,586,877 11/19/2013  Connector assembly suited for wet locations Granted 12/725,502 3/17/2010 8,129,633 3/6/2012  Cover for conduit body Granted 12/719,382 3/8/2010 8,129,631 3/6/2012  Liquid-tight coupling device with screw-on ferrule device  and method of use  Granted 11/366,308 3/2/2006 7,914,048 3/29/2011  Junction box with integrated connectors for electrical  wiring  Granted 12/256,222 10/22/2008 7,897,871 3/1/2011  Connector for electrical wire-carrying conduits Granted 09/849,635 5/4/2001 7,793,988 9/14/2010  Connector / bushing assembly for electrical junction boxes Granted 11/737,839 4/20/2007 7,635,816 12/22/2009  Connector for affixing cables within junction boxes Granted 11/564,362 11/29/2006 7,476,817 1/13/2009  Connector for affixing cables within junction boxes Granted 11/210,000 8/22/2005 7,126,064 10/24/2006  Bushing and sealing ring assembly Granted 10/165,057 6/7/2002 6,808,181 10/26/2004  Junction box connector Granted 09/849,634 5/4/2001 6,476,319 11/5/2002    





 






LEGAL_US_E # 150343706.2     14        GRANTOR:  WPFY, Inc.  Title Status App. No. File Date Patent No. Issue Date  Flexible Conduit and Cable (a.k.a. “Breakable Conduit”) Granted 11/003658 12/3/04 7420120 9/2/08  Indicia-coded electrical cable Granted 12/331923 12/10/08 8278554 10/2/12  METAL SHEATHED CABLE ASSEMBLY WITH NON- LINEAR BONDING/GROUNDING CONDUCTOR  Granted 13/422319 3/16/12 9472320 10/18/16  METAL SHEATHED CABLE ASSEMBLY Granted 12/419607 4/7/09 8658900 2/25/14  Metal sheathed cable assembly Granted 12/419634 4/7/09 8088997 1/3/12  METAL SHEATHED CABLE ASSEMBLY Granted 13/314502 12/8/11 8946549 2/3/2015  MODULAR CABLE ASSEMBLIES Granted 09/687703 10/13/00 6663438 12/16/03  GRANTOR:  Allied Tube & Conduit Corporation  Title Status App. No. File Date Patent No. Issue Date  ANTIPERSONNEL BARRIER SYSTEM Granted 11/313485 12/20/05 7909309 3/22/11  ARCHING METALLIC PROFILES IN CONTINUOUS IN- LINE PROCESS  Pending US08/86655 12/12/08    Conduit Coupling Assembly Granted 10/328077 12/23/02 7404582 7/29/08  Conduit Coupling Assembly Pending US03/41080 12/22/03    Continuously Manufactured Colored Metallic Products and  Method of Manufacture of such Products  Granted 10/702625 11/6/03 7989028 8/2/11  Fencing Construction Apparatus and Method Granted 11/753252 5/24/07 7789376 9/7/10  Fire protection pipe and methods of manufacture Granted 09/955426 9/18/01 6758282 7/6/04  Metal Floor Joist System Pending 11/549360 10/13/06    JOINT CONSTRUCTION FOR COUPLING CONDUIT  SECTIONS  Granted 13/717110 12/17/12 8695218 4/15/14  MEDICAL DEVICE MOUNTING SYSTEM Granted 13/352563 1/18/12 8960624 2/24/15  METHOD OF MANUFACTURING A COUPLING  ASSEMBLY  Granted 12/144735 6/24/08 7726001 6/1/10  





 






LEGAL_US_E # 150343706.2     15        Title Status App. No. File Date Patent No. Issue Date  Modular Building Frame Granted1 10/267112 10/7/02 7992352 8/9/11  PICKET FENCE ASSEMBLY Granted 11/296972 12/8/05 7434789 10/14/08  RAZOR WIRE BARRIER FOR ACCESS POINT  SECURITY  Granted 15/865672 9-Jan-2018    RAZOR WIRE CONTAINER WITH ACCESS  OPENING  Pending 16/369519 29-Mar-2019    SUPPORT POST Granted 29/298903 12/14/07 D624198 9/21/10  CONDUIT COUPLING ASSEMBLY Granted 10328077 12/23/02 7404582 07/29/08  SYSTEM AND METHODS FOR FORMING BARBED TAPE  PRODUCT WITH PREDETERMINED PATTERNS O...  Granted 10/585,166 May 6, 2009 7883074 Apr 8, 2008  CONCERTINA TAPE PRODUCTS CONFIGURED FOR  STABLE DEPLOYMENT AND RETRIEVAL  Granted 10/959,530 Oct 5, 2004 7290756 Jun 23, 2009  CONCERTINA TAPE PRODUCTS CONFIGURED FOR  STABLE DEPLOYMENT AND RETRIEVAL  Granted 11/433,303 May 11, 2006 7481444 Aug 3, 2010  CONCERTINA TAPE PRODUCTS CONFIGURED FOR  STABLE DEPLOYMENT AND RETRIEVAL  Granted 11/835,761 Aug 8, 2007 7896317 Nov 14, 2007  CONCERTINA TAPE PRODUCTS CONFIGURED FOR  STABLE DEPLOYMENT AND RETRIEVAL  Granted 13/035,295 Feb 25, 2011 8157491 Apr 12, 2013  BARBED TAPE PRODUCT WITH A PREDETERMINED  PATTERN OF ATTACHMENT POINTS AND ATTACH...  Granted 10/959,531 Oct 5, 2004 7419139 Jan 14, 2020  Methods for forming barbed tape product Granted 10/959,944 Oct 5, 2004 7353576 Nov 25, 2020  SYSTEM AND METHODS FOR FORMING BARBED TAPE  PRODUCT  Granted 11/778,846 Jul 17, 2007 7549203 May 27, 2020  System for forming barbed tape product Granted 12/467,025 May 15, 2009 7765657 Mar 25, 2008  RAZOR WIRE CONTAINER WITH ACCESS OPENING Pending 16538952 08/13/19    PORTABLE RAZOR WIRE RAPID DEPLOYMENT UNIT Pending 16832222 03/27/20    LOW-PROFILE CABLE ARMOR Pending 29/706,679 Sep 23, 2019                                                      1  Allied Tube & Conduit Corporation is the owner of an undivided joint interest in this patent.      





 






LEGAL_US_E # 150343706.2     16        Title Status App. No. File Date Patent No. Issue Date  LOW-PROFILE CABLE ARMOR Pending 16/578,842 Sep 23, 2019    MC CABLE WITH TEARABLE ASSEMBLY TAPE Pending 16/837,382 Apr 1, 2020    MC CABLE WITH TEARABLE ASSEMBLY TAPE Pending 62/986,043 Mar 6, 2020    Modular Connector for Rigid Tubing Pending 16/907,504 Jun 22, 2020    GRANTOR:  Unistrut International Corporation  Title Status App. No. File Date Patent No. Issue Date  Corrosion Resistant Channels, Fittings And Fasteners Pending 61/970953 3/27/14    Folded Beam Clamp Granted 14/037478 9/23/13 9157574 10/13/15  Slot Nut for Securement of Channel Granted 11/453421 6/15/06 7766594 8/3/10  Solar Panel Bracket Granted 12/645641 12/23/09 8226061 7/24/12  Standing seam roof clamp Pending 13/034824 2/25/11    Barbed tape and security sensor assembly Granted 15/826934 30-Nov-2017 10535238 14-Jan-2020  ROTATABLE BEAM CLAMP Granted 15/864289 08-Jan-2018 10415616 17-Sep-2019  Heavy duty cantilever bracket Granted D/580838 13-Oct-2016 D805881 26-Dec-2017  Heavy duty cantilever bracket Granted D/580839 13-Oct-2016 D805375 19-Dec-2017  Retrofit brace fitting Granted 14/974753 18-Dec-2015 9834921 5-Dec-2017  LOCKING WASHER FOR BRACE MEMBERS Granted 15/354071 17-Nov-2016 10203000 19-Feb-2019  STANDING SEAM ROOF CLAMP Granted 14249734 04/10/2014 9834921 15/05/17  Standing seam roof clamp Granted 14249734 04/10/2014 9291370 03/22/2016  GRANTOR:  AFC Cable Systems, Inc.  Title Status App. No. File Date Patent No. Issue Date  METAL SHEATHED CABLE WITH JACKETED,  CABLED CONDUCTOR SUBASSEMBLY  Granted 16/567215 11-Sept-2019 10622120 14-Apr-2020  





 






LEGAL_US_E # 150343706.2     17        Title Status App. No. File Date Patent No. Issue Date  Metal sheathed cable with jacketed, cabled conductor  subassembly  Granted 16/802892 27-Feb-2020 10847286 11/24/20  Wire spring terminal Pending D/628722 07-Dec-2017 D847097 30-Apr-2019  Electrica spring-terminal Granted 15/606036 26-May-2017 10103456 16-Oct-2018  Metal sheathed cable with jacketed, cabled conductor  subassembly  Granted 18/674095 31-Mar-2015 10002689 19-Jun-2018  Metal sheathed cable with jacketed, cabled conductor  subassembly  Granted 15/983625 18-May-2018 10431353 1-Oct-2019  GRANTOR:  Atkore International, Inc.  Title Status App. No. File Date Patent No. Issue Date  Method & Apparatus for Connecting Loops of Barbed Tape  Granted 11062710 2/22/05 7346968 3/25/08  Retractable Barbed Barrier System Granted 10692967 10/24/03 7044447 5/16/06  Standing Seam Roof Clamp Granted 13034824 2/25/11 8732917 5/27/14  Vineyard stake Granted D/506585 17-Oct-2014 D742186 3-Nov-2015  STANDING SEAM ROOF CLAMP Pending 14/249734 10-Apr-2014 9291370 22-Mar-2016  GRANTOR: Calpipe Industries, LLC  Title Status App. No. File Date Patent No. Issue Date  Strut Granted D607282 6/12/17 D830153 10/09/18  GRANTOR: US Tray, Inc.  Title Status App. No. File Date Patent No. Issue Date  Combination hold-down clamp and expansion guide apparatus  for cable trays  Granted 13418564 13-Mar-12 8899544 2-Dec-14    





 






LEGAL_US_E # 150343706.2     18        II. TRADEMARKS  GRANTOR:  Allied Tube & Conduit Corporation  Trademark Status App. No. File Date Reg. No. Reg. Date  50 55 Stylized Registered 73378127 04-Aug-82 1304677 13-Nov-84  A ATKORE INTERNATIONAL & design Registered 85172192 09-Nov-10 4339136 21-May-13  AICKINSTRUT Registered 74000932 16-Nov-89 1606445 17-Jul-90  Allied Circle-Triangle Logo Registered 73489964 16-Jul-84 1350298 23-Jul-85  ALLIED TUBE & CONDUIT Registered 77111074 20-Feb-07 3394192 11-Mar-08  ATKORE INTERNATIONAL Registered 85158927 22-Oct-10 4339130 21-May-13  ATKORE INTERNATIONAL Registered 85158919 22-Oct-10 4339129 21-May-13  ATKORE INTERNATIONAL Registered 85158914 22-Oct-10 4158520 12-Jun-12  ATKORE INTERNATIONAL Registered 85158906 22-Oct-10 4158519 12-Jun-12  ATKORE INTERNATIONAL Registered 85158885 22-Oct-10 4158518 12-Jun-12  BLT Registered 74294039 14-Jul-92 1755162 02-Mar-93  CENTIPEDE Registered 75690894 26-Apr-99 2460247 12-Jun-01  COBRA Registered 73642759 03-Feb-87 1454873 01-Sep-87  DETAINER HOOK Registered 75788947 31-Aug-99 2410372 05-Dec-00  DYNA-FLOW Registered 74085583 06-Aug-90 1681099 31-Mar-92  DYNA-THREAD Registered 74160560 25-Apr-91 1688940 26-May-92  E-Z PULL Registered 73790786 03-Apr-89 1657191 17-Sep-91  FIRE ALARM Registered 78226542 17-Mar-03 2887776 21-Sep-04  FLO-COAT Registered 72285181 20-Nov-67 862614 31-Dec-68  GATORSHIELD Registered 73522625 19-Feb-85 1378808 21-Jan-86  INSTABARRIER Registered 73582757 14-Feb-86 1411050 30-Sep-86  KWIK-COUPLE Registered 75536075 17-Aug-98 2537549 12-Feb-02  KWIK-FIT Registered 76422464 18-Jun-02 2749843 12-Aug-03  MAZE Registered 73433077 05-Jul-83 1291828 28-Aug-84  QWIK-COAT Registered 77228132 12-Jul-07 3381584 12-Feb-08  





 






LEGAL_US_E # 150343706.2     19        Trademark Status App. No. File Date Reg. No. Reg. Date  QWIK-PUNCH Registered 87927619 18-May-2018 5991826 18-Feb-20  RAZOR-RIBBON Registered 73040056 20-Dec-74 1035183 09-Mar-76  RAZOR-STRAND Registered 78931472 18-Jul-06 3273079 31-Jul-07  SILENT SWORDSMAN Registered 73693161 02-Nov-87 1565430 14-Nov-89  SS 15 Registered 87421006 21-Apr-17 5932455 10-Dec-19  SS 20 Registered 87421015 21-Apr-17 5932456 10-Dec-19  SS 40 Registered 87421047 21-Apr-2017 5932457 10-Dec-19  TECTRON Registered 74650382 22-Mar-95 2089604 19-Aug-97  TECTRON TUBE & design Registered 77743858 25-May-09 3725505 15-Dec-09  TOPGRIP NUT Registered 72343890 18-Nov-69 904149 15-Dec-70  XL Registered 76526337 27-Jun-03 2844584 25-May-04  COBRA COIL - Wordmark Registered 87466256 26-May-12 5355179 12-Dec-17  COBRA design Registered 87572340 17-Aug-17 6158491 22-Sep-20  COBRASYSTEMSINC & Design Registered 87572351 17-Aug-17 6158492 22-Sep-20  KONKORE FITTINGS - Wordmark Registered 86915811 22-Feb-16 5168022 21-Mar-17  RACEWAY. YOUR WAY. (Logo) Registered 86371929 20-Aug-14 5590515 23-Oct-18  RACEWAY. YOUR WAY. (Wordmark) Registered 86371876 20-Aug-14 55905143 23-Oct-18  RAZOR RIBBON & Design Registered 87799782 15-Feb-18 60968373 07-Jul-20  SUPER KWIK-COUPLE (Wordmark) Registered 87540552 24-Jul-17 6042944 28-Apr-20  FLO 90 Registered 86347005 24-Jul-14 4703399 17-Mar-15  BUILDING BETTER TOGETHER Pending 88839224 18-Mar-20    BUILDING BETTER TOGETHER Pending 88839237 18-Mar-20    EAGLE BASKET Pending 88937597 28-May-20    ATKORE Pending 90099692 07-Aug-20    A ATKORE Pending 90099696 07-Aug-20    A ATKORE Pending 90099702 07-Aug-20    





 






LEGAL_US_E # 150343706.2     20        GRANTOR:  Atkore Plastic Pipe Corporation  Trademark Status App. No. File Date Reg. No. Reg. Date  HERITAGEPLASTICS Registered 86447014 06-Nov-14 5572845 02-Oct-18  H Registered 86447048 06-Nov-14 4903739 23-Feb-16  GRANTOR:  Atkore Steel Components, Inc.  Trademark Status App. No. File Date Reg. No. Reg. Date  UNIVERSAL SUPER FITTING Registered 87157293 31-Aug-16 5267993 15-Aug-17  GRANTOR:  WPFY, Inc.  Trademark Status App. No. File Date Reg. No. Reg. Date  AC-90 Registered 77726387 30-Apr-09 3715075 24-Nov-09  AC-LITE Registered 74040024 19-Mar-90 1647967 18-Jun-91  AFC CABLE SYSTEMS Registered 74451176 26-Oct-93 1886593 28-Mar-95  AMERICA CABLE SYSTEMS Registered 77430965 25-Mar-08 3520199 21-Oct-08  COLORSPEC Registered 85950569 04-Jun-13 4612162 30-Sep-14  COLOR-TRAK Registered 85086166 16-Jul-10 4033591 04-Oct-11  CUSTOM CUTS Registered 73692210 23-Oct-87 1492988 21-Jun-88  HCF-90 Registered 73783546 27-Feb-89 1594970 08-May-90  HCF-LITE Registered 74717357 18-Aug-95 1988636 23-Jul-96  HCF MC CURE - Wordmark Registered 85961367 17-Jun-13 4668257 6-Jan-15  HOME RUN CABLE Registered 73481404 21-May-84 1328225 02-Apr-85  KAF-TECH Registered 77151619 09-Apr-07 3358990 25-Dec-07  MC-QUIK Registered 77573428 18-Sep-08 3713117 17-Nov-09  MC LITE Registered 73554337 19-Aug-85 1414788 28-Oct-86  MC STAT Registered 77573442 18-Sep-08 3713118 17-Nov-09  MC TUFF Registered 75876422 20-Dec-99 2404265 14-Nov-00  





 






LEGAL_US_E # 150343706.2     21        Trademark Status App. No. File Date Reg. No. Reg. Date  MC-PLUS Registered 77713084 14-Apr-09 3711683 17-Nov-09  Miscellaneous Design (AFC logo) (eagle) Registered 74566575 29-Aug-94 1907213 25-Jul-95  SUPER NEUTRAL CABLE Registered 74315526 21-Sep-92 1782264 13-Jul-93  THE INTELLIGENT CEILING Registered 74390582 14-May-93 1914118 22-Aug-95  THE INTELLIGENT FLOOR Registered 74390581 14-May-93 1895560 23-May-95  GRANTOR:  Unistrut International Corporation  Trademark Status App. No. File Date Reg. No. Reg. Date  KOREFIT (design plus words) Registered 88106907 06-Sep-2018 6064988 6-May-2020  KOREFIT Registered 87643949 12-Oct-17 6329122 20-Apr-21  MR. STRUT Design (no words) Registered 72285597 24-Nov-67 862747 31-Dec-68  MR. STRUT (design plus words) Registered 72053067 06-Jun-58 688160 17-Nov-59  N-1000 Registered 75583154 05-Nov-98 2376739 15-Aug-00  P (design plus words) Pending 87292598 07-Jan-17    P1000 Registered 73314979 15-Jun-81 1274104 17-Apr-84  POWER-STRUT DEFENDER Registered 86218581 17-Jun-13 5607302 13-Nov-18  POWER-STRUT DEFENDER (design plus words) Pending 87292602 07-Jan-17    QUICK-LATCH Registered 86790897 16-Oct-15 5541357 14-Aug-18  ROOFWALKS Registered 73696046 17-Nov-87 1496545 19-Jul-88  TELESPAR Registered 73579378 22-Jan-86 1438940 12-May-87  TELESTRUT Registered 74649227 20-Mar-95 1953363 30-Jan-96  U (design plus words) Registered 86230383 24-Mar-14 5513950 10-Jul-18  UNI-CLIP Registered 72308333 26-Sep-68 881999 09-Dec-69  UNI-CUSHION Registered 73255294 24-Mar-80 1172255 06-Oct-81  UNIPIER Registered 77189472 24-May-07 3434445 27-May-08  UNIPIER and Design Registered 77191680 29-May-07 3434453 27-May-08  UNISTRUT Registered 72200395 21-Aug-64 793173 27-Jul-65  





 






LEGAL_US_E # 150343706.2     22        Trademark Status App. No. File Date Reg. No. Reg. Date  UNISTRUT Registered 72200397 21-Aug-64 802145 18-Jan-66  UNISTRUT Registered 72200396 21-Aug-64 793185 27-Jul-65  UNISTRUT Registered 71624800 11-Feb-52 591532 22-Jun-54  UNISTRUT DEFENDER Registered 86220011 13-Mar-14 5498012 19-Jun-18  UNITED INTERLOCK Registered 76159922 06-Nov-00 2608939 20-Aug-02  COPE Registered 77879408 24-Nov-09 3817525 13-Jul-10  COPE Registered 77879409 24-Nov-09 3817526 13-Jul-10  POWER-STRUT Registered 73527529 18-Mar-85 1370880 19-Nov-85  [cartoon design only] Pending 90660908 21-Apr-21      GRANTOR:  AFC Cable Systems, Inc.    Title Status App. No. File Date Patent No. Issue Date  MC LUMINARY QUIK Registered 88046241 20-Jul-18 6070097 2-Jun-2020  ACS/UNI-FAB Registered 87615831 20-Sep-17 5921466 26-Nov-19  MC LUMINARY MULTIZONE Registered 87042368 18-May-16 5224495 13-Jun-17  MC LUMINARY HCF Registered 87042403 18-May-16 5262260 08-Aug-17  FLEX4 Registered 86743033 13-Aug-15 4976700 14-Jun-16  AC-PLUS Registered 86581271 30-Mar-15 5120112 10-Jan-17  PACK N’ ROLL Registered 86581314 30-Mar-15 4967360 31-May-16  MC LUMINARY Registered 86470801 03-Dec-14 4781579 28-Jul-15  MC TUFF LUMINARY Registered 86470791 03-Dec-14 4731663 05-May-15  MC LITE LUMINARY Registered 86470796 03-Dec-14 4731664 05-May-15  MC SNAPIT Registered 86403299 23-Sep-14 4830103 13-Oct-15  MC GLIDE Pending 90192168 18-Sep-20    MC GLIDE Pending 90206130 24-Sep-20    MC TUFF GLIDE Pending 90479912 21-Jan-21    





 






LEGAL_US_E # 150343706.2     23            GRANTOR:  Atkore RMCP, Inc.  Trademark Status App. No. File Date Reg. No. Reg. Date  COR-TEK Registered 88007419 20-Jun-18 6291790 16-Mar-21     GRANTOR:  Calpipe Industries, LLC  Trademark Status App. No. File Date Reg. No. Reg. Date  BRITERAIL Registered 87886414 20-Apr-18 5717664 02-Apr-19  CALBOND Registered 85458381 27-Oct-11 4164350 26-Jun-12  CALBRITE Registered 85291702 11-Apr-11 4049260 01-Nov-11  CALCONDUIT Registered 85280210 29-Mar-11 4114043 20-Mar-12  CALPIPE SECURITY BOLLARDS Registered 85280214 29-Mar-11 4070034 13-Dec-11    Material Copyright Licenses, Patent Licenses and Trademark Licenses  None.  The Grantors are party to standard agreements for software and information technology used in the ordinary course of business. 





 






LEGAL_US_E # 150343706.2      24          Schedule 7  Commercial Tort Claims    None.                  





 






LEGAL_US_E # 155827293.3      ANNEX 1    1006148456v9    ACKNOWLEDGEMENT AND CONSENT  The undersigned hereby acknowledges receipt of a copy of the Second Amended and  Restated Guarantee and Collateral Agreement, dated as of May 26, 2021 (the “Agreement”;  capitalized terms used and not otherwise defined herein shall have the meanings assigned to  them in the Agreement or the Credit Agreement referred to therein, as the case may be), made by  Atkore International, Inc. and the other Granting Parties party thereto in favor of Wells Fargo  Bank, National Association, as Collateral Agent and Administrative Agent.  The undersigned  agrees for the benefit of the Collateral Agent, the Administrative Agent and the Lenders as  follows:  The undersigned will be bound by the terms of the Agreement applicable to it as an Issuer  (as defined in the Agreement) and will comply with such terms insofar as such terms are  applicable to the undersigned as an Issuer.  The undersigned will notify the Collateral Agent promptly in writing of the occurrence of  any of the events described in subsection 5.3.1 of the Agreement.  The terms of subsections 6.3(c) and 6.7 of the Agreement shall apply to it, mutatis  mutandis, with respect to all actions that may be required of it pursuant to subsection 6.3(c) or  6.7 of the Agreement.  [NAME OF ISSUER]  By:_______________________________________  Name:  [_____________]  Title: [__________]  Address for Notices:  [__________________]        





 






LEGAL_US_E # 155827293.3      ANNEX 2    1006148456v9    ASSUMPTION AGREEMENT    ASSUMPTION AGREEMENT, dated as of _________  __, ____, made by  ______________________________, a ______________ corporation (the “Additional Granting  Party”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent  (in such capacity, the “Collateral Agent”) and as administrative agent (in such capacity, the  “Administrative Agent”) for the banks and other financial institutions from time to time parties  to the Credit Agreement referred to below and the other Secured Parties (as defined in the  Guarantee and Collateral Agreement).  All capitalized terms not defined herein shall have the  meaning ascribed to them in the Guarantee and Collateral Agreement referred to below, or if not  defined therein, in the Credit Agreement.  W I T N E S S E T H :  WHEREAS, ATKORE INTERNATIONAL, INC., a Delaware corporation  (together with its successors and assigns, the “Parent Borrower”), the Subsidiary Borrowers from  time to time party thereto (together with the Parent Borrower, collectively the “Borrowers” and  each individually a “Borrower”), the several banks and other financial institutions from time to  time party thereto (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION,  as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders  thereunder and as collateral agent (in such capacity, the “Collateral Agent”) for the Secured  Parties, and the other parties party thereto are parties to an Amended and Restated Credit  Agreement, dated as of August 28, 2020 (as amended, supplemented, waived or otherwise  modified from time to time, the “Credit Agreement”);  WHEREAS, in connection with the Credit Agreement, Atkore Inc., a Delaware  corporation, Atkore International Holdings Inc., a Delaware corporation (“Holdings”), the Parent  Borrower and certain of its Subsidiaries are, or are to become, parties to the Second Amended  and Restated Guarantee and Collateral Agreement, dated as of May 26, 2021 (as amended,  supplemented, waived or otherwise modified from time to time, the “Guarantee and Collateral  Agreement”), in favor of the Collateral Agent, for the ratable benefit of the Secured Parties;  WHEREAS, the Additional Granting Party is a member of an affiliated group of  companies that includes the Borrower and each other Granting Party; the proceeds of the  extensions of credit under the Credit Agreement will be used in part to enable the Parent  Borrower to make valuable transfers to one or more of the other Granting Parties (including the  Additional Granting Party) in connection with the operation of their respective businesses; and  the Parent Borrower and the other Granting Parties (including the Additional Granting Party) are  engaged in related businesses, and each such Granting Party (including the Additional Granting  Party) will derive substantial direct and indirect benefit from the making of the extensions of  credit under the Credit Agreement;  WHEREAS, the Credit Agreement requires the Additional Granting Party to  become a party to the Guarantee and Collateral Agreement; and  





 






LEGAL_US_E # 155827293.3      ANNEX 2      1006148456v9    WHEREAS, the Additional Granting Party has agreed to execute and deliver this  Assumption Agreement in order to become a party to the Guarantee and Collateral Agreement.  NOW, THEREFORE, IT IS AGREED:  1.  Guarantee and Collateral Agreement.  By executing and delivering this  Assumption Agreement, the Additional Granting Party, as provided in subsection 9.15 of the  Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral  Agreement as a Granting Party thereunder with the same force and effect as if originally named  therein as a [Guarantor] [, Grantor and Pledgor] [and Grantor] [and Pledgor] 1 and, without  limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities  of a [Guarantor] [, Grantor and Pledgor] [and Grantor] [and Pledgor] 2  thereunder.  The  information set forth in Annex 1-A hereto is hereby added to the information set forth in  Schedules ____________ to the Guarantee and Collateral Agreement, and such Schedules are  hereby amended and modified to include such information.  The Additional Granting Party  hereby represents and warrants that each of the representations and warranties of such Additional  Granting Party, in its capacities as a Guarantor [, Grantor and Pledgor] [and Grantor] [and  Pledgor],3 contained in Section 4 of the Guarantee and Collateral Agreement is true and correct  in all material respects on and as the date hereof (after giving effect to this Assumption  Agreement) as if made on and as of such date. Each Additional Granting Party hereby grants, as  and to the same extent as provided in the Guarantee and Collateral Agreement, to the Collateral  Agent, for the benefit of the Secured Parties, a continuing security interest in the [Collateral (as  such term is defined in Subsection 3.1 of the Guarantee and Collateral Agreement) of such  Additional Granting Party] [and] [the Pledged Collateral (as such term is defined in the  Guarantee and Collateral Agreement) of such Additional Granting Party, except as provided in  Subsection 3.3 of the Guarantee and Collateral Agreement].  2.  GOVERNING LAW.  THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM OR  CONTROVERSY RELATING HERETO SHALL BE GOVERNED BY, AND  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE  STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR  RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES  ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE  OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.                                                   1 Indicate the capacities in which the Additional Granting Party is becoming a Grantor.  2 Indicate the capacities in which the Additional Granting Party is becoming a Grantor.  3 Indicate the capacities in which the Additional Granting Party is becoming a Grantor.  





 






LEGAL_US_E # 155827293.3    ANNEX 2  ANNEX 2    1006148456v9    IN WITNESS WHEREOF, the undersigned has caused this Assumption  Agreement to be duly executed and delivered as of the date first above written.  [ADDITIONAL GRANTING PARTY]      By: _________________________________  Name:  Title:        Acknowledged and Agreed to as  of the date hereof by:    WELLS FARGO BANK, NATIONAL ASSOCIATION,   as Collateral Agent and Administrative Agent      By:_______________________________  Name:  Title:    





 






LEGAL_US_E # 155827293.3      ANNEX 3    1006148456v9    SUPPLEMENTAL AGREEMENT    SUPPLEMENTAL AGREEMENT, dated as of _________  __, ____, made by  ______________________________, a ______________ corporation (the “Additional  Pledgor”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral  agent (in such capacity, the “Collateral Agent”) and as administrative agent (in such capacity, the  “Administrative Agent”) for the banks and other financial institutions from time to time parties  to the Credit Agreement referred to below and the other Secured Parties (as defined in the  Guarantee and Collateral Agreement).  All capitalized terms not defined herein shall have the  meaning ascribed to them in the Guarantee and Collateral Agreement referred to below, or if not  defined therein, in the Credit Agreement.  W I T N E S S E T H :  WHEREAS, ATKORE INTERNATIONAL, INC., a Delaware corporation  (together with its successors and assigns, the “Parent Borrower”), the Subsidiary Borrowers from  time to time party thereto (together with the Parent Borrower, collectively the “Borrowers” and  each individually a “Borrower”), the several banks and other financial institutions from time to  time party thereto (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION,  as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders  thereunder and as collateral agent (in such capacity, the “Collateral Agent”) for the Secured  Parties, and the other parties party thereto are parties to an Amended and Restated Credit  Agreement, dated as of August 28, 2020 (as amended, supplemented, waived or otherwise  modified from time to time, the “Credit Agreement”);  WHEREAS, in connection with the Credit Agreement, Atkore Inc., a Delaware  corporation, Atkore International Holdings Inc., a Delaware corporation (“Holdings”), the Parent  Borrower and certain of its Subsidiaries are, or are to become, parties to the Second Amended  and Restated Guarantee and Collateral Agreement, dated as of May 26, 2021 (as amended,  supplemented, waived or otherwise modified from time to time, the “Guarantee and Collateral  Agreement”), in favor of the Collateral Agent, for the ratable benefit of the Secured Parties;  WHEREAS, the Credit Agreement requires the Additional Pledgor to become a  Pledgor under the Guarantee and Collateral Agreement with respect to Capital Stock of certain  new Subsidiaries of the Additional Pledgor; and  WHEREAS, the Additional Pledgor has agreed to execute and deliver this  Supplemental Agreement in order to become such a Pledgor under the Guarantee and Collateral  Agreement;  





 






LEGAL_US_E # 155827293.3      ANNEX 4    1006148456v9    NOW, THEREFORE, IT IS AGREED:  1.  Guarantee and Collateral Agreement. By executing and delivering this  Supplemental Agreement, the Additional Pledgor, as provided in Subsection 9.15 of the  Guarantee and Collateral Agreement, hereby becomes a Pledgor under the Guarantee and  Collateral Agreement with respect to the shares of Capital Stock of the Subsidiary of the  Additional Pledgor listed in Annex 1-A hereto, as a Pledgor thereunder.  The information set  forth in Annex 1-A hereto is hereby added to the information set forth in Schedule 2 to the  Guarantee and Collateral Agreement, and such Schedule 2 is hereby amended and modified to  include such information. The Additional Pledgor hereby represents and warrants that each of the  representations and warranties of such Additional Pledgor, in its capacities as a Pledgor,  contained in Section 4.3 of the Guarantee and Collateral Agreement is true and correct in all  material respects on and as the date hereof (after giving effect to this Supplemental Agreement)  as if made on and as of such date. Each Additional Pledgor hereby grants, as and to the same  extent as provided in the Guarantee and Collateral Agreement, to the Collateral Agent, for the  benefit of the Secured Parties, a continuing security interest in all of the Pledged Collateral of  such Additional Pledgor now owned or at any time hereafter acquired by such Pledgor, and any  Proceeds thereof, except as provided in Subsection 3.3 of the Guarantee and Collateral  Agreement.  2.  GOVERNING LAW.  THIS SUPPLEMENTAL AGREEMENT AND THE RIGHTS  AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM OR  CONTROVERSY RELATING HERETO SHALL BE GOVERNED BY, AND  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE  STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR  RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES  ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE  OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. 





 






LEGAL_US_E # 155827293.3      ANNEX 3    1006148456v9    IN WITNESS WHEREOF, the undersigned has caused this Assumption  Agreement to be duly executed and delivered as of the date first above written.  [ADDITIONAL PLEDGOR]      By:_______________________________  Name:  Title:        Acknowledged and Agreed to as  of the date hereof by:    WELLS FARGO BANK, NATIONAL ASSOCIATION,   as Collateral Agent and Administrative Agent      By:_______________________________  Name:  Title: 





 






LEGAL_US_E # 155827293.3      ANNEX 4    1006148456v9    JOINDER AND RELEASE    JOINDER AND RELEASE, dated as of [_________ __], [____] (this “Joinder”)  by and among [              ] (“Assignor”), [________] (“Assignee”) and WELLS FARGO BANK,  NATIONAL ASSOCIATION, as collateral agent (in such capacity, the “Collateral Agent”) and  as administrative agent (in such capacity, the “Administrative Agent”) for the banks and other  financial institutions (the “Lenders”) from time to time parties to the Credit Agreement referred  to below and for the other Secured Parties.  All capitalized terms not defined herein shall have  the meaning ascribed to them in the Guarantee and Collateral Agreement referred to below.    W I T N E S S E T H:  WHEREAS, ATKORE INTERNATIONAL, INC., a Delaware corporation  (together with its successors and assigns, the “Parent Borrower”), the several banks and other  financial institutions from time to time party thereto (the “Lenders”), and the Administrative  Agent, the Collateral Agent and the other parties party thereto are parties to an Amended and  Restated Credit Agreement, dated as of August 28, 2020 (as amended, supplemented, waived or  otherwise modified from time to time, the “Credit Agreement”);    WHEREAS, in connection with the Credit Agreement, Assignor (as the direct  parent of the Parent Borrower), the Parent Borrower and certain other subsidiaries of Parent  Borrower entered into a Second Amended and Restated Guarantee and Collateral Agreement,  dated as of May 26, 2021 (the “Guarantee and Collateral Agreement”) by and among Assignor,  the Parent Borrower, certain of the Parent Borrower’s Subsidiaries and the Collateral Agent,  pursuant to which, among other things, they agreed to jointly and severally, unconditionally and  irrevocably, guarantee all of the obligations of the Parent Borrower under the Credit Agreement  and grant security interests in and pledge property and assets, including the Pledged Collateral, in  favor of the Collateral Agent, for the benefit of the Secured Parties;    WHEREAS, Assignee is acquiring from Assignor all of the Capital Stock of the  Parent Borrower;    WHEREAS, in connection therewith, Section 9.16(e) of the Guarantee and  Collateral Agreement requires Assignee to assume all of the obligations of Assignor under the  Guarantee and Collateral Agreement and the other Loan Documents to which Assignor is a party;  and    WHEREAS, upon the assumption of Assignor’s obligations by Assignee, the  Assignor shall be automatically released from its obligations under the Guarantee and Collateral  Agreement and any other instrument or document furnished pursuant thereto, and pursuant to  Section 9.16(e) of the Guarantee and Collateral Agreement the Collateral Agent shall, among  other things, take such actions as may be reasonably requested to evidence such release.    





 






LEGAL_US_E # 155827293.3      ANNEX 4    1006148456v9    NOW, THEREFORE, IT IS AGREED:  1. By executing and delivering this Joinder, Assignee hereby expressly assumes all of the  obligations of Assignor under the Guarantee and Collateral Agreement and each other  Loan Document to which Assignor is a party and agrees that it will be bound by the  provisions of the Guarantee and Collateral Agreement and such other Loan Documents.   Pursuant to Section 9.16(e) of the Guarantee and Collateral Agreement, Assignee hereby  succeeds to, and is substituted for, and shall exercise every right and power of, Assignor  under the Guarantee and Collateral Agreement and the other Loan Documents to which  Assignor is a party, and shall be thereafter be deemed to be “Holdings” for purposes of  the Guarantee and Collateral Agreement and the other Loan Documents and a  “Guarantor”, “Granting Party” and “Pledgor” for purposes of the Guarantee and  Collateral Agreement as if originally named therein  and the Assignor is hereby expressly,  irrevocably and unconditionally discharged from all debts, obligations, covenants and  agreements under the Guarantee and Collateral Agreement and the other Loan  Documents to which it is a party.  2. The Collateral Agent hereby confirms and acknowledges the release of Assignor from its  guarantee and all other obligations under the Guarantee and Collateral Agreement and all  other obligations thereunder and under the other Loan Documents.  3. The Collateral Agent hereby confirms and acknowledges that the Lien pursuant to the  Guarantee and Collateral Agreement on all Security Collateral of Assignor, and any Lien  pursuant to any other Loan Document on the property or assets of Assignor, has been  automatically released.  4. Assignee hereby represents and warrants that each of the representations and warranties  made by Assignee, in its capacity as a Guarantor, Grantor and Pledgor, in each case  solely with respect to the representations and warranties made by Holdings, contained in  Section 4 of the Guarantee and Collateral Agreement is true and correct in all material  respects on and as the date hereof (after giving effect to this Joinder Agreement) as if  made on and as of such date.  Assignee hereby grants, as and to the same extent as  provided in the Guarantee and Collateral Agreement, to the Collateral Agent, for the  benefit of the Secured Parties, a continuing security interest in the Pledged Collateral (as  such term is defined in the Guarantee and Collateral Agreement) of Assignee, except as  provided in Subsection 3.3 of the Guarantee and Collateral Agreement and with the  limitations as applicable to Holdings.  5. GOVERNING LAW.  THIS JOINDER AND THE RIGHTS AND OBLIGATIONS  OF THE PARTIES HEREUNDER AND ANY CLAIM OR CONTROVERSY  RELATING HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND  INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF  NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES  OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES  ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD  





 






LEGAL_US_E # 155827293.3      ANNEX 4    1006148456v9    REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER  JURISDICTION.  





 






LEGAL_US_E # 155827293.3      ANNEX 4    1006148456v9    IN WITNESS WHEREOF, the undersigned has caused this Joinder to be duly  executed and delivered as of the date first above written.    [ASSIGNOR]    By:_______________________________  Name:  Title:    [ASSIGNEE]    By:_______________________________  Name:  Title:  Acknowledged and Agreed to as  of the date hereof by:    WELLS FARGO BANK, NATIONAL  ASSOCIATION,  as Collateral Agent and Administrative Agent  By:_______________________________  Name:  Title: