Exhibit 10.2

THIRD AMENDMENT AGREEMENT

THIRD AMENDMENT AGREEMENT dated as of June 9, 2021 (this “Third Amendment”) to the ABL Credit Agreement dated as of May 4, 2016 (as amended by the First Amendment Agreement dated March 20, 2020, the Second Amendment Agreement dated December 22, 2020 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time and immediately prior to the Third Amendment Effective Date (as defined below), the “Credit Agreement”), among PQ Corporation, a Pennsylvania corporation (“PQ Corp.” or the “US Borrower”), CPQ Midco I Corporation, a Delaware corporation (“CPQ Midco I” or “Holdings”), the Canadian Borrowers, the European Borrowers (and together with the Canadian Borrowers and the US Borrower, the “Borrowers”), the Guarantors, and Citibank, N.A., as administrative agent (the “Administrative Agent”) (on behalf of itself, on behalf of all Amendment Date Consenting Lenders (which such Amendment Date Consenting Lenders constitute the Required Lenders on and as of the Third Amendment Effective Date) and on behalf of all Restatement Date Consenting Lenders) and as collateral agent.

A. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below). Citi (the “Third Amendment Arranger”) is acting as sole lead arranger and bookrunner in connection with this Third Amendment. For purposes of this Third Amendment, “Citi” shall mean Citigroup Global Markets Inc., Citibank, N.A., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated herein.

B. The Grantors (as defined in the Original Security Agreement) entered into that certain ABL Pledge and Security Agreement, dated as of May 4, 2016 (the “Original Security Agreement”) to induce the Lenders to enter into and extend credit to the Borrowers under the Credit Agreement and to secure the Secured Obligations, including their obligations under the Loan Guaranty, each Hedge Agreement the obligations under which constitute Secured Hedging Obligations and each agreement relating to Banking Services the obligations under which constitute Banking Services Obligations.

C. Pursuant to Section 9.02 of the Credit Agreement, the US Borrower has requested that the Lenders under the Credit Agreement immediately prior to the Third Amendment Effective Date (collectively, the “Existing Lenders”) consent to certain reorganization and restructuring transactions proposed to be effected by Holdings, the Borrowers or their Restricted Subsidiaries, to facilitate the sale by PQ Corp. and its affiliates of the performance chemicals business (the “Performance Chemicals Business”) pursuant to that Certain Stock and Purchase Agreement (the “Purchase Agreement”) dated as of February 28, 2021 by and between PQ Group Holdings, Inc. and Sparta Aggregator L.P., a partnership established by Koch Minerals & Trading, LLC and Cerberus Capital Management, L.P. (such sale, the “Performance Chemicals Sale”) in a tax efficient manner, as outlined on Exhibit B-1 hereto (the “Permitted Amendment Date Restructuring”).

D. Pursuant to Section 2.22 of the Credit Agreement, the US Borrower has requested on the Incremental Effective Date (as defined below) to increase the aggregate amount of Commitments in an aggregate principal amount of $100,000,000 (the “Third Amendment Revolving Commitments”; such increase, an Incremental Revolving Facility (as defined in the Credit Agreement) and the loans thereunder, the “Third Amendment Revolving Loans”) on terms identical to those applicable to the existing Initial Revolving Facility (including as to pricing, tenor, rights of payment and prepayment and right of security), as amended by this Third Amendment.

E. In connection with the consummation of the Performance Chemicals Sale, (i) the US Borrower intends to assign all of its rights and obligations under the Credit Agreement and the Amended Credit Agreement and the other Loan Documents to Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”), on the terms and subject to the conditions set forth herein (such assignment, the “US Borrower Assignment”), (ii) Holdings intends to assign all of its rights and obligations under the Credit Agreement and the Amended Credit Agreement and the other Loan Documents to Ecovyst Midco II Inc., a Delaware corporation (“Midco”), on the terms and subject to the conditions set forth herein (such assignment, the “Holdings Assignment”) and (iii) PQ Silicas UK Limited, a company incorporated under the laws of England and Wales (“PQ UK”) intends to assign all of its rights and obligations under the Credit Agreement and the Amended Credit Agreement and the other Loan Documents to Ecovyst Catalyst Technologies UK Limited, a company incorporated under the laws of England and Wales (“Catalyst UK”), on the terms and subject to the conditions set forth herein (such assignment, the “UK Borrower Assignment”).

F. Pursuant to Section 9.02 of the Credit Agreement, the US Borrower has requested that the Credit Agreement be further amended on the Restatement Effective Date (as defined below), immediately after the Incremental Effective Date, to, among other things: (i) permit the US Borrower Assignment, the Holdings Assignment and the UK Borrower Assignment, (ii) permit certain dispositions and restructuring transactions in connection with the Performance Chemicals Sale, as outlined on Exhibit B-2 hereto (the “Permitted Restatement Date Restructuring”), and (iii) make certain other changes as more fully set forth herein.

G. Each Person set forth on Schedule 1 attached hereto that executes and delivers a signature page to this Third Amendment in the form attached hereto as Exhibit A (the “Lender Consent”) in the capacity of a “Third Amendment Revolving Lender” (the “Third Amendment Revolving Lenders”) will be deemed (i) to have irrevocably agreed and consented to the terms of this Third Amendment and the Amended Credit Agreement (including the Permitted Amendment Date Restructuring, the US Borrower Assignment, the Holdings Assignment, the UK Borrower Assignment and the Permitted Restatement Date Restructuring), (ii) to have committed to make the Third Amendment Revolving Commitments to the Borrowers in the amount set forth on such Schedule 1 next to such Third Amendment Revolving Lender’s name on the Incremental Effective Date, on the terms and subject to the conditions as set forth herein.

H Each Existing Lender that executes and delivers a Lender Consent in the capacity of an “Existing Lender” will be deemed to have irrevocably agreed and consented to the terms of this Third Amendment (including the Permitted Amendment Date Restructuring), on the terms and subject to the conditions as set forth herein.

I. By executing and delivering a signature page to this Third Amendment, the Administrative Agent will be deemed upon the Third Amendment Effective Date to have irrevocably agreed to the terms of this Third Amendment and the Amended Credit Agreement (including the Permitted Amendment Date Restructuring and the Permitted Restatement Date Restructuring).

J. To accomplish the foregoing, the US Borrower and the Administrative Agent (on behalf of itself, on behalf of all Amendment Date Consenting Lenders (which such Amendment Date Consenting Lenders constitute the Required Lenders on and as of the Third Amendment Effective Date) and on behalf of all Restatement Date Consenting Lenders (which such Restatement Date Consenting Lenders constitute all of the Revolving Lenders as of the Restatement Effective Date) are willing to (i) amend the Credit Agreement as set forth below (the Credit Agreement as amended by this Third Amendment, the “Amended Credit Agreement”) and (ii) amend the Original Security Agreement as set forth below (the Original Security Agreement as amended by this Third Amendment, the “Amended Security Agreement”).

 

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K. The amendments to the Credit Agreement and the Original Security Agreement set forth below are each subject to the satisfaction of the conditions precedent to effectiveness referred to herein and shall become effective as provided herein.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendments to Credit Agreement; Permitted Amendment Date Restructuring; Permitted Restatement Date Restructuring; US Borrower Assignment; Holdings Assignment; UK Borrower Assignment.

(a) The Borrowers, the Administrative Agent (on behalf of itself and on behalf of the Amendment Date Consenting Lenders) agree that, on and after the Third Amendment Effective Date, notwithstanding anything in the Credit Agreement to the contrary, (i) the Permitted Amendment Date Restructuring shall be permitted and (ii) Original Security Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Security Agreement attached as Exhibit C hereto.

(b) The Borrowers and the Administrative Agent (on behalf of itself and on behalf of the Restatement Date Consenting Lenders), agree that, on the Restatement Effective Date, (i) the US Borrower Assignment shall be permitted, (ii) the Holdings Assignment shall be permitted, (iii) the UK Borrower Assignment shall be permitted, (iv) the Permitted Restatement Date Restructuring shall be permitted, (v) Schedule 1.01(a) to the Credit Agreement shall be amended and restated in the form of Exhibit E hereto and (vi) the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Exhibit D hereto.

(c) As of the Restatement Effective Date, PQ Corp. hereby irrevocably transfers and assigns to Ecovyst (in such capacity, “New US Borrower”), and New US Borrower hereby irrevocably accepts and assumes from PQ Corp., all of PQ Corp.’s past, present and future rights, titles, interests, duties and obligations in, to and under the Loan Documents, including, without limitation, all Loans thereunder whether currently outstanding or hereafter incurred. By virtue of this Third Amendment, as of the Restatement Effective Date, New US Borrower (x) agrees that it shall be the “US Borrower” under the Amended Credit Agreement and the other Loan Documents in the place and stead of PQ Corp., (y) further undertakes and agrees from and after the Restatement Effective Date to pay, perform and discharge when and as due each and every past, present and future duty and obligation of the “US Borrower” now existing or hereafter arising under or in connection with the Credit Agreement or the Amended Credit Agreement and of PQ Corp. under the other Loan Documents and (z) agrees that it is bound by all of the terms, conditions and provisions contained in the Amended Credit Agreement and the other Loan Documents. As of the Restatement Effective Date, PQ Corp. shall be released and discharged from the Loan Documents. New US Borrower acknowledges that it shall not be relieved or discharged from any obligations under or in connection with the US Loan Guaranty that arise or are attributable to the period on or prior to the Restatement Effective Date.

 

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(d) As of the Restatement Effective Date, CPQ Midco I hereby irrevocably transfers and assigns to Midco (in such capacity, “New Holdings”), and New Holdings hereby irrevocably accepts and assumes from PQ Corp., all of PQ Corp.’s past, present and future rights, titles, interests, duties and obligations in, to and under the Loan Documents. By virtue of this Third Amendment, as of the Restatement Effective Date, New Holdings (x) agrees that it shall be “Holdings” under the Amended Credit Agreement and the other Loan Documents in the place and stead of CPQ Midco I, (y) further undertakes and agrees from and after the Restatement Effective Date to pay, perform and discharge when and as due each and every past, present and future duty and obligation of “Holdings” arising under or in connection with the Credit Agreement or the Amended Credit Agreement and of CPQ Midco I under the other Loan Documents and (z) agrees that it is bound by all of the terms, conditions and provisions contained in the Amended Credit Agreement and the other Loan Documents. Without limiting the foregoing, New Holdings hereby agrees that it assumes all of the obligations of CPQ Midco I under the US Loan Guaranty (as defined in the Amended Credit Agreement) and does hereby grant to the Administrative Agent for the benefit of the Secured Parties a security interest in all of its Collateral (as defined in the Security Agreement), including, without limitation, its equity interest in the New US Borrower, to secure the payment and performance of the Obligations. As of the Restatement Effective Date, CPQ Midco I shall be released and discharged from the Loan Documents.

(e) As of the Restatement Effective Date, PQ UK hereby irrevocably transfers and assigns to Catalyst UK (in such capacity, “New UK Borrower”), and New UK Borrower hereby irrevocably accepts and assumes from PQ UK, all of PQ UK’s past, present and future rights, titles, interests, duties and obligations in, to and under the Loan Documents, including, without limitation, all Loans thereunder whether currently outstanding or hereafter incurred. By virtue of this Third Amendment, as of the Restatement Effective Date, New UK Borrower (x) agrees that it shall be a “European Borrower” under the Amended Credit Agreement and the other Loan Documents in the place and stead of PQ UK, (y) further undertakes and agrees from and after the Restatement Effective Date to pay, perform and discharge when and as due each and every past, present and future duty and obligation of a “European Borrower” now existing or hereafter arising under or in connection with the Credit Agreement or the Amended Credit Agreement and of PQ Corp. under the other Loan Documents and (z) agrees that it is bound by all of the terms, conditions and provisions contained in the Amended Credit Agreement and the other Loan Documents. As of the Restatement Effective Date, PQ UK shall be released and discharged from the Loan Documents. New UK Borrower acknowledges that it shall not be relieved or discharged from any obligations under or in connection with the European Loan Guaranty that arise or are attributable to the period on or prior to the Restatement Effective Date.

(f) As of the Restatement Effective Date, PQ Silicas B.V. and National Silicates Partnership shall be released and discharged from the Loan Documents.

SECTION 2. Consenting Lenders; Incremental Lenders; Other Terms and Agreements.

(a) Amendment Date Consenting Lenders. Each Existing Lender executing and delivering a Lender Consent in the capacity of an “Existing Lender” (each, an “Amendment Date Consenting Lender”) hereby consents and agrees to this Third Amendment and the Amended Credit Agreement, including the Permitted Amendment Date Restructuring, on the terms and subject to the conditions set forth herein.

(b) Third Amendment Revolving Lenders. Each Third Amendment Revolving Lender executing and delivering a Lender Consent in the capacity of a “Third Amendment Revolving Lender” herby consents and agrees to (i) this Third Amendment and the Amended Credit Agreement, (ii) commits to make Third Amendment Revolving Commitments in the amount set forth next to such Third Amendment Revolving Lender’s name on Schedule 1 attached hereto and (iii) upon the Incremental Effective Date, shall make such Third Amendment Revolving Commitments to the Borrowers. The Third Amendment Revolving Commitments shall constitute a single “tranche” of Commitments under the Amended Credit Agreement. Each Third Amendment Revolving Lender that is not already party to the Credit Agreement hereby acknowledges, agrees and confirms that, by its execution of this Third Amendment, that such Third Amendment Revolving Lender will, as of the Incremental Effective Date, be a party to the Amended Credit Agreement and the other Loan Documents and be bound by the provisions of the Amended Credit

 

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Agreement and the other Loan Documents and, to the extent of its Applicable Percentage, have the rights and obligations of a Lender thereunder. Each Third Amendment Revolving Lender party hereto (x) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Third Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Third Amendment and to commit to provide its Third Amendment Revolving Commitments on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender and (iii) it has examined the list of Disqualified Institutions and it is not (A) a Disqualified Institution or (B) an Affiliate of a Disqualified Institution and (y) agrees that (i) it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ii) it appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers and discretion under the Amended Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender

(c) Restatement Date Consenting Lenders. Immediately after giving effect to the making of the Third Amendment Revolving Commitments to the Borrowers on the Incremental Effective date, each Third Amendment Revolving Lender executing and delivering a Lender Consent in the capacity of a “Third Amendment Revolving Lender” (each such Lender, a “Restatement Date Consenting Lender”), hereby further consents and agrees to the Permitted Restatement Date Restructuring, the US Borrower Assignment, the Holdings Assignment and the UK Borrower Assignment, in each case, on the terms and subject to the conditions set forth herein.

(d) Issuing Banks; Swingline Lender. Subject to the terms and conditions set forth herein and in the Credit Agreement, each Issuing Bank and each Swingline Lender whose signature page appears below hereby irrevocably agrees to the terms of this Third Amendment and the Amended Credit Agreement.

(e) Letters of Credit. Notwithstanding anything in the Credit Agreement to the contrary, (i) any Letter of Credit outstanding on the Incremental Effective Date shall be deemed to be outstanding under the Amended Credit Agreement as of the Incremental Effective Date, and the Revolving Credit Exposure and participations in such Letters of Credit shall be reallocated among the Revolving Lenders under the Amended Credit Agreement in accordance with their respective Applicable Percentages as of the Incremental Effective Date and (ii) any Letter of Credit outstanding on the Restatement Effective Date shall be deemed to be outstanding under the Amended Credit Agreement as of the Restatement Effective Date, and the Revolving Credit Exposure and participations in such Letters of Credit shall be reallocated among the Revolving Lenders under the Amended Credit Agreement in accordance with their respective Applicable Percentages as of the Restatement Effective Date.

(f) Administrative Agent Authorization. The Borrowers, the Guarantors, each Issuing Bank whose signature page appears below and the Lenders whose signatures appear below authorize the Administrative Agent to (i) determine all amounts, percentages and other information with respect to the Commitments and Revolving Loans of each Lender, which amounts, percentages and other information may be determined only upon receipt by the Administrative Agent of the signature pages of all Lenders whose signatures appear below and (ii) enter and complete all such amounts, percentages and other

 

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information in the Register and the Amended Credit Agreement, as appropriate. The Administrative Agent’s determination and entry and completion shall be conclusive and shall be conclusive evidence of the existence, amounts, percentages and other information with respect to the obligations of the Borrowers under the Amended Credit Agreement, in each case, absent clearly demonstrable error. For the avoidance of doubt, the provisions of Article 8 and Section 9.03 of each of the Credit Agreement and the Amended Credit Agreement shall apply to any determination, entry or completion made by the Administrative Agent pursuant to this Section 2(f).

(g) Reallocation. On the Incremental Effective Date, (i) each Existing Lender immediately prior to giving effect to the Third Amendment Revolving Commitments hereunder will automatically and without further act be deemed to have assigned to each Third Amendment Revolving Lender, and each Third Amendment Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Existing Lender’s participations in outstanding US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Third Amendment Revolving Lender) participations in US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments (after giving effect to the increase in the Commitments pursuant to this Third Amendment) and (ii) if any Revolving Loans are outstanding, the Existing Lenders shall assign such Revolving Loans to certain other Revolving Lenders (including the Third Amendment Revolving Lenders), and such other Revolving Lenders (including the Third Amendment Revolving Lenders) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments (after giving effect to the increase in the Commitments pursuant to this Third Amendment); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in the Credit Agreement shall not apply to the transactions effected pursuant to this Section 2(g).

SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Third Amendment, each of the Borrowers and each Guarantor represents and warrants to each of the Lenders, and the Administrative Agent that, as of the Third Amendment Effective Date and the Incremental Effective Date, as applicable:

(a) the execution, delivery and performance of this Third Amendment are within each applicable Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party;

(b) this Third Amendment has been duly executed and delivered by each Loan Party and is a legal, valid and binding obligation of such Loan Party; enforceable in accordance with its terms, subject to the Legal Reservations;

(c) the execution and delivery of this Third Amendment by each Loan Party party hereto and the performance by each Loan Party hereof do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority except (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements and (iii) such consents, approvals, registrations or filings or other actions the failure to obtain or make which could not reasonably be expected to have a Material Adverse Effect;

 

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(d) the representations and warranties set forth in Article 3 of the Amended Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the Third Amendment Effective Date or the Incremental Effective Date, as applicable, with the same force and effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties were true and correct in all material respects on an as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates; and

(e) as of the Incremental Effective Date, immediately after the consummation of the incurrence of the Third Amendment Revolving Commitments pursuant to the Third Amendment, the Performance Chemicals Sale and the Permitted Restatement Date Restructuring, (i) the sum of the debt (including contingent liabilities) of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, does not exceed the fair value of the assets of the Lead Borrower and its Restricted Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent liabilities) of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, contemplated as of the Incremental Effective Date; and (iv) the Lead Borrower and its Restricted Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards No. 5).

SECTION 4. Conditions to Effectiveness of this Third Amendment.

(a) This Third Amendment and the agreements of the Existing Lenders set forth in Section 1(a) and Section 2(a) hereof shall become effective on the date (the “Third Amendment Effective Date”) on which the following conditions are satisfied or waived:

(i) The Administrative Agent shall have received duly executed and delivered counterparts of this Third Amendment that, when taken together, bear the signatures of the Borrowers, Ecovyst, Holdings, each Guarantor, the Administrative Agent (on its behalf, and on behalf of the Amendment Date Consenting Lenders (which such Amendment Date Consenting Lenders constitute the Required Lenders on and as of the Third Amendment Effective Date), each Third Amendment Revolving Lender, each Issuing Bank and the Swingline Lender;

(ii) (A) Each of the representations and warranties set forth in Section 3 (other than Section 3(e)) shall be true and correct in all material respects on and as of the Third Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;

 

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(iii) The Administrative Agent shall have received a certificate dated the Third Amendment Closing Date and signed by a Responsible Officer of the US Borrower, confirming compliance with the condition precedent set forth in Section 4(a)(ii);

SECTION 5. Conditions to Effectiveness of Third Amendment Revolving Commitments.

(a) The obligations of the Third Amendment Revolving Lenders to make the Third Amendment Revolving Commitments to the Borrowers shall become effective on the date (the “Incremental Effective Date”) on which the following conditions are satisfied or waived:

(i) The Third Amendment Effective Date shall have occurred;

(ii) (A) Each of the representations and warranties set forth in Section 3 shall be true and correct in all material respects on and as of the Incremental Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties specifically refer to a given date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date or period; provided that, any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language are true and correct (after giving effect to any qualification therein) in all respects as of such respective dates and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;

(iii) The Administrative Agent shall have received a customary written opinion of (a) Ropes & Gray LLP, special counsel for the Loan Parties, (b) Babst, Calland, Clements and Zomnir, P.C., special counsel for the US Borrower and any Guarantors organized under the laws of Pennsylvania and (c) Latham & Watkins (London) LLP, as special counsel to the Administrative Agent as to English law;

(iv) The Administrative Agent shall have received:

(1) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Loan Party dated the Third Amendment Effective Date, certifying (A) that either (x) attached thereto is a true and complete copy of each Organizational Document of such Loan Party and, with respect to the articles or certificate of incorporation or organization (or similar document) certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (y) the Organizational Documents of such Loan Party last delivered to the Administrative Agent have not been amended and are in full force and effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this Third Amendment and any other Loan Documents executed in connection with this Third Amendment to which such person is a party and, in the case of the Borrowers, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the date of such certificate, and (C) as to the incumbency and specimen signature of each officer or authorized person executing this Third Amendment and any other Loan Document executed in connection with this Third Amendment or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the officer or authorized person executing the certificate in this clause (i));

 

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(2) to the extent applicable, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization; and

(3) a certificate dated the Incremental Effective Date and signed by a Responsible Officer of the US Borrower, (A) confirming compliance with the condition precedent set forth in Section 5(a)(ii) (B) certifying that all conditions precedent to the Performance Chemicals Sale under the Purchase Agreement have been, or substantially concurrently with the occurrence of the Incremental Effective Date will be, satisfied or waived;

(v) Prior to or substantially concurrently with the making of the Third Amendment Revolving Commitments, the Lead Borrower shall have terminated all Commitments outstanding under the Credit Agreement immediately prior to the Incremental Effective Date in accordance with Section 2.09 of the Credit Agreement; it being understood and agreed that the termination of such Commitments may be conditioned upon the occurrence of the Incremental Effective Date and the making of the Third Amendment Revolving Commitments;

(vi) The US Borrower shall have, concurrently with the Incremental Effective Date (A) paid all accrued and unpaid interest and other amounts on the aggregate principal amount of the Revolving Loans and Commitments, as applicable, (B) paid all accrued and unpaid commitment fees due pursuant to Section 2.12(a) of the Credit Agreement and (C) paid to all Lenders holding Revolving Loans or Commitments immediately prior to the Incremental Effective Date that are not party to this Third Amendment, if any, all indemnities, cost reimbursements and other Obligations (as defined below), if any, then due and owing to such Lenders under the Loan Documents (prior to the effectiveness of this Third Amendment) and of which the US Borrower has been notified; and

(vii) The Arranger shall have received all fees and other amounts due and payable on or prior to the Incremental Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the US Borrower hereunder or under any other Loan Document or other agreement with the US Borrower relating to the transactions contemplated hereby.

SECTION 6. Conditions to Restatement Effective Date.

(a) The amendments to the Credit Agreement set forth in Section 1(b) hereof and the agreements of obligations of the Restatement Date Consenting Lenders hereunder shall become effective on the date (the “Restatement Effective Date”) on which the following conditions are satisfied or waived:

(i) The Incremental Effective Date shall have occurred;

(ii) Prior to or substantially concurrently with the Restatement Effective Date, the Performance Chemicals Sale and the Permitted Restatement Date Restructuring shall have been consummated;

(iii) The Administrative Agent shall have received a certificate dated the Restatement Effective Date and signed by a Responsible Officer of each of PQ Corp. and Ecovyst, confirming compliance with the condition precedent set forth in Section 6(a)(ii); and

 

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(iv) the Administrative Agent shall have received (1) a duly executed English law debenture granted by the New UK Borrower in favor of the Administrative Agent (in its capacity as collateral agent) granting fixed and floating charges over substantially all assets of the New UK Borrower (the “Debenture”), (2) a duly executed share charge granted by the direct parent of the UK Borrower in favor of the Administrative Agent (in its capacity as collateral agent) granting a share charge over the shares in the New UK Borrower (the “Share Charge”), (3) all relevant share certificates accompanied by relevant undated stock transfer forms executed in blank, and (4) all notices and other documents and information required to be sent thereunder save as otherwise expressly provided in the Debenture or Share Charge.

SECTION 7. Post-Closing Condition. The New UK Borrower shall within 30 days after the Incremental Effective Date (or such longer period as any Lender may determine in its reasonable discretion with respect to itself) (and which requirement may be waived by any Lender in its reasonable discretion with respect to itself), make a New UK Borrower DTTP Filing in respect of any UK Treaty Lender that has requested such and has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Section 2.17(f)(ii)(2) of the Amended Credit Agreement.

SECTION 8. Effect of Amended Credit Agreement.

(a) Except as expressly set forth herein or in the Amended Credit Agreement, this Third Amendment and the Amended Credit Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement, the Amended Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the Amended Credit Agreement or any other provision of the Credit Agreement, the Amended Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrowers, any Guarantor or any other Person to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit Agreement or any other Loan Document in similar or different circumstances.

(b) On the Restatement Effective Date, the Credit Agreement shall be amended as set forth in Section 1(b) above. The parties hereto acknowledge and agree that (i) this Third Amendment, the Amended Credit Agreement, any other Loan Document or other document or instrument executed and delivered in connection herewith do not constitute a novation, or termination of the obligations of the Borrowers and the Guarantors under the Loan Documents, including, without limitation, the Credit Agreement and the Security Agreement, as in effect prior to the Restatement Effective Date (collectively, the “Obligations”) and (ii) such Obligations are in all respects continuing (as amended by this Third Amendment) with only the terms thereof being modified to the extent provided in this Third Amendment, and the Borrowers and each Guarantor reaffirm such Obligations, including in respect of any guaranties of, and any pledges of collateral securing, such Obligations, including all Third Amendment Revolving Commitments and Third Amendment Revolving Loans. Upon the satisfaction of the conditions precedent set forth in Sections 4, 5 and 6 of this Third Amendment, the provisions of this Third Amendment will become effective and binding upon, and enforceable against, the Borrowers, the Administrative Agent and the Lenders.

(c) This Third Amendment shall constitute a Loan Document and an Incremental Facility Agreement for all purposes under the Amended Credit Agreement and shall be administered and construed pursuant to the terms of the Amended Credit Agreement.

 

10

SECTION 9. Counterparts. This Third Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Sections 4, 5 and 6. Delivery of an executed signature page to this Third Amendment by facsimile or other electronic transmission (including “pdf” and electronic signatures) shall be as effective as delivery of a manually signed counterpart of this Third Amendment and shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

SECTION 10. Reaffirmation; Other Agreements.

(a) Subject to any limitations on its obligations expressly stated in the Loan Documents to which it is a party and subject to Sections 1(c) and (d) hereof, each of New Holdings, each Borrower (including New US Borrower) and each Loan Party, as of each of the Third Amendment Effective Date, the Incremental Effective Date and the Restatement Effective Date (i) acknowledges and agrees that all of its obligations under the Guarantees set out in the Loan Guaranty and any other guaranties in the Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis as and to the extent provided in the Loan Documents, (ii) reaffirms each Lien granted by each Loan Party to the Administrative Agent for the benefit of the Secured Parties and reaffirms the Guarantees made pursuant to the Loan Guaranty as and to the extent provided in the Loan Documents and (iii) acknowledges and agrees that the grants of security interests and hypothecations by and the Guarantees of the Loan Parties contained in the Loan Guaranty, the Security Agreement and the other Collateral Documents are, and shall remain, in full force and effect after giving effect to this Third Amendment and secure the payment and performance of the Obligations (as the Obligations are hereafter amended, modified, extended or replaced from time to time) as and to the extent provided in the Loan Documents. Nothing contained in this Third Amendment shall be construed as substitution or novation of the obligations outstanding under the Credit Agreement or the other Loan Documents, which shall remain in full force and effect, except to any extent modified hereby. Each of Holdings and each Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Third Amendment, such Loan Party is not required by the terms of the Credit Agreement, the Amended Credit Agreement or any other Loan Document to consent to the amendment to the Credit Agreement effected pursuant to this Third Amendment and (ii) nothing in the Credit Agreement, the Amended Credit Agreement, this Third Amendment or any Loan Document shall be deemed to require the consent of such Loan Party to any future amendments to the Amended Credit Agreement.

(b) This Third Amendment amends and restates in its entirety the Original Security Agreement and upon the effectiveness of this Third Amendment, the terms and provisions of the Original Security Agreement shall, subject to this Section 10, be superseded hereby. All references to the “US Security Agreement” contained in the Loan Documents in connection with the Credit Agreement or this Third Amendment shall, and shall be deemed to, refer to the Amended Security Agreement. Notwithstanding the amendment and restatement of the Original Security Agreement by this Third Amendment, the Obligations of the Borrowers and the other Loan Parties outstanding under the Original Security Agreement and the other Loan Documents as of the Third Amendment Effective Date shall remain outstanding and shall constitute continuing Obligations and shall continue as such to be secured by the Collateral. Such Obligations shall in all respects be continuing and this Third Amendment and the other Loan Documents shall not be deemed to evidence or result in a substitution, novation or repayment and reborrowing of such Obligations which shall remain in full force and effect, except to any extent modified hereunder. The Liens securing payment of the Obligations under the Credit Agreement, as amended and restated in the form of the Amended Security Agreement, shall in all respects be continuing, securing the payment of all Obligations.

 

11

SECTION 11. Termination. The commitments of the Third Amendment Revolving Lenders to provide the Third Amendment Revolving Commitments shall remain in effect, subject to the conditions set forth herein, until the earliest to occur of (i) the occurrence of the Incremental Effective Date and (ii) 5:00 p.m. (New York City time) on October 4, 2021.

SECTION 12. Applicable Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 13. Headings. Headings used herein are for convenience of reference only, are not part of this Third Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Third Amendment.

[Signature pages follow]

 

12

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed by their respective officers as of the day and year first above written.

 

[Signature Page to PQ Third Amendment Agreement]

[Signature Page to PQ Third Amendment Agreement]

[Signature Page to PQ Third Amendment Agreement]

[Signature Page to PQ Third Amendment Agreement]

ACKNOWLEDGED AND ACCEPTED BY:
CITIBANK, N.A., as Administrative Agent
By:		/s/ Christopher Marino
Name: Christopher Marino
Title:   Director & Vice President
By:
Name:
Title:

[Signature Page to PQ Third Amendment Agreement]

CITIBANK, N.A.,
as an Issuing Bank and Swingline Lender
By:		/s/ Christopher Marino
Name: Christopher Marino
Title:   Director & Vice President

[Signature Page to PQ Third Amendment Agreement]

EXHIBIT A

Third Amendment Revolving Lender Signature Page to Third Amendment to ABL Credit Agreement

Existing Lenders

☐ Mark this box to consent and agree to this Third Amendment on the Third Amendment Effective Date in your capacity as an Existing Lender.

Third Amendment Revolving Lenders

☐ Mark this box to consent in your capacity as a Third Amendment Revolving Lender and to agree to make the Third Amendment Revolving Commitments to the Borrowers on the Incremental Effective Date in an amount not to exceed the amount expressly set forth on Schedule 1 to this Third Amendment .

Specify the maximum amount of Third Amendment Revolving Commitments you are requesting:

 

•

US Dollars: $[            ]

 

•

Euros: $[            ]

By executing this Third Amendment, the undersigned consents to this Third Amendment and the Amended Credit Agreement.

 

Please enter the information of a contact for any questions on this signature page:						Name of Institution:
						[_________]
Name:
						By:
Tel No.:								Name:
								Title:
Email:
						By:
								Name:
								Title:

EXHIBIT B-1

Permitted Amendment Date Restructuring

Prior to the Performance Chemicals Sale, the Permitted Amendment Date Restructuring shall permit:

 

i)

all catalyst and non-performance chemicals businesses of PQ Corp. and its subsidiaries to be transferred to, and owned, directly or indirectly by, Ecovyst,

 

ii)

the catalyst and non-performance chemicals businesses, on the one hand, and Performance Chemicals Business, on the other hand, held by subsidiaries of PQ Corp. to be separated, and

 

iii)

immediately prior to the Performance Chemicals Sale, PQ Corp. to be converted into a limited liability company (“PQ LLC”) and to distribute Ecovyst to Holdings.

Purely for illustrative purposes, a simplified, condensed version of the Permitted Amendment Date Restructuring is shown in Annex I attached hereto. Annex I does not purport to show all the steps included in the Permitted Amendment Date Restructuring, but only the material steps to be completed immediately prior to the Performance Chemicals Sale.

EXHIBIT B-2

Permitted Restatement Date Restructuring

The Permitted Restatement Date Restructuring shall permit, substantially concurrently with the consummation of the Performance Chemicals Sale:

(x) PQ LLC, together with its direct and indirect subsidiaries in the Performance Chemicals Business (together with PQ LLC, collectively, the “Performance Chemicals Companies”), to be sold,

(y) the Performance Chemicals Companies (including, for the avoidance of doubt, PQ Silicas B.V., PQ UK and National Silicates Partnership) to be released from all obligations under the Loan Documents and all liens on their assets to be released and terminated, and

(z) CPQ Midco I Corporation to be released from its guaranty and all pledges of stock of all of the Performance Chemicals Companies to be released and terminated; provided that:

(i) until the consummation of the Performance Chemicals Sale (but not following the consummation of the Performance Chemicals Sale), the Performance Chemicals Companies that are guarantors under the Loan Document shall be subject to the provisions in the “Collateral and Guarantee Requirement” of the Credit Agreement;

(ii) until the consummation of the Performance Chemicals Sale (but not following the consummation of the Performance Chemicals Sale), the Performance Chemicals Companies shall be subject to the provisions of the Credit Agreement, including the mandatory prepayments, representations and warranties, covenants and events of default; and

(iii) the net cash proceeds of the Performance Chemicals Sale shall not constitute net cash proceeds of an asset sale for the purposes of the requirements set forth in Section 2.11(b) of the Credit Agreement and such net cash proceeds may be used to (a) fund a special dividend as set forth in the Amended Credit Agreement, (b) refinance all remaining loans under the existing Term Loan Credit Agreement (c) consummate the Senior Notes Refinancing and (d) in each case, the payment of related fees, premiums and expenses.

For purpose of this Exhibit B-2:

“Senior Notes Refinancing” means the redemption or discharge (or deposit with the Trustee (as defined below) amounts sufficient to effect such redemption or discharge) all indebtedness with respect to all 5.750% senior notes due 2025 issued by PQ Corp. (the “Senior Notes”) under that certain Indenture, dated as of December 11, 2017 (as amended, restated, amended and restated, supplemented and otherwise modified prior to the date hereof, the “Unsecured Notes Indenture”), among PQ Corp., the Guarantors (as defined therein) and Wells Fargo Bank, National Association, as trustee and pay related call premiums, fees and expenses.

EXHIBIT C

Amended Security Agreement

[See Attached]

EXECUTION VERSION

ABL PLEDGE AND SECURITY AGREEMENT

THIS ABL PLEDGE AND SECURITY AGREEMENT (as it may bedated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, thisthe “Security Agreement”) is entered into as of May 4, 2016, by and among PQ Corporation, a Pennsylvania corporation (“PQ”), as the “US Borrower”) prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”), as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“Holdings”), the Subsidiary PartiesCPQ”), as Holdings prior to the consummation of the Holdings Assignment, the other Grantors (as defined below) from time to time party hereto (Holdings, the Subsidiary Parties and the US Borrower collectively, the “Loan Parties”) and Citibank, N.A. (“Citibank”), in its capacity as administrative agent and collateral agent for the Secured Parties ((together with its successors and permitted assigns, in such capacities, the “Administrative Agent”).

FOR PRELIMINARY STATEMENT

Holdings, the US Borrower, the Canadian Borrowers, the European Borrowers (the US Borrower, the Canadian Borrowers and the European Borrowers, collectively, the “Borrowers”), the Agent, the Lenders (as defined below) and others are entering intoSecured Parties under that certain ABL Credit Agreement, dated as of the date hereof (asMay 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 (the “Third Amendment”) and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”). The, by and among CPQ, the Borrowers, the Administrative Agent and the Lenders from time to time parties thereto.

PRELIMINARY STATEMENT

WHEREAS, the Grantors are entering into this(as defined below) entered into that certain Security Agreement, dated as of May 4, 2016 (the “Original Security Agreement”) in order to induce the Lenders to enter into and extend credit to the Borrowers under the ABL Credit Agreement and to secure the Secured Obligations, including their obligations under the Loan Guaranty, each Hedge Agreement, the obligations under which constitute Secured Hedging Obligations, and each agreement relating to Banking Services, the obligations under which constitute Banking Services Obligations.;

WHEREAS, the ABL Intercreditor Agreement governs the relative rights and priorities of the Pari Passu Claimholders and the ABL Claimholders in respect of the Pari Passu Priority Collateral and the ABL Priority Collateral (as each term is defined therein); and

WHEREAS, this Security Agreement restates, supersedes and replaces the Original Security Agreement in its entirety, and the parties hereto agree that the Obligations of the Borrowers and the other Loan Parties outstanding under the Original Security Agreement and the other Loan Documents as of the Closing Date shall remain outstanding and shall constitute continuing Obligations;

ACCORDINGLY, the parties hereto agree as follows:

ARTICLE 1

Definitions

Section 1.01. Terms Defined in ABL Credit Agreement. AllExcept as set forth in Section 1.02 below, capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the ABL Credit Agreement. The rules of construction set forth in Section 1.03, Section 1.07 and Section 1.10 of the ABL Credit Agreement shall apply to this Security Agreement as if specifically incorporated herein, mutatis mutandis.

Section 1.02. Terms Defined in UCC. Terms defined in the UCC (as defined below) that are not otherwise defined in this Security Agreement or the ABL Credit Agreement are used herein as defined in Articles 8 or 9 of the UCC, as the context may require (including without limitation, as if such terms were capitalized in Article 8 or 9 of the UCC, as the context may require, the following terms: “Account,” “Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Commodities Account,” “Deposit Accounts,” “Document,” “Electronic Chattel Paper,” “Equipment,” “Fixture,” “General Intangible,” “Goods,” “Instruments,” “Inventory,” “Investment Property,” “Letter-of-Credit Right,” “Securities Account,” “Securities Entitlement,” “Security,” “Supporting Obligation,” and “Tangible Chattel Paper”).

Section 1.03. Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the terms defined in the preamble and the Preliminary Statement above, the following terms shall have the following meanings:

“ABL Collateral” has the meaning specified to ABL Priority Collateral in the ABL Intercreditor Agreement.

“ABL Loan Documents” means the “Loan Documents” as defined in the ABL Credit Agreement.

“Administrative Agent” has the meaning set forth in the preamble.

 

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“Article” means a numbered article of this Security Agreement, unless another document is specifically referenced.

“Borrowers” has the meaning set forth in the Preliminary Statement. means (a) at any time prior to the Restatement Effective Date, the European Borrowers, the Canadian Borrowers and the US Borrower and (b) upon the Restatement Effective Date, the European Borrowers and the US Borrower.

“Citibank” has the meaning set forth in the preamble.

“Collateral” has the meaning set forth in Article 2.

“Contract Rights” means all rights of any Grantor under any Contract, including, without limitation, (i) any and all rights to receive and demand payments under such Contract, (ii) any and all rights to receive and compel performance under such Contract and (iii) any and all other rights, interests and claims now existing or in the future arising in connection with such Contract.

“Contracts” means all contracts between any Grantor and one or more additional parties (including, without limitation, any Hedge Agreement, licensing agreement and any partnership agreement, joint venture agreement and/or limited liability company agreement).

“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.

“Copyrights” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all Copyrights (as such term is defined in the ABL Credit Agreement).

“Credit AgreementCPQ” has the meaning set forth in the Preliminary Statementpreamble.

“Designated Term Representative” has the meaning given to such term in the ABL Intercreditor Agreement.

“Discharge of Pari Passu Obligations” has the meaning given to such term in the ABL Intercreditor Agreement.

“Domain Names” means all Internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.

“Equity Rights” means all dividends, cash, options, warrants, instruments or other distributions and any other right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive any Capital Stock constituting Collateral and any right to receive earnings, in which such Grantor now has or hereafter acquires any right, issued by an issuer of such Capital Stock.

 

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“Ecovyst” has the meaning set forth in the preamble.

“European Borrowers” means (a) prior to the Restatement Effective Date, PQ Silicas UK Limited, a company incorporated under the laws of England and Wales and PQ Silicas B.V., a company incorporated under the laws of the Netherlands and (b) on and after the Restatement Effective Date, Catalyst Technologies UK Limited, a company incorporated under the laws of England and Wales, and the other European Borrowers party to the Credit Agreement from time to time.

“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document is specifically referenced.

“Grantors ” means (i) Holdings, the US BorrowerBorrowers and each of the Subsidiary Parties.Guarantors party to this Security Agreement on the Closing Date and (ii) each Subsidiary Guarantor that becomes a party to this Security Agreement as a Grantor after the Closing Date in accordance with Section 7.10 of this Security Agreement and Section 5.12 of the ABL Credit Agreement. Notwithstanding anything else provided herein, any reference to Grantors in connection with a representation or covenant under this Security Agreement that is limited by its terms to the Closing Date shall, for such purposes, mean the Grantors on the Closing Date.

“Holdings” has the meaning specified in the preamblemeans (a) at any time prior to the Restatement Effective Date, CPQ, and (b) upon the consummation of the Restatement Effective Date, Ecovyst Midco II Inc., a Delaware corporation.

“Intellectual Property Collateral” means collectively, (a) all Copyrights, Patents, Trademarks, Trade Secrets, Domain Names, Licenses and Software. and any and all other IP Rights; (b) all income, royalties, damages, claims and payments now or hereafter due and/or payable with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present and future infringements, misappropriation, dilution or other violations of any of the foregoing; (c) all rights to sue for past, present and future infringements, misappropriation, dilution or other violations of any of the foregoing; and (d) all rights corresponding to any of the foregoing.

“Intellectual Property Security Agreement Supplements” means (a) a Trademark Security Agreement Supplement, (b) a Patent Security Agreement Supplement or (c) a Copyright Security Agreement Supplement, in each case, substantially in the form of ExhibitAnnex A to the relevant Intellectual Property Security Agreement, as applicable.

“Lenders” means the “Lenders” under and as defined in the Credit Agreement.

 

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“Licenses” means, with respect to any Grantor, whether as licensor or licensee, all of such Grantor’s right, title, and interest in and to (a) any and all licensing agreements or similar arrangements with respect to (1) Patents, (2) Copyrights, (3) Trademarks, (4) Trade Secrets or, (5) Software, or (6) any and all other IP Rights, (b) all income, royalties, damages, claims, and payments now or hereafter due and/or payable under and with respect theretoto any of the foregoing, including, without limitation, damages, claims and payments for past, present and future breaches thereof, and (c) all rights to sue for past, present, and future breaches thereof, and (d) all rights corresponding to any of the foregoing.

“Loan Parties” has the meaning set forth in the preamble.

“Midco” means Ecovyst Midco II Inc., a Delaware corporation.

“Money” has the meaning set forth in Article 1 of the UCC.

“Pari Passu Priority Collateral” has the meaning given to such term in the ABL Intercreditor Agreement.

“Patents” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all Patents (as such term is defined in the ABL Credit Agreement).

“Perfection Certificate” means the Perfection Certificate delivered pursuant to Section 4.01(h) of the ABL Credit Agreement, as modified and supplemented from time to time as a result of the delivery of any Perfection Certificate Supplement pursuant to Section 5.01(h) of the ABL Credit Agreement.

“Permits” shall mean, all licenses, permits, rights, orders, variances, franchises or authorizations of or from any Governmental Authority.

“Pledged Collateral” means all Pledged EquityStock and EquityStock Rights, including all stock certificates, options or rights of any nature whatsoever in respect of the Pledged EquityStock or other EquityStock Rights that may be issued or granted to, or held by, any Grantor while this Security Agreement is in effect, all Instruments, Securities and other Investment Property owned by any Grantor, whether or not physically delivered to the Administrative Agent pursuant to this Security Agreement, whether now owned or hereafter acquired by such Grantor and any and all Proceeds thereof, but in any case, excluding any items constituting Excluded Assets as expressly limited or excluded by the definition of “Collateral and Guarantee Requirement” in the ABL Credit Agreement.

“Pledged EquityStock” means, with respect to any Grantor, the shares of Capital Stock described in Schedule 3 to the Perfection Certificate as held by such Grantor, together with any other shares of Capital Stock as are hereafter acquired by such Grantor, excluding any items constituting Excluded Assets.

“PQ” has the meaning set forth in the preamble.

 

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“Proceeds” has the meaning assigned in Article 9 of the UCC and, in any event, shall also include but not be limited to (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Administrative Agent or any Grantor from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of Governmental Authority), (iii) any and all EquityStock Rights and (iv) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

“Receivables” means any Account, Chattel Paper, Document, Investment Property, Instrument and/or any General Intangible, in each case, that is a right or claim to receive money or that is otherwise included as Collateral, but in any case, excluding any item constituting an Excluded AssetAssets.

“Restatement Effective Date” has the meaning given to that term in the Third Amendment.

“Section” means a numbered section of this Security Agreement, unless another document is specifically referenced.

“Security Agreement” has the meaning set forth in the preamble.

“Software” means computer programs, source code, object code and supporting documentation including “software” as such term is defined in Article 9 of the UCC, as well as computer programs that may be construed as included in the definition of Goods.

“Subsidiary Parties” means (a) the Subsidiaries of the US Borrower party hereto on the Closing Date and (b) each Domestic Subsidiary that becomes a party to this Security Agreement after the date hereof in accordance with Section 7.10 hereof and Section 5.12 of the Credit Agreement.

“Stock Rights” means all dividends, warrants, instruments or other distributions and any other right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive any Capital Stock constituting Collateral and any right to receive earnings, in which such Grantor now has or hereafter acquires any right, issued by an issuer of such Capital Stock.

“Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of June 9, 2021, by and among, inter alia, Holdings, the US Borrower, the lenders party thereto in their capacities as lenders thereunder, Credit Suisse AG, Cayman Islands Branch, in its capacity as administrative agent and collateral agent and the other agents party thereto and any amendments, restatements, amendments and restatements, supplements or modifications thereof.

 

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“Term Loan Documents” means the “Loan Documents” as defined in the Term Loan Credit Agreement.

“Trade Secrets” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to the following: (a) confidential and proprietary information, including unpatented inventions, invention disclosures, engineering or other data, information, production procedures, know-how, financial data, customer lists, supplier lists, business and marketing plans, processes, schematics, algorithms, techniques, analyses, proposals, source code, and data collections; (b) all income, royalties, damages, claims and payments now or hereafter due and/or payable with respect theretoto any of the foregoing, including, without limitation, damages, claims and payments for past, present and future misappropriation or infringements or misappropriations thereofof any of the foregoing; (c) all rights to sue for past, present and future misappropriation or infringements or misappropriationsof any of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (d) all rights corresponding to any of the foregoing.

“Trademarks” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to all Trademarks (as such term is defined in the ABL Credit Agreement).

“US Borrower” means (a) at any time prior to the Restatement Effective Date, PQ, and (b) upon the Restatement Effective Date, Ecovyst.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or such other jurisdiction as the context may require.

“US Borrower” has the meaning set forth in the preamble.

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.

ARTICLE 2

Grant of Security Interest

Section 2.01. Grant of Security Interest.(a) 

(a) As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby pledges, collaterally assigns, mortgages, transfers and grants to the Administrative Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Grantor, and regardless of where located (all of which are collectively referred to as the “Collateral”), including:

 

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(i) all Accounts;

(ii) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);

(iii) all Intellectual Property Collateral;

(iv) all Documents;

(v) all Equipment;

(vi) all Fixtures;

(vii) all General Intangibles;

(viii) all Goods;

(ix) all Instruments;

(x) all Inventory;

(xi) all Investment Property, Pledged EquityStock and other Pledged Collateral;

(i) (xii) all Money, cash and cash equivalents;

(xii) (xiii) all letters of credit and Letter-of-Credit Rights;

(ii) (xiv) all Deposit Accounts, Securities Accounts, Commodities Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Grantor with any bank or other financial institution and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;

(iii) (xv) all Securities Entitlements in any or all of the foregoing;

(xiii) (xvi) all Commercial Tort Claims described on Schedule 6 to the Perfection Certificate (including any supplements to such schedule);

(xiv) (xvii) all Permits;

(xv) (xviii) all Software and all recorded data of any kind or nature, regardless of the medium of recording;

(xvi) (xix) all Contracts, together with all Contract Rights arising thereunder;

 

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(xvii) (xx) all other personal property not otherwise described in clauses (i) through (xix xvi)  above;

(xviii) (xxi) all Supporting Obligations; and

(xix) all Deposit Accounts, Securities Accounts, all cash, Money, Securities and other investments therein, and all Security Entitlements in respect thereof; and

(xx) (xxii) all accessions to, substitutions and replacements for and Proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing and all collateral security and Guarantees given by any Person with respect to any of the foregoing.

(b) Notwithstanding the foregoing, no Lien or security interest is granted hereunder on any Excluded Asset and the term “Collateral” (and any component definition thereof) shall not include any Excluded Asset or any other asset to the extent expressly limited or excluded by the definition of “Collateral and Guarantee Requirement” in the ABL Credit Agreement. Notwithstanding anything to the contrary contained herein, immediately upon the ineffectiveness, lapse or termination of any restriction or condition set forth in the definition of “Excluded Assets” in the ABL Credit Agreement, that prevented the grant of a security interest in any right, interest or other asset that would have, but for such restriction or condition, constituted Collateral, the Collateral shall include, and the relevant Grantor shall be deemed to have automatically granted a security interest in, all relevant previously restricted or conditioned rights, interests or other assets, as the case may be, as if such restriction or condition had never been in effect. For the avoidance of doubt, “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets).

(c) Notwithstanding anything to the contrary in this Security Agreement or any other Loan Document, no Grantor shall be required to take any action with respect to the Collateral pledged hereunder (and no Lien on such Collateral shall be required to be perfected and/or First Priority, as applicable) to the extent such action is inconsistent with Section 5.12 of the ABL Credit Agreement or the Perfection Requirements (and is in accordance with applicable Requirements of Law). With respect to any Collateral that is Pari Passu Priority Collateral, to the extent the Designated Term Representative determines that any property or assets shall not become part of, or shall be excluded from, the Pari Passu Priority Collateral because it constitutes “Excluded Assets” (as defined in the ABL Credit Agreement), or that any delivery or notice requirement in respect of any such Pari Passu Priority Collateral shall be extended or waived, the Administrative Agent shall automatically be deemed to accept such determination and shall execute any documentation, if applicable, requested by the US Borrower in connection therewith (at the Grantor’s expense).

(d) (c) For the avoidance of doubt, it is understood, agreed and intended by the parties hereto that, notwithstanding anything to the contrary herein or in any other Loan Document, except with the consent of the US Borrower, (i) under no circumstance shall the Administrative Agent, any Lender or any Participant have recourse to more than 65% of the voting Capital Stock of any CFCForeign Subsidiary or Foreign Subsidiary Holdco and (ii) under no circumstance shall any CFC or any direct or indirect subsidiary of a CFCForeign Subsidiary or Foreign Subsidiary Holdco be a Guarantor under the ABL

 

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Credit Agreement or under any Loan Document or in any other way be required to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee Requirement” in the ABL Credit Agreement; provided, that this clause (ii) shall not apply to any direct or indirect subsidiary of Potters LP or Potters GP that is a Guarantor as of the date hereof to the extent this clause would otherwise apply solely by reason of Potters LP or Potters GP becoming a CFC after the date hereof..

ARTICLE 3

Representations and Warranties

The Grantors, jointly and severally, represent and warrant to the Administrative Agent as and when required under the ABL Credit Agreement, for the benefit of the Secured Parties, that:

Section 3.01. Title, Perfection and Priority; Filing Collateral. Subject to the Legal Reservations, this Security Agreement is effective to create a legal, valid and enforceable Lien on and security interest in the Collateral in favor of the Administrative Agent for the ratable benefit of the Secured Parties and, subject to satisfaction of the Perfection Requirements, thethe terms of the last paragraph of Section 4.01 and Section 5.12 of the ABL Credit Agreement and Section 2.01(c) of this Security Agreement, the Administrative Agent will have a fully perfected first priority Lien (subject to Permitted Liens) on such Collateral.security interest in the Collateral securing the Secured Obligations to the extent perfection in such Collateral is required by the Perfection Requirements upon taking all actions to perfect such Liens as in accordance with this Security Agreement and the Collateral and Guarantee Requirement.

Section 3.02. Names, Type and Jurisdiction of Organization, Organizational and Identification Numbers.

(a) (i) As of the Closing Date, the exact legal name of each Grantor, as such name appears in its respective Organizational Documents filed with the Secretary of State of such Grantor’s jurisdiction of organization, is set forth in Schedule 1(a) to the Perfection Certificate and (ii) as of the Closing Date, each Grantor is the type of entity disclosed next to its name in Schedule 1(a) to the Perfection Certificate. Also, as of the Closing Date, set forth in Schedule 1(a) to the Perfection Certificate is the organizational identification number, if any, of each Grantor, the Federal Taxpayer Identification Number of each Grantor and the jurisdiction of organization of each Grantor.

(b) Except as otherwise disclosed in Schedule 1(c) to the Perfection Certificate, as of the Closing Date, set forth in Schedule 1(b) to the Perfection Certificate is any other legal name that any Grantor has had in the past five years, together with the date of the relevant change.

(c) As of the Closing Date, set forth in Schedule 1(c) to the Perfection Certificate is a list of the information required by Section 1(a) of the Perfection Certificate for any other Person (i) to which any Grantor became the successor by merger, consolidation or acquisition or (ii) that has been liquidated into, or transferred all or substantially all of its assets to, any Grantor, at any time within the past four months preceding the Closing Date.

(d) As of the Closing Date, except as set forth in Schedule 1(d) to the Perfection Certificate or as otherwise disclosed in Schedule 1(c) to the Perfection Certificate, no Grantor has changed its jurisdiction of organization or form of entity at any time during the past four months.

 

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Section 3.03. Locations. The address of each Grantor’s chief executive office as of the Closing Date is accurately disclosed on Schedule 2(a) to the Perfection Certificate.

Section 3.04. Intellectual Property.

(a) As of the Closing Date, attached as Schedule 5(a) to the Perfection Certificate is a true, correct and complete schedule setting forth all of each Grantor’s United States Patents issued by (and applied for in), and United States Trademarks registered with (and applied for in), the United States Patent and Trademark Office (excluding, for the avoidance of doubt, any Patent or Trademark that has expired or been abandoned in the same manner as permitted in the Credit Agreement, but including United States Trademarks that would constitute Collateral upon the filing of a “Statement of Use” or an “Amendment to Allege Use” with respect thereto), including the name of the owner and patent number, the registration number (or, if applicable, the applicant and the application number) of each such United States Patent and United States Trademark.

(b) As of the Closing Date, attached as Schedule 5(b) to the Perfection Certificate is a schedule setting forth all of each Grantor’s United States Copyrights registered with (or for which registration has been applied for in) the United States Copyright Office (excluding, for the avoidance of doubt, any Copyright that has expired or been abandoned in the same manner as permitted in the Credit Agreement), including the name of the owner and the registration number (or, if applicable, the applicant and the application number) of each such United States Copyright.

(a) (c) Upon filing of appropriate financing statements with the Secretary of State (or equivalent office) of the state of organization of such Grantor and the filing of the applicable Intellectual Property Security Agreement with the United States Copyright Office or the United States Patent and Trademark Office, as applicable, the Administrative Agent shall have a fully perfected first priority Lien (subject to Permitted Liens) on the Collateral constituting United States issued or registered Patents, Trademarks and Copyrights (and applications therefor) under the UCC and the laws of the United States for the ratable benefit of the Secured Parties, and such perfected security interests shall be enforceable as such as against any and all creditors of and purchasers from the Grantors, subject to the Legal Reservations..

(b) (d) No Grantor is aware of (i) any third-party claim (A) that any of its owned Patent, Trademark, Domain Name or Copyright registrations or applications is invalid or unenforceable, or (B) challenging such Grantor’s rights to such registrations and applications or (ii) any basis for such claims with respect to such Grantor, other than, in each case, to the extent any such third-party claims would not reasonably be expected to have a Material Adverse Effect.

Section 3.05. Pledged Collateral; Instruments and Chattel Paper.

(a) (As of the Closing Date, attached as Schedule 3 to the Perfection Certificate is a true and correct list of all of the issued and outstanding stock, partnership interests, limited liability company membership interests or other equity interests owned by any Grantor constituting Pledged Equity, the beneficial owner of such stock, partnership interests, membership interests or other equity interests and the percentage of the total issued and outstanding stock, partnership interests, membership interests or other equity interests of the relevant issuer represented thereby.

 

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(b) As of the Closing Date, attached as Schedule 4 to the Perfection Certificate is a true and correct list of all Instruments (other than checks to be deposited in the ordinary course of business) and Tangible Chattel Paper, in each case having a face amount exceeding $15,000,000, held by any Grantor as of the date of the Perfection Certificate, including the names of the obligors, amounts owing and due dates.

(c) (i) All Pledged EquityStock has been duly authorized and validly issued (to the extent such concepts are relevant with respect to such Pledged CollateralStock) by the issuer thereof and is fully paid and non-assessable, (ii) each Grantor is the direct owner, beneficially and of record, of the Pledged EquityStock described in Schedule 3 to the Perfection Certificate as held by such Grantor, (iii) each Grantor holds the Pledged EquityStock described in Schedule 3 to the Perfection Certificate as held by such Grantor free and clear of all Liens (other than Permitted Liens), (iv) with respect to any certificates delivered to the Agent (or its bailee) representing Capital Stock, either such certificates are Securities as defined in Article 8 of the UCC as a result of actions by the issuer or otherwise, or, if such certificates are not Securities, the relevant Grantor has so informed the Agent and taken the necessary steps so that the Agent may perfect its security interest therein as a General Intangible and (v) as of the Closing Date, subject to the terms of the last paragraph of Section 4.01 and Section 5.15 of the ABL Credit Agreement, all certificates or instruments representing or evidencing the Pledged Collateral which are required to be delivered pursuant to Section 4.02 hereof have been delivered to the AgentDesignated Term Representative, as bailee for the Administrative Agent pursuant to the terms of the ABL Intercreditor Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that the AgentAdministrative Agent, after giving effect to the terms of the ABL Intercreditor Agreement, has a perfected first priority (subject to Permitted Liens) security interest therein to the extent perfection in such Collateral is required by the Perfection Requirements.

Section 3.06. Commercial Tort Claims. As of the Closing Date, attached as Schedule 6 to the Perfection Certificate is a true and correct list of all Commercial Tort Claims with an individual value (as reasonably estimated by the US Borrower) in excess of $15,000,000, held by any Grantor, including a brief description thereof.

Section 3.06. Section 3.07. Recourse. This Security Agreement is made with full recourse to each Grantor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Grantor contained herein, in the Loan Documents and otherwise in writing in connection herewith and therewith.

ARTICLE 4

Covenants

From the date hereof, and thereafter until the Termination Date (in each case, subject to Section 2.01(c) of this Security Agreement):

Section 4.01. General.

(a) Authorization to File Financing Statements; Ratification. Each Grantor hereby (x) authorizes the Administrative Agent to file (A) file all financing statements (including amendments and continuations thereto) with respect to the Collateral naming such Grantor as debtor and the Administrative Agent as secured party, in form appropriate for filing under the UCC of the relevant jurisdiction, (B) make all filings with the United States Patent and Trademark Office and the United States Copyright Office (including filing any Intellectual Property Security Agreement) for the purpose of

 

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perfecting, recording, enforcing, maintaining or protecting the Lien of the Administrative Agent in each Grantor’s United States issued, registered or applied for Patents, Trademarks and Copyrights (in each case, to the extent constituting Collateral) and naming such Grantor as debtor and the Administrative Agent as secured party and (C) other documents and, subject to the terms of the Loan Documents,y) agrees to take such other actions as required by Section 5.15 of the ABL Credit Agreement, in each case as may from time to time be necessary and reasonably requested by the Administrative Agent in order to establish and maintain a(subject to Permitted Liens (to the extent such Permitted Liens are not prohibited from being senior to the Lien granted to the Administrative Agent hereunder)), valid, enforceable (subject to the Legal Reservations) and perfected first priority (subject to Permitted Liens (to the extent such Permitted Liens are not prohibited from being senior to the Lien granted to the Administrative Agent hereunder)) security interest in and subject, in the case of Pledged Collateral, Deposit Accounts and Securities Accounts to Section 4.02 hereof, Control of, the Collateral. Each Grantor shall pay any applicable filing fees, recordation fees and related expenses relating to its Collateral in accordance with Section 9.03(a) of the ABL Credit Agreement. Any financing statement filed by theThe Administrative Agent may be filed in any filing officefile financing statements in any applicable UCC jurisdiction and may (i) indicate the Collateral (A) as “all assets” of the applicable Grantor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of such jurisdiction, or (B) by any other description which reasonably approximates the description contained in this Security Agreement and (ii) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including (A) in each case to the extent applicable, whether the Grantor is an organization, the type of organization and any organization identification number issued to the Grantor and (B) in the case of a financing statement filed as a fixture filing, a sufficient description of the relevant real property to which the Collateral relates. Each Grantor agrees to furnish any such information to the Administrative Agent promptly upon request.

(b) Further Assurances. Each Grantor agrees, at its own expense, to take any and all actions reasonably necessary to defend title to the Collateral against all Persons (other than Persons holding Permitted Liens on such Collateral that have priority over the Administrative Agent’s Lien) and to defend the security interest of the Administrative Agent in the Collateral and the priority thereof against any Lien that is not a Permitted Lien.

(c) Change of Name, Etc. FollowingPrior to or promptly following delivery of any notice required by Section 5.01(i) of the ABL Credit Agreement, the relevant Grantor shall promptly prepare (and authorize the Agent to make) all filings required under the UCC or other applicable Requirements of Law and take all other actions reasonably requested by the Administrative Agent and deemed by the Administrative Agent to be necessary or reasonable and appropriate to ensure that the Administrative Agent shall continue at all times following such change to have a valid, legal, enforceable (subject to the Legal Reservations) and perfected first priority Lien in such Collateral (subject to Permitted Liens) (to the extent such Permitted Liens are not prohibited from being senior to the Lien granted to the Administrative Agent hereunder)) in such Collateral for its benefit and the benefit of the other Secured Parties.

Section 4.02. Pledged Collateral.

(a) Delivery of Certificated Securities, Tangible Chattel Paper, Instruments and Documents; Deposit Accounts and Securities Accounts. Each Grantor will, subject to the last paragraph of Section 4.01 and Section 5.15 of the ABL Credit Agreement and the Perfection Requirements, (i) on the Closing Date, deliver to the AgentAdministrative Agent (or the Designated Term Representative, as its bailee) for the benefit of the Secured Parties, the originals of all (x) certificated Securities and (y) Tangible Chattel Paper andPledged Stock and (y) Material Debt Instruments, in each case under this

 

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clause (y), having a face amount in excess of $15,000,000, in each case under clauses (x) and (y), to the extent constituting Collateral owned by such Grantor as of the Closing Date, accompanied by undated instruments of transfer or assignment duly executed in blank, (ii) after the Closing Date, hold in trust for the AgentAdministrative Agent (or the Designated Term Representative, as its bailee) upon receipt and, (x) if the event giving rise to the obligation under this Section 4.02(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) of the ABL Credit Agreement for the Fiscal Quarter in which the relevant event occurred or (y) if the event giving rise to the obligation under this Section 4.02(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 60 days after the end ofon which financial statements are required to be delivered pursuant to Section 5.01(b) of the ABL Credit Agreement for such Fiscal Quarter (or, in each of the cases of clauses (x) and (y), such longer period as the Administrative Agent or the Designated Term Representative may reasonably agree), deliver to the AgentAdministrative Agent (or the Designated Term Representative, as its bailee) for the benefit of the Secured Parties any (1) certificated Securities representing or evidencing Pledged Collateral and (2) Tangible Chattel Paper and Instruments (A) in each case under this clause (2), having an outstanding balance in excess of $15,000,000 and (B) in each case under clauses (1) and (2),Capital Stock and (2) Material Debt Instruments, in each case, to the extent constituting Collateral received after the date hereof, accompanied by undated instruments of transfer or assignment duly executed in blank, (iii) upon the occurrence and during the continuance of an Event of Default and upon the Agent’s request, deliver to the Agent, and thereafter hold in trust for the Agent upon receipt and promptly deliver to the Agent any other Chattel Paper, Instrument or Document evidencing or constituting Collateral ; provided that, notwithstanding anything to the contrary contained herein, no Grantor will be required to deliver to the Administrative Agent the original of any Instrument executed in connection with an NMTC Transaction and (iviii) in the case of Deposit Accounts and Securities Accounts (other than Excluded Accounts), take any actions necessary to enable the Administrative Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code)Control with respect thereto to the extent required hereunder, including without limitation, executing and delivering and causing the relevant depositary bank or securities intermediary to execute and deliver a control agreement in form and substance reasonably satisfactory to the Administrative Agent to the extent required pursuant to Section 5.16 of the ABL Credit Agreement; provided that, notwithstanding anything to the contrary contained herein, no Grantor will be required to deliver to the Agent the original of any Instrument executed in connection with a NMTC Transaction.

(b) Uncertificated Securities and Pledged Collateral. WithExcept to the extent in connection with any Investment or Disposition permitted by the ABL Credit Agreement, with respect to any partnership interest or limited liability company interestCapital Stock owned by any Grantor to the extent required to be pledged to the Administrative Agent pursuant to the terms hereof (other than a partnership interest or limited liability company interestCapital Stock held by a Clearing Corporation, Securities Intermediary or other financial intermediary of any kind) which is not represented by a certificate and which is not aa certificated Security for purposes of the UCC, to the extent constituting Pledged Collateral, such Grantor shall not permit any issuer of such partnership interest or limited liability company interestCapital Stock to (i) enter into any agreement with any Person, other than the Administrative Agent or any holder of a Permitted Lienthe Designated Term Representative, whereby such issuer effectively delivers “control” of such partnership interests or limited liability company interests (as applicable) under the UCC to such Person, or (ii) if such Capital Stock is not a Security for purposes of the UCC, allow such partnership interests or limited liability company interests (as applicable)Capital Stock to become Securities unless such Grantor certificates such securities and complies with the procedures set forth in Section 4.02(a) within the time period prescribed therein. Each Grantor which is an issuer of any uncertificated Pledged Collateral described in this Section 4.02(b) hereby agrees to comply with all instructions from the Administrative Agent without such Grantor’s further consent, in each case subject to the notice requirements set forth in Section 5.01(a)(iv) hereof.

 

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(c) Registration in Nominee Name; Denominations. The Administrative Agent, on behalf of the Secured Parties (or the Designated Term Representative, as its bailee), shall hold certificated Pledged Collateral required to be delivered to the Administrative Agent under clause (a) above in the name of the applicable Grantor, endorsed or assigned in blank or in favor of the AgentAdministrative Agent (or the Designated Term Representative, as its bailee), but at any time when an Event of Default existsshall have occurred and be continuing, and upon one Business Dayprior written notice to the US Borrower, the Administrative Agent shall have the right (in its sole and absolute discretion, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement) to hold the Pledged Collateral in its own name as pledgee, or in the name of its nominee (as pledgee or as sub-agent). At any time when an Event of Default exists, thehas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, the Administrative Agent shall have the right to exchange the certificates representing Pledged Collateral for certificates of smaller or larger denominations for any purpose consistent with this Security Agreement.

(d) Exercise of Rights in Pledged Collateral. It is agreed that,:

(i) without in any way limiting the foregoing and subject to clause (ii) below, each Grantor shall have the right, to exercise all voting rights or other rights relating to the Pledged Collateral for any purpose that does not violate this Security Agreement, the ABL Credit Agreement or any other Loan Document;

(ii) each Grantor will permit thethe Administrative Agent or its nominee at any time at any time when an Event of Default existshas occurred and is continuing shall have the right to exercise the rights and remedies provided under Section 5.01(a)(iv) (subject to the notice requirements set forth therein); and and upon the occurrence and during the continuance of an Event of Default after prior written notice to the US Borrower, all rights of the Grantors to exercise or refrain from exercising voting or other consensual rights as a holder with respect to any Pledged Collateral shall cease; and

(iii) subject to Section 5.01(a)(iv), each Grantor shall 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 (unless, and solely to the extent, otherwise provided under the ABL Credit Agreement or the other Loan Documents); provided that any non-cash dividends or other distributions that would constitute Pledged Collateral, whether resulting from a subdivision, combination or reclassification of the outstanding Capital Stock of the issuer of any Pledged Collateral or received in exchange for Pledged Collateral or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall, to the extent constituting Collateral, be held in trust for the Administrative Agent (or the Designated Term Representative, as its bailee) and be and become part of the Pledged Collateral, and, if received by any Grantor, shall be delivered to the AgentAdministrative Agent (or the Designated Term Representative, as its bailee) as and to the extent required by clause (a) above. So long as no Event of Default then exists, theThe Administrative Agent shall promptly deliver to the

 

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applicable Grantor (without recourse and without any representation or warranty) any Pledged Collateral in its possession if requested to be delivered to the issuer or the holder thereof in connection with any redemption or exchange of such Pledged Collateral permittednot prohibited by the ABL Credit Agreement in accordance with Section 8.01 of the(unless the ABL Credit Agreement prohibits such redemption or exchange at such time).

Section 4.03. Intellectual Property.(a)

(a) At any time when an Event of Default existshas occurred and is continuing, and upon the written request of the Administrative Agent, each Grantor will (i) use its commercially reasonable efforts to obtain all consents and approvals necessary orand appropriate for the assignment to or for the benefit of the Administrative Agent of any License held by such Grantor in the U.S. to enable the Administrative Agent to enforce the security interests granted hereunder and (ii) to the extent required pursuant to any material License in the U.S. under which such Grantor is the licensee, deliver to the licensor thereunder any notice of the grant of security interest hereunder or such other notices required to be delivered thereunder in order to permit the security interest created or permitted to be created hereunder pursuant to the terms of such License.

(b) Each Grantor shall notify the Administrative Agent promptly if it knows or reasonably expects that any application for or registration of any Patent, Trademark, Domain Name, or Copyright (now or hereafter existing) mayhas become abandoned or dedicated to the public, or of any determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court) abandoning such Grantor’s ownership of any such Patent, Trademark or Copyright, its right to register the same, or to keep and maintain the same, except, in each case, for Dispositions permitted undernot prohibited by the ABL Credit Agreement or where such occurrences individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(c) After the Closing Date, inIn the event that any Grantor (ix) files an application for the registration or issuance of any Patent, Trademark or Copyright with the United States Patent and Trademark Office or the United States Copyright Office, (iiy) acquires any such application, registration or issuancePatent, Trademark or Copyright by purchase or assignment, or (iiiz) files a “Statement of Use” or an “Amendment to Allege Use” with respect to any “intent-to-use trademark or service mark” Trademark application owned by such Grantor, in each case that is not then subject to an Intellectual Property Security Agreement or Intellectual Property Security Agreement Supplement or, with respect to clause (ii),, after the Closing Date and to the extent the same constitutes Collateral (and other than as a result of an application that is then subject to an Intellectual Property Security Agreement or Intellectual Property Security Agreement supplementSupplement becoming registered), it shall, (i) if the event giving rise to the obligation under this Section 4.03(c) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) of the ABL Credit Agreement for the Fiscal Quarter in which the relevant event occurred or (ii) if the event giving rise to the obligation under this Section 4.03(c) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 60 days after the end ofon which financial statements are required to be delivered pursuant to Section 5.01(b) of the ABL Credit Agreement for such Fiscal Quarter (or, in the case of each of clauses (i) and (ii), such longer period as the Administrative Agent may reasonably agree), notify the Administrative Agent and, execute and deliver to the Administrative Agent, at such Grantor’s sole cost and expense, any Intellectual Property Security Agreement or Intellectual Property Security Agreement Supplement, as applicable, or any other instrument as the Administrative Agent may reasonably request required to evidence the Administrative Agent’s security interest in such registered Patent, Trademark or Copyright (or application therefor), and the General Intangibles of such Grantor relating thereto or represented thereby.

 

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(d) Each Grantor shall take all actions necessary or reasonably requested by the Administrative Agent to (i) maintain and pursue each application and to obtain and maintain the registration of each Patent, Trademark, Domain Name and, to the extent consistent with past practices, Copyright that constitutes Collateral (now or hereafter existing), including by filing applications for renewal, affidavits of use, affidavits of noncontestabilitynon-contestability and, if consistent with good business judgment (as determined by such Grantor), by initiating opposition and interference and cancellation proceedings against third parties, (ii) maintain and protect the secrecy or confidentiality of its Trade Secrets and (iii) otherwise protect and preserve such Grantor’s rights in, and the validity or enforceability of, its Intellectual Property CollateralPatents, Trademarks, Domain Names and Copyrights, in each case except where failure to do so (iA) could not reasonably be expected to result in a Material Adverse Effect, or (iiB) is otherwise permitted under the ABL Credit Agreement.

(e) Each Grantor shall promptly notify the Administrative Agent of any material infringement or misappropriation of such Grantor’s Patents, Trademarks, Copyrights or Trade Secrets of which it becomes aware, and shall take such actions as are reasonable and appropriate under the circumstances to protect such Patent, Trademark, Copyright or Trade Secret, except where such infringement, misappropriation or dilution could not reasonably be expected to cause a Material Adverse Effect.

Section 4.04. Commercial Tort Claims. After the Closing Date, (i) if the event giving rise to the obligation under this Section 4.04 occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) of the ABL Credit Agreement for the Fiscal Quarter in which the relevant event occurred or (ii) if the event giving rise to the obligation under this Section 4.04 occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 60 days after the end ofon which financial statements are required to be delivered pursuant to Section 5.01(b) of the ABL Credit Agreement for such Fiscal Quarter (or, in the case of each of the cases of clauses (i) and (ii), such longer period as the Administrative Agent may reasonably agree), each relevant Grantor shall notify the Administrative Agent of any Commercial Tort Claim with an individual value (as reasonably estimated by the US Borrower) in excess of $15,000,000 acquired by it, together with an update to Schedule 6 to the Perfection Certificate describing the details thereof sufficient to create a security interest therein, and such Commercial Tort Claim (and the Proceeds thereof) shall automatically constitute Collateral, all upon the terms of this Security Agreement.

Section 4.05. Insurance. Except to the extent otherwise permitted to be retained by any Grantor or applied by any Grantor pursuant to the terms of the Loan Documents, the Administrative Agent shall, at the time any proceeds of any insurance in respect of the Collateral are distributed to the Secured PartiesAdministrative Agent, apply such proceeds at any time the Administrative Agent is exercising remedies in accordance with Section 5.01, in accordance with Section 5.04 hereof. Each Grantor assumes all liability and responsibility in connection with the Collateral acquired by it, and the liability of such Grantor to pay the Secured Obligations shall in no way be affected or diminished by reason of the fact that such Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Grantor.

Section 4.06. Grantors Remain Liable Under Contracts. Each Grantor (rather than the Administrative Agent or any Secured Party) shall remain liable (as between itself and any relevant counterparty) to observe and perform all the conditions and obligations to be observed and performed by it under any Contract relating to the Collateral, all in accordance with the terms and conditions thereof. Neither the Administrative Agent nor any other Secured Party shall have any obligation or liability under any Contract by reason of or arising out of this Security Agreement or the receipt by the Administrative

 

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Agent or any other Secured Party of any payment relating to such Contract pursuant hereto, nor shall the Administrative Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Contract, to make any payment, to make any inquiry as to the nature or sufficiency of any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.

Section 4.07. Grantors Remain Liable Under Accounts. Notwithstanding anything herein to the contrary, the Grantors shall remain liable under each of the Accounts to observe and perform all of the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise to such Accounts. Neither the Administrative Agent nor any other Secured Party shall have any obligation or liability under any Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by the Administrative Agent or any other Secured Party of any payment relating to such Account pursuant hereto, nor shall the Administrative Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by them or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.

ARTICLE 5

Remedies

Section 5.01. Remedies.

(a) Remedies. (a) Each Grantor agrees that, at any time when an Event of Default exists, thehas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, the Administrative Agent may exercise any or all of the following rights and remedies (in addition to the rights and remedies existing under applicable Requirements of Law or in equity):

(i) the rights and remedies provided in this Security Agreement, the ABL Credit Agreement, or any other Loan Document; provided that this Section 5.01(a) shall not limit any rights available to the Administrative Agent prior to the occurrence and continuance of an Event of Default;

(ii) the rights and remedies available to a secured party under the UCC of each relevant jurisdiction (whether or not the UCC applies to the affected Collateral) or under any other applicable Requirements of Law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’ Lien) or in equity when a debtor is in default under a security agreement;

(iii) without notice (except as required by lawspecifically provided in Section 7.01 or elsewhere herein), demand or advertisement of any kind to any Grantor or any other Person, but subject to the terms of any applicable lease agreement, personally, or by agents or attorneys, enter the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise dispose of, deliver, or realize upon, the

 

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Collateral or any part thereof in one or more parcels at one or more public or private sales (which sales may be adjourned or continued from time to time with or without notice and may take place at such Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Administrative Agent may deem commercially reasonable;

(iv) upon one Business DayDay’s written notice to any Grantor,the US Borrower, (A) transfer and register in its name or in the name of its nominee the whole or any part of the Pledged Collateral, to and (B) exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Pledged Collateral as though the Administrative Agent was the outright owner thereof; and

(v) to take possession of the Collateral or any part thereof, by directing such Grantor in writing to deliver the same to the Administrative Agent at any reasonable place or places designated by the Administrative Agent, in which event such Grantor shall at its own expense:

(1) forthwith cause the same to be moved to the place or places so designated by the Administrative Agent and there delivered to the Administrative Agent;.

(2) store and keep any Collateral so delivered to the Agent at such place or places pending further action by the Agent; and

(3) while the Collateral shall be so stored and kept, provide such security and maintenance services as shall be reasonably necessary to protect the same and to preserve and maintain it in good condition.

(b) Each Grantor acknowledges and agrees that compliance by the Administrative Agent, on behalf of the Secured Parties, with any applicable state or federal law requirementsRequirements of Law in connection with a disposition of the Collateral will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

(c) The Administrative Agent shall have the right in any public sale and, to the extent permitted by lawapplicable Requirements of Law, in any private sale, to purchase for the benefit of the Administrative Agent and the Secured Parties, all or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption that Grantor is permitted to release and waive pursuant to applicable Requirements of Law, and, each Grantor hereby expressly releases such right to equity redemption to the extent permitted by applicable Requirements of Law.

(d) Until the Administrative Agent is able to effect a sale, lease, transfer or other disposition of any particular Collateral under this Section 5.01, the Administrative Agent shall have the right to hold or use such Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving such Collateral or the value of such Collateral, or for any other purpose deemed reasonably appropriate by the Administrative Agent. At any time when an Event of Default existshas occurred and is continuing, the Administrative Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of the Administrative Agent’s remedies (for the benefit of the Administrative Agent and Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.

 

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(e) Notwithstanding the foregoing, neither the Administrative Agent nor any Secured Party shall not be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, the Grantors, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect Guarantee thereof, (ii) marshal the Collateral or any Guarantee of the Secured Obligations or to resort to the Collateral or any such Guarantee in any particular order, or (iii) effect a public sale of any Collateral.

(f) Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof. Each Grantor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that no such private sale shall be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit any Grantor or the issuer of any Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws, even if any Grantor and the issuer would agree to do so.

(g) The Administrative Agent and each Secured Party (by its acceptance of the benefits of this Security Agreement) acknowledges and agrees that notwithstanding any other provisions in this Security Agreement or any other Loan Document, the exercise of rights or remedies with respect to certain Collateral and the enforcement of any security interests therein may be limited or restricted by, or require any consents, authorizations approvals or licenses under, any Requirement of Law.

(h) Notwithstanding the foregoing, any rights and remedies provided in this Section 5.01 shall be subject to the Intercreditor Agreements (and any other applicable Acceptable Intercreditor Agreements).

Section 5.02. Grantors’ Obligations Upon Default. Upon the request of the Administrative Agent at any time when an Event of Default existshas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, each Grantor will:

(a) at its own cost and expense (i) assemble and make available to the Administrative Agent, the Collateral and all books and records relating thereto at any place or places reasonably specified by the Administrative Agent, whether at such Grantor’s premises or elsewhere, (ii) deliver all tangible evidence of its Accounts and Contract Rights (including, without limitation, all documents evidencing the Accounts and all Contracts) and such books and records to the Administrative Agent or to its representatives (copies of which evidence and books and records may be retained by such Grantor) and (iii) if the Administrative Agent so directs and in a form and in a manner reasonably satisfactory to the Administrative Agent, legend the Accounts and the Contracts, as well as books, records and documents (if any) of such Grantor evidencing or pertaining to such Accounts and Contracts with an appropriate reference to the fact that such Accounts and Contracts have been assigned to the Administrative Agent and that the Administrative Agent has a security interest therein; and

 

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(b) (b) subject to the terms of any applicable lease agreement, permit the Administrative Agent and/or its representatives and/or agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating thereto, or both, and to conduct sales of the Collateral, without any obligation to pay any Grantor for such use and occupancy.

Section 5.03. Intellectual Property Remedies.(a)

(a) For the purpose of enabling the Administrative Agent to exercise the rights and remedies under this Article 5 at any time when an Event of Default existshas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, and at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Administrative Agent a power of attorney to sign any document which may be required by the United States Patent and Trademark Office, the United States Copyright Office or similar registrar or domain name registrar in order to effect an absolute assignment of all right, title and interest in each registered Patent, Trademark, Domain Name and Copyright and each application for any such registration, and record the same. At any time when an Event of Default exists, thehas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, the Administrative Agent may (i) declare the entire right, title and interest of such Grantor in and to each item of Intellectual Property Collateral to be vested in the Administrative Agent for the benefit of the Secured Parties, in which event such right, title and interest shall immediately vest in the Administrative Agent for the benefit of the Secured Parties, and the Administrative Agent shall be entitled to exercise the power of attorney referred to in this Section 5.03 to execute, cause to be acknowledged and notarized and record such absolute assignment with the applicable agency or registrar; (ii) sell any Grantor’s Inventory directly to any Person, including without limitation Persons who have previously purchased any Grantor’s Inventory from such Grantor and in connection with any such sale or other enforcement of the Administrative Agent’s rights under this Security Agreement and subject to any restrictions contained in applicable third party licenses entered into by such Grantor, sell Inventory which bears any Trademark owned by or licensed to any Grantor and any Inventory that is covered by any Intellectual Property Collateral owned by or licensed to any Grantor, and the Administrative Agent may finish any work in process and affix any relevant Trademark owned by or licensed to such Grantor, and sell such Inventory as provided herein; (iii) direct such Grantor to refrain, in which event such Grantor shall refrain, from using any Intellectual Property Collateral in any manner whatsoever, directly or indirectly; and (iv) assign or sell any Intellectual Property, in each case to the extent constituting Collateral, as well as the goodwill of such Grantor’s business connected with the use of and symbolized by any such Trademark and the right to carry on the business and use the assets of such Grantor in connection with which any such Trademark or Domain Name has been used.

(b) For the purpose of enabling the Agent to exercise the rights and remedies under this Article 5 at any time when an Event of Default exists and is continuing and at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, eachEach Grantor hereby grants to the Administrative Agent, to the extent it has the right to do so, an irrevocable (until the Termination Date), nonexclusive, royalty-free, world-wide license to its right to use, license or sublicense any Intellectual Property CollateralIP Rights now owned or licensed, or hereafter acquired or licensed by such Grantor, wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and (to the extent not prohibited by any applicable license) to all computer software and programs used for compilation or printout thereof. The use of the license granted to the Administrative Agent pursuant to the preceding sentence may be exercised, at the option of the Administrative Agent, only when an Event of Default exists; provided that, any license, sublicense or other transaction entered into by the Agent in accordance with this clause (b) shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.has occurred and is

 

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continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement; provided that such licenses to be granted hereunder with respect to Trademarks shall be subject to, with respect to the goods and/or services on which such Trademarks are used, the maintenance of quality standards that are sufficient to preserve the validity of such Trademarks and are consistent with past practices.

Section 5.04. Application of Proceeds.

(a) Application of Proceeds. (a) TheSubject to the Intercreditor Agreements (and any other applicable Acceptable Intercreditor Agreements), the Administrative Agent shall apply the proceeds of any collection, sale, foreclosure or other realization upon any Collateral, as well as any Collateral consisting of Cash, received by it pursuant to the exercise of remedies in accordance with this Security Agreement and as set forth in Section 2.18(b) of the ABL Credit Agreement.

(b) Except as otherwise provided herein or in any other Loan Document, the Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, money or balance received by it pursuant to the exercise of remedies in accordance with this Security Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), a receipt by the Administrative Agent or of the officer making the sale of such proceeds, moneys or balances shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof. It is understood that the Grantors shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations.

ARTICLE 6

Account Verification; Attorney in Fact; Proxy

Section 6.01. Account Verification. The Administrative Agent may at any time and from time to time when an Event of Default exists, in thehas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, and upon prior written notice to the relevant Grantor, in the Administrative Agent’s own name, in the name of a nominee of the Administrative Agent, or in the name of any Grantor, communicate (by mail, telephone, facsimile or otherwise) with the Account Debtors of such Grantor, parties to Contracts with such Grantor and obligors in respect of Instruments of such Grantor to verify with such Persons, to the Administrative Agent’s reasonable satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, Contracts, Instruments, Chattel Paper, payment intangibles and/or other Receivables that constitute (i) prior to the Discharge of Pari Passu Obligations, ABL Collateral or (ii) after the Discharge of Pari Passu Obligations, Collateral.

Section 6.02. Receivables. The Administrative Agent hereby authorizes each Grantor to collect such Grantor’s Receivables and each Grantor hereby agrees to continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation in respect thereof and diligently exercise each material right it may have under any Receivable and any such Supporting Obligation, in each case, at its own expense consistent with its reasonable business judgment; provided, however, that the Administrative Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. If required by the Administrative Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall forthwith (and, in any event, within two (2) Business Days) be deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Administrative Agent, and (ii) until so turned over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

 

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Section 6.03. Authorization for the Administrative Agent to Take Certain Action.(a)

(a) Each Grantor hereby irrevocably authorizes the Administrative Agent and appoints the Administrative Agent (and all officers, employees or agents designated by the Administrative Agent) as its true and lawful attorney in fact (i) at any time and from time to time in its sole discretion (A) to execute (to the extent necessary under the law of the applicable jurisdiction) on behalf of such Grantor as debtor and to file financing statements necessary or desirable in the Administrative Agent’s reasonable discretion to perfect and to maintain the perfection and priority of the Administrative Agent’s security interest in the Collateral, (B) to file a carbon, photographic or other reproduction of this Security Agreement as a financing statement and to file any amendment of a financing statement with respect to the Collateral (which would not add new collateral or add a debtor, except as otherwise provided for herein or in any other Loan Document) in such offices as the Administrative Agent in its reasonable discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the Administrative Agent’s security interest in the Collateral, and (C) toduring the continuation of an Event of Default after prior written notice to the US Borrower, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, in the sole discretion of the Administrative Agent (in the name of such Grantor or otherwise) to contact and enter into one or more agreements with the issuers of uncertificated securities that constitute Pledged Collateral or with securities intermediaries holding Pledged Collateral as may be necessary or advisable to give the Administrative Agent Control over such Pledged Collateral in accordance with the terms hereof; (ii) at any time when (including, without limitation, Section 2.01(c) of this Security Agreement) and (ii) during the continuation of an Event of Default exists, in the sole discretion of the Administrative Agent (in the name of such Grantor or otherwise) after prior written notice to the US Borrower in each case, (A) to endorse and collect any cash proceeds of the Collateral and to apply the proceeds of any Collateral received by the Administrative Agent to the Secured Obligations as provided herein or in the ABL Credit Agreement or any other Loan Document, subject to the terms of the Intercreditor Agreements (and any other applicable Acceptable Intercreditor Agreements), (B) to demand payment or enforce payment of any Receivable in the name of the Administrative Agent or such Grantor and to endorse any check, draft and/or any other instrument for the payment of money relating to any such Receivable, (C) to sign such Grantor’s name on any invoice or bill of lading relating to any Receivable, any draft against any Account Debtor of such Grantor, and/or any assignment and/or verification of any Receivable, (D) to exercise all of any Grantor’s rights and remedies with respect to the collection of any Receivable and any other Collateral, (E) to settle, adjust, compromise, extend or renew any Receivable, (F) to settle, adjust or compromise any legal proceedings brought to collect any Receivable, (G) to prepare, file and sign such Grantor’s name on a proof of claim in bankruptcy or similar document against any Account Debtor of such Grantor, (H) to prepare, file and sign such Grantor’s name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with any Receivable, (I) to change the address for delivery of mail addressed to such Grantor to such address as the Administrative Agent may designate and to receive, open and dispose of all mail addressed to such Grantor (provided copies of such mail are provided to such Grantor), (J) to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for Permitted Liens), (K) to make, settle and adjust claims in respect of Collateral under policies of insurance and endorse the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, (L) toand make all determinations and decisions with respect thereto and (ML) to obtain or maintain the policies of insurance of the types referred to in Section 5.05 of the ABL Credit Agreement or to pay any premium in whole or in part relating thereto; and (iiiM) to do all other acts and things or institute any proceedings which the Administrative Agent may reasonably deem to be necessary or advisable (pursuant to this Security

 

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Agreement and the other Loan Documents and in accordance with applicable law) to carry out the terms of this Security Agreement and to protect the interests of the Secured Parties; and, when and to the extent required pursuant to Section 9.03(a) of the ABL Credit Agreement, such Grantor agrees to reimburse the Administrative Agent for any payment made in connection with this paragraph or any expense (including reasonable and documented attorneys’ fees, court costs and out-of-pocket expenses) and other charges related thereto incurred by the Administrative Agent in connection with any of the foregoing (it being understood that any such sums shall constitute additional Secured Obligations); provided that, this authorization shall not relieve such Grantor of any of its obligations under this Security Agreement or under the ABL Credit Agreement.

(b) All such acts of such attorney or designee are hereby ratified and approved by each Grantor. The powers conferred on the Administrative Agent, for the benefit of the Administrative Agent and Secured Parties, under this Section 6.026.03 are solely to protect the Administrative Agent’s interests in the Collateral and shall not impose any duty upon the Administrative Agent or any Secured Party to exercise any such powers.

Section 6.04. PROXY. EACH GRANTOR HEREBY IRREVOCABLY (UNTIL THE TERMINATION DATE) CONSTITUTES AND APPOINTS THE ADMINISTRATIVE AGENT AS ITS PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.026.03 ABOVE) WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING, DURING THE CONTINUATION OF AN EVENT OF DEFAULT, BUT SUBJECT TO THE LAST PARAGRAPH OF SECTION 7.01 OF THE ABL CREDIT AGREEMENT, AND SUBJECT TO ANY NOTICE REQUIREMENTS AS SET FORTH HEREIN, THE RIGHT TO VOTE SUCH PLEDGED COLLATERAL, WITH FULL POWER OF SUBSTITUTION TO DO SO. IN ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL, DURING THE CONTINUATION OF AN EVENT OF DEFAULT AND SUBJECT TO ANY NOTICE REQUIREMENTS AS SET FORTH HEREIN, INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF SUCH PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED COLLATERAL ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED COLLATERAL OR ANY OFFICER OR ADMINISTRATIVE AGENT THEREOF), IN EACH CASE ONLY WHEN AN EVENT OF DEFAULT EXISTSHAS OCCURRED AND IS CONTINUING AND UPON ONE BUSINESS DAYDAYS’ PRIOR WRITTEN NOTICE TO THE US BORROWER.

Section 6.05. NATURE OF APPOINTMENT; LIMITATION OF DUTY. THE APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE 6 IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 7.12. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NEITHER THE ADMINISTRATIVE AGENT, NOR ANY SECURED PARTY, NOR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED HEREUNDER OR OTHERWISE OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT TO THE EXTENT SUCH DAMAGES ARE ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PERSON AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NON-APPEALABLE DECISION SUBJECT TO SECTION 7.19 HEREOF; PROVIDED, THAT THE FOREGOING EXCEPTION SHALL NOT BE CONSTRUED TO OBLIGATE THE ADMINISTRATIVE AGENT TO TAKE OR REFRAIN FROM TAKING ANY ACTION WITH RESPECT TO THE COLLATERAL.

 

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ARTICLE 7

General Provisions

Section 7.01. Waivers. To the maximum extent permitted by applicable Requirements of Law, each Grantor hereby waives notice of the time and place of any judicial hearing in connection with the Administrative Agent’s taking possession of the Collateral or of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made, including without limitation, any and all prior notice and hearing for any prejudgment remedy or remedies. To the extent such notice may not be waived under applicable Requirements of Law, any notice made shall be deemed reasonable if sent to any Grantor, addressed as set forth in Article 8, at least 10 days prior to (a) the date of any such public sale or (b) the time after which any such private Disposition may be made. To the maximum extent permitted by applicable Requirements of Law, each Grantor waives all claims, damages and demands against the Administrative Agent arising out of the repossession, retention or sale of the Collateral, except those arising out of the bad faith, the gross negligence or willful misconduct of the Administrative Agent as determined by a court of competent jurisdiction in a final and non-appealable judgment. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Administrative Agent, any valuation, stay (other than an automatic stay under any applicable Debtor Relief Law), appraisal, extension, moratorium, redemption or similar law and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest, any notice (to the maximum extent permitted by applicable Requirements of Law) of any kind or all other requirements as to the time, place and terms of sale in connection with this Security Agreement or any Collateral.

Section 7.02. Limitation on the Administrative Agent’s and Secured Party’s Duty with Respect to the Collateral. The Administrative Agent shall not have any obligation to clean or otherwise prepare the Collateral for sale. The Administrative Agent shall use reasonable care with respect to the Collateral in its possession; provided that the Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to which it accords its own property. Neither the Administrative Agent nor any Secured Party shall have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Administrative Agent or of such Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that applicable Requirements of Law imposesimpose duties on the Administrative Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it would be commercially reasonable for the Administrative Agent, subject to Section 7.06, (a) to fail to incur expenses to prepare Collateral for Disposition or otherwise to transform raw material or work in process into finished goods or other finished products for Disposition, (b) to fail to obtain third party consents for access to Collateral to be Disposed of (unless expressly required under any applicable agreement), or to obtain or, if not required by any other lawRequirement of Law, to fail to obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of, (c) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of

 

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collection agencies and other collection specialists, (e) to advertise Dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to Dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) to Dispose of assets in wholesale rather than retail markets, (j) to disclaim Disposition warranties, such as title, possession or quiet enjoyment, (k) to purchase customary insurance or credit enhancements (which, subject to Section 9.03 of the ABL Credit Agreement, shall be at the cost of the Grantors) to insure the Administrative Agent against risks of loss in connection with any collection or Disposition of Collateral or to provide to the Administrative Agent a guaranteed return from the collection or Disposition of Collateral or (l) to the extent deemed appropriate by the Administrative Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Administrative Agent in the collection or Disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7.02 is to provide non-exhaustive indications of what actions or omissions by the Administrative Agent would be commercially reasonable in the Administrative Agent’s exercise of remedies with respect to the Collateral and that other actions or omissions by the Administrative Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7.02. Without limitation upon the foregoing, nothing contained in this Section 7.02 shall be construed to grant any rights to any Grantor or to impose any duties on the Administrative Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7.02.

 

Section 7.03. Compromises and Collection of Collateral. Each Grantor and the Administrative Agent recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered with respect to any Receivable. In view of the foregoing, each Grantor agrees that the Administrative Agent may at any time and from time to time, if an Event of Default existshas occurred and is continuing and upon prior written notice to the relevant Grantor, compromise with the obligor on any Receivable, accept in full payment of any Receivable such amount as the Administrative Agent in its sole discretion shall determine or abandon any Receivable, and any such action by the Administrative Agent shall be commercially reasonable so long as the Administrative Agent acts in good faith based on information known to it at the time it takes any such action.

Section 7.04. Administrative Agent Performance of Debtor Obligations. Without having any obligation to do so, the Administrative Agent may, at any time when an Event of Default existshas occurred and is continuing, but subject to the last paragraph of Section 7.01 of the ABL Credit Agreement, and upon prior written notice to the US Borrower, perform or pay any obligation which any Grantor has agreed to perform or pay under this Security Agreement and which obligation is due and unpaid and not being contested by such Grantor in good faith, and such Grantor shall reimburse the Administrative Agent for any amounts paid by the Administrative Agent pursuant to this Section 7.04. Each Grantor’s obligation to reimburse the Agent pursuant to the preceding sentence shall be as a Secured Obligation payable in accordance with Section 9.03(a) of the ABL Credit Agreement.

Section 7.05. No Waiver; Amendments; Cumulative Remedies. No delay or omission of the Administrative Agent (subject to the provisions of Section  8.01Article 8 of the ABL Credit Agreement) to exercise any right or remedy granted under this Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or an acquiescence therein, and no single or partial exercise of

 

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any such right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Grantors and the Administrative Agent with the concurrence or at the direction of the Lenders to the extent required under Section 9.02 of the ABL Credit Agreement and then only to the extent in such writing specifically set forth. All rights and remedies contained in this Security Agreement or afforded by law shall be cumulative and all shall be available to the Administrative Agent until the Termination Date.

Section 7.06. Limitation by Law; Severability of Provisions. All rights, remedies and powers provided in this Security Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of lawRequirements of Law, and all of the provisions of this Security Agreement are intended to be subject to all applicable mandatory provisions of lawRequirements of Law that may be controlling and to be limited to the extent necessary so that such provisions do not render this Security Agreement invalid, unenforceable or not entitled to be recorded or registered, in whole or in part. To the extent permitted by law, any provision of this Security Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions of this Security Agreement; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. If the exercise of rights or remedies with respect to certain Collateral and the enforcement of any security interests therein require any consents, authorizations approvals or licenses under any Requirement of Law, no such actions shall be taken unless and until all requisite consents, authorizations approvals or licenses have been obtained.

Section 7.07. Security Interest Absolute. All rights of the Administrative Agent hereunder, the security interests granted hereunder and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the ABL 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, (b) 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 ABL Credit Agreement, any other Loan Document or any other agreement or instrument relating to the foregoing, (c) any exchange, release or nonperfectionnon-perfection of any Lien on any Collateral, or any release or amendment or waiver of or consent under or departure from any guaranty, securing or guaranteeing all or any of the Secured Obligations, (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Grantor, (e) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Security Agreement or any other Loan Document or (f) 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 Security Agreement (other than a termination of any Lien contemplated by Section 7.12 or the occurrence of the Termination Date).

Section 7.08. Benefit of Security Agreement. The terms and provisions of this Security Agreement shall be binding upon and inure to the benefit of each Grantor, the Administrative Agent and the Secured Parties and their respective successors and permitted assigns (including all Persons who become bound as a debtor to this Security Agreement). No sales of participations, assignments, transfers, or other dispositions of any agreement governing the Secured Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Administrative Agent hereunder for the benefit of the Administrative Agent and the Secured Parties.

 

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Section 7.09. Survival of Representations. All representations and warranties of each Grantor contained in this Security Agreement shall survive the execution and delivery of this Security Agreement.[RESERVED]

Section 7.10. Additional Subsidiaries. Each Person required to become a Loan Party pursuant to and in accordance with Section 5.12 of the ABL Credit Agreement, shall, within the time periods specified in SectionsSection 5.12 of the ABL Credit Agreement, execute an instrument in the form of Exhibit AD. Upon the execution and delivery by the Administrative Agent and any Restricted Subsidiary of an instrument in the form of Exhibit AD in accordance with Section 5.12(a) of the ABL Credit Agreement, such Restricted Subsidiary shall become a Subsidiary PartyGrantor hereunder with the same force and effect as if such Restricted Subsidiary was originally named as a Subsidiary PartyGrantor herein. The execution and delivery of any such instrument shall not require the consent of any other Loan PartyGrantor hereunder. The rights and obligations of each Loan PartyGrantor hereunder shall remain in full force and effect notwithstanding the addition of any new Loan PartyGrantor as a party to this Security Agreement.

Section 7.11. Headings. The titles of and section headings in this Security Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Security Agreement.

Section 7.12. Termination or Release.(a)

(a) This Security Agreement shall continue in effect until the Termination Date, and the Liens granted hereunder shall automatically be released, in whole or in part, in the circumstances described in Section 8.01 of the ABL Credit Agreement, including Article 8 thereof.

(b) In connection with any termination or release pursuant to paragraph (a) above, the Administrative Agent shall promptly execute (if applicable) and deliver to any Grantor, at such Grantor’s expense, all UCC termination statements and similar documents that such Grantor shall reasonably request to evidence and/or effectuate such termination or release and deliver all applicable Pledged Collateral. Any execution and delivery of documents pursuant to this Section 7.12 shall be without recourse to or representation or warranty by the Administrative Agent or any Secured Party. The Borrowers shall reimburse the Administrative Agent for all reasonable and documented costs and out-of-pocket expenses, including anythe fees and expenses of one outside counsel (and, if necessary, of one local counsel in any relevant jurisdiction), incurred by it in connection with any action contemplated by this Section 7.12 pursuant to and to the extent required by Section 9.03(a) of the ABL Credit Agreement.

(c) At any time that a Grantor desires that the Agent take any action to acknowledge or give effect to any release pursuant to the foregoing Section 7.12(a), the Agent may require that such Grantor deliver to the Agent a certificate signed by a Responsible Officer of such Grantor stating that the release is permitted pursuant to such Section 7.12(a) and the terms of the Credit Agreement; provided that no such certificate shall be required in connection with the occurrence of the Termination Date. TheThe Administrative Agent shall have no liability whatsoever to any other Secured Party as the result of any release of Collateral by it in accordance with (or which the Administrative Agent in good faith believes to be in accordance with) the terms of this Section 7.12.

Section 7.13. Entire Agreement. This Security Agreement, together with the other Loan Documents and the Intercreditor Agreements, embodies the entire agreement and understanding between each Grantor and the Administrative Agent relating to the Collateral and supersedes all prior agreements and understandings between any Grantor and the Administrative Agent relating to the Collateral.

 

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Section 7.14. CHOICE OF LAW. THIS SECURITY AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SECURITY AGREEMENT, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 7.15. CONSENT TO JURISDICTION; CONSENT TO SERVICE OF PROCESS.

(a) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION (SUBJECT TO THE LAST SENTENCE OF THIS CLAUSE (A)) OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, IN SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENTS BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO 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 SECURITY AGREEMENT IN ANY SUCH COURT. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT AND LENDERSSECURED PARTIES RETAIN THE RIGHT TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS IN RESPECT OF THE COLLATERAL UNDER THIS SECURITY AGREEMENT.

(b) TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01 OF THE ABL CREDIT AGREEMENT. EACH PARTY TO THIS SECURITY AGREEMENT HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS SECURITY AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS SECURITY AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.

 

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Section 7.16. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 7.17. Indemnity. Each Grantor hereby agrees to indemnify the Indemnitees, as, and to the extent, set forth in Section 9.03 of the ABL Credit Agreement.

Section 7.18. Counterparts. This Security Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by facsimile or by email as a “.pdf” or “.tif” attachment or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Security Agreement.

Section 7.19. Waiver of Consequential Damages, Etc. To the extent permitted by applicable law, none of the Grantors or Secured Parties shall assert, and each hereby waives, any claim against each other or any Related Party thereof, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Security Agreement or any agreement or instrument contemplated hereby, except, in the case of any claim by any Indemnitee against any of the Grantors, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 7.17.

Section 7.20. Mortgages. In the case of a conflict between this Security Agreement and any Mortgage with respect to any Material Real Estate Asset that is also subject to a valid and enforceable Lien under the terms of such Mortgage (including Fixtures) securing the Secured Obligations, the terms of such Mortgage shall govern with respect to such Material Real Estate Asset and the terms of this Security Agreement shall control in the case of all other Collateral.

Section 7.20. Section 7.21. Successors and Assigns. Whenever in this Security Agreement any party hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party and all covenants, promises and agreements by or on behalf of any Grantor or the Administrative Agent in this Security Agreement shall bind and inure to the benefit of their respective successors and permitted assigns. Except in a transaction expressly permitted under the ABL Credit Agreement, no Grantor may assign any of its rights or obligations hereunder without the written consent of the Administrative Agent.

Section 7.21. Section 7.22. Survival of Agreement. Without limiting any provision of the ABL Credit Agreement or Section 7.17 hereof, all covenants, agreements, indemnities, representations and warranties made by the Grantors in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Security Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such Lender or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or

 

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knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended under the ABL Credit Agreement, and shall continue in full force and effect until the Termination Date, or with respect to any individual Grantor until such Grantor is otherwise released from its obligations under this Security Agreement in accordance with the terms hereof and the ABL Credit Agreement.

Section 7.22. Original Security Agreement Superseded. This Security Agreement amends and restates in its entirety the Original Security Agreement and upon the effectiveness of this Security Agreement, the terms and provisions of the Original Security Agreement shall, subject to this Section 7.22, be superseded hereby. All references to the “Security Agreement” contained in the Loan Documents delivered in connection with the ABL Credit Agreement or this Security Agreement shall, and shall be deemed to, refer to this Security Agreement. Notwithstanding the amendment and restatement of the Original Security Agreement by this Security Agreement, the Secured Obligations of the Borrowers and the other Loan Parties outstanding under the Original Security Agreement and the other Loan Documents as of the Closing Date shall remain outstanding and shall constitute continuing Secured Obligations and shall continue as such to be secured by the Collateral. Such Secured Obligations shall in all respects be continuing and this Security Agreement and the other Loan Documents shall not be deemed to evidence or result in a substitution, novation or repayment and reborrowing of such Secured Obligations which shall remain in full force and effect, except to any extent modified hereunder. The Liens securing payment of the Secured Obligations under the ABL Credit Agreement, as amended and restated in the form of this Security Agreement, shall in all respects be continuing, securing the payment and performance of all Secured Obligations.

ARTICLE 8

Notices

Section 8.01. Sending Notices. Any notice required or permitted to be given under this Security Agreement shall be delivered in accordance with Section 9.01 of the ABL Credit Agreement (it being understood and agreed that references in such Section to “herein”, ” “hereunder” and other similar terms shall be deemed to be references to this Security Agreement).

Section 8.02. Change in Address for Notices. The Administrative Agent, any Grantor and any Lender may change the address or facsimile number for service of notice upon it by a notice in writing to the other parties hereto.

ARTICLE 9

The Administrative Agent

Citibank has been appointed Administrative Agent for the Lenders hereunder pursuant to Section 8.01Article 8 of the ABL Credit Agreement and, by their acceptance of the benefits hereof, the other Secured Parties. It is expressly understood and agreed by the parties to this Security Agreement that any authority conferred upon the Administrative Agent hereunder is subject to the terms of the delegation of authority made by the Lenders to the Administrative Agent pursuant to the ABL Credit Agreement, and that the Administrative Agent has agreed to act (and any successor Administrative Agent shall act) as such hereunder only on the express conditions contained in such Section 8.01Article 8. Any successor Administrative Agent appointed pursuant to Section 8.01Article 8 of the ABL Credit Agreement shall be entitled to all the rights, interests and benefits of the Administrative Agent hereunder.

 

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By accepting the benefits of this Security Agreement and each other Loan Document, each Secured Party expressly acknowledges and agrees that this Security Agreement and each other Loan Document may be enforced only by the action of the Administrative Agent, and that such Secured Party shall not have any right individually to seek to enforce or to enforce this Security Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent for the benefit of the Secured Parties upon the terms of this Security Agreement and the other Loan Documents.

The Administrative Agent may rely on advice of counsel as to whether any or all UCC financing statements of the Grantors need to be amended as a result of any of the changes described in Section 5.01(i) of the ABL Credit Agreement. If any Grantor fails to provide information to the Administrative Agent about such changes on a timely basis, the Administrative Agent shall not be liable or responsible to any Secured Party for any failure to maintain a perfected security interest in such Grantor’s property constituting Collateral, for which the Administrative Agent needed to have information relating to such changes. The Administrative Agent shall have no duty to inquire about such changes if any Grantor does not inform the Administrative Agent of such changes, the Secured Parties acknowledging and agreeing that it would not be feasible or practical for the Administrative Agent to search for information on such changes if such information is not provided by any Grantor.

ARTICLE 10

Intercreditor Agreements Govern

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIENS AND SECURITY INTERESTS GRANTED TO THE AGENT FOR THE BENEFIT OF THE SECURED PARTIES PURSUANT TO THIS SECURITY AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE AGENT WITH RESPECT TO ANY COLLATERAL HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENTS. THE REQUIREMENTS OF THIS SECURITY AGREEMENT TO DELIVER PLEDGED COLLATERAL AND ANY CERTIFICATES, INSTRUMENTS OR DOCUMENTS IN RELATION THERETO TO THE AGENT OR ANY OBLIGATION WITH RESPECT TO THE DELIVERY, TRANSFER, CONTROL, NOTATION OR PROVISION OF VOTING RIGHTS WITH RESPECT TO ANY COLLATERAL SHALL BE DEEMED SATISFIED BY THE DELIVERY, TRANSFER, CONTROL, NOTATION OR PROVISION IN FAVOR OF THE APPLICABLE COLLATERAL AGENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENTS AND THIS SECURITY AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENTS SHALL GOVERN AND CONTROL.

 

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For the purposes of this Article 10, “Applicable Collateral Agent” means (i) with respect to ABL Collateral, the Agent (or other analogous term in another Acceptable Intercreditor Agreement, as applicable), (ii) with respect to Pari Passu Priority Collateral, the Designated Term Representative (as defined in the ABL Intercreditor Agreement) (or other analogous term in another Acceptable Intercreditor Agreement, as applicable) or (iii) if at any time there is no ABL Intercreditor Agreement, Pari Passu Intercreditor Agreement or other intercreditor agreement as described in the definition of Acceptable Intercreditor Agreement then in effect, the Agent.

Section 10.01. ABL Intercreditor Agreement.

(a) Notwithstanding anything herein to the contrary, the Liens granted to the Administrative Agent under this Security Agreement and the exercise of the rights and remedies of the Administrative Agent hereunder and under any other Collateral Document are subject to the provisions of the ABL Intercreditor Agreement. In the event of any conflict between the terms of the ABL Intercreditor Agreement and this Security Agreement or any other Collateral Document, the terms of the ABL Intercreditor Agreement shall govern and control.

(b) In accordance with the terms of the ABL Intercreditor Agreement, all Pari Passu Priority Collateral delivered to the Designated Term Representative shall be held by the Designated Term Representative as gratuitous bailee for the Administrative Agent and the Secured Parties solely for the purpose of perfecting the security interest granted under this Security Agreement. Notwithstanding anything herein to the contrary, prior to the Discharge of Pari Passu Obligations, to the extent any Grantor is required hereunder to deliver Pari Passu Priority Collateral to the Administrative Agent and is unable to do so as a result of having previously delivered such Pari Passu Priority Collateral to the Designated Term Representative in accordance with the terms of the Term Loan Documents, such Grantor’s obligations hereunder with respect to such delivery shall be deemed satisfied by the delivery to the Designated Term Representative, acting as gratuitous bailee of the Administrative Agent and the Secured Parties.

(c) Furthermore, at all times prior to the Discharge of Pari Passu Obligations, the Administrative Agent is authorized by the parties hereto to effect transfers of Pari Passu Priority Collateral at any time in its possession (and any “control” or similar agreements with respect to Pari Passu Priority Collateral) to the Designated Term Representative.

(d) Notwithstanding anything to the contrary herein but subject to the ABL Intercreditor Agreement, the Perfection Exceptions, and the Collateral and Guarantee Requirement, in the event the Term Loan Documents provide for the grant of a security interest or pledge over the assets of any Grantor and such assets do not otherwise constitute Collateral (other than Excluded Assets) under this Security Agreement or any other Loan Document, such Grantor shall (i) promptly grant a security interest in or pledge such assets to secure the Secured Obligations, (ii) promptly take any actions necessary to perfect such security interest or pledge to the extent set forth in the Term Loan Documents and (iii) take all other steps reasonably requested by the Administrative Agent in connection with the foregoing.

(e) Nothing contained in the ABL Intercreditor Agreement shall be deemed to modify any of the provisions of this Security Agreement, which, as among the Grantors and the Administrative Agent shall remain in full force and effect in accordance with its terms.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, each Grantor and the Administrative Agent have executed this Security Agreement as of the date first above written.

 

SIGNATURE PAGE TO ABL PLEDGE AND SECURITY AGREEMENT

 

34

SIGNATURE PAGE TO ABL PLEDGE AND SECURITY AGREEMENT

 

35

Signature Page to ABL Pledge and Security Agreement

SIGNATURE PAGE TO TERM LOANABL PLEDGE AND SECURITY AGREEMENT

EXHIBIT A

FORM OF ABL COPYRIGHT SECURITY AGREEMENT

ABL COPYRIGHT SECURITY AGREEMENT dated as of [•], 20[•] (this “Copyright Security Agreement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

Reference is made to that certain ABL Credit Agreement, dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]¹ to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the ABL Credit Agreement and Section 4.03(c) of the Security Agreement, the parties hereto agree as follows:

 

 

1	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

A-1

SECTION 1. Terms. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of [such][the] Grantor, and regardless of where located (collectively, the “Copyright Collateral”):

(a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished, registrations and copyright applications (including but not limited to the registrations and applications set forth on Schedule I hereto); (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past, present or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing.

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Copyright Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Copyright Security Agreement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Copyright Security Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 5. Counterparts. This Copyright Security Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

A-2

IN WITNESS WHEREOF, the parties hereto have duly executed this Copyright Security Agreement as of the day and year first above written.

 

[Signature Page to ABL Copyright Security Agreement]

[Signature Page to ABL Copyright Security Agreement]

SCHEDULE I

COPYRIGHTS

 

REGISTERED OWNER		REGISTRATION NUMBER		REGISTRATION DATE		TITLE

COPYRIGHT APPLICATIONS

 

APPLICANT		APPLICATION NUMBER		FILING DATE		TITLE

EXCLUSIVE COPYRIGHT LICENSES

ANNEX A TO ABL COPYRIGHT SECURITY AGREEMENT

FORM OF ABL COPYRIGHT SECURITY AGREEMENT SUPPLEMENT

ABL COPYRIGHT SECURITY AGREEMENT SUPPLEMENT dated as of [•], 20[•] (this “Copyright Security Agreement Supplement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

Reference is made to that certain ABL Credit Agreement, dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]² to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

Reference is also made to that certain ABL Copyright Security Agreement, dated as of [•], 20[•] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Copyright Security Agreement”) by and [between][among] the Grantor[s] thereto and the Administrative Agent for the Secured Parties (as defined in the ABL Credit Agreement).

 

2	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

Annex A-1

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Under the terms of the Security Agreement, [each][the] Grantor has granted to the Administrative Agent for the benefit of the Secured Parties a security interest in the Additional Copyright Collateral (as defined below) and has agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this Copyright Security Agreement Supplement. Now, therefore, the parties hereto agree as follows:

SECTION 1. Terms . Capitalized terms used in this Copyright Security Agreement Supplement and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of [such][the] Grantor, and regardless of where located (collectively, the “Additional Copyright Collateral”):

(a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished, registrations and copyright applications (including but not limited to the registrations and applications set forth on Schedule I hereto); (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past, present or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing.

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Additional Copyright Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Copyright Security Agreement Supplement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Copyright Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Annex A-2

SECTION 5. Counterparts. This Copyright Security Agreement Supplement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

Annex A-3

IN WITNESS WHEREOF, the parties hereto have duly executed this Copyright Security Agreement Supplement as of the day and year first above written.

 

[Signature Page to ABL Copyright Security Agreement Supplement]

[Signature Page to ABL Copyright Security Agreement Supplement]

SCHEDULE I

COPYRIGHTS

 

REGISTERED OWNER		REGISTRATION NUMBER		REGISTRATION DATE		TITLE

COPYRIGHT APPLICATIONS

 

APPLICANT		APPLICATION NUMBER		FILING DATE		TITLE

EXCLUSIVE COPYRIGHT LICENSES

EXHIBIT B

FORM OF ABL PATENT SECURITY AGREEMENT

ABL PATENT SECURITY AGREEMENT dated as of [•], 20[•] (this “Patent Security Agreement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

Reference is made to that certain ABL Credit Agreement, dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]³ to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

Reference is also made to that certain ABL Copyright Security Agreement, dated as of [●], 20[●] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Copyright Security Agreement”) by and [between][among] the Grantor[s] thereto and the Administrative Agent for the Secured Parties (as defined in the ABL Credit Agreement).

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the ABL Credit Agreement and Section 4.03(c) of the Security Agreement, the parties hereto agree as follows:

 

3	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

B-1

SECTION 1. Terms. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of [such][the] Grantor, and regardless of where located (collectively, the “Patent Collateral”):

(a) any and all patents and patent applications (including but not limited to the patents and patent applications listed on Schedule I hereto); (b) all inventions described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past, present and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing, in each case, excluding any Excluded Assets.

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Patent Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Patent Security Agreement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Patent Security Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 5. Counterparts. This Patent Security Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

B-2

IN WITNESS WHEREOF, the parties hereto have duly executed this Patent Security Agreement as of the day and year first above written.

 

[Signature Page to ABL Patent Security Agreement]

[Signature Page to ABL Patent Security Agreement]

SCHEDULE I

PATENTS

 

REGISTERED OWNER		PATENT NO.		ISSUE DATE		TITLE

PATENT APPLICATIONS

 

APPLICANT		APPLICATION NO.		FILING DATE		TITLE

 

EXHIBIT A

ANNEX A TO ABL PATENT SECURITY AGREEMENT

[FORM OF] ABL PATENT SECURITY AGREEMENT JOINDERSUPPLEMENT

ABL PATENT SECURITY AGREEMENT SUPPLEMENT dated as of [•], 20[•] (this “Patent Security Agreement Supplement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

A. SUPPLEMENT NO. [•]Reference is made to that certain ABL Credit Agreement, dated as of [•] (this “Supplement”), to the ABL Pledge and Security Agreement dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “SecurityABL Credit Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the “US Borrower”) prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“Holdings”), the Subsidiary PartiesCPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party hereto (Holdings, the Subsidiary Parties and the US Borrower collectively, the “Loan Parties”) and Citibank, N.A., in its capacity as administrative agent and collateral agent for the Secured Parties (in such capacities, the “thereto and the Administrative Agent”).

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]⁴ to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

 

4	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

Annex A-1

Reference is also made to that certain ABL Patent Security Agreement, dated as of [•], 20[•] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Patent Security Agreement”) by and [between][among] the Grantor[s] thereto and the Administrative Agent for the Secured Parties.

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Under the terms of the Security Agreement, [each][the] Grantor has granted to the Administrative Agent for the benefit of the Secured Parties a security interest in the Additional Patent Collateral (as defined below) and has agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this Patent Security Agreement Supplement. Now, therefore, the parties hereto agree as follows:

SECTION 1. Terms. Capitalized terms used in this Patent Security Agreement Supplement and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of [such][the] Grantor, and regardless of where located (collectively, the “Additional Patent Collateral”):

(a) any and all patents and patent applications (including but not limited to the patents and patent applications listed on Schedule I hereto); (b) all inventions described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past, present and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing, in each case, excluding any Excluded Assets.

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Additional Patent Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Patent Security Agreement Supplement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Patent Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 5. Counterparts. This Patent Security Agreement Supplement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

Annex A-2

IN WITNESS WHEREOF, the parties hereto have duly executed this Patent Security Agreement Supplement as of the day and year first above written.

 

[Signature Page to ABL Patent Security Agreement Supplement]

[Signature Page to ABL Patent Security Agreement Supplement]

SCHEDULE I

PATENTS

 

REGISTERED OWNER		PATENT NO.		ISSUE DATE		TITLE

PATENT APPLICATIONS

 

APPLICANT		APPLICATION NO.		FILING DATE		TITLE

EXCLUSIVE COPYRIGHT LICENSES

EXHIBIT C

FORM OF ABL TRADEMARK SECURITY AGREEMENT

ABL TRADEMARK SECURITY AGREEMENT dated as of [•], 20[•] (this “Trademark Security Agreement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

B. Reference is made to thethat certain ABL Credit Agreement, dated as of May 4, 2016, (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among the Loan PartiesPQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, the lendersCPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]⁵ to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the ABL Credit Agreement and Section 4.03(c) of the Security Agreement, the parties hereto agree as follows:

 

 

5	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

C-1

SECTION 1. Terms. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest in, to and under all of the following assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of [such][the] Grantor, and regardless of where located (collectively, the “Trademark Collateral”):

(a) all trademarks (including service marks), common law marks, trade names, trade dress, domain names and logos, slogans and other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof (including but not limited to the registrations and applications listed on Schedule I hereto); and the goodwill of the business connected with the use of and symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past, present and future infringements or dilutions thereof; (d) all rights to sue for past, present, and future infringements or dilutions of any of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all rights corresponding to any of the foregoing. Notwithstanding anything herein to the contrary, in no event shall the Trademark Collateral include (i) any foreign IP Rights and any intent-to-use Trademark application prior to the filing of a “Statement of Use” or an “Amendment to Allege Use” with respect thereto, only to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark application or any registration issuing therefrom under applicable law, or (ii) any other Excluded Assets.

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Trademark Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Trademark Security Agreement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Trademark Security Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 5. Counterparts. This Trademark Security Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

C-2

IN WITNESS WHEREOF, the parties hereto have duly executed this Trademark Security Agreement as of the day and year first above written.

 

[Signature Page to ABL Trademark Copyright Security Agreement]

[Signature Page to ABL Trademark Security Agreement]

SCHEDULE I

TRADEMARKS

 

REGISTERED OWNER		REGISTRATION NUMBER		REGISTRATION DATE		TRADEMARK

TRADEMARK APPLICATIONS

 

APPLICANT		APPLICATION NO.		FILING DATE		TRADEMARK

ANNEX A TO ABL TRADEMARK SECURITY AGREEMENT

FORM OF ABL TRADEMARK SECURITY AGREEMENT SUPPLEMENT

ABL TRADEMARK SECURITY AGREEMENT SUPPLEMENT dated as of [•], 20[•] (this “Trademark Security Agreement Supplement”), by and [between][among] [•], a [•] ([each, a][the] “Grantor”) and Citibank, N.A., as administrative agent and collateral agent (together with its successors and permitted assigns in such capacities, the “Administrative Agent”) for the Secured Parties (as defined in the ABL Credit Agreement).

Reference is made to that certain ABL Credit Agreement, dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to the Restatement Effective Date, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

Reference is also made[ to that certain Joinder No. [•] dated as of [•], 20[•], by [and among ][•] [and [•] ]and acknowledged and agreed by the Administrative Agent,]⁶ to that certain ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among the Borrowers, CPQ, the other Grantors (as defined therein) and the Administrative Agent for the Secured Parties under and as defined in the ABL Credit Agreement.

Reference is also made to that certain ABL Trademark Security Agreement, dated as of [•], 20[•] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Trademark Security Agreement”) by and [between][among] the Grantor[s] thereto and the Administrative Agent for the Secured Parties.

 

 

6	To be used after a Joinder by a new Restricted Subsidiary Grantor.

 

Annex A-1

The Lenders (as defined in the ABL Credit Agreement) have extended credit to the Borrowers subject to the terms and conditions set forth in the ABL Credit Agreement. Under the terms of the Security Agreement, [each][the] Grantor has granted to the Administrative Agent for the benefit of the Secured Parties a security interest in the Additional Trademark Collateral (as defined below) and has agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this Trademark Security Agreement Supplement. Now, therefore, the parties hereto agree as follows

SECTION 1. Terms. Capitalized terms used in this Trademark Security Agreement Supplement and not otherwise defined herein have the meanings specified in the Security Agreement.

SECTION 2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage, transfer and grant to the Administrative Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured Parties, a continuing security interest in all of its right, title or interest in, to or under all of the following assets, whether now owned or at any time hereafter acquired by or arising in favor of the [such][the] Grantor and regardless of where located (collectively, the “Additional Trademark Collateral”):

(a) all trademarks (including service marks), common law marks, trade names, trade dress, domain names and logos, slogans and other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof (including but not limited to the registrations and applications listed on Schedule I hereto); and the goodwill of the business connected with the use of and symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past, present and future infringements or dilutions thereof; (d) all rights to sue for past, present, and future infringements or dilutions of any of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all rights corresponding to any of the foregoing. Notwithstanding anything herein to the contrary, in no event shall the Additional Trademark Collateral include (i) any foreign IP Rights and any intent-to-use Trademark application prior to the filing of a “Statement of Use” or an “Amendment to Allege Use” with respect thereto, only to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark application or any registration issuing therefrom under applicable law, or (ii) any other Excluded Assets.

 

Annex A-2

SECTION 3. Security Agreement. The security interests granted to the Administrative Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Administrative Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the Additional Trademark Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Trademark Security Agreement Supplement and the Security Agreement, the terms of the Security Agreement shall govern.

SECTION 4. Governing Law. This Trademark Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 5. Counterparts. This Trademark Security Agreement Supplement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

[Signature Pages Follow]

 

Annex A-3

IN WITNESS WHEREOF, the parties hereto have duly executed this Trademark Security Agreement Supplement as of the day and year first above written.

 

[Signature Page to ABL Trademark Security Agreement Supplement]

[Signature Page to ABL Trademark Security Agreement Supplement]

SCHEDULE I

TRADEMARKS

 

REGISTERED OWNER		REGISTRATION NUMBER		REGISTRATION DATE		TRADEMARK

TRADEMARK APPLICATIONS

 

APPLICANT		APPLICATION NO.		FILING DATE		TRADEMARK

EXHIBIT D

FORM OF ABL SECURITY AGREEMENT JOINDER

JOINDER NO. [•] dated as of [•] (this “Joinder”), to the ABL Pledge and Security Agreement, dated as May 4, 2016 (as amended and restated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by and among PQ Corporation, a Pennsylvania corporation (“PQ”) as the US Borrower prior to consummation of the Performance Chemicals Sale, Ecovyst Catalyst Technologies LLC, a Delaware limited liability company (“Ecovyst”) as the US Borrower on and after consummation of the Performance Chemicals Sale, the Canadian Borrowers, the European Borrowers (and together with the Canadian Borrowers and the US Borrower, the “Borrowers”), CPQ Midco I Corporation, a Delaware corporation (“CPQ”), as Holdings prior to the consummation of the Holdings Assignment, the other Grantors (as defined below) from time to time party hereto and Citibank, N.A. (“Citibank”), in its capacity as administrative agent and collateral agent (together with its successors and permitted assigns, in such capacities, the “Administrative Agent”) for the Secured Parties.

A. Reference is made to that certain ABL Credit Agreement, dated as of May 4, 2016 (as amended and restated by the First Amendment Agreement dated as of March 20, 2020, as amended by the Second Amendment Agreement dated as of December 22, 2020, as amended and restated by the Third Amendment Agreement dated as of June 9, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), by and among PQ as the US Borrower prior to the Restatement Effective Date, Ecovyst as the US Borrower upon the Restatement Effective Date, the Canadian Borrowers, the European Borrowers, CPQ, as Holdings prior to the consummation of the Holdings Assignment, the Lenders from time to time party thereto and the Administrative Agent.

B. C. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the ABL Credit Agreement or the Security Agreement, as applicable.

C. D. [The Grantors have entered into the Security Agreement in order to induce the Lenders to make Loans.][Each] undersigned Restricted Subsidiary ([each a][the] “New Subsidiary”) is executing this Joinder in accordance with Section 7.10 of the Security Agreement and Section 5.12 of the ABL Credit Agreement provide, each of which require that each additional Domestic SubsidiariesSubsidiary of the US Borrower may become Subsidiary Partiesbecomes a Grantor under the Security Agreement by

 

D-1

executing and delivering an instrument in the form of this Supplement. The undersigned Restricted Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Party under the Security AgreementJoinder in order to induce the Lenders to make additional Loans and as consideration for Loans previously made.

Accordingly, the Administrative Agent and [each][the] New Subsidiary agree as follows:

SECTION 1. In accordance with Section 7.10 of the Security Agreement, [the][each] New Subsidiary by its signature below becomes a Subsidiary Party and a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Subsidiary PartyGrantor, and [the][each] New Subsidiary hereby (a) agrees to all the terms and provisions of the Security Agreement applicable to it as a Subsidiary Party and Grantor thereunder and (b) represents and warrants as of the date hereof that the applicable representations and warranties made by it as a Grantor thereunder on the date hereof that are qualified as to materiality are true and correct in all respects on and as of the date hereof and those that are not so qualified are true and correct in all material respects on and as of the date hereof; it being understood and agreed that any representation or warranty that expressly relates to an earlier date shall be deemed to refer to the date hereof. In furtherance of the foregoing, [the][each] New Subsidiary, as security for the payment and performance in full of the Secured Obligations, does hereby create and grant to thepledges, collaterally assigns, mortgages, transfers and grants to the Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, their successors and permitted assigns, a security interest in and Lien on all of [the][each] New Subsidiary’s right, title and interest in and to the Collateral of [the][each] New Subsidiary. Each to the extent provided in Section 2.01 of the Security Agreement. Upon the effectiveness of this Joinder, each reference to a “Grantor” and “Subsidiary PartyGuarantor” in the Security Agreement shall be deemed to include [the][each] New Subsidiary. The Security Agreement is hereby incorporated herein by reference.

SECTION 2. [The][Each] New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this SupplementJoinder has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to the Legal Reservations.

SECTION 3. This SupplementJoinder may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This SupplementJoinder shall become effective when the Administrative Agent shall have received a counterpart of this SupplementJoinder that bears the signature of [the][each] New Subsidiary and the Administrative Agent has executed a counterpart hereof. Delivery of an executed signature page to this SupplementJoinder by facsimile transmission or by email as a “.pdf” or “.tiftiff” attachment shall be as effective as delivery of a manually signed counterpart of this SupplementJoinder.

 

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SECTION 4. Attached hereto is a duly prepared, completed and executed Perfection Certificate with respect to [the][each] New Subsidiary, and [the][each] New Subsidiary hereby represents and warrants that the information set forth therein is correct and complete in all material respects as of the date hereof.

SECTION 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.

SECTION 6. THIS SUPPLEMENTTHIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 7. In case any one or more of the provisions contained in this SupplementJoinder is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Security Agreement shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 8.01 of the Security Agreement.

SECTION 9. [The][Each] New Subsidiary agrees to reimburse the Administrative Agent for its expenses in connection with this SupplementJoinder, including the fees, other charges and disbursements of counsel in accordance with Section 9.03(a) of the ABL Credit Agreement.

SECTION 10. This SupplementJoinder shall constitute a Loan Document, under and as defined in, the ABL Credit Agreement.

[Signature pages follow]

 

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