PLEDGE, MAKE ANY AGREEMENT WITH RESPECT TO OR
OTHERWISE DEAL WITH ALL OR ANY OF THE COLLATERAL, AND TO DO ALL OTHER ACTS AND
THINGS NECESSARY TO CARRY OUT THE PURPOSES OF THIS AGREEMENT, AS FULLY AND
COMPLETELY AS THOUGH THE ADMINISTRATIVE AGENT WERE THE ABSOLUTE OWNER OF THE
COLLATERAL FOR ALL PURPOSES; PROVIDED THAT NOTHING HEREIN CONTAINED SHALL BE
CONSTRUED AS REQUIRING OR OBLIGATING THE ADMINISTRATIVE AGENT TO MAKE ANY
COMMITMENT OR TO MAKE ANY INQUIRY AS TO THE NATURE OR SUFFICIENCY OF ANY PAYMENT
RECEIVED BY THE ADMINISTRATIVE AGENT, OR TO PRESENT OR FILE ANY CLAIM OR NOTICE,
OR TO TAKE ANY ACTION WITH RESPECT TO THE COLLATERAL OR ANY PART THEREOF OR THE
MONEYS DUE OR TO BECOME DUE IN RESPECT THEREOF OR ANY PROPERTY COVERED THEREBY.
THE ADMINISTRATIVE AGENT AND THE OTHER SECURED PARTIES SHALL BE ACCOUNTABLE ONLY
FOR AMOUNTS ACTUALLY RECEIVED AS A RESULT OF THE EXERCISE OF THE POWERS GRANTED
TO THEM HEREIN, AND NEITHER THEY NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR
AGENTS SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT
HEREUNDER, EXCEPT FOR THEIR OWN GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
SECTION 7.16. INTERCREDITOR AGREEMENT; POSSESSION AND CONTROL OF NON-ABL
COLLATERAL. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIENS GRANTED
TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT AND THE EXERCISE OF THE RIGHTS
AND REMEDIES OF THE ADMINISTRATIVE AGENT HEREUNDER ARE SUBJECT TO THE PROVISIONS
OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS
OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL. AT ANY TIME PRIOR TO THE
DISCHARGE OF SENIOR NOTES OBLIGATIONS (AS DEFINED IN THE INTERCREDITOR
AGREEMENT), NO GRANTOR SHALL BE REQUIRED TO TAKE OR REFRAIN FROM TAKING ANY
ACTION AT THE REQUEST OF THE ADMINISTRATIVE AGENT WITH RESPECT TO ANY
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NON-ABL COLLATERAL IF SUCH ACTION OR INACTION WOULD BE INCONSISTENT WITH (I) ANY
ACTION OR INACTION AFFIRMATIVELY REQUESTED BY THE SENIOR NOTES COLLATERAL AGENT
IN ACCORDANCE WITH THE SENIOR NOTES DOCUMENTS OR (II) ANY ACTION OR INACTION
AFFIRMATIVELY REQUIRED BY ANY OF THE PROVISIONS OF THE SENIOR NOTES DOCUMENTS.
WITHOUT LIMITING THE FOREGOING, AT ANY TIME PRIOR TO THE DISCHARGE OF SENIOR
NOTES OBLIGATIONS (AS DEFINED IN THE INTERCREDITOR AGREEMENT), ANY PROVISION
HEREOF REQUIRING GRANTORS TO DELIVER POSSESSION OF ANY NON-ABL COLLATERAL TO THE
ADMINISTRATIVE AGENT OR ITS REPRESENTATIVES, OR TO CAUSE THE ADMINISTRATIVE
AGENT OR ITS REPRESENTATIVES TO CONTROL ANY NON-ABL COLLATERAL, SHALL BE DEEMED
TO HAVE BEEN COMPLIED WITH IF AND FOR SO LONG AS THE NON-ABL COLLATERAL SENIOR
AGENT SHALL HAVE SUCH POSSESSION OR CONTROL FOR THE BENEFIT OF THE HOLDERS OF
THE SENIOR NOTES AND AS BAILEE OR SUB-AGENT OF THE ADMINISTRATIVE AGENT AS
PROVIDED IN THE INTERCREDITOR AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
SYMMETRY HOLDINGS INC.,
by
/s/ Corrado De Gasperis
Name: Corrado De Gasperis
Title:
Chief Executive Officer