exhibit102-truistxamneal






Execution Version    AmericasActive:16964714.2      ABL GUARANTEE AND COLLATERAL AGREEMENT,  dated as of June 2, 2022,   among  AMNEAL PHARMACEUTICALS LLC,   as the Borrower,  each other Grantor party hereto,  and  TRUIST BANK,  as Administrative Agent and Collateral Agent      Reference is made to the ABL/Term Loan Intercreditor Agreement dated as of May 4, 2018 by  and among JPMorgan Chase Bank, N.A., as “ABL Agent” prior to the Closing Date, Truist Bank  as “ABL Agent” as of the Closing Date (pursuant to a joinder executed as of the Closing Date)  and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent under the Term  Loan Credit Agreement, and acknowledged by the Loan Parties, as amended, restated, amended  and restated, supplemented or otherwise modified from time to time, the “Closing Date  Intercreditor Agreement”),and acknowledged by the Borrower and the other parties from time to  time signatory thereto.  Notwithstanding anything herein to the contrary, the liens and security  interests granted to the Collateral Agent, for the ratable benefit of the Secured Parties hereunder,  pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent and  the other Secured Parties hereunder are subject to the provisions of the Closing Date Intercreditor  Agreement.  In the event of any conflict or inconsistency between the provisions of the Closing  Date Intercreditor Agreement and this Agreement, the provisions of the Closing Date Intercreditor  Agreement shall control.  





 






    i  AmericasActive:16964714.2 TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS 1  Section 1.01. Credit Agreement .........................................................................................1  Section 1.02. Other Defined Terms ...................................................................................2  ARTICLE II GUARANTEE 8  Section 2.01. Guarantee .....................................................................................................8  Section 2.02. Guarantee of Payment ..................................................................................9  Section 2.03. No Limitations, Etc ......................................................................................9  Section 2.04. Reinstatement .............................................................................................10  Section 2.05. Agreement To Pay; Contribution; Subrogation .........................................10  Section 2.06. Information ................................................................................................11  Section 2.07. Maximum Liability ....................................................................................12  ARTICLE III PLEDGE OF SECURITIES 12  Section 3.01. Pledge .........................................................................................................12  Section 3.02. Delivery of the Pledged Collateral .............................................................13  Section 3.03. Representations, Warranties and Covenants ..............................................14  Section 3.04. Registration in Nominee Name; Denominations .......................................16  Section 3.05. Voting Rights; Dividends and Interest, Etc ...............................................16  ARTICLE IV SECURITY INTERESTS IN OTHER PERSONAL PROPERTY 18  Section 4.01. Security Interest .........................................................................................18  Section 4.02. Representations and Warranties .................................................................21  Section 4.03. Covenants ...................................................................................................24  Section 4.04. Other Actions .............................................................................................25  Section 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral ..........26  





 






ii  AmericasActive:16964714.2 Section 4.06. Intercreditor Relations ...............................................................................27  ARTICLE V REMEDIES 28  Section 5.01. Remedies Upon Default .............................................................................28  Section 5.02. Application of Proceeds .............................................................................30  Section 5.03. Securities Act, Etc ......................................................................................30  ARTICLE VI INDEMNITY, SUBROGATION AND SUBORDINATION 31  Section 6.01. Indemnity ...................................................................................................31  Section 6.02. Contribution and Subrogation ....................................................................31  Section 6.03. Subordination .............................................................................................31  ARTICLE VII MISCELLANEOUS 32  Section 7.01. Notices .......................................................................................................32  Section 7.02. Security Interest Absolute ..........................................................................32  Section 7.03. Limitation By Law .....................................................................................33  Section 7.04. Binding Effect; Several Agreement ...........................................................33  Section 7.05. Successors and Assigns..............................................................................33  Section 7.06. Collateral Agent’s Fees and Expenses; Indemnification ...........................33  Section 7.07. Collateral Agent Appointed Attorney-in-Fact ...........................................34  Section 7.08. APPLICABLE LAW .................................................................................35  Section 7.09. Waivers; Amendment ................................................................................35  Section 7.10. WAIVER OF JURY TRIAL ......................................................................35  Section 7.11. Severability ................................................................................................35  Section 7.12. Counterparts ...............................................................................................36  Section 7.13. Headings ....................................................................................................36  Section 7.14. Jurisdiction; Consent to Service of Process ...............................................36  Section 7.15. Termination or Release ..............................................................................36  





 






iii  AmericasActive:16964714.2 Section 7.16. Additional Subsidiaries ..............................................................................37    





 






iv  AmericasActive:16964714.2 Schedules  Schedule I Pledged Stock; Debt Securities  Schedule II Intellectual Property  Schedule III Filing Jurisdictions  Schedule IV Commercial Tort Claims  Exhibits  Exhibit I Form of Supplement to the Guarantee and Collateral Agreement  Exhibit II Form of Trademark Security Agreement  Exhibit III Form of Patent Security Agreement  Exhibit IV Form of Copyright Security Agreement    





 






   AmericasActive:16964714.2   ABL GUARANTEE AND COLLATERAL AGREEMENT dated as of June 2,  2022 (as amended, amended and restated, supplemented or otherwise modified from time to time,  this “Agreement”), among AMNEAL PHARMACEUTICALS LLC (the “Borrower”) and each  other party identified as a “Grantor” on the signature pages hereto (together with any other entity  that may become a party hereto as a Grantor as provided herein, each a “Grantor” and, collectively,  the “Grantors”), and TRUIST BANK (“Truist Bank”), as Administrative Agent for the Lenders  under the Credit Agreement referred to below (in such capacity, the “Administrative Agent”) and  as Collateral Agent for the Secured Parties (as defined below) (in such capacity, the “Collateral  Agent”).  RECITALS  (1) Reference is made to that certain REVOLVING CREDIT AGREEMENT, dated as of the  date hereof (as amended, amended and restated, supplemented, refinanced, replaced,  extended or otherwise modified from time to time, the “Credit Agreement”), by and among  AMNEAL PHARMACEUTICALS LLC, a Delaware limited liability company, the  Lenders and other parties that are party thereto from time to time and Truist Bank, as  Administrative Agent and as Collateral Agent.  (2) In consideration of the extensions of credit and other accommodations of the Lenders as  set forth in the Credit Agreement and of the Qualified Counterparties as set forth in the  Specified Hedge Agreements, each Guarantor has agreed to guarantee the obligations of  the Borrower under the Credit Agreement and each Grantor has agreed to secure such  Grantor’s obligations under the Loan Documents, in each case as set forth herein.  AGREEMENT  Accordingly, the parties hereto agree as follows:  ARTICLE I    DEFINITIONS  Section 1.01. Credit Agreement.    (a) Unless otherwise defined herein, terms defined in the Credit Agreement and  used herein have the meanings assigned to them in the Credit Agreement, and the following terms  which are defined in the UCC are used herein as so defined (and if defined in more than one article  of the UCC have the meaning specified in Article 9 thereof): Accounts, Account Debtor, As- Extracted Collateral, Authenticate, Certificated Security, Chattel Paper, Commodity Account,  Commodity Contract, Commodity Intermediary, Deposit Account, Documents, Electronic Chattel  Paper, Entitlement Order, Equipment, Farm Products, Financial Asset, Fixtures, Goods, Health- Care Insurance Receivable, Instruments, Inventory, Letter-of-Credit Rights, Manufactured  Homes, Money, Payment Intangibles, Securities Account, Securities Intermediary, Security,  Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.  





 






2  AmericasActive:16964714.2 (b) The rules of construction specified in Sections 1.02 through 1.09 of the  Credit Agreement also apply, mutatis mutandis, to this Agreement.  Section 1.02. Other Defined Terms.  As used in this Agreement, the following terms have  the meanings specified below:  “Administrative Agent” has the meaning assigned to such term in the introductory  paragraph to this Agreement.  “Agreement” has the meaning assigned to such term in the introductory paragraph  hereto.  “Article 9 Collateral” has the meaning assigned to such term in Section 4.01(1).  “Collateral” means the collective reference to Article 9 Collateral and Pledged  Collateral.  “Collateral Agent” has the meaning assigned to such term in the introductory  paragraph to this Agreement.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1  et seq.), as amended from time to time, and any successor statute.  “Control” has the meaning set forth in Article 8 or, if applicable, in Section 9-104,  9-105, 9-106 or 9-107 of Article 9 of the UCC.  “Control Agreement” means a deposit account control agreement, a securities  account control agreement or a commodity account control agreement, as applicable, which  provides the Collateral Agent with Control of any such accounts, in form and substance reasonably  satisfactory to the Collateral Agent.  “Copyright License” means any written agreement, now or hereafter in effect,  granting any right to any Grantor under any Copyright now or hereafter owned by any third party,  and all rights of any Grantor under any such agreement (including any such rights that such Grantor  has the right to license).  “Copyrights” means all of the following which any Grantor now or hereafter owns  or in which any Grantor now or hereafter has an interest (pursuant to a Copyright License or  otherwise):   (1) all copyright rights in any work subject to the copyright laws of the United States or any  other country, whether as author, assignee, transferee or otherwise;  (2) all registrations and applications for registration of any such copyright in the United States  or any other country, including registrations, supplemental registrations and pending  applications for registration in the United States Copyright Office and the right to obtain  all renewals thereof, including those listed on Schedule II;   





 






3  AmericasActive:16964714.2 (3) all claims for, and rights to sue for, past or future infringements of any of the foregoing;  and   (4) all income, royalties, damages and payments now or hereafter due and payable with respect  to any of the foregoing, including damages and payments for past or future infringement  thereof.  “Credit Agreement” has the meaning assigned to such term in the recitals to this  Agreement.  “Discharge of Term Loan Claims” has the meaning assigned to such term in the  Closing Date Intercreditor Agreement.  “Excluded Assets” means all of the following, whether now owned or hereafter  acquired:   (1) any Excluded Equity Interests;  (2) any Real Property interests (but, for the avoidance of doubt, excluding Fixtures to the  extent a security interest in such Fixtures can be perfected by the filing of a Uniform  Commercial Code financing statement in the office of the secretary of state (or similar  central filing office) in the jurisdiction of organization of the applicable Grantor);   (3) any particular asset if the pledge thereof or the security interest therein would result in  material adverse tax consequences, as reasonably determined by the Borrower in  consultation with the Administrative Agent;   (4) any particular asset if and to the extent that a security interest therein (a) is prohibited by  or in violation of any applicable law, rule or regulation or (b) requires consent of any  Governmental Authority that has not been obtained;  (5) any (a) As-Extracted Collateral, (b) timber to be cut, (c) Farm Products, (d) Manufactured  Homes and (e) Health-Care Insurance Receivables (but only to the extent such Health-Care  Insurance Receivables are (i) Medicare or Medicaid receivables or other governmental  third party payor receivables, (ii) not perfected by the filing of a Uniform Commercial  Code financing statement in the office of the secretary of state (or similar central filing  office) in the jurisdiction of organization of the applicable Grantor) or (iii) as otherwise  agreed by the Borrower and the Administrative Agent);  (6) any “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 the Lanham Act has been  filed, to the extent that, and solely during the period for which, any assignment of an  “intent-to-use” application prior to such filing would violate the Lanham Act;  (7) any Excluded Accounts;   (8) any assets owned directly or indirectly by a non-U.S. Subsidiary or a FSHCO;  





 






4  AmericasActive:16964714.2 (9) any motor vehicles, airplanes and any other assets subject to certificates of title or similar  certificates of ownership;  (10) [reserved];  (11) any lease, license, franchise, charter, contract or agreement, together with any rights or  interest thereunder, in each case, if and to the extent a security interest therein granted to  the Collateral Agent is prohibited by or in violation of a term, provision or condition of any  such lease, license, franchise, charter, contract or agreement, or would result in the  abandonment, invalidation or unenforceability thereof or create a right of termination in  favor of or require the consent, approval, license or authorization of any third party (other  than the Borrower or any Subsidiary) thereto, except, in each case, to the extent that such  prohibition or restriction would be rendered ineffective under the UCC or other applicable  Law; provided, that the exclusions referred to in clause (11) of this definition shall not  include any Proceeds or receivables of any such asset, lease, license, franchise, charter,  contract or agreement, the assignment of which is expressly deemed effective under the  UCC or other similar applicable law notwithstanding such prohibition or restriction (unless  such Proceeds or receivables would otherwise constitute Excluded Assets);  (12) any Commercial Tort Claim with a value not in excess of $15 million, as determined in  good faith by the Borrower;   (13) any assets to the extent the cost, burden, difficulty or consequence of obtaining,  maintaining or perfecting a security interest therein exceeds the fair market value thereof  or the practical benefit to the Secured Parties of the security afforded (or proposed to be  afforded) thereby as reasonably determined by the Administrative Agent in consultation  with the Borrower;   (14) (a) any assets and proceeds thereof subject to a Lien permitted under Section 6.02(3) of the  Credit Agreement to the extent that the documents providing for the Indebtedness secured  by such Liens do not permit such assets and proceeds thereof to be pledged to the Collateral  Agent or would require a third party consent or (b) any assets subject to a Lien permitted  by Section 6.02(7) so long as the documents providing for such Lien do not permit such  assets to be pledged to the Collateral Agent; or   (15) without duplication, any assets to the extent excluded pursuant to Section 5.10(4) of the  Credit Agreement.  “Excluded Equity Interests” means any and all of the following Equity Interests,  whether now owned or hereafter acquired:   (1) any Equity Interests in any Person that is not a direct Wholly Owned Restricted Subsidiary  of the Borrower or another Grantor;   (2) any Equity Interests in any Person (other than a direct or indirect Wholly Owned Subsidiary  of the Borrower or another Grantor) in each case to the extent (a) the Organizational  Documents or other agreements with respect to such Equity Interests with other equity  holders prohibits or restricts the pledge of such Equity Interests or (b) the pledge of such  





 






5  AmericasActive:16964714.2 Equity Interests is otherwise prohibited or restricted by law, any agreement with a third  party (other than the Borrower or any of its respective Subsidiaries), would require consent  of any Governmental Authority which has not been obtained or would result in a change  of control, repurchase obligation or other adverse consequence (in each case, except to the  extent that any such prohibition or restriction would be rendered ineffective under the UCC  or other applicable Law);  (3) any Equity Interests in Immaterial Subsidiaries (except to the extent the security interest  therein can be perfected by the filing of a Form UCC-1 financing statement in the office of  the secretary of state (or similar central filing office) in the jurisdiction of organization of  the applicable Grantor), Captive Insurance Subsidiaries, not-for-profit organizations,  special purpose entities used for securitization facilities (including Receivables  Subsidiaries) and Unrestricted Subsidiaries;   (4) any Margin Stock;  (5) any voting Equity Interests of any non-U.S. Subsidiary or any FSHCO in excess of 65% of  the issued and outstanding voting Equity Interests of such non-U.S. Subsidiary or FSHCO;  (6) subject to Section 7.15(4), any Equity Interests to the extent that a pledge of such Equity  Interests would give rise to additional subsidiary reporting requirements under Rule 3-10  or Rule 3-16 of Regulation S-X promulgated under the Exchange Act;  (7) to the extent applicable law requires that a Subsidiary of such Grantor issue directors’  qualifying shares, nominee shares or similar shares which are required by applicable law  to be held by persons other than the Grantors, such qualifying shares, nominee shares or  similar shares held by Persons other than Grantors;   (8) without duplication, any Equity Interests to the extent excluded pursuant to Section 5.10(4)  of the Credit Agreement;  (9) any Equity Interests to the extent the pledge thereof or a security interest therein would  result in material adverse tax consequences or material adverse regulatory consequences,  in each case, as reasonably determined by the Borrower in consultation with the  Administrative Agent; or   (10) any Equity Interests to the extent the cost, burden, difficulty or consequence of obtaining,  maintaining or perfecting a security interest therein exceeds the fair market value thereof  or the practical benefit to the Secured Parties afforded (or proposed to be afforded) thereby  as reasonably determined by the Administrative Agent in consultation with the Borrower.  “Excluded Swap Obligation” means, with respect to any Guarantor, (a) as it relates  to all or a portion of the guarantee of such Guarantor, any Swap Obligation if, and to the extent  that, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or  the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for  any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange  Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective  





 






6  AmericasActive:16964714.2 with respect to such Swap Obligation or (b) as it relates to all or a portion of the grant by such  Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap  Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or  the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for  any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange  Act and the regulations thereunder at the time the security interest of such Guarantor becomes  effective with respect to such Swap Obligation. If a Swap Obligation arises under a master  agreement governing more than one swap, such exclusion shall apply only to the portion of such  Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or  becomes illegal.  “Federal Securities Laws” has the meaning assigned to such term in Section 5.03.  “Grantor” and “Grantors” have the meanings assigned to such terms in the  introductory paragraph to this Agreement.  “Intellectual Property” means all intellectual property of every kind and nature that  any Grantor now or hereafter owns or in which any Grantor now or hereafter has an interest,  including inventions, designs, Patents, Copyrights, Trademarks, trade secrets, domain names,  confidential or proprietary technical and business information or know-how.  “Intellectual Property Collateral” has the meaning assigned to such term in  Section 4.02(7).  “Intellectual Property Security Agreement” means a Trademark Security  Agreement in substantially the form of Exhibit II hereto, a Patent Security Agreement in  substantially the form of Exhibit III hereto, or a Copyright Security Agreement in substantially the  form of Exhibit IV hereto.  “IP Agreements” means all material Copyright Licenses, Patent Licenses and  Trademark Licenses, and all other agreements, permits, consents, orders and franchises relating to  the license, development, use or disclosure of any material Intellectual Property to which a  Grantor, now or hereafter, is a party or a beneficiary, including the agreements set forth on  Schedule II hereto.   “Patent License” means any written agreement, now or hereafter in effect, granting  to any Grantor any right to make, use or sell any invention covered by a Patent, now or hereafter  owned by any third party (including any such rights that such Grantor has the right to license) and  all rights of any Grantor under any such agreement.  “Patents” means all of the following which any Grantor now or hereafter owns or  in which any Grantor now or hereafter has an interest (pursuant to a Patent License or otherwise):  (1) all letters patent of the United States or the equivalent thereof in any other country or  jurisdiction, including those listed on Schedule II, and all applications for letters patent of  the United States or the equivalent thereof in any other country or jurisdiction, including  those listed on Schedule II;  





 






7  AmericasActive:16964714.2 (2) all provisionals, reissues, extensions, continuations, divisions, continuations-in-part,  reexaminations or revisions thereof, and the inventions disclosed or claimed therein,  including the right to make, use, import and/or sell the inventions disclosed or claimed  therein;  (3) all claims for, and rights to sue for, past or future infringements of any of the foregoing;  and   (4) all income, royalties, damages and payments now or hereafter due and payable with respect  to any of the foregoing, including damages and payments for past or future infringement  thereof.  “Pledged Collateral” has the meaning assigned to such term in Section 3.01(5).  “Pledged Debt Securities” has the meaning assigned to such term in Section  3.01(2).  “Pledged Securities” means any promissory notes, stock certificates or other  certificated securities now or hereafter included in the Pledged Collateral, including all certificates,  instruments or other documents representing or evidencing any Pledged Collateral.  “Pledged Stock” has the meaning assigned to such term in Section 3.01(1).  “Secured Obligations” means the Obligations; provided that the Secured  Obligations will not include any Excluded Swap Obligations.  “Secured Parties” means (a) the Lenders, (b) the Agents, (c) each Issuing Bank,  (d) the Cash Management Banks, (e) the Qualified Counterparties, (f) the beneficiaries of each  indemnification obligation undertaken by any Loan Party under any Loan Document and (g) the  successors and permitted assigns of each of the foregoing.  “Security Interest” has the meaning assigned to such term in Section 4.01(1).  “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or  perform under any agreement, contract or transaction that constitutes a “swap” within the meaning  of section 1a(47) of the Commodity Exchange Act.  “Term Loan Collateral Agent” means JPMorgan Chase Bank, N.A., as “Collateral  Agent” under the Term Loan Credit Agreement, and any duly appointed successor in such  capacity.  “Term Loan Priority Collateral” has the meaning assigned to such term in the  Intercreditor Agreement as in effect on the date hereof.  “Trademark License” means any written agreement, now or hereafter in effect,  granting to any Grantor any right to use any Trademark now or hereafter owned by any third party  (including any such rights that such Grantor has the right to license).  





 






8  AmericasActive:16964714.2 “Trademarks” means all of the following which any Grantor now or hereafter owns  or in which any Grantor now or hereafter has an interest (pursuant to a Trademark License or  otherwise):   (1) all trademarks, service marks, corporate names, company names, business names, fictitious  business names, trade styles, trade dress, logos, other source or business identifiers, designs  and general intangibles of like nature, now existing or hereafter adopted or acquired, all  registrations thereof (if any), and all registration applications filed in connection therewith,  including registrations and registration applications in the United States Patent and  Trademark Office or any similar offices in any State of the United States or any other  country or any political subdivision thereof (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 the Lanham Act has been filed, to the extent that, and solely  during the period for which, any assignment of an “intent-to-use” application prior to such  filing would violate the Lanham Act), and all renewals thereof, including those listed on  Schedule II;   (2) all goodwill associated therewith or symbolized thereby;   (3) all claims for, and rights to sue for, past or future infringements of any of the foregoing;  and  (4) all income, royalties, damages and payments now or hereafter due and payable with respect  to any of the foregoing, including damages and payments for past or future infringement  thereof.  “Truist Bank” has the meaning assigned to such term in the introductory paragraph  to this Agreement.  “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as  in effect from time to time in the State of New York; provided, however, that in the event that, by  reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with  respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect  in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” or  “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other  jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or  remedies.  ARTICLE II    GUARANTEE  Section 2.01. Guarantee.  Each Guarantor unconditionally guarantees, jointly with the  other Guarantors and severally, to the Collateral Agent for the ratable benefit of the Secured Parties  as a primary obligor and not merely as a surety, the due and punctual payment and performance of  the Secured Obligations.  Each Guarantor further agrees that the Secured Obligations may be  extended or renewed, in whole or in part, without notice to or further assent from such Guarantor,  





 






9  AmericasActive:16964714.2 and that such Guarantor will remain bound upon its guarantee hereunder notwithstanding any  extension or renewal of any Secured Obligation.  Each Guarantor waives presentment to, demand  of payment from and protest to the Borrower or any other Loan Party of any of the Secured  Obligations, and also waives notice of acceptance of its guarantee and notice of protest for  nonpayment.  The Borrower shall be deemed to be a Guarantor hereunder solely in respect of any  Specified Hedge Agreements to which the Borrower is not a party.  Section 2.02. Guarantee of Payment.  Each Guarantor further agrees that its guarantee  hereunder constitutes a guarantee of payment when due (whether at the stated maturity, by  acceleration or otherwise) and not of collection, and waives any right to require that any resort be  had by the Collateral Agent or any other Secured Party to any security held for the payment of the  Secured Obligations or to any balance of any Deposit Account or credit on the books of the  Collateral Agent or any other Secured Party in favor of any Loan Party or any other person.    Section 2.03. No Limitations, Etc.    (1) Except for termination of a Guarantor’s obligations hereunder as expressly provided for in  Section 7.15 and except as provided in Section 2.07, the obligations of each Guarantor  hereunder will not be subject to any reduction, limitation, impairment or termination for  any reason, including any claim of waiver, release, surrender, alteration or compromise,  and will not be subject to any defense or setoff, counterclaim, recoupment or termination  whatsoever by reason of the invalidity, illegality or unenforceability of the Secured  Obligations or otherwise (other than defense of payment or performance of Secured  Obligations).  Without limiting the generality of the foregoing, except for termination or  release of a Guarantor’s obligations hereunder in accordance with the terms of Section 7.15  the obligations of each Guarantor hereunder, to the fullest extent permitted by applicable  law, will not be discharged or impaired or otherwise affected by, and each Guarantor  hereby waives any defense to the enforcement hereof by reason of:  (a) the failure of the Collateral Agent or any other Secured Party to assert any claim or  demand or to exercise or enforce any right or remedy under the provisions of any  Loan Document or otherwise;  (b) any rescission, waiver, amendment or modification of, or any release from any of  the terms or provisions of, any Loan Document or any other agreement, including  with respect to any other Guarantor under this Agreement;  (c) the failure to perfect any security interest in, or the release of, any of the Collateral  held by or on behalf of the Collateral Agent or any other Secured Party for the  Secured Obligations;  (d) any default, failure or delay, willful or otherwise, in the performance of the Secured  Obligations;  (e) any illegality, lack of validity or enforceability of any Secured Obligation;  (f) any change in the corporate existence, structure or ownership of any Loan Party, or  any insolvency, bankruptcy or reorganization of any Loan Party;  





 






10  AmericasActive:16964714.2 (g) the existence of any claim, set-off or other rights that the Guarantors may have at  any time against the Borrower, the Collateral Agent, any other Secured Party or any  other person, whether in connection herewith, the other Loan Documents or any  unrelated transactions; provided that nothing herein will prevent the assertion of  any such claim by separate suit or compulsory counterclaim;  (h) any action permitted or authorized hereunder; or  (i) any other circumstance (including any statute of limitations) or any act or omission  that may in any manner or to any extent vary the risk of any Guarantor or otherwise  operate as a defense to, or a legal or equitable discharge of, the Borrower or any  Guarantor or any other guarantor or surety (other than the Payment in Full or  performance of the Secured Obligations).  (2) Each Guarantor expressly authorizes the Secured Parties to take and hold security for the  payment and performance of the Secured Obligations, to exchange, waive or release any  or all such security (with or without consideration), to enforce or apply such security and  direct the order and manner of any sale thereof in their sole discretion or to release,  substitute or add any one or more other guarantors or obligors upon or in respect of the  Secured Obligations, all without affecting the obligations of any Guarantor hereunder.  (3) To the fullest extent permitted by applicable law and except for termination or release of a  Guarantor’s obligations hereunder in accordance with the terms of Section 7.15 hereof,  each Guarantor waives any defense based on or arising out of any defense of any other  Loan Party or the unenforceability of the Secured Obligations or any part thereof from any  cause, or the cessation from any cause of the liability of any other Loan Party, other than,  after all Commitments have been terminated, the return of all Letters of Credit (or cash  collateralization thereof on terms satisfactory to the applicable Issuing Bank), the Payment  in Full or performance of all the Secured Obligations.  The Collateral Agent and the other  Secured Parties may exercise any right or remedy available to them against any other Loan  Party pursuant to this Agreement or the other Loan Documents, without affecting or  impairing in any way the liability of any Guarantor hereunder except to the extent that after  giving effect thereto there shall have been Payment in Full in respect of all Secured  Obligations. To the fullest extent permitted by applicable law, each Guarantor waives any  defense arising out of any such election even though such election operates, pursuant to  applicable law, to impair or to extinguish any right of reimbursement or subrogation or  other right or remedy of such Guarantor against any other Loan Party, as the case may be,  or any security.  Section 2.04. Reinstatement.  Each Guarantor agrees that its guarantee hereunder will  continue to be effective or be reinstated if, at any time, payment, or any part thereof, of any Secured  Obligation is rescinded or must otherwise be restored by the Collateral Agent or any other Secured  Party upon the bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise.  Section 2.05. Agreement To Pay; Contribution; Subrogation.    





 






11  AmericasActive:16964714.2 (1) In furtherance of the foregoing and not in limitation of any other right that the Collateral  Agent or any other Secured Party has at law or in equity against any Guarantor by virtue  hereof, upon the failure of any Loan Party to pay any Secured Obligation when and as the  same becomes due and payable, whether at maturity, by acceleration, after notice of  prepayment or otherwise, each Guarantor hereby promises to and will pay, or cause to be  paid, to the Collateral Agent for distribution to the applicable Secured Parties in cash the  amount of such unpaid Secured Obligation.    (2) Subject to the foregoing clause (1), to the extent that any Guarantor, under this Agreement  or the Credit Agreement as a joint and several obligor, repays any of the Secured  Obligations constituting Loans or other advances made to or reimbursement obligations  owed by another Loan Party under the Credit Agreement (an “Accommodation Payment”),  then the Guarantor making such Accommodation Payment will be entitled to contribution  and indemnification from, and be reimbursed by, each of the other Guarantors in an amount  equal to a fraction of such Accommodation Payment, the numerator of which fraction is  such other Guarantor’s Allocable Amount and the denominator of which is the sum of the  Allocable Amounts of all of the Guarantors; provided that such rights of contribution and  indemnification will be subordinated to the Payment in Full of the Secured Obligations.   As of any date of determination, the “Allocable Amount” of each Guarantor will be equal  to the maximum amount of liability for Accommodation Payments which could be asserted  against such Guarantor hereunder and under the Credit Agreement without:   (a) rendering such Guarantor “insolvent” within the meaning of Section 101 (31) of  the Bankruptcy Code of the United States, Section 2 of the Uniform Fraudulent  Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act  (“UFCA”);   (b) leaving such Guarantor with unreasonably small capital or assets, within the  meaning of Section 548 of the Bankruptcy Code of the United States, Section 4 of  the UFTA, or Section 5 of the UFCA;   (c) leaving such Guarantor unable to pay its debts as they become due within the  meaning of Section 548 of the Bankruptcy Code of the United States or Section 4  of the UFTA, or Section 5 of the UFCA; or  (d) otherwise rendering such Guarantor’s obligation under Section 2 of this Agreement  void or voidable under any federal, state or foreign bankruptcy, insolvency,  receivership or similar law.  Upon payment by any Guarantor of any sums to the Collateral Agent as provided above, all rights  of such Guarantor against the Borrower, any other Loan Party or any other Guarantor arising as a  result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise  will in all respects be subject to Article VI.    Section 2.06. Information.  Each Guarantor assumes all responsibility for being and  keeping itself informed of the financial condition and assets of the Borrower and each other Loan  Party, and of all other circumstances bearing upon the risk of nonpayment of the Secured  





 






12  AmericasActive:16964714.2 Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs  hereunder, and agrees that no Agent nor any other Secured Party will have any duty to advise such  Guarantor of information known to it or any of them regarding such circumstances or risks.  Section 2.07. Maximum Liability.  Each Guarantor and, by its acceptance of this  guarantee, each Agent and each other Secured Party hereby confirms that it is the intention of all  such persons that this guarantee and the Secured Obligations of each Guarantor hereunder not  constitute a fraudulent transfer or conveyance for purposes of the U.S. Bankruptcy Code or any  other federal, state or foreign bankruptcy, insolvency, receivership or similar law, the Uniform  Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal  or state law to the extent applicable to this guarantee and the Secured Obligations of each  Guarantor hereunder.  To effectuate the foregoing intention, the Secured Parties and the Guarantors  hereby irrevocably agree that the Secured Obligations of the Guarantors under this guarantee at  any time are limited to the maximum amount as will result in the Secured Obligations of such  Guarantor under this guarantee not constituting a fraudulent transfer or conveyance.  ARTICLE III    PLEDGE OF SECURITIES  Section 3.01. Pledge.  As security for the payment or performance, as the case may be, in  full of its Secured Obligations, each Grantor hereby pledges to the Collateral Agent, its successors  and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the  Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties,  a security interest in all of such Grantor’s right, title and interest in, to and under:   (1) the Equity Interests (a) directly owned by such Grantor as of the Closing Date (including   those Equity Interests listed on Schedule I) and (b) obtained by such Grantor after the  Closing Date and, in each case, the certificates representing all such Equity Interests, in  each case, other than any Excluded Assets (the Equity Interests described in the foregoing  clauses (a) and (b), collectively, but excluding any Excluded Assets, the “Pledged Stock”);   (2) the promissory notes and any instruments evidencing Indebtedness (a) owned by such  Grantor as of the Closing Date (including those promissory notes and any instruments  evidencing Indebtedness listed on Schedule I) and (b) issued to such Grantor after the  Closing Date and having an aggregate principal amount in excess of $15 million, in each  case, other than any Excluded Assets (the instruments described in the foregoing clauses  (a) and (b), collectively, but excluding any Excluded Assets, the “Pledged Debt  Securities”);   in each case, including all interest, cash, instruments and other property from time to time received,  receivable or otherwise distributed in respect of or in exchange for any or all Pledged Debt  Securities (except to the extent constituting an Excluded Asset or otherwise excluded from the  Collateral pursuant to this Agreement);     (3) subject to Section 3.05 hereof, all payments of principal or interest, dividends, cash,  instruments and other property from time to time received, receivable or otherwise  





 






13  AmericasActive:16964714.2 distributed in respect of, in exchange for or upon the conversion of, and all other proceeds  received in respect of, the securities referred to in the foregoing clauses (1) and (2);  (4) subject to Section 3.05 hereof, all rights and privileges of such Grantor with respect to the  securities and other property referred to in the foregoing clauses (1), (2) and (3) above; and   (5) all proceeds of any of the foregoing items referred to in clauses (1) through (4) above, but  excluding any Excluded Assets (the items referred to in clauses (1) through (5) of this  Section 3.02, collectively, the “Pledged Collateral”).  Notwithstanding anything to the contrary in this Agreement or any other Security  Document, no representation, warranty, covenant or any other provision in this Agreement or any  other Security Document will apply to and none of the Pledged Stock, Pledged Debt Securities or  Pledged Collateral will include nor will the security interests granted hereunder attach to any  Excluded Asset.  TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title,  interest, powers, privileges and preferences pertaining or incidental thereto (in each case other than  any Excluded Assets), unto the Collateral Agent, its successors and permitted assigns, for the  ratable benefit of the Secured Parties, forever, subject, however, to the terms, covenants and  conditions hereinafter set forth and in each case subject to the Credit Agreement.  Section 3.02. Delivery of the Pledged Collateral.    (1) Subject to any applicable Intercreditor Agreement(s), each Grantor agrees, within the time  periods required hereunder or under the Credit Agreement (as applicable) (or at such later  date as any Agent may agree, in its sole discretion) to deliver or cause to be delivered to  the Collateral Agent, for the ratable benefit of the Secured Parties, any and all Pledged  Securities to the extent such Pledged Securities, in the case of promissory notes or other  instruments, are required to be delivered pursuant to paragraph (2) of this Section 3.02.  (2) Subject to any applicable Intercreditor Agreement(s), each Grantor will use its  commercially reasonable efforts to cause any Indebtedness for borrowed money that would  otherwise constitute Pledge Collateral if in the form of a promissory note and having an  aggregate principal amount in excess of $15 million owed to such Grantor by any Person  to be evidenced by a duly executed promissory note that is pledged and delivered (within  60 days (or such longer period as any Agent may agree, in its sole discretion) at the time  of delivery of the next Required Financial Statements after receipt thereof), to the  Collateral Agent, for the ratable benefit of the Secured Parties, pursuant to the terms hereof;  provided that the foregoing requirement will not apply to (a) instruments, notes and debt  securities that are promptly deposited into an investment or securities account or (b) checks  received in the ordinary course of business.  To the extent any such promissory note is a  demand note, each Grantor party thereto agrees, if requested in writing by the Collateral  Agent, to immediately demand payment thereunder upon an Event of Default unless such  demand would not be commercially reasonable or would otherwise expose such Grantor  to liability to the maker.  





 






14  AmericasActive:16964714.2 (3) Upon delivery to the Collateral Agent, (a) any Pledged Securities required to be delivered  pursuant to the foregoing paragraphs (1) and (2) of this Section 3.02 will be accompanied  by stock powers or note powers, as applicable, duly executed in blank or other instruments  of transfer reasonably satisfactory to the Collateral Agent and (b) all other property  composing part of the Pledged Collateral delivered pursuant to the terms of this Agreement  will be accompanied, to the extent necessary to perfect the security interest in or allow  realization on the Pledged Collateral, by proper instruments of assignment duly executed  by the applicable Grantor as the Collateral Agent may reasonably request. Each delivery  of Pledged Securities will be accompanied by a schedule describing the securities, which  schedule will be attached hereto as Schedule I (or a supplement to Schedule I, as applicable)  and made a part hereof; provided that failure to attach any such schedule hereto will not  affect the validity of such pledge of such Pledged Securities.  Each schedule so delivered  will supplement any prior schedules so delivered.  (4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document,  no Grantor will be required to take any action under the laws of any jurisdiction other than  the United States (or any political subdivision thereof) and its territories and possessions  for the purpose of creating, perfecting or making enforceable the Security Interest in any  Pledged Collateral of such Grantor and no security agreements or pledge agreements  governed under the laws of any non-U.S. jurisdiction will be required.  Section 3.03. Representations, Warranties and Covenants.  Each Grantor represents and  warrants (but solely to the extent (and at the times) required by the Credit Agreement) and  covenants to and with the Collateral Agent, for the ratable benefit of the Secured Parties that:  (1) Schedule I correctly sets forth, as of the Closing Date, (a) all of the Pledged Stock owned  by such Grantor on the Closing Date and the percentage of the issued and outstanding  shares of each class of the Equity Interests of the issuer thereof represented by such Pledged  Stock and (b) all of the Pledged Debt Securities owned by such Grantor on the Closing  Date;  (2) the Pledged Stock and Pledged Debt Securities (solely with respect to Pledged Debt  Securities issued by a Person that is not a Subsidiary of any Grantor, to the best of each  Grantor’s knowledge) have been duly and validly authorized and issued by the issuers  thereof and (a) in the case of Pledged Stock, are fully paid and non-assessable (to the extent  such concepts are applicable to such Pledged Stock and other than with respect to Pledged  Stock consisting of membership interests of limited liability companies to the extent  provided in Sections 18-502 and 18-607 of the Delaware Limited Liability Company Act)  and (b) in the case of Pledged Debt Securities (solely with respect to Pledged Debt  Securities issued by a Person that is not a Subsidiary of any Grantor, to the best of each  Grantor’s knowledge) are legal, valid and binding obligations of the issuers thereof, subject  to the effects of 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 at law or in equity) and  an implied covenant of good faith and fair dealing;  (3) except for the security interests granted hereunder, each Grantor:   





 






15  AmericasActive:16964714.2 (a) is and, subject to any transfers made in compliance with the Credit Agreement, will  continue to be the direct owner, beneficially and of record, of the Pledged Securities  indicated on Schedule I as owned by such Grantor;   (b) holds the same free and clear of all Liens, other than Permitted Liens;   (c) will make no assignment, pledge, hypothecation or transfer of, or create or permit  to exist any security interest in or other Lien on, the Pledged Collateral, other than  pursuant to a transaction permitted by the Credit Agreement and other than  Permitted Liens; and   (d) subject to the rights of such Grantor under the Loan Documents to dispose of  Pledged Collateral, will use commercially reasonable efforts to defend its title or  interest hereto or therein against any and all Liens (other than Permitted Liens),  however arising, of all persons;  (4) other than as set forth in the Credit Agreement or the schedules thereto, and except for  restrictions and limitations imposed by the Loan Documents or securities laws generally or  otherwise permitted to exist pursuant to the terms of the Credit Agreement, the Pledged  Stock (other than Pledged Stock that is partnership interests) is and will continue to be  freely transferable and assignable, and, except for limitations existing on the Closing Date  (or the date of acquisition thereof, as applicable) in the articles or certificate of  incorporation, bylaws or other organizational documents of any Subsidiary that is not a  wholly owned Subsidiary, none of the Pledged Stock is or will be subject to any option,  right of first refusal, shareholders agreement, charter or by-law provisions or contractual  restriction of any nature that might reasonably be expected to prohibit, impair, delay or  otherwise affect, in any material respect, the pledge of such Pledged Stock hereunder, the  sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights  and remedies hereunder;  (5) each Grantor has the power and authority to pledge the Pledged Collateral pledged by it  hereunder in the manner hereby done or contemplated;  (6) other than as set forth in the Credit Agreement or the schedules thereto, no consent or  approval of any Governmental Authority, any securities exchange or any other Person was  or is necessary to the validity of the pledge effected hereby (other than such as have been  obtained and are in full force and effect);  (7) as of the Closing Date, this Agreement is effective to create in favor of the Collateral Agent  (for the ratable benefit of the Secured Parties) a legal, valid and enforceable security  interest in the Pledged Collateral described herein and proceeds thereof;   (8) Each Grantor acknowledges and agrees that, to the extent any interest in any limited  liability company or limited partnership controlled by any Grantor and pledged under  Section 3.01 is a “security” within the meaning of Article 8 of the UCC and is governed  by Article 8 of the UCC, such interest shall be represented by a certificate. Each Grantor  further acknowledges and agrees that with respect to any interest in any limited liability  company or limited partnership Controlled on or after the Closing Date by such Grantor  





 






16  AmericasActive:16964714.2 and pledged hereunder that is not a “security” within the meaning of Article 8 of the UCC,  such Grantor shall at no time elect to treat any such interest as a “security” within the  meaning of Article 8 of the UCC, nor shall such interest be represented by a certificate,  unless such election and such interest is thereafter represented by a certificate that, subject  to any applicable Intercreditor Agreement(s), within 60 days after such election (or at such  later date as the Administrative Agent may agree), is delivered to the Collateral Agent  pursuant to the terms hereof; and  (9) Notwithstanding anything to the contrary in any Loan Document, to the extent any  provision of this Agreement or the Credit Agreement excludes any assets from the scope  of the Pledged Collateral, or from any requirement to take any action to perfect or maintain  any security interest (or the priority thereof) in favor of the Collateral Agent in the Pledged  Collateral, the representations, warranties and covenants made by any Grantor in this  Agreement with respect to the creation, perfection or priority (as applicable) of the security  interest granted in favor of the Collateral Agent (including Section 3.02) shall be deemed  not to apply to such excluded assets.  Section 3.04. Registration in Nominee Name; Denominations.  To the extent required to  be delivered to the Collateral Agent in accordance with the terms of this Agreement, the Collateral  Agent (or a designated bailee, in accordance with the applicable Intercreditor Agreement(s)), on  behalf of the Secured Parties, has the right (in its sole and absolute discretion), subject to the  applicable Intercreditor Agreement(s), to hold the Pledged Securities in the name of the applicable  Grantor, endorsed or assigned in blank or in favor of the Collateral Agent (or a designated bailee,  in accordance with the applicable Intercreditor Agreement(s)) or, if an Event of Default shall have  occurred and is continuing, in its own name as pledgee or the name of its nominee (as pledgee or  as sub-agent). If an Event of Default shall have occurred and is continuing, the Collateral Agent  (or a designated bailee, in accordance with the applicable Intercreditor Agreement(s)) will have  the right to exchange the certificates representing Pledged Securities for certificates of smaller or  larger denominations for any purpose consistent with this Agreement.  Section 3.05. Voting Rights; Dividends and Interest, Etc.    (1) Unless and until an Event of Default has occurred and is continuing and the Collateral  Agent has given prior written notice to the Borrower of the Collateral Agent’s intention to  exercise its rights hereunder:  (a) each Grantor will be entitled to exercise any and all voting and/or other consensual  rights and powers inuring to an owner of Pledged Collateral or any part thereof for  any purpose consistent with the terms of this Agreement, the Credit Agreement and  the other Loan Documents; provided that, except as permitted under the Credit  Agreement, such rights and powers will not be exercised in any manner that could  materially and adversely affect the rights inuring to a holder of any Pledged  Collateral, the rights and remedies of any of the Collateral Agent or the other  Secured Parties under this Agreement, the Credit Agreement or any other Loan  Document or the ability of the Secured Parties to exercise the same;  





 






17  AmericasActive:16964714.2 (b) the Collateral Agent will promptly execute and deliver to each Grantor, or cause to  be executed and delivered to such Grantor, all such proxies, powers of attorney and  other instruments as such Grantor may reasonably request for the purpose of  enabling such Grantor to exercise the voting and/or consensual rights and powers  it is entitled to exercise pursuant to subparagraph (a) above; and  (c) each Grantor will be entitled to receive and retain any and all dividends, interest,  principal and other distributions paid on or distributed in respect of the Pledged  Collateral to the extent and only to the extent that such dividends, interest, principal  and other distributions are permitted by, and otherwise paid or distributed in  accordance with, the terms and conditions of the Credit Agreement and applicable  laws; provided that (i) any noncash dividends, interest, principal or other  distributions, payments or other consideration in respect thereof, including any  rights to receive the same to the extent not so distributed or paid, that would  constitute Pledged Securities, whether resulting from a subdivision, combination or  reclassification of the outstanding Equity Interests of the issuer of any Pledged  Securities, received in exchange for Pledged Securities or any part thereof, or in  redemption thereof, as a result of any merger, consolidation, acquisition or other  exchange of assets to which such issuer may be a party or otherwise and (ii) any  noncash dividends and other distributions paid or payable in respect of any Pledged  Securities that would constitute Pledged Securities in connection with a partial or  total liquidation or dissolution or in connection with a reduction of capital, capital  surplus or paid in surplus, in each case that does not constitute an Excluded Asset,  will be and become part of the Pledged Collateral, and, if received by any Grantor  will be held in trust for the benefit of the Collateral Agent, for the ratable benefit of  the Secured Parties, and (if applicable) will be promptly (and in any event within  60 days (or such longer period as the Term Loan Collateral Agent may agree, in its  sole discretion)) delivered to the Collateral Agent, for the ratable benefit of the  Secured Parties, in the same form as so received (endorsed in a manner reasonably  satisfactory to the Collateral Agent).  (2) If an Event of Default has occurred and is continuing and after prior written notice by the  Collateral Agent to the Borrower of the Collateral Agent’s intention to exercise its rights  hereunder, all rights of any Grantor to dividends, interest, principal or other distributions  that such Grantor is authorized to receive pursuant to paragraph (1)(c) of this Section 3.05  will cease, and all such rights will thereupon become vested, for the ratable benefit of the  Secured Parties, in the Collateral Agent (or a designated bailee, in accordance with the  applicable Intercreditor Agreement(s)), which will have the sole and exclusive right and  authority to receive and retain such dividends, interest, principal or other distributions;  provided, however, that even if an Event of Default has occurred and is continuing, any  Grantor may continue to receive dividends and distributions solely to the extent permitted  under subclause (8)(a), subclause (8)(b), subclause (8)(c), subclause (8)(d) and subclause  (8)(e) of Section 6.07 of the Credit Agreement.    (3) All dividends, interest, principal or other distributions received by any Grantor contrary to  the provisions of this Section 3.05 will be held in trust for the benefit of the Collateral  Agent, for the ratable benefit of the Secured Parties, and will be (within 60 days (or such  





 






18  AmericasActive:16964714.2 longer period as the Term Loan Collateral Agent may agree, in its sole discretion) after  receipt thereof) delivered to the Collateral Agent (or a designated bailee, in accordance  with the applicable Intercreditor Agreement(s)), for the ratable benefit of the Secured  Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to  the Collateral Agent).  Any and all money and other property paid over to or received by  the Collateral Agent (or a designated bailee, in accordance with the applicable Intercreditor  Agreement(s)) pursuant to the provisions of this paragraph (3) subject to any applicable  Intercreditor Agreement(s) will be retained by the Collateral Agent (or a designated bailee,  in accordance with the applicable Intercreditor Agreement(s)) in an account to be  established by the Collateral Agent (or a designated bailee, in accordance with the  applicable Intercreditor Agreement(s)) upon receipt of such money or other property and  will be applied in accordance with Section 5.02 hereof.  After all such Events of Default  have been cured or waived, the Collateral Agent will promptly repay to each Grantor  (without interest) all dividends, interest, principal or other distributions that such Grantor  would otherwise be permitted to retain pursuant to the terms of paragraph (1)(c) of this  Section 3.05 and that remain in such account.  (4) If an Event of Default has occurred and is continuing and after the Collateral Agent shall  have given prior written notice to the Borrower of the Collateral Agent’s intention to  exercise its rights hereunder, all rights of any Grantor to exercise the voting and/or  consensual rights and powers it is entitled to exercise pursuant to paragraph (1)(a) of this  Section 3.05, and the obligations of the Collateral Agent under paragraph (1)(b) of this  Section 3.05, will cease, and all such rights will thereupon become vested in the Collateral  Agent, for the ratable benefit of the Secured Parties, which will have the sole and exclusive  right and authority to exercise such voting and consensual rights and powers (subject to  any applicable Intercreditor Agreement(s)); provided that unless otherwise directed by the  Required Lenders, the Collateral Agent will have the right from time to time after an Event  of Default has occurred and is continuing to permit the Grantors to exercise such rights.    (5) After all such Events of Default have been cured or waived, each Grantor will have (i) the  right to exercise the voting and/or consensual rights and powers that such Grantor would  otherwise be entitled to exercise pursuant to the terms of paragraph (1)(a) above and (ii)  the right to receive and retain the distributions that such Grantor would otherwise be  entitled to receive and retain pursuant to the terms of paragraph 1(c) above.  ARTICLE IV    SECURITY INTERESTS IN OTHER PERSONAL PROPERTY  Section 4.01. Security Interest.    (1) As security for the payment or performance when due (whether at the stated maturity, by  acceleration or otherwise), as the case may be, in full of the Secured Obligations, each  Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for  the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its  successors and permitted assigns, for the ratable benefit of the Secured Parties, a security  interest (the “Security Interest”) in all of such Grantor’s right, title and interest in or to any  





 






19  AmericasActive:16964714.2 and all of the following assets and properties now owned or at any time hereafter acquired  by such Grantor or in which such Grantor now has or at any time in the future may acquire  any right, title or interest (collectively, the “Article 9 Collateral”):  (a) all Accounts;  (b) all Chattel Paper;  (c) all cash, Money and Deposit Accounts;  (d) all Documents;  (e) all Equipment;  (f) all General Intangibles;  (g) all Instruments;  (h) all Inventory;  (i) all Investment Property;  (j) all Letter-of-Credit Rights;  (k) all Intellectual Property;  (l) all Commercial Tort Claims, including those described on Schedule IV hereto;  (m) each of the following:   (i) Securities Accounts;  (ii) Investment Property credited to Securities Accounts from time to  time and all Security Entitlements in respect thereof; and  (iii) all cash held in any Securities Account or Deposit Account;  (n) all books and Records pertaining to the Article 9 Collateral; and  (o) all Proceeds, Supporting Obligations and products of any and all of the foregoing  and all collateral security and guarantees given by any person with respect to any  of the foregoing.  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, (i) the  Article 9 Collateral will not include any Pledged Collateral and (ii) the Article 9 Collateral (and  any components comprising thereof) will not include, this Agreement will not constitute a grant  of a security interest in, the security interest granted hereunder will not attach to and no  representation, warranty, covenant or any other provision contained in this Agreement or any other  Security Document shall apply to, any Excluded Asset.  





 






20  AmericasActive:16964714.2 (2) Subject to the limitations set forth in Section 4.01(6), each Grantor hereby irrevocably  authorizes the Collateral Agent at any time and from time to time to file in any relevant  jurisdiction any financing statements  with respect to the Collateral (including all Article 9  Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto  that contain the information required by Article 9 of the Uniform Commercial Code of each  applicable jurisdiction for the filing of any financing statement or amendment, including:  (a) whether such Grantor is an organization, the type of organization and any  organizational identification number issued to such Grantor; and   (b) a description of collateral that describes such property in any manner as the  Collateral Agent may reasonably determine is necessary to ensure the perfection of  the security interest in the Collateral granted under this Agreement, including  describing such property as “all assets”, whether now owned or hereafter acquired,  or words of similar effect.    Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable  written request.    (3) The Collateral Agent is further authorized to file with the United States Patent and  Trademark Office or United States Copyright Office (or any successor office) such  documents as may be reasonably necessary for the purpose of perfecting, continuing,  enforcing or protecting the Security Interest granted in Intellectual Property by each  Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as  debtors and the Collateral Agent as secured party.    (4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document,  no Grantor shall be required to take any action under the laws of any jurisdiction other than  the United States (or any political subdivision thereof) and its territories and possessions  for the purpose of perfecting the Security Interest in any Article 9 Collateral of such  Grantor.  (5) The Security Interest is granted as security only and shall not subject the Collateral Agent  or any other Secured Party to, or in any way alter or modify, any obligation or liability of  any Grantor with respect to or arising out of the Article 9 Collateral.  (6) Notwithstanding anything to the contrary in any Loan Document, no Grantor will be  required:   (a) to take, or cause to be taken, any actions to perfect the Security Interest by any  means other than (to the extent reasonably applicable):   (i) filings pursuant to the Uniform Commercial Code in the office of  the Secretary of State (or equivalent central filing office) in the jurisdiction of  organization of such Grantor;   (ii) filings in the United States Patent and Trademark Office and the  United States Copyright Office of an Intellectual Property Security Agreement;   





 






21  AmericasActive:16964714.2 (iii) subject to any applicable Intercreditor Agreement(s), delivery of  Collateral consisting of instruments, notes and debt securities in a principal amount  in excess of $15 million to the extent required under Section 3.02;   (iv) subject to any applicable Intercreditor Agreement(s), delivery of  Collateral consisting of certificated Equity Interests to the extent required under  Section 3.02;  (b) except as required under Section 5.11 of the Credit Agreement, to enter, or cause  to be entered, any control agreements or similar arrangements with the Collateral  Agent or the Administrative Agent with respect to any Deposit Accounts, Securities  Accounts, Commodities Accounts or other Collateral that requires perfection by  Control; or  (c) to take any actions with respect to assets located outside of the United States or in  any non-United States jurisdiction or required by the laws of any non-United States  jurisdiction to create, maintain or perfect any security interests in any such assets  (it being understood that there shall be no security agreements or pledge agreements  governed under the laws of any non-U.S. jurisdiction);  (d) to deliver any landlord lien waivers, estoppels or collateral access letters; or   (e) to take any perfection action with respect to motor vehicles and other assets subject  to certificates of title or Letter-of-Credit Rights other than the filing of Uniform  Commercial Code financing statements in the office of the secretary of state (or  similar central filing office) in the jurisdiction of organization of the applicable  Grantor.  (7) Notwithstanding anything to the contrary in any Loan Document, to the extent any  provision of this Agreement or the Credit Agreement excludes any assets from the scope  of the Article 9 Collateral, or from any requirement to take any action to perfect or maintain  any security interest (or the priority thereof) in favor of the Collateral Agent in the Article  9 Collateral, the representations, warranties and covenants made by any Grantor in this  Agreement with respect to the creation, perfection or priority (as applicable) of the security  interest granted in favor of the Collateral Agent (including Section 4.01) shall be deemed  not to apply to such excluded assets.  Section 4.02. Representations and Warranties.  Each Grantor represents and warrants (but  solely to the extent (and at the times) required by the Credit Agreement) to the Collateral Agent  and the Secured Parties that:  (1) Each Grantor has good and valid rights in and title to the Article 9 Collateral with respect  to which it has purported to grant a Security Interest hereunder and has full power and  authority to grant to the Collateral Agent the Security Interest in such Article 9 Collateral  pursuant hereto and to execute, deliver and perform its obligations in accordance with the  terms of this Agreement, without the consent or approval of any other Person other than  any consent or approval that has been obtained and is in full force and effect or has  otherwise been disclosed herein or in the Credit Agreement.  





 






22  AmericasActive:16964714.2 (2) The Uniform Commercial Code financing statements containing a description of the  Article 9 Collateral that have been prepared by the Collateral Agent for filing in the office  specified in Schedule III constitute all the filings, recordings and registrations (except as  set forth in the following clause (3)) that are, as of the Closing Date, necessary to publish  notice of, protect the validity of and to establish a legal, valid and perfected security interest  in favor of the Collateral Agent (for the ratable benefit of the Secured Parties) in respect of  all Article 9 Collateral in which the Security Interest may be perfected by filing of Uniform  Commercial Code financing statements in the office of the Secretary of State (or equivalent  central filing office) of the applicable jurisdiction.    (3) Each Grantor represents and warrants that a fully executed Intellectual Property Security  Agreement containing a description of all Article 9 Collateral existing on the Closing Date  and consisting of material Intellectual Property owned by such Grantor with respect to  United States Patents (and Patents for which United States applications are pending),  United States registered Trademarks (and Trademarks for which United States registration  applications are pending) and United States registered Copyrights (and Copyrights for  which United States registration applications are pending) was delivered on the Closing  Date to the Collateral Agent for recording with the United States Patent and Trademark  Office and the United States Copyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. §  1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable.  (4) The Security Interest constitutes (a) a legal and valid security interest in all the Article 9  Collateral securing the payment and performance of the Secured Obligations; (b) subject  to the filings described in Section 4.02(2), a perfected security interest in all Article 9  Collateral in which a security interest may be perfected by filing, recording or registering  a financing statement or analogous document in the United States (or any political  subdivision thereof) and its territories and possessions pursuant to the Uniform  Commercial Code in the central filing office of such jurisdictions; and (c) subject to the  filings described in Section 4.02(3), a security interest that shall be perfected in all  Intellectual Property in which a security interest may be perfected upon the receipt and  recording of an Intellectual Property Security Agreement with the United States Patent and  Trademark Office and the United States Copyright Office, as applicable.  Subject to Section  4.01(6), the Security Interest is and shall be prior to any other Lien on any of the Article 9  Collateral, subject to Permitted Liens.  (5) The Article 9 Collateral is owned by the Grantors free and clear of any Lien, other than  Permitted Liens.  None of the Grantors has filed or consented to the filing after the Closing  Date of (a) any financing statement or analogous document under the Uniform Commercial  Code or any other applicable laws covering any Article 9 Collateral; (b) any assignment in  which any Grantor assigns any Article 9 Collateral or any security agreement or similar  instrument covering any Article 9 Collateral with the United States Patent and Trademark  Office or the United States Copyright Office; or (c) any assignment in which any Grantor  assigns any Article 9 Collateral or any security agreement or similar instrument covering  any Article 9 Collateral with any foreign governmental, municipal or other office, which  financing statement or analogous document, assignment, security agreement or similar  instrument is still in effect, except, in each case, for Permitted Liens or in connection with  any permitted disposition thereof in accordance with the terms of the Credit Agreement.  





 






23  AmericasActive:16964714.2 (6) None of the Grantors holds any Commercial Tort Claim individually in excess of $15  million as of the Closing Date except as indicated on Schedule IV.  (7) As to itself and its Article 9 Collateral consisting of material Intellectual Property owned  by each Grantor with respect to the United States (the “Intellectual Property Collateral”),  to each Grantor’s knowledge, as of the Closing Date:  (a) The Intellectual Property Collateral set forth on Schedule II includes all of the  material Patents, Trademarks and Copyrights owned by such Grantor as of the date  hereof;  (b) The Intellectual Property Collateral owned by such Grantors has not been adjudged  invalid or unenforceable in whole or part (except for office actions issued in the  ordinary course by the United States Patent and Trademark Office or in any similar  office in any foreign jurisdiction), and is valid and enforceable, except as would not  reasonably be expected to have a Material Adverse Effect. Such Grantor is not  aware of any uses of any item of Intellectual Property Collateral that would be  expected to lead to such item becoming invalid or unenforceable, except as would  not reasonably be expected to have a Material Adverse Effect;  (c) Such Grantor has made or performed in the ordinary course of Grantor’s business,  acts, including filings, recordings and payment of all required fees and taxes,  required to maintain and protect its interest in each and every item of Intellectual  Property Collateral owned by such Grantor in full force and effect in the United  States, and such Grantor has used proper statutory notice in connection with its use  of each Patent, Trademark and Copyright owned by such Grantor in the Intellectual  Property Collateral, in each case, except to the extent that the failure to do so would  not reasonably be expected to have a Material Adverse Effect;  (d) With respect to each IP Agreement, the absence, termination, cancellation, breach  or violation of which would reasonably be expected to have a Material Adverse  Effect: (A) such Grantor has not received any notice of termination or cancellation  under such IP Agreement; (B) such Grantor has not received any notice of a breach  or default under such IP Agreement, which breach or default has not been cured or  waived; and (C) neither such Grantor nor, to the knowledge of Grantor, any other  party to such IP Agreement is in breach or default thereof in any material respect,  and no event has occurred that, with notice or lapse of time or both, would constitute  such a breach or default or permit termination, modification or acceleration under  such IP Agreement.  (e) Except as would not reasonably be expected to have a Material Adverse Effect, no  Grantor or Intellectual Property Collateral owned by such Grantor is subject to any  outstanding consent, settlement, decree, order, injunction, judgment or ruling  restricting the use of any Intellectual Property Collateral owned by such Grantor or  that would impair the validity or enforceability of such Intellectual Property  Collateral owned by such Grantor.  





 






24  AmericasActive:16964714.2 Section 4.03. Covenants.    (1) Each Grantor agrees to comply with Section 5.10(3) of the Credit Agreement, subject, for  the avoidance of doubt, to Section 5.10(4) of the Credit Agreement.  (2) Subject to the rights of such Grantor under the Loan Documents to dispose of Collateral  and except as would otherwise be permitted by the Credit Agreement, each Grantor will,  at its own expense, use commercially reasonable efforts to defend title to the Article 9  Collateral against all persons and to defend the Security Interest of the Collateral Agent,  for the ratable benefit of the Secured Parties, in the Article 9 Collateral and the priority  thereof against any Lien that is not a Permitted Lien.  (3) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be  duly filed all such further instruments and documents and take all such actions as the  Collateral Agent may from time to time reasonably request to preserve, protect and perfect  the Security Interest and the rights and remedies created hereby, including the payment of  any fees and taxes required in connection with the execution and delivery of this  Agreement and the granting of the Security Interest and the filing of any financing  statements  or other documents in connection herewith or therewith.    (4) [Reserved].  (5) After an Event of Default has occurred and is continuing, and in consultation with the  Borrower, the Collateral Agent will have the right to verify under reasonable procedures  the validity, amount, quality, quantity, value, condition and status of, or any other matter  relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral  in the possession of any third person, by contacting Account Debtors or the third person  possessing such Article 9 Collateral for the purpose of making such a verification.  The  Collateral Agent shall have the right to share any information it gains from such inspection  or verification with any Secured Party.  (6) None of the Grantors will, without the Collateral Agent’s prior written consent (such  consent not to be unreasonably withheld, delayed or conditioned), grant any extension of  the time of payment of any Accounts included in the Article 9 Collateral, compromise,  compound or settle the same for less than the full amount thereof, release, wholly or partly,  any person liable for the payment thereof or allow any credit or discount whatsoever  thereon, in each case, other than extensions, credits, discounts, compromises or settlements  granted or made in the ordinary course of business or consistent with prudent business  practices or as otherwise permitted under the Credit Agreement.  (7) At its option, after an Event of Default has occurred and is continuing, the Collateral Agent  may discharge past due taxes, assessments, charges, fees, Liens, security interests or other  encumbrances at any time levied or placed on the Article 9 Collateral and not a Permitted  Lien, and may pay for the maintenance and preservation of the Article 9 Collateral, in each  case, to the extent any Grantor fails to do so as required by the Credit Agreement or this  Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent  on demand for any reasonable payment made or any reasonable expense incurred by the  





 






25  AmericasActive:16964714.2 Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing  in this Section 4.03(7) will excuse any Grantor from the performance of, or impose any  obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants  or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens,  security interests or other encumbrances and maintenance as set forth herein or in the other  Loan Documents.  (8) Each Grantor (rather than the Collateral Agent or any Secured Party) will remain liable for  the observance and performance of all the conditions and obligations to be observed and  performed by it under each contract, agreement or instrument relating to the Article 9  Collateral.  (9) Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all  officers, employees or agents designated by the Collateral Agent for such purpose) as such  Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, after an Event of  Default has occurred for so long as it is continuing, of making, settling and adjusting claims  in respect of Article 9 Collateral under policies of insurance, endorsing the name of such  Grantor on any check, draft, instrument or other item of payment for the proceeds of such  policies of insurance and for making all determinations and decisions with respect thereto.    (10) In the event that any Grantor at any time or times fails to obtain or maintain any of the  policies of insurance required hereby or under the Credit Agreement or to pay any premium  in whole or part relating thereto, the Collateral Agent may, after an Event of Default has  occurred for so long as it is continuing, without waiving or releasing any obligation or  liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and  maintain such policies of insurance and pay such premium and take any other actions with  respect thereto as the Collateral Agent reasonably deems advisable.  All sums disbursed by  the Collateral Agent in connection with this Section 4.03(10), including reasonable  attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable,  upon demand, by the Grantors to the Collateral Agent, in accordance with Section 7.06,  and shall be additional Secured Obligations secured hereby.  Section 4.04. Other Actions.  In order to further ensure the attachment, perfection and  priority of, and the ability of the Collateral Agent to enforce, for the ratable benefit of the Secured  Parties, the Collateral Agent’s security interest in the Article 9 Collateral, each Grantor agrees, in  each case at such Grantor’s own expense, to take the following actions with respect to the  following Article 9 Collateral:  (1) Tangible Chattel Paper.  Except to the extent otherwise provided in Article III, if any  Grantor at any time holds or acquires any Tangible Chattel Paper evidencing an amount in  excess of $15 million, such Grantor will (within 60 days (or such longer period as any  Agent may agree, in its sole discretion) after receipt thereof) endorse, assign and deliver  the same to the Collateral Agent (or a designated bailee, in accordance with any applicable  Intercreditor Agreement(s)), accompanied by such instruments of transfer or assignment  duly executed in blank as the Collateral Agent may from time to time reasonably request.  





 






26  AmericasActive:16964714.2 (2) Commercial Tort Claims.  If any Grantor shall at any time hold or acquire a Commercial  Tort Claim in an amount reasonably estimated by the Borrower in good faith to exceed $15  million, such Grantor shall (within 60 days (or such longer period as any Agent may agree,  in its sole discretion) after determination thereof) notify the Collateral Agent thereof in a  writing signed by such Grantor, including a summary description of such claim, and grant  to the Collateral Agent in writing a security interest therein and in the proceeds thereof, all  under the terms and provisions of this Agreement, with such writing to be in form and  substance reasonably satisfactory to the Collateral Agent.  Section 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral.  Except  as permitted by the Credit Agreement or as would not reasonably be expected to result in a Material  Adverse Effect:    (1) Each Grantor agrees that it will not knowingly do any act or omit to do any act (and will  exercise commercially reasonable efforts to contractually prohibit its licensees from doing  any act or omitting to do any act) whereby any material Patent owned by such Grantor that  is necessary to the normal conduct of such Grantor’s business may become prematurely  invalidated, abandoned, lapsed or dedicated to the public, and agrees that it will take  commercially reasonable steps with respect to any material products covered by any such  Patent as necessary to establish and preserve its rights under applicable patent laws.  (2) Each Grantor will, and will use its commercially reasonable efforts to contractually require  its licensees and its sublicensees to, for each material Trademark owned by such Grantor  and necessary to the normal conduct of such Grantor’s business:    (a) maintain such Trademark in full force free from any adjudication of abandonment  or invalidity for non-use;   (b) maintain the quality of products and services offered under such Trademark;  (c) display such Trademark with notice of federal or foreign registration or claim of  trademark or service mark as required under applicable law; and   (d) not knowingly use or knowingly permit its licensees’ use of such Trademark in  violation of any third-party rights.  (3) Each Grantor will, and will use its commercially reasonable efforts to cause its licensees  and its sublicensees to, for each work covered by a material Copyright owned by such  Grantor and necessary to the normal conduct of such Grantor’s business and that it  publishes, displays and distributes, use a copyright notice as necessary and sufficient to  establish and preserve its rights under applicable copyright laws.  (4) Each Grantor shall notify the Collateral Agent promptly if it knows that any material  Patent, Trademark or Copyright owned by such Grantor and necessary to the normal  conduct of such Grantor’s business may imminently become abandoned, lapsed or  dedicated to the public, or of any materially adverse determination or development,  excluding office actions and similar determinations or developments in the United States  Patent and Trademark Office, United States Copyright Office, any court, or any similar  





 






27  AmericasActive:16964714.2 office of any country, regarding such Grantor’s ownership of any such material Patent,  Trademark or Copyright or its right to register or maintain the same.  (5) Each Grantor, either itself or through any agent, employee, licensee or designee, will, upon  the reasonable request of the Collateral Agent, execute and deliver any and all agreements,  instruments, documents and papers as the Collateral Agent may reasonably request to  evidence the Collateral Agent’s security interest in each Patent, Trademark, or Copyright  listed in each updated Perfection Certificate (or in any applicable specified information  contained in the Perfection Certificate) furnished pursuant to Section 5.04(6) of the Credit  Agreement.  (6) Each Grantor will exercise its reasonable business judgment consistent with the practice in  any proceeding before the United States Patent and Trademark Office, the United States  Copyright Office with respect to maintaining and pursuing each application owned by such  Grantor relating to any material Patent, Trademark and/or Copyright (and obtaining the  relevant grant or registration) necessary to the normal conduct of such Grantor’s business  and to maintain (a) each such Patent and (b) the registrations of each such Trademark and  each such Copyright, including, when applicable and necessary in such Grantor’s  reasonable business judgment, timely filings of applications for renewal, affidavits of use,  affidavits of incontestability and payment of maintenance fees, and, if any Grantor believes  necessary in its reasonable business judgment, to initiate opposition, interference and  cancellation proceedings against third parties.  (7) In the event that any Grantor knows or has reason to know that any Article 9 Collateral  consisting of a material Patent, Trademark or Copyright necessary to the normal conduct  of its business has been materially infringed, misappropriated or diluted by a third party,  such Grantor will promptly notify the Collateral Agent and will, if such Grantor deems it  necessary in its reasonable business judgment, promptly take actions as are reasonably  appropriate under the circumstances.   Section 4.06. Intercreditor Relations.  Notwithstanding anything herein to the contrary,  (1) the Grantors and the Collateral Agent acknowledge that the exercise of certain of the Collateral  Agent’s rights and remedies hereunder are subject to the provisions of the Closing Date  Intercreditor Agreement and any other applicable Intercreditor Agreement(s) and (2) prior to the  Discharge of Term Loan Claims (or such other applicable date), any obligation hereunder to  physically deliver any Term Loan Priority Collateral (or other applicable Collateral) to the  Collateral Agent shall be deemed satisfied by the delivery to the Term Loan Collateral Agent or  other applicable Debt Representative, acting as gratuitous bailee for the Collateral Agent in  accordance with the Closing Date Intercreditor Agreement or other applicable Intercreditor  Agreement(s).  The failure of the Collateral Agent or any other Secured Party to immediately  enforce any of its rights and remedies hereunder (as a result of the terms of any applicable  Intercreditor Agreement(s) or otherwise) shall not constitute a waiver of any such rights and  remedies.  In the event of any conflict or inconsistency between the terms of the Closing Date  Intercreditor Agreement or any other applicable Intercreditor Agreement(s) and this Agreement,  the terms of such Intercreditor Agreement shall govern and control.  In the event of any such  conflict, each Grantor may act (or omit to act) in accordance with such Intercreditor Agreement  





 






28  AmericasActive:16964714.2 and shall not be in breach, violation or default of its obligations hereunder or under any other Loan  Document by reason of doing so.  ARTICLE V    REMEDIES  Section 5.01. Remedies Upon Default.  If an Event of Default has occurred and is  continuing, each Grantor agrees to deliver each item of Collateral to the Collateral Agent (or a  designated bailee, in accordance with any applicable Intercreditor Agreement(s)) on demand, and  it is agreed that the Collateral Agent shall have the right, subject to applicable law and any  applicable Intercreditor Agreement(s), to take any of or all the following actions at the same or  different times: (1) with respect to any Article 9 Collateral consisting of Intellectual Property, on  demand, to cause the Security Interest to become an assignment, transfer and conveyance of any  of or all such Article 9 Collateral by the applicable Grantors to the Collateral Agent or to license  or sublicense, whether general, special or otherwise, and whether on an exclusive or a non- exclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions  and in such manner as the Collateral Agent shall determine (other than in violation of any then- existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the  use of commercially reasonable efforts, which each Grantor hereby agrees to use) and (2) to take  possession of the Article 9 Collateral and without liability for trespass to the applicable Grantor to  enter any premises where the Article 9 Collateral may be located for the purpose of taking  possession of, removing or selling the Article 9 Collateral and, generally, to exercise any and all  rights afforded to a secured party under the applicable Uniform Commercial Code or other  applicable law.  Without limiting the generality of the foregoing rights and remedies, each Grantor  agrees that the Collateral Agent shall have the right, subject to the mandatory requirements of  applicable law (including the Uniform Commercial Code), to sell or otherwise dispose of all or  any part of the Collateral at a public or private sale or at any broker’s board or on any securities  exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem  appropriate.  The Collateral Agent shall be authorized in connection with any sale of a security (if  it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or  purchasers to persons who represent and agree that they are purchasing such security for their own  account, for investment, and not with a view to the distribution or sale thereof.  Upon  consummation of any such sale of Collateral pursuant to this Section 5.01, the Collateral Agent  shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the  Collateral so sold.  Each such purchaser at any such sale shall hold the property sold absolutely,  free from any claim or right on the part of any Grantor, and each Grantor hereby waives and  releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal that  such Grantor now has or may at any time in the future have under any rule of law or statute now  existing or hereafter enacted.  The Collateral Agent shall give the applicable Grantors ten Business Days’ written  notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the  UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale  of Collateral.  Such notice, in the case of a public sale, shall state the time and place for such sale  and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or  exchange at which such sale is to be made and the day on which the Collateral, or portion thereof,  





 






29  AmericasActive:16964714.2 will first be offered for sale at such board or exchange.  Any such public sale shall be held at such  time or times within ordinary business hours and at such place or places as the Collateral Agent  may fix and state in the notice (if any) of such sale.  The Collateral, or the portion thereof, to be  sold at any such sale may be sold in one lot as an entirety or in separate parcels in the Collateral  Agent’s own right or by one or more agents and contractors, upon any premises owned, leased, or  occupied by any Grantor and the Collateral Agent and any such agent or contractor, in conjunction  with any such sale, may augment the Inventory to be sold with other goods (all of which other  goods shall remain the sole property of the Collateral Agent or such agent or contractor), all as the  Collateral Agent may (in its sole and absolute discretion) determine.  The Collateral Agent shall  not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of  the fact that notice of sale of such Collateral shall have been given.  The Collateral Agent may,  without notice or publication, adjourn any public or private sale or cause the same to be adjourned  from time to time by announcement at the time and place fixed for sale, and such sale may, without  further notice, be made at the time and place to which the same was so adjourned.  In the case of  any sale of all or any part of the Collateral made on credit or for future delivery, the Collateral so  sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or  purchasers thereof, but the Collateral Agent shall not incur any liability in the event that any such  purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of  any such failure, such Collateral may be sold again upon notice given in accordance with  provisions above.  At any public (or, to the extent permitted by law, private) sale made pursuant  to this Section 5.01, any Secured Party may bid for or purchase, free (to the extent permitted by  law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all such  rights being also hereby waived and released to the extent permitted by law), the Collateral or any  part thereof offered for sale and may make payment on account thereof by using any claim then  due and payable to such Secured Party from any Grantor as a credit against the purchase price, and  such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such  property in accordance with Section 5.02 hereof without further accountability to any Grantor  therefor.  For purposes hereof, a written agreement to purchase the Collateral or any portion thereof  shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant  to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion  thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered  into such an agreement all Events of Default shall have been remedied and the Secured Obligations  paid in full.  As an alternative to exercising the power of sale herein conferred upon it, the  Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and  to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts  having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.  Any sale  pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially  reasonable standards as provided in Section 9-610(b) of the UCC or its equivalent in other  jurisdictions.  Without limiting any other rights of the Collateral Agent under this Agreement, for  the purpose of enabling Collateral Agent to exercise rights and remedies under Article V at such  time as Collateral Agent shall be lawfully entitled to exercise, after an Event of Default has  occurred and is continuing, such rights and remedies, and for no other purpose, each Grantor  hereby grants to the Collateral Agent, to the extent licensable, and to the extent not resulting in a  material breach, material violation or termination of any Trademark License, a royalty free, non- exclusive, irrevocable license (such license to be effective after an Event of Default has occurred  





 






30  AmericasActive:16964714.2 and while it is continuing), to use, apply, and affix any Trademark in which any Grantor now or  hereafter has rights, solely in connection with the Collateral Agent’s enforcement of rights or  remedies hereunder, including in connection with any sale or other disposition of Inventory,  provided that such use is consistent with the use of such Trademark employed by the Grantor in  the ordinary conduct of such Grantor’s business and Grantor shall have rights of quality control  and inspection that are reasonably necessary to maintain the validity and enforceability of such  Trademarks.  As to each Grantor, the license granted hereby shall remain in full force and effect  until such Grantor hereunder is released hereunder in accordance with Section 7.15 of this  Agreement.  Any exercise of remedies by the Collateral Agent shall be subject to the applicable  Intercreditor Agreement(s).  Section 5.02. Application of Proceeds.    (1) Subject to the terms of any applicable Intercreditor Agreement(s), the Collateral Agent will  promptly apply the proceeds, moneys or balances of any collection or sale of Collateral, as  well as any Collateral consisting of cash, in the manner specified in the Credit Agreement.  (2) Notwithstanding anything in this Agreement or any other Loan Document to the contrary,  the Collateral Agent will not be required to marshal the Collateral or any guarantee of the  Secured Obligations or to resort to the Collateral or any such Guarantee in any particular  order.  Section 5.03. Securities Act, Etc.  In view of the position of the Grantors in relation to the  Pledged Collateral, or because of other current or future circumstances, a question may arise under  the Securities Act of 1933, as now or hereafter in effect, or any similar federal statute hereafter  enacted analogous in purpose or effect (such Act and any such similar statute as from time to time  in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged  Collateral permitted hereunder.  Each Grantor understands that compliance with the Federal  Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the  Collateral Agent were to attempt to dispose of all or any part of the Pledged Collateral, and might  also limit the extent to which or the manner in which any subsequent transferee of any Pledged  Collateral could dispose of the same.  Similarly, there may be other legal restrictions or limitations  affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Collateral  under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or  effect.  Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the  Collateral Agent, in its sole and absolute discretion, may (1) proceed to make such a sale whether  or not a registration statement for the purpose of registering such Pledged Collateral or part thereof  shall have been filed under the Federal Securities Laws or, to the extent applicable, Blue Sky or  other state securities laws and (2) approach and negotiate with a single potential purchaser to effect  such sale.  Each Grantor acknowledges and agrees that any such sale might result in prices and  other terms less favorable to the seller than if such sale were a public sale without such restrictions.   In the event of any such sale, the Collateral Agent will incur no responsibility or liability for selling  all or any part of the Pledged Collateral at a price that the Collateral Agent, in its sole and absolute  discretion, may in good faith deem reasonable under the circumstances, notwithstanding the  possibility that a substantially higher price might have been realized if the sale were deferred until  





 






31  AmericasActive:16964714.2 after registration as aforesaid or if more than a single purchaser were approached.  The provisions  of this Section 5.03 will apply notwithstanding the existence of a public or private market upon  which the quotations or sales prices may exceed substantially the price at which the Collateral  Agent sells.  For avoidance of doubt, no Grantor shall be required hereunder or under any other  Loan Document to take or cause the issuer of any Pledged Collateral take any action to register  any Pledged Collateral for public sale under the Federal Securities Laws or Blue Sky or other state  securities laws.  ARTICLE VI    INDEMNITY, SUBROGATION AND SUBORDINATION  Section 6.01. Indemnity.  In addition to all such rights of indemnity and subrogation as  the Guarantors may have under applicable law (but subject to Section 6.03 hereof), the Borrower  agrees that (a) in the event a payment is made by any Guarantor under this Agreement in respect  of any Secured Obligation of the Borrower, the Borrower shall indemnify such Guarantor for the  full amount of such payment and such Guarantor shall be subrogated to the rights of the person to  whom such payment shall have been made to the extent of such payment and (b) in the event any  assets of any Guarantor are sold pursuant to this Agreement or any other Security Document to  satisfy in whole or in part a Secured Obligation of the Borrower, the Borrower will indemnify such  Guarantor in an amount equal to the greater of the book value or the fair market value of the assets  so sold.  Section 6.02. Contribution and Subrogation.  Subject to Section 2.07, each Guarantor (a  “Contributing Guarantor”) agrees (subject to Section 6.03 hereof) that, in the event a payment  shall be made by any other Guarantor hereunder in respect of any Secured Obligation or assets of  any other Guarantor are sold pursuant to any Security Document to satisfy any Secured Obligation  owed to any Secured Party and such other Guarantor (the “Claiming Guarantor”) shall not have  been fully indemnified by the Borrower as provided in Section 6.01 hereof, the Contributing  Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such  payment or the greater of the book value or the fair market value of such assets, as applicable, in  each case multiplied by a fraction of which the numerator shall be the net worth of such  Contributing Guarantor on the date hereof and the denominator will be the aggregate net worth of  all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto  pursuant to Section 7.16 hereof, the date of the supplement hereto executed and delivered by such  Guarantor).   Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant  to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section  6.01 hereof to the extent of such payment.  Section 6.03. Subordination.    (1) Notwithstanding any provision of this Agreement to the contrary, all rights of the  Guarantors under Sections 6.01 and 6.02 hereof and all other rights of indemnity,  contribution or subrogation of the Guarantors under applicable law or otherwise will be  fully subordinated to the Payment in Full of the Secured Obligations until such time as this  Agreement has been terminated in accordance with Section 7.15(1) or, with respect to any  such Guarantor, until such Guarantor is released in accordance with Section 7.15(2).  No  





 






32  AmericasActive:16964714.2 failure on the part of the Borrower or any Guarantor to make the payments required by  Sections 6.01 and 6.02 hereof (or any other payments required under applicable law or  otherwise) will in any respect limit the obligations and liabilities of the Borrower with  respect to the Secured Obligations or any Guarantor with respect to its obligations  hereunder.  (2) The Borrower and each Guarantor hereby agree that all Indebtedness owed by it to the  Borrower, any other Guarantor or any Restricted Subsidiary (collectively, the  “Subordinated Creditors”) will be fully subordinated to the prior Payment in Full of the  Secured Obligations; provided, however, that each of the following shall be permitted:  payments permitted under the Credit Agreement, including payments of regularly  scheduled principal and interest (including default interest and any “AHYDO” catch-up  payment) on such Indebtedness, fees related to such Indebtedness, indemnity and expense  reimbursement payments in connection with such Indebtedness, and mandatory  prepayments, mandatory redemptions and mandatory purchases of any such Indebtedness  (including any principal, premium or interest with respect thereto), in each case pursuant  to the terms of such Indebtedness. A Subordinated Creditor will automatically be released  from its obligations hereunder upon the consummation of any transaction permitted by the  Credit Agreement as a result of which the Subordinated Creditor ceases to be a Restricted  Subsidiary of the Borrower.  ARTICLE VII    MISCELLANEOUS  Section 7.01. Notices.  All communications and notices hereunder shall (except as  otherwise permitted herein) be in writing and given as provided in Section 10.01 of the Credit  Agreement.  All communications and notices hereunder to any Grantor will be given to it in care  of the Borrower, with such notice to be given as provided in Section 10.01 of the Credit Agreement.  Section 7.02. Security Interest Absolute.  All rights of the Collateral Agent hereunder, the  Security Interest in the Article 9 Collateral, the security interest in the Pledged Collateral and all  obligations of each Grantor hereunder will be absolute and unconditional irrespective of:  (1) any lack of validity or enforceability of the Credit Agreement, any other Loan Document,  any agreement with respect to any of the Secured Obligations or any other agreement or  instrument relating to any of the foregoing;   (2) any change in the time, manner or place of payment of, or in any other term of, all or any  of the Secured Obligations, or any other amendment or waiver of or any consent to any  departure from the Credit Agreement, any other Loan Document or any other agreement  or instrument;  (3) any exchange, release or non-perfection of any Lien on other collateral, or any release or  amendment or waiver of or consent under or departure from any guarantee, securing or  guaranteeing all or any of the Secured Obligations; or   





 






33  AmericasActive:16964714.2 (4) subject only to termination or release of a Guarantor’s obligations hereunder in accordance  with the terms of Section 7.15 hereof any other circumstance that might otherwise  constitute a defense available to, or a discharge of, any Grantor in respect of the Secured  Obligations or this Agreement (other than a defense of payment or performance).  Section 7.03. Limitation By Law.  All obligations, rights, remedies and powers provided  in this Agreement may be exercised or performed only to the extent that the exercise or  performance thereof does not violate any applicable provision of law, and all the provisions of this  Agreement are intended to be subject to all applicable mandatory provisions of law that may be  controlling and to be limited to the extent necessary so that they will not render this Agreement  invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered or filed under  the provisions of any applicable law.  Section 7.04. Binding Effect; Several Agreement.  This Agreement will become effective  as to any party to this Agreement when a counterpart hereof executed on behalf of such party is  delivered to the Collateral Agent and a counterpart hereof is executed on behalf of the Collateral  Agent, and thereafter will be binding upon such party and the Collateral Agent and their respective  permitted successors and assigns, and will inure to the benefit of such party, the Collateral Agent  and the other Secured Parties and their respective permitted successors and assigns, except that no  party shall have the right to assign or transfer its rights or obligations hereunder or any interest  herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly  permitted under the Credit Agreement.  This Agreement will be construed as a separate agreement  with respect to each Loan Party and may be amended, modified, supplemented, waived or released  with respect to any Loan Party without the approval of any other Loan Party and without affecting  the obligations of any other Loan Party hereunder.  Section 7.05. Successors and Assigns.  Whenever in this Agreement any of the parties  hereto is referred to, such reference will be deemed to include the permitted successors and assigns  of such party, and all covenants, promises and agreements by or on behalf of any Grantor or the  Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their  respective permitted successors and assigns; provided that no Grantor may assign, transfer or  delegate any of its rights or obligations under this Agreement without the prior written consent of  the Collateral Agent or as expressly permitted under the Credit Agreement.  The Collateral Agent  hereunder will at all times be the same person that is the Collateral Agent under the Credit  Agreement.  Written notice of resignation by the Administrative Agent pursuant to the Credit  Agreement will also constitute notice of resignation as the Collateral Agent under this Agreement.   Upon the acceptance of any appointment as the Administrative Agent under the Credit Agreement  by a successor Administrative Agent, that successor Administrative Agent will thereupon succeed  to and become vested with all the rights, powers, privileges and duties of the retiring Collateral  Agent pursuant hereto.  Section 7.06. Collateral Agent’s Fees and Expenses; Indemnification.   The parties hereto  agree that the Collateral Agent will be entitled to reimbursement of its expenses incurred hereunder  as provided in Section 10.05 of the Credit Agreement and the provisions of Section 10.05 shall be  incorporated by reference herein and apply to each Grantor mutatis mutandis.   





 






34  AmericasActive:16964714.2 Section 7.07. Collateral Agent Appointed Attorney-in-Fact.  Each Grantor hereby  appoints the Collateral Agent the attorney-in-fact of such Grantor for the purpose of carrying out  the provisions of this Agreement and taking any action and executing any instrument that the  Collateral Agent may deem necessary to accomplish the purposes hereof, effective after an Event  of Default has occurred and while it is continuing and with written notice to the Borrower of its  exercise or intent to exercise such rights, which appointment is irrevocable and coupled with an  interest.  The Collateral Agent will have the right, after an Event of Default has occurred and while  it is continuing and with written notice to the Borrower of its exercise or intent to exercise such  rights, with full power of substitution either in the Collateral Agent’s name or in the name of such  Grantor, to:   (1) receive, endorse, assign or deliver any and all notes, acceptances, checks, drafts, money  orders or other evidences of payment relating to the Collateral or any part thereof;  (2) demand, collect, receive payment of, give receipt for and give discharges and releases of  all or any of the Collateral;   (3) ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due  or to become due under and by virtue of any Collateral;   (4) sign the name of any Grantor on any invoice or bill of lading relating to any of the  Collateral;   (5) send verifications of Accounts to any Account Debtor;  (6) commence and prosecute any and all suits, actions or proceedings at law or in equity in any  court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral  or to enforce any rights in respect of any Collateral;  (7) settle, compromise, compound, adjust or defend any actions, suits or proceedings relating  to all or any of the Collateral;  (8) notify, or to require any Grantor to notify, Account Debtors to make payment directly to  the Collateral Agent; and   (9) use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal  with all or any of the Collateral, and to do all other acts and things necessary to carry out  the purposes of this Agreement, as fully and completely as though the Collateral Agent  were the absolute owner of the Collateral for all purposes;   provided that nothing herein contained will be construed as requiring or obligating the Collateral  Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any  payment received by the Collateral Agent, or to present or file any claim or notice, or to take any  action with respect to the Collateral or any part thereof or the moneys due or to become due in  respect thereof or any property covered thereby.  The Collateral Agent and the other Secured  Parties will be accountable only for amounts actually received as a result of the exercise of the  powers granted to them herein, and neither they nor their officers, directors, employees or agents  





 






35  AmericasActive:16964714.2 shall be responsible to any Grantor for any act or failure to act hereunder, except for their own  gross negligence, bad faith or willful misconduct.  Section 7.08. APPLICABLE LAW.  THIS AGREEMENT AND ANY CLAIM,  CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR  TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS  AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE  CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE  OF NEW YORK (EXCEPT FOR CONFLICTS OF LAW PRINCIPLES THAT WOULD  RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).  Section 7.09. Waivers; Amendment.    (1) No failure or delay by the Collateral Agent or any Lender or Issuing Bank in exercising  any right, power or remedy hereunder or under any other Loan Document will operate as  a waiver thereof, nor will any single or partial exercise of any such right, power or remedy,  or any abandonment or discontinuance of steps to enforce such a right, power or remedy,  preclude any other or further exercise thereof or the exercise of any other right, power or  remedy.  The rights, powers and remedies of the Collateral Agent and the Lenders and  Issuing Banks hereunder and under the other Loan Documents are cumulative and are not  exclusive of any rights, powers or remedies that they would otherwise have.  No waiver of  any provision of this Agreement or consent to any departure by any Loan Party therefrom  will in any event be effective unless the same is permitted by paragraph (2) of this Section  7.09, and then such waiver or consent will be effective only in the specific instance and for  the purpose for which given.  (2) Neither this Agreement nor any provision hereof may be waived, amended or modified  except pursuant to an agreement or agreements in writing entered into by the Collateral  Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment  or modification is to apply, subject to any consent required in accordance with Section  10.08 of the Credit Agreement.  Section 7.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT  IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR  INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS  AGREEMENT.  EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2)  ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.  Section 7.11. Severability.  In the event any one or more of the provisions contained in  this Agreement is held invalid, illegal or unenforceable in any respect, the validity, legality and  





 






36  AmericasActive:16964714.2 enforceability of the remaining provisions contained herein will not in any way be affected or  impaired thereby.  Section 7.12. Counterparts.  This Agreement may be executed in one or more  counterparts, each of which will constitute an original but all of which when taken together will  constitute but one contract, and will become effective as provided in Section 7.04 hereof.  Delivery  of an executed counterpart to this Agreement by facsimile or other electronic transmission will be  as effective as delivery of a manually signed original.  Section 7.13. Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and are not to affect  the construction of, or to be taken into consideration in interpreting, this Agreement.  Section 7.14. Jurisdiction; Consent to Service of Process.    (1) Each party to this Agreement hereby irrevocably and unconditionally submits, for itself  and its property, to the exclusive jurisdiction of the United States District Court for the  Southern District of New York sitting in the Borough of Manhattan (or if such court lacks  subject matter jurisdiction, the Supreme Court of the State of New York sitting in the  Borough of Manhattan) and any appellate court from any thereof, in any action or  proceeding arising out of or relating to this Agreement or the transactions relating hereto  or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto  hereby irrevocably and unconditionally agrees that all claims in respect of any such action  or proceeding shall be heard and determined in such Federal (to the extent permitted by  law) or New York State court.  Each of the parties hereto agrees that a final judgment in  any such action or proceeding shall be conclusive and may be enforced in other  jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in  this Agreement or in any other Loan Document will affect any right that the Administrative  Agent, the Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring  any action or proceeding relating to this Agreement against any Grantor, or its properties,  in the courts of any jurisdiction.  (2) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest  extent it may legally and effectively do so, any objection which it may now or hereafter  have to the laying of venue of any suit, action or proceeding arising out of or relating to  this Agreement in any New York State or federal court.  Each of the parties hereto hereby  irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient  forum to the maintenance of such action or proceeding in any such court.  Section 7.15. Termination or Release.    (1) This Agreement, the guarantees made herein, the pledges made herein, the Security Interest  and all other security interests granted hereby shall automatically terminate and be released  when all the Secured Obligations have been Paid in Full, the Lenders have no further  commitment to lend under the Credit Agreement and all Letters of Credit have been  returned (or cash collateralized on terms satisfactory to the applicable Issuing Bank).  





 






37  AmericasActive:16964714.2 (2) (i) Any Grantor’s obligations hereunder and all Security Interest in and Lien on its  Collateral granted by such Grantor shall automatically terminate and be released if such  Grantor is released from its obligations under its Guaranty pursuant to Section 9.11(2)(c)  of the Credit Agreement and (ii) the Security Interest in and Lien on any Collateral shall  be automatically terminated and released in the circumstances set forth in Section  9.11(2)(a), 9.11(2)(b) or 9.11(2)(c) of the Credit Agreement, including, without limitation,  in connection with any property (and any related rights and any related assets) that is sold  or otherwise transferred to any Person that is not (and is not required to be) a Loan Party  in connection with a sale and leaseback or other transaction permitted by the Credit  Agreement.  (3) In connection with any termination or release pursuant to paragraph (1) or paragraph (2)  above, the Collateral Agent shall promptly execute and deliver to any Grantor, at such  Grantor’s expense, all documents that such Grantor may reasonably request to evidence  such termination or release and take all other actions (including return of any pledged  collateral) reasonably requested by any Grantor, at such Grantor’s expense, in connection  with such release, including authorizing such Grantor or its representatives to file any UCC  amendment or termination statements with respect to such release. Any execution and  delivery of documents pursuant to this Section 7.15 shall be without recourse to or warranty  by the Collateral Agent.  (4) In the event that Rule 3-10 or Rule 3-16 of Regulation S-X of the Exchange Act is amended,  modified or interpreted by the SEC or any other relevant Governmental Authority to  require (or is replaced with another rule or regulation, or any other law, rule or regulation  is adopted, which would require) the filing with the SEC (or any other Governmental  Authority) of separate financial statements of any Subsidiary of the Borrower due to the  fact that the Equity Interests of such Subsidiary constitute Collateral or are pledged under  this Agreement, then the Equity Interests of such Subsidiary shall automatically be deemed  not to be part of the Collateral to the extent necessary not to be subject to such requirement.   Notwithstanding anything to the contrary in this Agreement, if Equity Interests of any  Subsidiary are not required to be Collateral or pledged under this Agreement solely because  Rule 3-10 or Rule 3-16 of Regulation S-X of the Exchange Act would require the filing of  separate financial statements of such Subsidiary if its Equity Interests were Collateral or  so pledged, in the event that Rule 3-10 or Rule 3-16 of Regulation S-X of the Exchange  Act is amended, modified or interpreted by the SEC or any other relevant Governmental  Authority to no longer require (or is replaced with another rule or regulation that would not  require) the filing of separate financial statements of such Subsidiary if some or all of its  Equity Interests are Collateral or pledged under this Agreement, then such Equity Interests  of such Subsidiary, unless otherwise constituting an Excluded Asset, shall automatically  be deemed part of the Collateral and pledged under this Agreement.  Section 7.16. Additional Subsidiaries.  Upon execution and delivery by the Collateral  Agent and any Subsidiary that is required to become a party hereto under Section 5.10 of the Credit  Agreement or otherwise of a supplement in the form of Exhibit I hereto, such Subsidiary will  become a Grantor and a Guarantor hereunder with the same force and effect as if originally named  as a Grantor and a Guarantor herein.  The execution and delivery of any such supplement will not  require the consent of any other party to this Agreement.  The rights and obligations of each party  





 






38  AmericasActive:16964714.2 to this Agreement will remain in full force and effect notwithstanding the addition of any new  party to this Agreement.  [Signature Page Follows]  





 






   AmericasActive:16964714.2 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement  as of the day and year first above written.    GRANTORS: AMNEAL PHARMACEUTICALS LLC  By:   Name:   Title:  AMNEAL PHARMACEUTICALS OF NEW  YORK, LLC  By:   Name:   Title:  GEMINI LABORATORIES LLC  By:   Name:   Title:    AMNEAL BIOSCIENCES LLC  By:   Name:   Title:  





 






  AmericasActive:16964714.2 IMPAX LABORATORIES, LLC  By:   Name:   Title:  AMEDRA PHARMACEUTICALS LLC  By:   Name:   Title:  TRAIL SERVICES, LLC  By:   Name:   Title:  





 






  AmericasActive:16964714.2 TRUIST BANK, as Administrative Agent and  Collateral Agent  By:   Name:   Title: