baringsbdcsecurityagreem






                                                       Exhibit 10.2    GUARANTEE, PLEDGE AND SECURITY AGREEMENT                        dated as of                     February 21, 2019                         among                   BARINGS BDC, INC.,                      as Borrower,        the SUBSIDIARY GUARANTORS party hereto,                   ING CAPITAL LLC,  as Revolving Administrative Agent for the Revolving Lenders,               each FINANCING AGENT and    DESIGNATED INDEBTEDNESS HOLDER party hereto                           and                   ING CAPITAL LLC,                   as Collateral Agent  





 






                                                                                                     TABLE OF CONTENTS                                                                       Page   Section 1.  Definitions, Etc. ........................................................................................... 2        1.01  Certain Uniform Commercial Code Terms ................................................. 2        1.02  Additional Definitions ................................................................................. 2        1.03  Terms Generally ........................................................................................ 21   Section 2.  Representations and Warranties ................................................................ 22        2.01  Organization .............................................................................................. 22        2.02  Authorization; Enforceability .................................................................... 22        2.03  Governmental Approvals; No Conflicts .................................................... 22        2.04  Title ............................................................................................................ 23        2.05  Names, Etc. ................................................................................................ 23        2.06  Changes in Circumstances ......................................................................... 23        2.07  Pledged Equity Interests ............................................................................ 23        2.08  Promissory Notes ....................................................................................... 24        2.09  Deposit Accounts and Securities Accounts ............................................... 24        2.10  Commercial Tort Claims ........................................................................... 24        2.11  Intellectual Property and Licenses ............................................................. 24   Section 3.  Guarantee ................................................................................................... 26        3.01  The Guarantee ............................................................................................ 26        3.02  Obligations Unconditional ......................................................................... 26        3.03  Reinstatement ............................................................................................ 27        3.04  Subrogation ................................................................................................ 27        3.05  Remedies .................................................................................................... 28        3.06  Continuing Guarantee ................................................................................ 28        3.07  Instrument for the Payment of Money ....................................................... 28        3.08  Rights of Contribution ............................................................................... 28        3.09  General Limitation on Guarantee Obligations ........................................... 29        3.10  Indemnity by Borrower .............................................................................. 29        3.11  Keepwell .................................................................................................... 29   Section 4.  Collateral .................................................................................................... 30   Section 5.  Certain Agreements Among Secured Parties ............................................ 31        5.01  Priorities; Additional Collateral ................................................................. 31        5.02  Turnover of Collateral ............................................................................... 32        5.03  Cooperation of Secured Parties ................................................................. 32        5.04  Limitation upon Certain Independent Actions by Secured Parties ............ 32        5.05  No Challenges ............................................................................................ 33        5.06  Rights of Secured Parties as to Secured Obligations ................................. 33        5.07  General Application ................................................................................... 33   Section 6.  Designation of Designated Indebtedness; Recordkeeping, Etc. ................ 34                                       i  





 






         6.01  Designation of Other Secured Indebtedness .............................................. 34        6.02  Recordkeeping ........................................................................................... 35   Section 7.  Covenants of the Obligors ......................................................................... 35        7.01  Delivery and Other Perfection ................................................................... 35        7.02  Name; Jurisdiction of Organization, Etc. .................................................. 37        7.03  Other Liens, Financing Statements or Control .......................................... 37        7.04  Transfer of Collateral ................................................................................. 37        7.05  Additional Subsidiary Guarantors ............................................................. 37        7.06  Control Agreements ................................................................................... 38        7.07  Revolving Credit Agreement ..................................................................... 38        7.08  Pledged Equity Interests ............................................................................ 39        7.09  Voting Rights, Dividends, Etc. in Respect of Pledged Interests ............... 40        7.10  Commercial Tort Claims ........................................................................... 42        7.11  Intellectual Property ................................................................................... 42   Section 8.  Acceleration Notice; Remedies; Distribution of Collateral ....................... 44        8.01  Notice of Acceleration ............................................................................... 44        8.02  Preservation of Rights ................................................................................ 44        8.03  Events of Default, Etc. ............................................................................... 44        8.04  Deficiency .................................................................................................. 46        8.05  Private Sale ................................................................................................ 46        8.06  Application of Proceeds ............................................................................. 46        8.07  Attorney-in-Fact ........................................................................................ 47        8.08  Grant of Intellectual Property License ....................................................... 48   Section 9.  The Collateral Agent .................................................................................. 48        9.01  Appointment; Powers and Immunities ...................................................... 48        9.02  Information Regarding Secured Parties ..................................................... 49        9.03  Reliance by Collateral Agent ..................................................................... 49        9.04  Rights as a Secured Party .......................................................................... 50        9.05  Indemnification .......................................................................................... 50        9.06  Non-Reliance on Collateral Agent and Other Secured Parties .................. 51        9.07  Failure to Act ............................................................................................. 51        9.08  Resignation of Collateral Agent ................................................................ 51        9.09  Agents and Attorneys-in-Fact .................................................................... 52   Section 10. Miscellaneous ............................................................................................ 52        10.01 Notices ....................................................................................................... 52        10.02 No Waiver .................................................................................................. 52        10.03 Amendments to Security Documents, Etc. ................................................ 53        10.04 Expenses; Indemnity; Damage Waiver ...................................................... 55        10.05 Successors and Assigns .............................................................................. 56        10.06 Counterparts; Integration; Effectiveness; Electronic Execution ................ 56        10.07 Severability ................................................................................................ 57        10.08 Governing Law; Jurisdiction ...................................................................... 57        10.09 WAIVER OF JURY TRIAL ...................................................................... 58                                       ii  





 






         10.10 Headings ..................................................................................................... 58        10.11 Termination ................................................................................................ 58        10.12 Confidentiality ........................................................................................... 59     ANNEX 2.05  –     Obligor Information  ANNEX 2.07  –     Pledged Equity Interests  ANNEX 2.08  –     Pledged Debt  ANNEX 2.09  –     Accounts  ANNEX 2.10  –     Commercial Tort Claims  ANNEX 2.11  –     Copyrights, Patents and Trademarks    EXHIBIT A   –     Form of Notice of Designation  EXHIBIT B   –     Form of Guarantee Assumption Agreement  EXHIBIT C   –     Form of Intellectual Property Security Agreement  EXHIBIT D   –     Form of Pledge Supplement  EXHIBIT E   –     Form of Joinder Agreement for Designated Indebtedness                                           iii  





 






               GUARANTEE, PLEDGE AND SECURITY AGREEMENT, dated as of  February 21, 2019 (as amended, supplemented, or otherwise modified from time to time,  this “Agreement”), among BARINGS BDC, INC., a corporation duly organized and  validly existing under the laws of the State of Maryland (the “Borrower”), Energy  Hardware Holdings, Inc., a corporation duly organized and validly existing under the  laws of the State of Delaware (“Energy Hardware”) and each other entity that becomes a  “SUBSIDIARY GUARANTOR” after the date hereof pursuant to Section 7.05 hereof  (collectively with Energy Hardware, the “Subsidiary Guarantors” and, together with the  Borrower, the “Obligors”), ING CAPITAL LLC, as administrative agent for the  Revolving Lenders (as hereinafter defined) (in such capacity, together with its successors  in such capacity, the “Revolving Administrative Agent”), each “Financing Agent” (as  hereinafter defined) or “Designated Indebtedness Holder” (as hereinafter defined) that  becomes a party hereto after the date hereof pursuant to Section 6.01 hereof and ING  CAPITAL LLC, as collateral agent for the Secured Parties hereinafter referred to (in such  capacity, together with its successors in such capacity, the “Collateral Agent”).                              W I T N E S S E T H:               WHEREAS, concurrently with the execution and delivery of this  Agreement, the Borrower, the Revolving Lenders and the Revolving Administrative  Agent are entering into the Revolving Credit Agreement (as hereinafter defined),  pursuant to which the Revolving Lenders have agreed to extend credit (by means of  revolving loans and letters of credit) to the Borrower from time to time, and the  Revolving Lenders consented to the Borrower and the Revolving Administrative Agent  entering into this Agreement;               WHEREAS, the Borrower may  from time to time after the date hereof  wish to incur additional indebtedness permitted by the Revolving Credit Agreement that  the Borrower designates as “Designated Indebtedness” (as hereinafter defined) under this  Agreement, which indebtedness is to be entitled to the benefits of this Agreement;               WHEREAS, to induce (i) the Revolving Lenders to extend credit to the  Borrower under the Revolving Credit Agreement and (ii) the holders of any “Designated  Indebtedness” to extend other credit to the Borrower, the Borrower wishes to provide  (a) for certain of its Subsidiaries from time to time to become parties hereto and to  guarantee the payment of the Guaranteed Obligations (as hereinafter defined), and (b) for  the Borrower and the Subsidiary Guarantors to provide collateral security for the Secured  Obligations (as hereinafter defined);               WHEREAS, the Revolving Administrative Agent (on behalf of itself and  the Revolving Lenders), any Financing Agent (on behalf of itself and the holders of the  “Designated Indebtedness” for which it serves as agent or trustee) and each Designated  Indebtedness Holder that becomes a party hereto pursuant to Section 6.01 are or will be  entering into this Agreement for the purpose of setting forth their respective rights to the  Collateral (as hereinafter defined); and      





 






               WHEREAS, the Obligors and the Secured Parties agree that the Collateral  Agent shall administer the Collateral, and the Collateral Agent is willing to so administer  the Collateral, pursuant to the terms and conditions set forth herein.                NOW THEREFORE, the parties hereto agree as follows:               Section 1.  Definitions, Etc.                1.01  Certain Uniform Commercial Code Terms.  As used herein, the  terms “Account”, “Chattel Paper”, “Commodity Account”, “Commodity Contract”,  “Deposit Account”, “Document”, “Electronic Chattel Paper”, “Equipment”, “General  Intangible”, “Goods”, “Instrument”, “Inventory”, “Investment Property”, “Letter-of- Credit Right”, “Money”, “Proceeds”, “Promissory Note”, “Supporting Obligations” and  “Tangible Chattel Paper” have the respective meanings set forth in Article 9 of the  NYUCC (as defined herein), and the terms “Certificated Security”, “Clearing  Corporation”, “Entitlement Holder”, “Financial Asset”, “Indorsement”, “Securities  Account”,  “Securities Intermediary”, “Security”, “Security Entitlement” and  “Uncertificated Security” have the respective meanings set forth in Article 8 of the  NYUCC.               1.02  Additional Definitions.  In addition, as used herein:               “Acceleration” means the Revolving Credit Agreement Obligations or any  other Secured Obligations of any Secured Party having been declared (or become) due  and payable in full in accordance with the applicable Debt Documents following the  occurrence of an event of default or an analogous event by the Borrower and expiration  of any applicable grace period with respect thereto.               “Acceleration Notice” has the meaning assigned to such term in Section  8.01.               “Affiliate” means, with respect to a specified Person, another Person that  directly, or indirectly through one or more intermediaries, Controls or is Controlled by or  is under common Control with the Person specified.  Anything herein to the contrary  notwithstanding, the term “Affiliate” of an Obligor shall not include any Person that  constitutes an Investment held by any Obligor in the ordinary course of business.               “Agent Members” means members of, or participants in, a depositary,  including the Depositary, Euroclear or Clearstream.               “Agreement” has the meaning assigned to such term in the preamble of  this Agreement.               “Bankruptcy Code” means Title 11 of the United States Code entitled  “Bankruptcy,” as in effect from time to time, or any successor statute.               “Belgium” means the Kingdom of Belgium.                                        2  





 






               “Borrower” has the meaning assigned to such term in the preamble of this  Agreement.               “Borrowing Base” has the meaning assigned to such term in Section 5.13  of the Revolving Credit Agreement.               “Business Day” means any day that is not a Saturday, Sunday or other day  on which commercial banks in New York City are authorized or required by law to  remain closed.               “Capital Lease Obligations” of any Person means the obligations of such  Person to pay rent or other amounts under any lease of (or other arrangement conveying  the right to use) real or personal property, or a combination thereof, which obligations are  required to be classified and accounted for as capital leases on a balance sheet of such  Person under GAAP, and the amount of such obligations shall be the capitalized amount  thereof determined in accordance with GAAP.               “CFC” means a Subsidiary that is a “controlled foreign corporation”  directly or indirectly owned by an Obligor within the meaning of Section 957 of the  Code.               “Class” means, separately, each of the following: (a) the Revolving  Lenders as a group and (b) the Designated Indebtedness Holders holding a Series of  Designated Indebtedness as a group.               “Clearing Corporation Security” means a security that is registered in the  name of, or Indorsed to, a Clearing Corporation or its nominee or is in the possession of  the Clearing Corporation in bearer form or Indorsed in blank by an appropriate Person.               “Clearstream” means Clearstream Banking, société anonyme, a  corporation organized under the laws of the Grand Duchy of Luxembourg.               “Clearstream Security” means a Security that (a) is a debt or equity  security and (b) is capable of being transferred to an Agent Member’s account at  Clearstream pursuant to the definition of “Delivery”, whether or not such transfer has  occurred.               “Code” means the U.S. Internal Revenue Code of 1986, as amended from  time to time.               “Collateral” has the meaning assigned to such term in Section 4.               “Commercial Tort Claims” means all “commercial tort claims” (as defined  in Article 9 of the NYUCC) held by any Obligor, including all commercial tort claims  listed on Annex 2.10 hereto.               “Commodity Exchange Act” means the Commodity Exchange Act (7  U.S.C. §1 et seq.), as amended from time to time, and any successor statute.                                       3  





 






               “Control” means the possession, directly or indirectly, of the power to  direct or cause the direction of the management or policies of a Person, whether through  the ability to exercise voting power, by contract or otherwise.  “Controlling” and  “Controlled” have meanings correlative thereto.               “Control Agreement” means that certain Control Agreement, dated as of  the date hereof, by and among the Borrower, the Collateral Agent and the Custodian.               “Copyright Licenses” means any and all agreements providing for the  granting of any right in or to Copyrights (whether such Obligor is licensee or licensor  thereunder) including each agreement referred to in Annex 2.11 hereto.               “Copyrights” means all United States and foreign copyrights (including  community designs), including but not limited to copyrights in software and databases,  and all “Mask Works” (as defined under 17 U.S.C. 901 of the U.S. Copyright Act),  whether registered or unregistered, and, with respect to any and all of the foregoing: (i)  all registrations and applications therefor including the registrations and applications  referred to in Annex 2.11 hereto, (ii) all extensions and renewals thereof, (iii) all rights  corresponding thereto throughout the world, (iv) all rights to sue for past, present and  future infringements thereof, and (v) all proceeds of the foregoing, including licenses,  royalties, income, payments, claims, damages and proceeds of suit.               “Credit Facility Loans” means debt obligations (including, without  limitation, term loans, revolving loans, debtor-in-possession financings, the funded  portion of revolving credit lines and letter of credit facilities and other similar loans and  investments including interim loans, bridge loans and senior subordinated loans) that are  generally provided under a syndicated loan or credit facility or pursuant to any loan  agreement or other similar credit facility, whether or not syndicated.               “Custodian” means State Street Bank and Trust Company, or any other  financial institution mutually agreeable to the Collateral Agent and the Borrower, as  custodian holding documentation for Portfolio Investments, and accounts of the Obligors  holding Portfolio Investments, on behalf of the Obligors and, pursuant to the Control  Agreement, the Collateral Agent.  The term “Custodian” includes any agent or sub- custodian acting on behalf of the Custodian pursuant to the terms of the Custodian  Agreement.               “Debt Documents” means, collectively, the Revolving Loan Documents,  the Designated Indebtedness Documents and any Hedging Agreement evidencing or  relating to any Hedging Agreement Obligations, and (without duplication) the Security  Documents.               “Default” means any event or condition which constitutes an Event of  Default or which upon notice, lapse of time or both would, unless cured or waived,  become an Event of Default or any comparable event under any Designated Indebtedness  Document or Hedging Agreement.                                        4  





 






               “Deliver”, “Delivered” or “Delivery” (whether to the Collateral Agent or  otherwise) means, with respect to any Portfolio Investment of any Obligor or other  Collateral, that such Portfolio Investment or other Collateral is held, registered or covered  by a recorded UCC-1 financing statement as described below, in each case in a manner  reasonably satisfactory to the Collateral Agent:                (a)   subject to clause (l) below, in the case of each Certificated Security        (other than a U.S. Government Security, Clearing Corporation Security, Euroclear        Security or Clearstream Security), that such Certificated Security is either (i) in        the possession of the Collateral Agent and registered in the name of the Collateral        Agent (or its nominee) or Indorsed to the Collateral Agent or in blank, (ii) in the        possession of the Custodian and registered in the name of the Custodian (or its        nominee) or Indorsed in blank and the Custodian has either (A) agreed in        documentation reasonably satisfactory to the Collateral Agent to hold such        Certificated Security as a bailee on behalf of the Collateral Agent or (B) credited        the same to a Securities Account for which the Custodian is the Securities        Intermediary and has agreed in a control agreement in form and substance        reasonably satisfactory to the Collateral Agent that such Certificated Security        constitutes a Financial Asset and which control agreement provides that the        Collateral Agent has NYUCC Control over such Securities Account;               (b)   subject to clause (l) below, in the case of each Instrument, that        such Instrument is either (i) in the possession of the Collateral Agent and Indorsed        to the Collateral Agent or in blank, or (ii) in the possession of the Custodian and        Indorsed to the Collateral Agent or in blank and the Custodian has either (A)        agreed in documentation reasonably satisfactory to the Collateral Agent to hold        such Instrument as a bailee on behalf of the Collateral Agent or (B) credited the        same to a Securities Account for which the Custodian is the Securities        Intermediary and has agreed in a control agreement in form and substance        reasonably satisfactory to the Collateral Agent that such Instrument constitutes a        Financial Asset and which control agreement provides that the Collateral Agent        has NYUCC Control over such Securities Account;               (c)   subject to clause (l) below, in the case of each Uncertificated        Security (other than a U.S. Government Security, Clearing Corporation Security,        Euroclear Security or Clearstream Security), that such Uncertificated Security is        either (i) registered on the books of the issuer thereof to the Collateral Agent (or        its nominee), or (ii) registered on the books of the issuer thereof to the Custodian        (or its nominee) under an arrangement where the Custodian has credited the same        to a Securities Account for which the Custodian is a Securities Intermediary and        has agreed that such Uncertificated Security constitutes a Financial Asset and        such arrangement provides that the Collateral Agent has NYUCC Control over        such Securities Account;               (d)   subject to clause (l) below, in the case of each Clearing        Corporation Security, that such Clearing Corporation Security is either (i) credited                                        5  





 






                   to a Securities Account of the Collateral Agent at such Clearing Corporation (and,  if such Clearing Corporation Security is a Certificated Security, that the same is in  the possession of such Clearing Corporation, or of an agent or custodian on its  behalf), or (ii) credited to a Securities Account of the Custodian at such Clearing  Corporation (and, if such Clearing Corporation Security is a Certificated Security,  that the same is in the possession of such Clearing Corporation, or of an agent or  custodian on its behalf) and the Security Entitlement of the Custodian in such  Clearing Corporation Securities Account has been credited by the Custodian to a  Securities Account for which the Custodian is a Securities Intermediary under an  arrangement where the Custodian has agreed that such Clearing Corporation  Security constitutes a Financial Asset and such arrangement provides that the  Collateral Agent has NYUCC Control over such Securities Account;         (e)   in the case of each Euroclear Security and Clearstream Security,  that the actions described in clause (d) above have been taken with respect to such  Security as if such Security were a Clearing Corporation Security and Euroclear  and Clearstream were Clearing Corporations; provided, that such additional  actions shall have been taken as shall be necessary under the law of Belgium (in  the case of Euroclear) and Luxembourg (in the case of Clearstream) to accord the  Collateral Agent rights substantially equivalent to NYUCC Control over such  Security under the NYUCC;         (f)   in the case of each U.S. Government Security, that such U.S.  Government Security is either (i) credited to a securities account of the Collateral  Agent at a Federal Reserve Bank, or (ii) credited to a Securities Account of the  Custodian at a Federal Reserve Bank and the Security Entitlement of the  Custodian in such Federal Reserve Bank Securities Account has been credited by  the Custodian to a Securities Account for which the Custodian is a Securities  Intermediary under an arrangement where the Custodian has agreed that such U.S.  Government Security constitutes a Financial Asset and such arrangement provides  that the Collateral Agent has NYUCC Control over such Securities Account;         (g)   in the case of any Tangible Chattel Paper, that the original of such  Tangible Chattel Paper is either (i) in the possession of the Collateral Agent in the  United States or (ii) in the possession of the Custodian in the United States under  an arrangement where the Custodian has agreed to hold such Tangible Chattel  Paper as a bailee on behalf of the Collateral Agent, and in each case any  agreements that constitute or evidence such Tangible Chattel Paper is free of any  marks or notations indicating that it is then pledged, assigned or otherwise  conveyed to any Person other than the Collateral Agent;         (h)   subject to clause (m) below, in the case of each General Intangible  (including any participation in a debt obligation) of an Obligor organized in the  United States, that such General Intangible falls within the collateral description  of a UCC-1 financing statement, naming the relevant Obligor as debtor and the  Collateral Agent as secured party and filed (x) in the jurisdiction of organization                                  6  





 






                   of such Obligor, in the case of an Obligor that is a “registered organization” (as  defined in the NYUCC) or (y) in such other filing office as may be required for  perfection by filing under the Uniform Commercial Code as in effect in any  applicable jurisdiction, in the case of any other Obligor; provided that in the case  of a participation in a debt obligation where such debt obligation is evidenced by  an Instrument, any one of the following: (i) the criteria in clause (b) above have  been satisfied with respect to such Instrument, (ii) such Instrument is in the  possession of the applicable participating institution in the United States, and such  participating institution has agreed that it holds possession of such Instrument for  the benefit of the Collateral Agent (or for the benefit of the Custodian, and the  Custodian has agreed that it holds the interest in such Instrument as a bailee on  behalf of the Collateral Agent) or (iii) such Instrument is in the possession of the  applicable participating institution outside of the United States and the relevant  Obligor has taken or caused such participating institution (and, if applicable, the  obligor that issued such Instrument) to take such actions as shall be necessary  under the law of the jurisdiction where such Instrument is physically located to  accord the Collateral Agent rights equivalent to NYUCC Control;         (i)   subject to clause (m) below, in the case of each General Intangible  (including any participation in a debt obligation) of an Obligor not organized in  the United States, that such Obligor shall have taken such action as shall be  necessary to accord the Collateral Agent rights substantially equivalent to a  perfected first-priority (subject to Liens permitted pursuant to the Debt  Documents) security interest in such General Intangible under the NYUCC;         (j)   in the case of any Deposit Account or Securities Account that the  bank or Securities Intermediary at which such Deposit Account or Securities  Account, as applicable, is located has agreed (i) that the Collateral Agent has  NYUCC Control over such Deposit Account or Securities Account or (ii) that  such Deposit Account or Securities Account is in the name of the Custodian and  the Custodian has credited its rights in respect of such Deposit Account or  Securities Account (the “Underlying Accounts”) to a Securities Account for  which the Custodian is a Securities Intermediary under an arrangement where the  Custodian has agreed in a control agreement in form and substance reasonably  satisfactory to the Collateral Agent that the rights of the Custodian in such  Underlying Accounts constitute a Financial Asset and that the Collateral Agent  has NYUCC Control over such Securities Account;         (k)   in the case of any money (regardless of currency), that such money  has been credited to a Deposit Account or Securities Account over which the  Collateral Agent has NYUCC Control as described in clause (j) above;         (l)   in the case of any Certificated Security, Uncertificated Security or  Instrument either physically located outside of the United States or issued by a  Person organized outside of the United States, that such additional actions shall  have been taken as shall be necessary under applicable law or as shall be                                  7  





 






         reasonably requested by the Collateral Agent under applicable law to accord the        Collateral Agent rights substantially equivalent to those accorded to a secured        party under the NYUCC that has possession or NYUCC Control of such        Certificated Security, Uncertificated Security or Instrument;               (m)   in the case of each Portfolio Investment of any Obligor consisting        of a Credit Facility Loan, in addition to all other actions required to be taken        hereunder, that all actions shall have been taken as required by Section 5.08(c) of        the Revolving Credit Agreement; and               (n)   in the case of each Portfolio Investment of any Obligor or other        Collateral not of a type covered by the foregoing clauses (a) through (m), that        such Portfolio Investment or other Collateral (to the extent required to be        “Delivered” pursuant to Section 7.01(a)) has been transferred to the Collateral        Agent in accordance with applicable law and regulation.               “Depositary” means The Depositary Trust Company, its nominees and  their respective successors.               “Designated Indebtedness” means any secured Indebtedness that has been  designated by the Borrower at the time of the incurrence thereof as “Designated  Indebtedness” for purposes of this Agreement in accordance with the requirements of  Section 6.01.               “Designated Indebtedness Documents” means, in respect of any  Designated Indebtedness, all agreements, documents or instruments pursuant to which  such Designated Indebtedness shall be incurred or otherwise governing the terms or  conditions thereof.               “Designated Indebtedness Holders” means, in respect of any Designated  Indebtedness, the Persons from time to time holding such Designated Indebtedness.               “Designated Indebtedness Obligations” means, collectively, in respect of  any Designated Indebtedness, all obligations of the Borrower to any Designated  Indebtedness Holder or Financing Agent under the Designated Indebtedness Documents  relating to such Designated Indebtedness, including in each case in respect of the  principal of and interest on loans made, letters of credit issued and any notes or other  instruments issued thereunder, all reimbursement obligations, fees, indemnification  payments and other amounts whatsoever, whether direct or indirect, absolute or  contingent, now or hereafter from time to time owing to any Designated Indebtedness  Holder or any Financing Agent or any of them under such Designated Indebtedness  Documents, and including all interest and expenses accrued or incurred subsequent to the  commencement of any bankruptcy or insolvency proceeding with respect to the  Borrower, whether or not such interest or expenses are allowed as a claim in such  proceeding; provided that Designated Indebtedness Obligations shall not include any  Excluded Swap Obligation.                                        8  





 






               The designation of any Designated Indebtedness as being secured by this  Agreement in accordance with the first paragraph under this definition of “Designated  Indebtedness Obligations” shall not create in favor of any Designated Indebtedness  Holder or any Affiliate thereof that is a party thereto, except as expressly provided herein,  (i) any rights in connection with the management or release of any Collateral or of the  obligations of any Subsidiary Guarantor under this Agreement or (ii) any rights to  consent to any amendment, waiver, or other matter under this Agreement or any other  Revolving Loan Document.  Notwithstanding anything to the contrary in this Agreement  or any other Revolving Loan Document, as applicable, no provider or holder of any  Designated Indebtedness Obligations (other than in its capacity as Revolving  Administrative Agent, Collateral Agent or Revolving Lender to the extent applicable) has  any individual right to enforce this Agreement or bring any remedies with respect to any  Lien on Collateral granted pursuant to the Revolving Loan Documents.  By accepting the  benefits of this Agreement, such party shall be deemed to have appointed the Collateral  Agent as its agent and agreed to be bound by this Agreement as a Secured Party, subject  to the limitations set forth in the preceding sentence.               “Disqualified Equity Interests” means Equity Interests of the Borrower  that after issuance are subject to any agreement between the holder of such Equity  Interests and the Borrower whereby the Borrower is required to purchase, redeem, retire,  acquire, cancel or terminate such Equity Interests, other than (x) as a result of a change of  control, or (y) in connection with any purchase, redemption, retirement, acquisition,  cancellation or termination with, or in exchange for, shares of Equity Interests that are not  Disqualified Equity Interests.                “Effective Date” means February 21, 2019.               “Eligible Liens” means those Liens on the Collateral included in the  Borrowing Base permitted by each Debt Document (for the avoidance of doubt in the  event of any conflict or difference among the Debt Documents, the most restrictive  provisions that are in effect (after taking into account any modification, supplement,  amendment or waiver to such provisions) shall apply against the Obligors hereunder).               “Equity Interests” means shares of capital stock, partnership interests,  membership interests in a limited liability company, beneficial interests in a trust or other  equity ownership interests in a Person, and any warrants, options or other rights entitling  the holder thereof to purchase or acquire any such equity interest.  As used in this  Agreement, “Equity Interests” shall not include convertible debt unless and until such  debt has been converted to capital stock.               “Euroclear” means Euroclear Bank, S.A., as operator of the Euroclear  system.               “Euroclear Security” means a Security that (a) is a debt or equity Security  and (b) is capable of being transferred to an Agent Member’s account at Euroclear,  whether or not such transfer has occurred.                                        9  





 






               “Event of Default” means any Event of Default under and as defined in  the Revolving Credit Agreement and any event or condition that enables or permits (after  giving effect to any applicable grace or cure periods) the holder or holders of any  Designated Indebtedness Obligations or Hedging Agreement Obligations or any trustee  or agent on its or their behalf to cause any Designated Indebtedness Obligations or  Hedging Agreement Obligations to become due, or to require the prepayment,  repurchase, redemption or defeasance thereof, prior to its scheduled maturity.               “Excluded Assets” means, individually and collectively, (i) any Excluded  Equity Interest, (ii) any withholding tax accounts, pension fund accounts, 401(k) accounts  and other accounts specifically and exclusively used for payroll, payroll taxes and other  employee wage, health and benefit payments, (iii) any fiduciary accounts or any account  for which any Obligor is the servicer for another Person, including any accounts in the  name of any Obligor in its capacity as servicer for a Financing Subsidiary or any  “Agency Account” pursuant to Section 5.08(c)(v) of the Revolving Credit Agreement,  (iv) any “intent-to-use” applications for trademarks or service marks filed in the United  States Patent and Trademark Office pursuant to 15 U.S.C. § 1051 Section (b)(1) unless  and until evidence of use of the mark in interstate commerce is submitted to and accepted  by the United States Patent and Trademark Office pursuant to 15 U.S.C. §1051 Section  (c) or Section (d), at which point such trademark or service mark application shall be  considered automatically included in the Collateral, (v) any Equity Interest in a Portfolio  Investment that is issued as an “equity kicker” to holders of subordinated debt and such  Equity Interest is pledged to secure senior debt of such Portfolio Investment to the extent  required thereby, (vi) any assets with respect to which applicable law prohibits the  creation or perfection of such security interests therein (other than to the extent that any  such prohibition is rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the  Uniform Commercial Code as in effect in the relevant jurisdiction (or any successor  provision) or any other applicable law or principles of equity); provided, however, that  such security interest shall attach immediately at such time as such law is not effective or  applicable, and, to the extent severable, shall attach immediately to any portion of the  Collateral that does not result in such consequences, (vii) upon prior written notice to the  Collateral Agent, any debt Investment in a CFC, Transparent Subsidiary or a Portfolio  Company  (solely to the extent such Portfolio Company would constitute a CFC or a  Transparent Subsidiary if it was a Subsidiary) with respect to which applicable law would  create adverse tax consequences in connection with the creation or perfection of security  interests therein, so long as on the date of such notice (and the Borrower shall in each  case deliver to the Collateral Agent a certificate of a Financial Officer to such effect  setting forth a reasonably detailed description of such Investment and calculations  demonstrating such compliance), (x) no Default or Event of Default shall have occurred  and be continuing, and (y) the Covered Debt Amount does not exceed 85% of the  Borrowing Base calculated on a pro forma basis after giving effect to the exclusion of  such Investment; provided, however, that such security interest shall attach immediately  at such time as such law is not effective or applicable, and, to the extent severable, shall  attach immediately to any portion of the Collateral that does not result in such  consequences, and (viii) any real property.                                       10  





 






               “Excluded Equity Interest” means any (i) Equity Interest of a CFC, a  Subsidiary of a CFC, a Transparent Subsidiary or a Subsidiary of a Transparent  Subsidiary, other than (x) non-voting Equity Interests in a CFC or Transparent  Subsidiary, as applicable, that are directly held by an Obligor, and (y) 65% of the voting  Equity Interests in a CFC or Transparent Subsidiary, as applicable, that are directly held  by an Obligor, (ii) Equity Interest issued by any Financing Subsidiary to the extent  prohibited by the terms of any financing agreement binding on such Financing Subsidiary  and in full force and effect and (iii) Equity Interest of an Existing SBA Entity; provided,  that if any such CFC, Transparent Subsidiary or Financing Subsidiary shall at any time  cease to be a CFC, Transparent Subsidiary or Financing Subsidiary, as applicable,  pursuant to the definition thereof in Section 1.01 of the Revolving Credit Agreement, or  if the Pledge of Equity Interests of any Financing Subsidiary ceases to be prohibited by  any financing agreement binding on such Financing Subsidiary and in full force and  effect, the Equity Interests issued by such Person shall no longer constitute Excluded  Equity Interests and shall become part of the Collateral hereunder.               “Excluded Swap Obligation” means, with respect to any Subsidiary  Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the  Guarantee of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of  a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or  becomes illegal under the Commodity Exchange Act or any rule, regulation or order of  the Commodity Futures Trading Commission (or the application or official interpretation  of any thereof) by virtue of such Subsidiary Guarantor’s failure for any reason to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act  and the regulations thereunder at the time the Guarantee of such Subsidiary Guarantor or  the grant of such security interest becomes effective with respect to such Swap  Obligation.  If a Swap Obligation arises under a master agreement governing more than  one swap, such exclusion shall apply only to the portion of such Swap Obligation that is  attributable to swaps for which such Guarantee or security interest is or becomes illegal.               “Existing SBA Entity” means each of (i) Triangle Mezzanine Fund LLLP,  a limited liability limited partnership organized under the laws of North Carolina, (ii)  Triangle Mezzanine Fund II LP, a limited partnership organized under the laws of  Delaware, (iii) Triangle Mezzanine Fund III LP, a limited partnership organized under  the laws of Delaware, (iv) New Triangle GP, LLC, a limited liability company organized  under the laws of North Carolina and (v) New Triangle GP, LLC, a limited liability  company organized under the laws of Delaware.               “Financial Officer” means the chief executive officer, president, chief  operating officer, chief financial officer, chief legal officer, principal accounting officer,  treasurer, assistant treasurer, controller or chief compliance officer of the Borrower.               “Financing Agent” means, in respect of any Designated Indebtedness, any  trustee, representative or agent for the holders of such Designated Indebtedness.               “Financing Subsidiary” means (i) any Structured Subsidiary or (ii) any  SBIC Subsidiary.                                      11  





 






               “GAAP” means generally accepted accounting principles in the United  States.               “Governmental Authority” means the government of the United States, or  of any other nation, or any political subdivision thereof, whether state or local, and any  agency, authority, instrumentality, regulatory body, court, central bank or other entity  exercising executive, legislative, judicial, taxing, regulatory or administrative powers or  functions of or pertaining to government (including any supra-national body exercising  such powers or functions, such as the European Union or the European Central Bank).               “Guarantee” of or by any Person (the “guarantor”) means any obligation,  contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing any Indebtedness or other obligation of any other Person (the “primary  obligor”) in any manner, whether directly or indirectly, and including any obligation of  the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the  purchase or payment of) such Indebtedness or other obligation or to purchase (or to  advance or supply funds for the purchase of) any security for the payment thereof, (b) to  purchase or lease property securities or services for the purpose of assuring the owner of  such Indebtedness or other obligation of the payment thereof, (c) to maintain working  capital, equity capital or any other financial statement condition or liquidity of the  primary obligor so as to enable the primary obligor to pay such Indebtedness or other  obligation or (d) as an account party in respect of any letter of credit or letter of guaranty  issued to support such Indebtedness or obligation; provided, that the term Guarantee shall  not include endorsements for collection or deposit in the ordinary course of business or  customary indemnification agreements entered into in the ordinary course of business in  connection with obligations that do not constitute Indebtedness.  The amount of any  Guarantee at any time shall be deemed to be an amount equal to the maximum stated or  determinable amount of the primary obligation in respect of which such Guarantee is  incurred, unless the terms of such Guarantee expressly provide that the maximum amount  for which such Person may be liable thereunder is a lesser amount (in which case the  amount of such Guarantee shall be deemed to be an amount equal to such lesser amount).               “Guarantee Assumption Agreement” means a Guarantee Assumption  Agreement substantially in the form of Exhibit B between the Collateral Agent and an  entity that, pursuant to Section 7.05, is required to become a “Subsidiary Guarantor”  hereunder (with such changes as the Collateral Agent shall request, consistent with the  requirements of Section 7.05, or to which the Collateral Agent shall otherwise consent).               “Guaranteed Obligations” means, collectively, the Revolving Credit  Agreement Obligations, the Designated Indebtedness Obligations and the Hedging  Agreement Obligations; provided that “Guaranteed Obligations” shall exclude any  Excluded Swap Obligation.               “Hedging Agreement” means any interest rate protection agreement,  foreign currency exchange protection agreement, commodity price protection agreement  or other interest or currency exchange rate or commodity price hedging arrangement.                                        12  





 






               “Hedging Agreement Obligations” means, collectively, all obligations of  any Obligor to any Revolving Lender (or any Affiliate thereof) under any Hedging  Agreement that is an interest rate or foreign currency exchange protection agreement or  other interest rate or foreign currency exchange hedging agreement and has been  designated by the Borrower by notice in writing to the Collateral Agent as being secured  by this Agreement, including in each case all margin payments, termination payments,  fees, indemnification payments and other amounts whatsoever, whether direct or indirect,  absolute or contingent, now or hereafter from time to time owing to such Revolving  Lender (or any Affiliate thereof) under such Hedging Agreement, and including all  interest and expenses accrued or incurred subsequent to the commencement of any  bankruptcy or insolvency proceeding with respect to such Obligor, whether or not such  interest or expenses are allowed as a claim in such proceeding; provided that Hedging  Agreement Obligations shall not include any Excluded Swap Obligation.               For purposes hereof, it is understood that any obligations of any Obligor to  a Person arising under a Hedging Agreement entered into at the time such Person (or an  Affiliate thereof) is a “Revolving Lender” party to the Revolving Credit Agreement shall  nevertheless continue to constitute Hedging Agreement Obligations for purposes hereof,  notwithstanding that such Person (or its Affiliate) may have assigned all of its Revolving  Loans and other interests in the Revolving Credit Agreement and, therefore, at the time a  claim is to be made in respect of such obligations, such Person (or its Affiliate) is no  longer a “Revolving Lender” party to the Revolving Credit Agreement, provided that  neither such Person nor any such Affiliate shall be entitled to the benefits of this  Agreement (and such obligations shall not constitute Hedging Agreement Obligations  hereunder) unless, at or prior to the time it ceased to be a Revolving Lender hereunder, it  shall have notified the Collateral Agent in writing of the existence of such agreement.   Subject to and without limiting the preceding sentence, any Affiliate of a Revolving  Lender that is a party to a Hedging Agreement shall be included in the term “Revolving  Lender” for purposes of this Agreement solely for purposes of the rights and obligations  arising hereunder in respect of such Hedging Agreement and the Hedging Agreement  Obligations thereunder.               The designation of any Hedging Agreement as being secured by this  Agreement in accordance with the first paragraph under this definition of “Hedging  Agreement Obligations” shall not create (or be deemed to create) in favor of any Secured  Party that is a party thereto, except as expressly provided herein, (i) any rights in  connection with the management or release of any Collateral or of the obligations of any  Subsidiary Guarantor under this Agreement or (ii) any rights to consent to any  amendment, waiver, or other matter under this Agreement or any other Revolving Loan  Document.  Notwithstanding anything to the contrary in this Agreement or any other  Revolving Loan Document, as applicable, no provider or holder of any Hedging  Agreement Obligations (other than in its capacity as Revolving Administrative Agent,  Collateral Agent or Revolving Lender to the extent applicable) has any individual right to  enforce this Agreement or bring any remedies with respect to any Lien on Collateral  granted pursuant to the Revolving Loan Documents.  By accepting the benefits of the  Collateral, each Secured Party that is a party to any such arrangement in respect of                                      13  





 






   Hedging Agreements shall be deemed to have appointed the Collateral Agent to serve as  collateral agent and agreed to be bound by the Loan Documents as a Secured Party  thereunder, subject to the limitations set forth in this paragraph.               “Immaterial Subsidiaries” means any Subsidiary of the Borrower  designated by the Borrower as an “Immaterial Subsidiary” under the Revolving Credit  Agreement and pursuant to the procedures specified therein (if the Administrative Agent  and the Collateral Agent are not the same entity, with notice to the Collateral Agent).               “Indebtedness” of any Person means, without duplication, (a) (i) all  obligations of such Person for borrowed money or (ii) with respect to deposits, loans or  advances of any kind that are required to be accounted for under GAAP as a liability on  the financial statements of an Obligor (other than deposits received in connection with a  Portfolio Investment in the ordinary course of the Obligor’s business (including, but not  limited to, any deposits or advances in connection with expense reimbursement, prepaid  agency fees, other fees, indemnification, work fees, tax distributions or purchase price  adjustments)), (b) all obligations of such Person evidenced by bonds, debentures, notes or  similar debt instruments, (c) all obligations of such Person under conditional sale or other  title retention agreements relating to property acquired by such Person, (d) all obligations  of such Person in respect of the deferred purchase price of property or services (other  than trade accounts payable and accrued expenses in the ordinary course of business not  past due for more than 90 days after the date on which such trade account payable was  due), (e) all Indebtedness of others secured by any Lien on property owned or acquired  by such Person, whether or not the Indebtedness secured thereby has been assumed (with  the value of such debt being the lower of the outstanding amount of such debt and the fair  market value of the property subject to such Lien), (f) all Guarantees by such Person of  Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all  obligations, contingent or otherwise, of such Person as an account party in respect of  letters of credit and letters of guaranty, (i) the net amount such Person would be obligated  for under any Hedging Agreement if such Hedging Agreement was terminated at the time  of determination, (j) all obligations, contingent or otherwise, with respect to Disqualified  Equity Interests, and (k) all obligations, contingent or otherwise, of such Person in  respect of bankers’ acceptances.  The Indebtedness of any Person shall include the  Indebtedness of any other entity (including any partnership in which such Person is a  general partner) to the extent such Person is liable therefor as a result of such Person’s  ownership interest in or other relationship with such entity, except to the extent the terms  of such Indebtedness provide that such Person is not liable therefor (or such Person is not  otherwise liable for such Indebtedness). Notwithstanding the foregoing, “Indebtedness”  shall not include (x) purchase price holdbacks arising in the ordinary course of business  in respect of a portion of the purchase price of an asset or Investment to satisfy  unperformed obligations of the seller of such asset or Investment, (y) a commitment  arising in the ordinary course of business to make a future Portfolio Investment or fund  the delayed draw or unfunded portion of any existing Portfolio Investment or (z)  indebtedness of an Obligor on account of the sale by an Obligor of the first out tranche of  any First Lien Bank Loan that arises solely as an accounting matter under ASC 860,  provided that such indebtedness (i) is non-recourse to the Borrower and its Subsidiaries  and (ii) would not represent a claim against the Borrower or any of its Subsidiaries in a                                      14  





 






   bankruptcy, insolvency or liquidation proceeding of the Borrower or its Subsidiaries, in  each case in excess of the amount sold or purportedly sold.               “Indorsed” means, with respect to any Certificated Security, that such  Certificated Security has been assigned or transferred to the applicable transferee  pursuant to an effective Indorsement.               “ING” means ING Capital LLC.               “Insolvency Law” means, as applicable, (a) the Bankruptcy Code and (b)  any other federal, state, provincial or foreign law for the relief of debtors or affecting  creditors’ rights generally.               “Insolvency Proceeding” means: (a) any voluntary case or proceeding  under any Insolvency Law with respect to any Obligor, (b) any other voluntary  proceeding or involuntary or bankruptcy case or proceeding, or any interim receivership,  liquidation or other similar case or proceeding with respect to any Obligor or with respect  to a material portion of its assets, (c) any liquidation, dissolution, or winding up of any  Obligor whether voluntary or involuntary and whether or not involving any Insolvency  Law or (d) any assignment for the benefit of any creditors or any other marshaling of  assets or liabilities of any Obligor.               “Intellectual Property” means, collectively, the Copyrights, the Copyright  Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the  Trade Secrets, and the Trade Secret Licenses.               “Investment” means, for any Person: (a) Equity Interests, bonds, notes,  debentures or other securities of any other Person (including convertible securities) or  any agreement to acquire any Equity Interests, bonds, notes, debentures or other  securities of any other Person (including any “short sale” or any sale of any securities at a  time when such securities are not owned by the Person entering into such sale); (b)  deposits, advances, loans or other extensions of credit made to any other Person  (including purchases of property from another Person subject to an understanding or  agreement, contingent or otherwise, to resell such property to such Person); or (c)  Hedging Agreements.               “Lien” means, with respect to any asset, (a) any mortgage, deed of trust,  lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such  asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital  lease or title retention agreement (or any financing lease having substantially the same  economic effect as any of the foregoing) relating to such asset and (c) in the case of  securities, any purchase option, call or similar right of a third party with respect to such  securities (other than on market terms at fair value so long as in the case of any Portfolio  Investment, the Value used in determining the Borrowing Base is not greater than the  purchase or call price), except in favor of the issuer thereof (and in the case of Portfolio  Investments that are equity securities, excluding customary drag-along, tag-along, right  of first refusal, restrictions on assignments or transfers and other similar rights in favor of                                      15  





 






   other equity holders of the same issuer).  For the avoidance of doubt, in the case of  Investments that are loans or other debt obligations, customary restrictions on  assignments or transfers thereof on customary and market based terms pursuant to the  underlying documentation relating to such Investment shall not be deemed to be a “Lien”.               “Luxembourg” means the Grand Duchy of Luxembourg.               “Notice of Designation” has the meaning assigned to such term in Section  6.01.               “NYUCC” means the Uniform Commercial Code as in effect from time to  time in the State of New York.               “NYUCC Control” means “control” as defined in Section 9-104, 9-105, 9- 106 or 9-107 of the NYUCC.               “Obligors” has the meaning assigned to such term in the preamble of this  Agreement.                “Patent Licenses” means all agreements providing for the granting of any  right in or to Patents (whether such Obligor is licensee or licensor thereunder) including  each agreement referred to in Annex 2.11 hereto.               “Patents” means all United States and foreign patents and certificates of  invention, or similar industrial property rights, and applications for any of the foregoing,  including, but not limited to: (i) each patent and patent application referred to in Annex  2.11 hereto, (ii) all reissues, divisions, continuations, continuations-in-part, extensions,  renewals, and reexaminations thereof, (iii) all rights corresponding thereto throughout the  world, (iv) all inventions and improvements described therein, (v) all rights to sue for  past, present and future infringements thereof, and (vi) all proceeds of the foregoing,  including licenses, royalties, income, payments, claims, damages, and proceeds of suit.               “Permitted Liens” means those Liens on the Collateral (other than  Collateral included in the Borrowing Base) permitted by each Debt Document (for the  avoidance of doubt in the event of any conflict or difference among the Debt Documents,  the most restrictive provisions that are in effect (after taking into account any  modification, supplement, amendment or waiver of such provisions) shall apply against  the Obligors hereunder).               “Person” means any natural person, corporation, limited liability  company, trust, joint venture, association, company, partnership, Governmental Authority  or other entity.               “Pledge Supplement” means a supplement to this Agreement substantially  in the form of Exhibit D.                                       16  





 






               “Pledged Debt” means all indebtedness owed to any Obligor (other than  Portfolio Investments (unless issued by a Subsidiary)), the instruments (if any)  evidencing such indebtedness (including the instruments described on Annex 2.08 hereto)  and all interest, cash, instruments and other property or proceeds from time to time  received, receivable or otherwise distributed in respect of or in exchange for any or all of  such indebtedness.               “Pledged Equity Interests” means all Equity Interests (other than Excluded  Equity Interests) owned by any Obligor issued by any Subsidiary of such Obligor  (including the Equity Interests described on Annex 2.07 hereto) and the certificates, if  any, representing such Equity Interests and any interest of such Obligor in the entries on  the books of the issuer of such Equity Interests or on the books of any Securities  Intermediary pertaining to such Equity Interests, and all dividends, distributions, cash,  warrants, rights, options, instruments, securities and other property or proceeds from time  to time received, receivable or otherwise distributed in respect of or in exchange for any  or all of such Equity Interests.                 “Pledged Interests” means all Pledged Debt and Pledged Equity Interests.               “Portfolio Investment” means any Investment held by the Borrower and its  Subsidiaries in their asset portfolio (and, for the avoidance of doubt, shall not include any  Subsidiary of the Borrower).               “Qualified ECP Guarantor” means, in respect of any Swap Obligation,  each Subsidiary Guarantor that has total assets exceeding $10,000,000 at the time the  relevant Guarantee or grant of the relevant security interest becomes effective with  respect to such Swap Obligation or such other person as constitutes an “eligible contract  participant” under the Commodity Exchange Act or any regulations promulgated  thereunder and can cause another person to qualify as an “eligible contract participant” at  such time by entering into a keepwell under section 1a(18)(A)(v)(II) of the Commodity  Exchange Act.               “Related Parties” means, with respect to any specified Person, such  Person’s Affiliates and the respective directors, partners, officers, employees, agents and  advisors of such Person and such Person’s Affiliates.               “Required Designated Indebtedness Holders” means, with respect to each  issuance of Designated Indebtedness (if any, or so long as, such Designated Indebtedness  is outstanding (other than contingent, unasserted indemnification obligations)) by the  Borrower (each such issuance, a “Series”), the meaning given to the term “Required  Holders” or “Required Lenders” in the Debt Documents with respect to such Designated  Indebtedness.                “Required Revolving Lenders” has the meaning given to the term  “Required Lenders” in the Revolving Credit Agreement (so long as the obligations under  the Revolving Credit Agreement are outstanding (other than contingent, unasserted  indemnification obligations)).                                      17  





 






               “Required Secured Parties” means, (a) so long as no Trigger Event has  occurred and is continuing, “Required Lenders” under and as defined in the Revolving  Credit Agreement or (b) if a Trigger Event shall have occurred and be continuing,  Secured Parties holding more than 50% of the aggregate outstanding amount of the sum  of the Revolving Credit Agreement Obligations and the Designated Indebtedness  Obligations.                 “Revolving Administrative Agent” has the meaning assigned to such term  in the preamble of this Agreement.               “Revolving Credit Agreement” means the Senior Secured Revolving  Credit Agreement, dated as of the date hereof, by and among the Borrower, the  Revolving Lenders from time to time party thereto, and the Revolving Administrative  Agent.               “Revolving Credit Agreement Obligations” means, collectively, all  obligations of the Borrower and the Subsidiary Guarantors to the Revolving Lenders  (including any Revolving Lender in its capacity as the Issuing Bank) and the Revolving  Administrative Agent under the Revolving Credit Agreement and the other Revolving  Loan Documents, including in each case in respect of the principal of and interest on the  Revolving Loans made thereunder, obligations in respect of Letters of Credit issued  thereunder and all fees, indemnification payments and other amounts whatsoever,  whether direct or indirect, absolute or contingent, now or hereafter from time to time  owing to the Revolving Administrative Agent or the Revolving Lenders or any of them  under or in respect of the Revolving Credit Agreement and the other Revolving Loan  Documents, and including all interest and expenses accrued or incurred subsequent to the  commencement of any bankruptcy or insolvency proceeding with respect to the  Borrower, whether or not such interest or expenses are allowed as a claim in such  proceeding; provided that Revolving Credit Agreement Obligations shall not include any  Excluded Swap Obligation.                “Revolving Lender” means any “Lender” (as defined in the Revolving  Credit Agreement) that is from time to time party to the Revolving Credit Agreement.               “Revolving Loans” means the revolving loans made by the Revolving  Lenders to the Borrower pursuant to the Revolving Credit Agreement.               “Revolving Loan Documents” means, collectively, the Revolving Credit  Agreement, the Letter of Credit Documents, any promissory notes delivered pursuant to  Section 2.08(f) of the Revolving Credit Agreement and the Security Documents.               “SBIC Subsidiary” means any Subsidiary of the Borrower designated by  the Borrower as an “SBIC Subsidiary” under the Revolving Credit Agreement and  pursuant to the procedures specified therein (if the Administrative Agent and the  Collateral Agent are not the same entity, with notice to the Collateral Agent).                                       18  





 






               “Secured Obligations” means, collectively, (a) in the case of the Borrower,  the Revolving Credit Agreement Obligations, the Designated Indebtedness Obligations  and the Hedging Agreement Obligations, (b) in the case of the Subsidiary Guarantors, the  obligations of the Subsidiary Guarantors in respect of the Guaranteed Obligations  pursuant to Section 3.01 and the Hedging Agreement Obligations (if such Subsidiary  Guarantor is a primary guarantor) and (c) in the case of all Obligors, all present and  future obligations of the Obligors to the Secured Parties, or any of them, hereunder or  under any other Security Document, provided that Secured Obligations shall not include  any Excluded Swap Obligation.               “Secured Party” means, collectively, the Revolving Lenders (including  those holding Hedging Agreement Obligations and any Revolving Lender in its capacity  as the Issuing Bank), the Revolving Administrative Agent, each Designated Indebtedness  Holder, each Financing Agent and each Person that is not a Revolving Lender and is  owed a Hedging Agreement Obligation of the type described in, and subject to the  conditions set forth in, the second paragraph of the definition of “Hedging Agreement  Obligations”, and the Collateral Agent.               “Security Documents” means, collectively, this Agreement, the Custody  Agreement, the Control Agreement, all Uniform Commercial Code financing statements  filed with respect to the security interests in the Collateral created pursuant hereto and all  other assignments, pledge agreements, security agreements, control agreements, custodial  agreements and other instruments executed and delivered at any time by any of the  Obligors pursuant hereto or otherwise providing or relating to any collateral security for  any of the Secured Obligations.               “Series” has the meaning assigned to such term in the definition of  “Required Designated Indebtedness Holders”.               “Structured Subsidiary” means any Subsidiary of the Borrower designated  by the Borrower as a “Structured Subsidiary” under the Revolving Credit Agreement and  pursuant to the procedures specified therein (if the Administrative Agent and the  Collateral Agent are not the same entity, with notice to the Collateral Agent).               “Subsidiary” means, with respect to any Person (the “parent”) at any date,  any corporation, limited liability company, partnership, association or other entity the  accounts of which would be consolidated with those of the parent in the parent’s  consolidated financial statements if such financial statements were prepared in  accordance with GAAP as of such date, as well as any other corporation, limited liability  company, partnership, association or other entity (a) of which securities or other  ownership interests representing more than 50% of the equity or more than 50% of the  ordinary voting power or, in the case of a partnership, more than 50% of the general  partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of  such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or  by the parent and one or more subsidiaries of the parent.  Anything herein to the contrary  notwithstanding, the term “Subsidiary” shall not include any Person that constitutes an  Investment held by any Obligor in the ordinary course of business and that is not, under                                      19  





 






   GAAP, consolidated on the financial statements of the Borrower and its Subsidiaries.   Unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.               “Subsidiary Guarantors” has the meaning assigned to such term in the  preamble of this Agreement.               “Swap Obligation” means, with respect to any Subsidiary Guarantor, an  obligation to pay or perform under any agreement, contract or transaction that constitutes  a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.               “Termination Date” means (a) with respect to the Revolving Lenders, the  date on which the conditions set forth in the definition of “Termination Date” in the  Revolving Credit Agreement are satisfied and (b) with respect to any Designated  Indebtedness Holders, the date on which the principal and accrued interest on each such  Designated Indebtedness and all fees and other amounts payable thereunder shall have  been paid in full (excluding, for the avoidance of doubt, any amount in connection with  any contingent, unasserted indemnification obligations).               “Trademark Licenses” means any and all agreements providing for the  granting of any right in or to Trademarks (whether such Obligor is licensee or licensor  thereunder) including each agreement referred to in Annex 2.11 hereto.               “Trademarks” means all United States and foreign trademarks, trade  names, corporate names, company names, business names, fictitious business names,  Internet domain names, service marks, certification marks, collective marks, logos, other  source or business identifiers, designs and general intangibles of a like nature, and all  registrations and applications for any of the foregoing including, but not limited to: (i) the  registrations and applications referred to in Annex 2.11 hereto, (ii) all extensions or  renewals of any of the foregoing, (iii) all of the goodwill of the business connected with  the use of and symbolized by the foregoing, (iv) the right to sue for past, present and  future infringement or dilution of any of the foregoing or for any injury to goodwill, and  (v) all proceeds of the foregoing, including licenses, royalties, income, payments, claims,  damages, and proceeds of suit.               “Trade Secret Licenses” means any and all agreements providing for the  granting of any right in or to Trade Secrets (whether such Obligor is licensee or licensor  thereunder) including each agreement referred to in Annex 2.11 hereto.                “Trade Secrets” means all trade secrets and all other confidential or  proprietary information and know-how whether or not such Trade Secret has been  reduced to a writing or other tangible form, including all documents and things  embodying, incorporating, or referring in any way to such Trade Secret, including but not  limited to: (i) the right to sue for past, present and future misappropriation or other  violation of any Trade Secret, and (ii) all proceeds of the foregoing, including licenses,  royalties, income, payments, claims, damages, and proceeds of suit.                                       20  





 






               “Transparent Subsidiary” means a Subsidiary classified as a partnership or  as a disregarded entity for U.S. federal income tax purposes directly or indirectly owned  by an Obligor that has no material assets other than Equity Interests (held directly or  indirectly through other Transparent Subsidiaries) in one or more CFCs.               “Trigger Event” means any of the following events or conditions:               (a)   Acceleration of the Secured Obligations representing 66-2/3% or        more of the aggregate Secured Obligations at the time outstanding;               (b)   an involuntary proceeding shall be commenced or an involuntary        petition shall be filed seeking (i) liquidation, reorganization or other relief in        respect of any Obligor or its debts, or of a substantial part of its assets, under any        Federal or state bankruptcy, insolvency, receivership or similar law now or        hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,        sequestrator, conservator or similar official for any Obligor or for a substantial        part of its assets, and, in any such case, such proceeding or petition shall continue        undismissed for a period of sixty (60) or more days or an order or decree        approving or ordering any of the foregoing shall be entered; or               (c)   any Obligor shall (i) voluntarily commence any proceeding or file        any petition seeking liquidation, reorganization or other relief under any Federal        or state bankruptcy, insolvency, receivership or similar law now or hereafter in        effect, (ii) consent to the institution of, or fail to contest in a timely and        appropriate manner, any proceeding or petition described in clause (b) above,        (iii) apply for or consent to the appointment of a receiver, trustee, custodian,        sequestrator, conservator or similar official for any Obligor or for a substantial        part of its assets, (iv) file an answer admitting the material allegations of a petition        filed against it in any such proceeding, (v) make a general assignment for the        benefit of creditors or (vi) take any corporate or other action for the purpose of        effecting any of the foregoing.               “United States” means the United States of America.               “U.S. Government Securities” means securities that are direct obligations  of, and obligations the timely payment of principal and interest on which is fully  guaranteed by, the United States or any agency or instrumentality of the United States  and the obligations of which are backed by the full faith and credit of the United States  and in the form of conventional bills, bonds and notes.               1.03  Terms Generally.  The definitions of terms herein shall apply  equally to the singular and plural forms of the terms defined.  Whenever the context may  require, any pronoun shall include the corresponding masculine, feminine and neuter  forms.  The words “include”, “includes” and “including” shall be deemed to be followed  by the phrase “without limitation”.  The word “will” shall be construed to have the same  meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any  definition of or reference to any agreement, instrument or other document herein shall be                                      21  





 






   construed as referring to such agreement, instrument or other document as from time to  time amended, supplemented or otherwise modified (subject to any restrictions on such  amendments, supplements or modifications set forth herein or therein), (b) any reference  herein to any Person shall be construed to include such Person’s successors and assigns  (subject to any restrictions on such successors and assigns set forth herein or therein), (c)  the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be  construed to refer to this Agreement in its entirety and not to any particular provision  hereof, (d) all references herein to Sections, Exhibits and Annexes shall be construed to  refer to Sections of, and Exhibits and Annexes to, this Agreement and (e) the words  “asset” and “property” shall be construed to have the same meaning and effect and to  refer to any and all tangible and intangible assets and properties, including cash,  securities, accounts and contract rights.  Capitalized terms used herein, unless otherwise  defined herein, shall have the meanings ascribed thereto in the Revolving Credit  Agreement.               Section 2.  Representations and Warranties.  Each Obligor represents  and warrants to the Secured Parties that:               2.01  Organization.  Such Obligor is duly organized or incorporated,  validly existing and in good standing under the laws of the jurisdiction of its organization  or incorporation.               2.02  Authorization; Enforceability.  The execution, delivery and  performance of this Agreement, and the granting of the Liens contemplated hereunder,  are within such Obligor’s corporate or other powers and have been duly authorized by all  necessary corporate and, if required, by all necessary stockholder action, and the Board of  Directors of such Obligor has approved the transactions contemplated in this Agreement.   This Agreement has been duly executed and delivered by such Obligor and constitutes a  legal, valid and binding obligation of such Obligor, enforceable in accordance with its  terms, except as such enforceability may be limited by (a) bankruptcy, insolvency,  reorganization, moratorium or similar laws of general applicability affecting the  enforcement of creditors’ rights and (b) the application of general principles of equity  (regardless of whether such enforceability is considered in a proceeding in equity or at  law).               2.03  Governmental Approvals; No Conflicts.  The execution, delivery  and performance of this Agreement, and the granting of the Liens contemplated  hereunder, (a) do not require any consent or approval of, registration or filing with, or any  other action by, any Governmental Authority, except for (i) such as have been or will be  obtained or made and are in full force and effect and (ii) filings and recordings in respect  of the Liens created pursuant hereto or the other Security Documents, (b) will not violate  any applicable law or regulation or the charter, by-laws or other organizational  documents of any Obligor or any order of any Governmental Authority (including the  Investment Company Act of 1940, as amended from time to time, and the rules,  regulations and orders issued by the SEC thereunder), (c) will not violate or result in a  default in any material respect under any indenture, agreement or other instrument                                       22  





 






   binding upon any Obligor or its assets, or give rise to a right thereunder to require any  payment to be made by any such Person, and (d) except for the Liens created pursuant  hereto or the other Security Documents, will not result in the creation or imposition of  any Lien on any asset of any Obligor.               2.04  Title.  Such Obligor is the sole beneficial owner of the Collateral in  which a security interest is purported to be granted by such Obligor hereunder and no  Lien exists upon such Collateral other than (a) the security interest created or provided  for herein or the other Security Documents, which security interest constitutes a valid  first and prior perfected Lien, subject to Eligible Liens on the Collateral included in the  Borrowing Base and subject to Permitted Liens on all other Collateral and (b) other Liens  not prohibited by the provisions of any Debt Document.               2.05  Names, Etc.  The full and correct legal name, type of organization,  jurisdiction of organization, organizational ID number (if applicable) and place of  business (or, if more than one, chief executive office) of each Obligor as of the Effective  Date are correctly set forth in Annex 2.05 (and of each additional Obligor as of the date  of the Guarantee Assumption Agreement referred to below are set forth in the supplement  to Annex 2.05 in Appendix A to the Guarantee Assumption Agreement executed and  delivered by such Obligor pursuant to Section 7.05).               2.06  Changes in Circumstances.  No Obligor has (a) within the period  of four months prior to the date hereof (or, in the case of any Subsidiary Guarantor,  within the period of four months prior to the date it becomes a party hereto pursuant to a  Guarantee Assumption Agreement), changed its location (as defined in Section 9-307 of  the NYUCC), (b) as of the date hereof (or, with respect to any Subsidiary Guarantor, as  of the date it becomes a party hereto pursuant to a Guarantee Assumption Agreement),  changed its name or (c) as of the date hereof (or, with respect to any Subsidiary  Guarantor, as of the date it becomes a party hereto pursuant to a Guarantee Assumption  Agreement), become a “new debtor” (as defined in Section 9-102(a)(56) of the NYUCC)  with respect to a currently effective security agreement previously entered into by any  other Person and binding upon such Obligor, in each case except as notified in writing to  the Collateral Agent prior to the date hereof (or, in the case of any Subsidiary Guarantor,  prior to the date it becomes a party hereto pursuant to a Guarantee Assumption  Agreement).               2.07  Pledged Equity Interests.  (i) Annex 2.07 sets forth a complete and  correct list of all Pledged Equity Interests owned by any Obligor as of the Effective Date  (or owned by a Subsidiary Guarantor on the date it becomes a party hereto pursuant to a  Guarantee Assumption Agreement) and on the Effective Date or the date thereof such  Pledged Equity Interests constitute the percentage of issued and outstanding shares of  stock, percentage of membership interests, percentage of partnership interests or  percentage of beneficial interest of the respective issuers thereof indicated on Annex  2.07; (ii) on the Effective Date or the date thereof, the Obligors listed on Annex 2.07 are  the record and beneficial owners of the Pledged Equity Interests free of all Liens, rights  or claims of other Persons and there are no outstanding warrants, options or other rights                                       23  





 






   to purchase, or shareholder, voting trust or similar agreements outstanding with respect  to, or property that is convertible into, or that requires the issuance or sale of, any  Pledged Equity Interests; and (iii) no consent of any Person including any other general  or limited partner, any other member of a limited liability company, any other  shareholder or any other trust beneficiary is necessary in connection with the creation,  perfection or first priority (subject to Eligible Liens on the Collateral included in the  Borrowing Base and subject to Permitted Liens on all other Collateral) status of the  security interest of the Collateral Agent in any Pledged Equity Interests or the exercise by  the Collateral Agent of the voting or other rights provided for in this Agreement or the  exercise of remedies in respect thereof.               2.08  Promissory Notes.  Annex 2.08 sets forth a complete and correct  list of all Promissory Notes (other than any previously Delivered to the Custodian or held  in a Securities Account referred to in Annex 2.09) held by any Obligor on the Effective  Date (or held by a Subsidiary Guarantor on the date it becomes a party hereto pursuant to  a Guarantee Assumption Agreement) that are either included in the Borrowing Base or  have an aggregate unpaid principal amount in excess of $75,000.               2.09  Deposit Accounts and Securities Accounts.  Annex 2.09 sets forth  a complete and correct list of all Deposit Accounts, Securities Accounts and Commodity  Accounts of the Obligors on the Effective Date (and of any Subsidiary Guarantor on the  date it becomes a party hereto pursuant to a Guarantee Assumption Agreement), except  for any Deposit Account specially and exclusively used for payroll, payroll taxes and  other employee wage and benefit payments.               2.10  Commercial Tort Claims.  Annex 2.10 sets forth a complete and  correct list of all Commercial Tort Claims of the Obligors on the Effective Date (and of  any Subsidiary Guarantor on the date it becomes a party hereto pursuant to a Guarantee  Assumption Agreement).               2.11  Intellectual Property and Licenses.                 (a)   Annex 2.11 sets forth a true and complete list on the Effective Date        (or on the date a Subsidiary Guarantor becomes a party hereto pursuant to a        Guarantee Assumption Agreement) of (i) all United States, state and foreign        registrations of and applications for Patents, Trademarks, and Copyrights owned        by each Obligor and (ii) all Patent Licenses, Trademark Licenses, Trade Secret        Licenses and Copyright Licenses material to the business of such Obligor;               (b)   on the Effective Date or the date thereof, each Obligor is the sole        and exclusive owner of the entire right, title, and interest in and to all Intellectual        Property listed on Annex 2.11, and to each Obligor’s knowledge, owns or has as        of the Effective Date or the date thereof the valid right to use all other Intellectual        Property used in or necessary to conduct its business free and clear of all Liens,        claims, encumbrances and licenses, except for Permitted Liens and the licenses        set forth on Annex 2.11;                                       24  





 






                         (c)   to each Obligor’s knowledge, on the Effective Date or the date  thereof, all Intellectual Property owned by the Obligors is subsisting and has not  been adjudged invalid or unenforceable, in whole or in part, and on the Effective  Date or the date thereof each Obligor has performed all acts and has paid all  renewal, maintenance, and other fees and taxes required to maintain each and  every registration and application of Copyrights, Patents and Trademarks in full  force and effect;         (d)   to each Obligor’s knowledge, on the Effective Date or the date  thereof, all Intellectual Property owned by or exclusively licensed to the Obligors  is valid and enforceable; on the Effective Date or the date thereof, no holding,  decision, or judgment has been rendered against any Obligor in any action or  proceeding before any court or administrative authority challenging the validity  of, any Obligor’s right to register, or any Obligor’s rights to own or use, any  Intellectual Property and no such action or proceeding is pending or, to each  Obligor’s knowledge, threatened;         (e)   on the Effective Date or the date thereof, all registrations and  applications for Copyrights, Patents and Trademarks owned by the Obligors are  standing in the name of an Obligor, and none of the Trademarks, Patents,  Copyrights or Trade Secrets owned by the Obligors has been licensed by any  Obligor to any Affiliate or third party, except as disclosed in Annex 2.11;         (f)   on the Effective Date or the date thereof, each Obligor has been  using appropriate statutory notice of registration in connection with its use of  registered Trademarks, proper marking practices in connection with the use of  Patents, and appropriate notice of copyright in connection with the publication of  Copyrights, in each case if material to the business of such Obligor;         (g)   as of the Effective Date or the date thereof, each Obligor uses  adequate standards of quality in the manufacture, distribution, and sale of all  products sold and in the provision of all services rendered under or in connection  with all Trademarks owned by or licensed to such Obligor and has taken all action  reasonably necessary to ensure that all licensees of such Trademarks use such  adequate standards of quality;         (h)   to each Obligor’s knowledge, as of the Effective Date or the date  thereof, the conduct of each Obligor’s business does not infringe upon or  otherwise misappropriate or violate any trademark, patent, copyright, trade secret  or other intellectual property right owned or controlled by a third party; and no  claim has been made, in writing or, to such Obligor’s knowledge, threatened, that  the use of any Intellectual Property owned or used by any Obligor (or any of its  respective licensees) or the conduct of any Obligor’s business infringes,  misappropriates, or violates the asserted rights of any third party;         (i)   to each Obligor’s knowledge, as of the Effective Date or the date  thereof, no third party is infringing upon or otherwise violating any rights in any                                25  





 






         Intellectual Property owned or used by such Obligor, or any of its respective        licensees;               (j)   as of the Effective Date or the date thereof, no settlement or        consents, covenants not to sue, nonassertion assurances, or releases have been        entered into by any Obligor or to which any Obligor is bound that adversely affect        any Obligor’s rights to own or use any Intellectual Property; and               (k)   as of the Effective Date or the date thereof, no Obligor has made a        previous assignment, sale, transfer or agreement constituting a present or future        assignment, sale, transfer or agreement of any Intellectual Property that has not        been terminated or released, and there is no effective financing statement or other        document or instrument now executed, or on file or recorded in any public office,        granting a security interest in or otherwise encumbering any part of the        Intellectual Property, other than in favor of the Collateral Agent.               Section 3.  Guarantee.               3.01  The Guarantee.  The Subsidiary Guarantors hereby jointly and  severally guarantee to the Collateral Agent for the benefit of each of the Secured Parties  and their respective successors and assigns the prompt payment in full when due  (whether at stated maturity, by acceleration or otherwise) of the Guaranteed Obligations.  The Subsidiary Guarantors hereby further jointly and severally agree that if the Borrower  shall fail to pay in full when due (whether at stated or extended maturity, by acceleration  or otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors will jointly  and severally pay the same without any demand or notice whatsoever, and that in the case  of any extension of time of payment or renewal of any of the Guaranteed Obligations, the  same will be promptly paid in full when due (whether at extended maturity, by  acceleration or otherwise) in accordance with the terms of such extension or renewal.               3.02  Obligations Unconditional.  The obligations of the Subsidiary  Guarantors under Section 3.01 are irrevocable, absolute and unconditional, joint and  several, irrespective of the value, genuineness, validity, regularity or enforceability of the  obligations of the Borrower under this Agreement, the other Debt Documents or any  other agreement or instrument referred to herein or therein, or any substitution, release or  exchange of any other guarantee of or security for any of the Guaranteed Obligations,  and, to the fullest extent permitted by applicable law, irrespective of any other  circumstance whatsoever that might otherwise constitute a legal or equitable discharge or  defense of a surety or guarantor (other than the satisfaction in full of the Guaranteed  Obligations (other than contingent, unasserted indemnification obligations)), it being the  intent of this Section 3 that the obligations of the Subsidiary Guarantors hereunder shall  be absolute and unconditional under any and all circumstances.  Without limiting the  generality of the foregoing, it is agreed that the occurrence of any one or more of the  following shall not alter or impair the liability of the Subsidiary Guarantors hereunder,  which shall remain absolute and unconditional as described above:                                         26  





 






               (a)   at any time or from time to time, without notice to the Subsidiary        Guarantors, the time for any performance of or compliance with any of the        Guaranteed Obligations shall be extended, or such performance or compliance        shall be waived;               (b)   any of the acts mentioned in any of the provisions of this        Agreement, the other Debt Documents or any other agreement or instrument        referred to herein or therein shall be done or omitted;               (c)   the maturity of any of the Guaranteed Obligations shall be        accelerated, or any of the Guaranteed Obligations shall be modified,        supplemented or amended in any respect, or any right under this Agreement, the        other Debt Documents or any other agreement or instrument referred to herein or        therein shall be waived or any other guarantee of any of the Guaranteed        Obligations or any security therefor shall be released or exchanged in whole or in        part or otherwise dealt with; or               (d)   any Lien or security interest granted to, or in favor of, any Secured        Party as security for any of the Guaranteed Obligations shall fail to be perfected.   The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand of  payment, protest and all notices whatsoever (except as expressly required by this  Agreement or any other Debt Document), and any requirement that any Secured Party  exhaust any right, power or remedy or proceed against the Borrower under this  Agreement, the other Debt Documents or any other agreement or instrument referred to  herein or therein, or against any other Person under any other guarantee of, or security  for, any of the Guaranteed Obligations.               3.03  Reinstatement.  The obligations of the Subsidiary Guarantors  under this Section 3 shall be automatically reinstated if and to the extent that for any  reason any payment by or on behalf of the Borrower in respect of the Guaranteed  Obligations is rescinded or must be otherwise restored by any holder of any of the  Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or  reorganization or otherwise, and the Subsidiary Guarantors jointly and severally agree  that they will indemnify the Secured Parties on demand for all reasonable and  documented out-of-pocket costs and expenses (including reasonable and documented fees  and other charges of counsel (but excluding the allocated costs of internal counsel))  incurred by the Secured Parties in connection with such rescission or restoration,  including any such costs and expenses incurred in defending against any claim alleging  that such payment constituted a preference, fraudulent transfer or similar payment under  any bankruptcy, insolvency or similar law.               3.04  Subrogation.  The Subsidiary Guarantors hereby jointly and  severally agree that until the payment and satisfaction in full in cash of all Guaranteed  Obligations (other than contingent, unasserted indemnification obligations), and the  expiration and termination of all letters of credit or commitments to extend credit under  all Debt Documents, they shall not exercise any right or remedy arising by reason of any                                      27  





 






   performance by them of their guarantee in Section 3.01, whether by subrogation or  otherwise, against the Borrower or any other guarantor of any of the Guaranteed  Obligations or any security for any of the Guaranteed Obligations.               3.05  Remedies.  The Subsidiary Guarantors jointly and severally agree  that, as between the Subsidiary Guarantors and the Secured Parties, a Guaranteed  Obligation may be declared to be forthwith due and payable as provided in the respective  Debt Document therefor including, in the case of the Revolving Credit Agreement, the  provisions specifying the existence of an event of default (and shall be deemed to have  become automatically due and payable in the circumstances provided therein including,  in the case of the Revolving Credit Agreement, such provisions) for purposes of Section  3.01 notwithstanding any stay, injunction or other prohibition preventing such declaration  (or such obligations from becoming automatically due and payable) as against the  Borrower or any Subsidiary Guarantors and that, in the event of such declaration (or such  obligations being deemed to have become automatically due and payable), such  obligations (whether or not due and payable by the Borrower) shall forthwith become due  and payable by the Subsidiary Guarantors for purposes of Section 3.01.               3.06  Continuing Guarantee.  The guarantee in this Section 3 is a  continuing guarantee of payment (and not of collection), and shall apply to all  Guaranteed Obligations whenever arising.               3.07  Instrument for the Payment of Money.  Each Subsidiary Guarantor  hereby acknowledges that the guarantee in this Section 3 constitutes an instrument for the  payment of money, and consents and agrees that any Secured Party, at its sole option, in  the event of a dispute by such Subsidiary Guarantor in the payment of any moneys due  hereunder, shall (to the extent permitted under applicable law) have the right to bring  motion action under New York CPLR Section 3213.               3.08  Rights of Contribution.  The Obligors hereby agree, as between  themselves, that if any Subsidiary Guarantor shall become an Excess Funding Guarantor  (as defined below) by reason of the payment by such Subsidiary Guarantor of any  Guaranteed Obligations, then each other Subsidiary Guarantor shall, on demand of such  Excess Funding Guarantor (but subject to the next sentence), pay to such Excess Funding  Guarantor an amount equal to such Subsidiary Guarantor’s Pro Rata Share (as defined  below and determined, for this purpose, without reference to the properties, debts and  liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined below)  in respect of such Guaranteed Obligations.  The payment obligation of a Subsidiary  Guarantor to any Excess Funding Guarantor under this Section 3.08 shall be subordinate  and subject in right of payment to the prior payment in full of the obligations of such  Subsidiary Guarantor under the other provisions of this Section 3 and such Excess  Funding Guarantor shall not exercise any right or remedy with respect to such excess  until payment and satisfaction in full of all of such obligations.               For purposes of this Section 3.08, (i) “Excess Funding Guarantor” means,  in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an amount  in excess of its Pro Rata Share of such Guaranteed Obligations, (ii) “Excess Payment”                                      28  





 






   means, in respect of any Guaranteed Obligations, the amount paid by an Excess Funding  Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations and (iii) “Pro  Rata Share” means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of  (x) the amount by which the aggregate fair saleable value of all properties of such  Subsidiary Guarantor (excluding any shares of stock or other equity interest of any other  Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of such  Subsidiary Guarantor (including contingent, subordinated, unmatured and unliquidated  liabilities, but excluding the obligations of such Subsidiary Guarantor hereunder and any  obligations of any other Subsidiary Guarantor that have been Guaranteed by such  Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable value of all  properties of the Borrower and all of the Subsidiary Guarantors exceeds the amount of all  the debts and liabilities (including contingent, subordinated, unmatured and unliquidated  liabilities, but excluding the obligations of the Obligors hereunder) of the Borrower and  all of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary  Guarantor that is a party hereto on the date hereof, as of the date hereof, and (B) with  respect to any other Subsidiary Guarantor, as of the date such Subsidiary Guarantor  becomes a Subsidiary Guarantor hereunder.               3.09  General Limitation on Guarantee Obligations.  In any action or  proceeding involving any state corporate or other law, or any Federal or state bankruptcy,  insolvency, reorganization or other law affecting the rights of creditors generally, if the  obligations of any Subsidiary Guarantor under Section 3.01 would otherwise, taking into  account the provisions of Section 3.08, be held or determined to be void, invalid or  unenforceable, or subordinated to the claims of any other creditors, on account of the  amount of its liability under Section 3.01, then, notwithstanding any other provision  hereof to the contrary, the amount of such liability shall, without any further action by  such Subsidiary Guarantor, any Secured Party or any other Person, be automatically  limited and reduced to the highest amount that is valid and enforceable and not  subordinated to the claims of other creditors as determined in such action or proceeding.               3.10  Indemnity by Borrower.  In addition to all such rights of indemnity  and subrogation as the Subsidiary Guarantors may have under applicable law (but subject  to Section 3.04), the Borrower agrees that (a) in the event a payment shall be made by  any Subsidiary Guarantor under this Agreement, the Borrower shall indemnify such  Subsidiary Guarantor for the full amount of such payment and such Subsidiary Guarantor  shall be subrogated to the rights of the Person to whom such payment shall have been  made to the extent of such payment and (b) in the event any assets of any Subsidiary  Guarantor shall be sold pursuant to this Agreement or any other Security Document to  satisfy in whole or in part the Guaranteed Obligations, the Borrower shall indemnify such  Subsidiary Guarantor in an amount equal to the greater of the book value or the fair  market value of the assets so sold.               3.11  Keepwell.  Each Qualified ECP Guarantor hereby jointly and  severally absolutely, unconditionally and irrevocably undertakes to provide such funds or  other support as may be needed from time to time by each other Obligor to honor all of  its obligations under the guarantee contained in this Section 3 in respect of Swap                                      29  





 






   Obligations (provided, however that each Qualified ECP Guarantor shall only be liable  under this Section 3.11 for the maximum amount of such liability that can be hereby  incurred without rendering its obligations under this Section 3.11, or otherwise under the  guarantee contained in this Section 3, as it relates to such other Obligor, voidable under  applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any  greater amount).  The obligations of each Qualified ECP Guarantor under this Section  3.11 shall remain in full force and effect until payment in full of all the Secured  Obligations (other than in respect of indemnities and contingent Obligations not then due  and payable).  Each Qualified ECP Guarantor intends that this Section 3.11 constitute,  and this Section 3.11 shall be deemed to constitute, a “keepwell, support, or other  agreement” for the benefit of each other Obligor for all purposes of Section  1a(18)(A)(v)(II) of the Commodity Exchange Act.               Section 4.  Collateral.  As collateral security for the payment in full  when due (whether at stated maturity, by acceleration or otherwise), of its Secured  Obligations, each Obligor hereby pledges and grants to the Collateral Agent for the  benefit of the Secured Parties as hereinafter provided a security interest in all of such  Obligor’s right, title and interest in, to and under all of such Obligor’s personal property  and assets, including the following, in each case whether tangible or intangible, wherever  located, and whether now owned by such Obligor or hereafter acquired and whether now  existing or hereafter coming into existence (all of the property described in this Section 4,  other than the property excluded pursuant to the proviso to this Section 4, being  collectively referred to herein as “Collateral”):               (a)   all Accounts, all Chattel Paper, all Deposit Accounts, all        Documents, all General Intangibles (including all Intellectual Property), all        Instruments (including all Promissory Notes), all Portfolio Investments, all        Pledged Debt, all Pledged Equity Interests, all Investment Property not covered        by the foregoing (including all Securities, all Securities Accounts and all Security        Entitlements with respect thereto and Financial Assets carried therein, all        Commodity Accounts and Commodity Contracts, and, for the avoidance of doubt,        all of such Obligor’s interest in the limited liability company or membership        interests of each Subsidiary owned by such Obligor, all of such Obligor’s right to        participate in the management of the business and affairs of each such issuer or        otherwise control each such Subsidiary, and all of such Obligor’s rights as a        member of each such Subsidiary), all letters of credit and Letter-of-Credit Rights,        all Money and all Goods (including Inventory and Equipment), and all        Commercial Tort Claims;               (b)   to the extent related to any Collateral, all Supporting Obligations;               (c)   to the extent related to any Collateral, all books, correspondence,        credit files, records, invoices and other papers (including all tapes, cards,        computer runs and other papers and documents in the possession or under the        control of such Obligor or any computer bureau or service company from time to        time acting for such Obligor); and                                       30  





 






               (d)   all Proceeds of any of the foregoing Collateral.   PROVIDED, HOWEVER, that in no event shall the security interest granted under this  Section 4 attach to (and there shall be excluded from the definition of “Collateral”) (A)  any contract, property rights, obligation, instrument or agreement to which an Obligor is  a party (or to any of its rights or interests thereunder) if the grant of such security interest  would constitute or result in either (i) the abandonment, invalidation or unenforceability  of any right, title or interest of such Obligor therein or (ii) a breach or termination  pursuant to the terms of, or a default under, any such contract, property rights, obligation,  instrument or agreement (other than to the extent that any such terms would be rendered  ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as  in effect in the relevant jurisdiction), or (B) any Excluded Assets, and notwithstanding  anything to the contrary provided in this Agreement, the term “Collateral” shall not  include, and the Obligors shall not be deemed to have granted a security interest in, any  Excluded Assets.               Section 5.  Certain Agreements Among Secured Parties.  Neither the  Borrower nor any of its Subsidiaries shall have any rights under this Section 5 and no  Secured Party shall have any obligations to the Borrower or any of its Subsidiaries under  this Section 5.               5.01  Priorities; Additional Collateral.               (a)   Pari Passu Status of Obligations.  Each Secured Party by        acceptance of the benefits of this Agreement and the other Security Documents        agrees that their respective interests in the Security Documents and the Collateral        shall rank pari passu and that the Secured Obligations shall be equally and ratably        secured by the Security Documents subject to the terms hereof and the priority of        payment established in Section 8.06.               (b)   Sharing of Guaranties and Liens.  Each Secured Party by        acceptance of the benefits of this Agreement and the other Security Documents        agrees that (i) such Secured Party will not accept from any Subsidiary of the        Borrower any guarantee of any of the Guaranteed Obligations unless such        guarantor simultaneously guarantees the payment of all of the Guaranteed        Obligations owed to all Secured Parties, and (ii) such Secured Party will not hold,        take, accept or obtain any Lien upon any assets of any Obligor or any Subsidiary        of the Borrower to secure the payment and performance of the Secured        Obligations except and to the extent that such Lien is in favor of the Collateral        Agent pursuant to this Agreement or another Security Document to which the        Collateral Agent is a party for the benefit of all of the Secured Parties as provided        herein.               Anything in this Section 5, or any other provision of this Agreement, to  the contrary notwithstanding, this Agreement shall be inapplicable to any debtor-in- possession financing that may be provided by any Secured Party to the Borrower or any  of its Subsidiaries in any Federal or state bankruptcy or insolvency proceeding, and no                                      31  





 






   consent or approval of any other Secured Party shall be required as a condition to the  provision by any Secured Party of any such financing, and no other Secured Party shall  be entitled to share in any Lien upon any Collateral granted to any Secured Party to  secure repayment of such debtor-in-possession financing; provided, that no Secured Party  shall be barred from objecting to any such financing on the basis of adequate protection  or any other grounds.               5.02  Turnover of Collateral.  If a Secured Party acquires custody,  control or possession of any Collateral or the Proceeds therefrom, other than pursuant to  the terms of this Agreement or on account of any payment that is not expressly prohibited  hereby, such Secured Party shall promptly (but in any event within five (5) Business  Days) cause such Collateral or Proceeds to be Delivered in accordance with the  provisions of this Agreement.  Until such time as such Secured Party shall have complied  with the provisions of the immediately preceding sentence, such Secured Party shall be  deemed to hold such Collateral and Proceeds in trust for the benefit of the Collateral  Agent.               5.03  Cooperation of Secured Parties.  Each Secured Party will cooperate  with the Collateral Agent and with each other Secured Party in the enforcement of the  Liens upon the Collateral and otherwise in order to accomplish the purposes of this  Agreement and the Security Documents.               5.04  Limitation upon Certain Independent Actions by Secured Parties.   No Secured Party shall have any right to institute any action or proceeding to enforce any  term or provision of the Security Documents or to enforce any of its rights in respect of  the Collateral or to exercise any other remedy pursuant to the Security Documents or at  law or in equity, for the purpose of realizing on the Collateral, or by reason of jeopardy of  any Collateral, or for the execution of any trust or power hereunder (collectively, the  “Specified Actions”), unless the Required Secured Parties have delivered written  instructions to the Collateral Agent and the Collateral Agent shall have failed to act in  accordance with such instructions within thirty (30) days thereafter.  In such case but not  otherwise, the Required Secured Parties may appoint one Person to act on behalf of the  Secured Parties solely to take any of the Specified Actions (the “Appointed Party”), and,  upon the acceptance of its appointment as Appointed Party, the Appointed Party shall be  entitled to commence proceedings in any court of competent jurisdiction or to take any  other Specified Actions as the Collateral Agent might have taken pursuant to this  Agreement or the Security Documents (in accordance with the directions of the Required  Secured Parties).  All parties hereto hereby acknowledge and agree that should the  Appointed Party act in accordance with this provision, the Appointed Party shall be  delegated the authority to take such Specified Actions (without any further action  necessary on the part of any Person), and that such Appointed Party will have all the  rights, remedies, benefits and powers as are granted to the Collateral Agent pursuant  hereto or pursuant to any Security Documents with respect to such Specified Actions, in  each case, to the extent permitted by applicable law; provided, that, notwithstanding  anything to the contrary herein or in any other Revolving Loan Document, in no event  shall the Collateral Agent be liable to any Person or be responsible for any loss, claim,                                      32  





 






   damage, liability and/or expense arising out of, related to, in connection with, or as a  result of any actions taken by such Appointed Party and in no event shall this provision  limit any of the rights, powers, privileges, remedies or benefits of the Collateral Agent  under the Revolving Loan Documents in any respect.               5.05  No Challenges.  In no event shall any Secured Party take any  action to challenge, contest or dispute the validity, extent, enforceability, or priority of  the Collateral Agent’s Liens hereunder or under any other Security Document with  respect to any of the Collateral, or that would have the effect of invalidating any such  Lien or support any Person who takes any such action.  Each of the Secured Parties  agrees that it will not take any action to challenge, contest or dispute the validity,  enforceability or secured status of any other Secured Party’s claims against any Obligor  (other than any such claim resulting from a breach of this Agreement by a Secured Party,  or any challenge, contest or dispute alleging arithmetical error in the determination of a  claim), or that would have the effect of invalidating any such claim, or support any  Person who takes any such action.               5.06  Rights of Secured Parties as to Secured Obligations.   Notwithstanding any other provision of this Agreement, the right of each Secured Party  to receive payment of the Secured Obligations held by such Secured Party when due  (whether at the stated maturity thereof, by acceleration or otherwise), as expressed in any  instrument evidencing or agreement governing such Secured Obligations, or to institute  suit for the enforcement of such payment on or after such due date, and the obligation of  the Obligors to pay their respective Secured Obligations when due, shall not be impaired  or affected without the consent of such Secured Party as required in accordance with the  Debt Documents to which such Secured Party is a party or its Secured Obligations are  bound; provided that, notwithstanding the foregoing, each Secured Party agrees that it  will not attempt to exercise remedies with respect to any Collateral except as provided in  this Agreement or, in the case of the Revolving Administrative Agent, law.               5.07  General Application.  This Section 5 shall be applicable both  before and after the institution of any Insolvency Proceeding involving Borrowers or any  other Obligor, including without limitation, the filing of any petition by or against any  Borrower or any other Obligor under the Bankruptcy Code, or any other Insolvency Law,  and all converted or succeeding cases in respect thereof, and all references herein to any  Borrower or any other Obligor shall be deemed to apply to the trustee for such Borrower  or such other Obligor and such Borrower or such other Obligor as debtor-in-possession.  The relative rights of the Secured Parties in or to any distributions from or in respect of  any Collateral or proceeds of Collateral shall continue after the institution of any  Insolvency Proceeding involving any Borrower or any other Obligor on the same basis as  prior to the date of such institution. This Section 5 is a “subordination agreement” under  section 510(a) of the Bankruptcy Code and shall be enforceable in any Insolvency  Proceeding.               Notwithstanding anything to the contrary contained herein, the Secured  Parties agree that they will not propose, support or vote in favor of any plan of                                       33  





 






   reorganization or similar dispositive restructuring plan in connection with an Insolvency  Proceeding unless more than two-thirds in amount of allowed claims held by the Secured  Parties holding Revolving Credit Agreement Obligations agree to vote for any such plan.               Section 6.  Designation of Designated Indebtedness; Recordkeeping,  Etc.               6.01  Designation of Other Secured Indebtedness.  The Borrower may at  any time designate as “Designated Indebtedness” hereunder any other Indebtedness  intended by the Borrower to be secured by the Collateral, provided that such Designated  Indebtedness satisfies at the time of incurrence thereof the terms and conditions of the  definition of “Secured Longer-Term Indebtedness” in the Revolving Credit Agreement,  Section 6.01(b)(ii) of the Revolving Credit Agreement and the other provisions of the  Revolving Credit Agreement (as long as the Revolving Credit Agreement Obligations are  outstanding (other than any contingent, unasserted indemnification obligations)), such  designation to be effected by delivery to the Collateral Agent of a notice substantially in  the form of Exhibit A or in such other form as is approved by the Collateral Agent (a  “Notice of Designation”), which notice shall identify such Indebtedness, provide that  such Indebtedness be designated as “Designated Indebtedness” hereunder and be  accompanied by a certificate of a Financial Officer of the Borrower delivered to the  Revolving Administrative Agent, each Financing Agent (if any), each Designated  Indebtedness Holder party hereto and the Collateral Agent:               (a)   certifying that such Indebtedness satisfies the conditions of this        Section 6.01, and that after giving effect to such designation and the incurrence of        such Designated Indebtedness, no Default, Event of Default or Trigger Event        shall have occurred and be continuing and that both immediately before and        immediately after giving effect to such designation and the incurrence of such        Designated Indebtedness, the Borrower is in compliance with Section 6.01(b)(ii)        of the Revolving Credit Agreement and the other provisions of the Revolving        Credit Agreement (as long as the Revolving Credit Agreement Obligations are        outstanding (other than any contingent, unasserted indemnification obligations));               (b)   attaching (and certifying as true and complete) copies of the        material Designated Indebtedness Documents for such Designated Indebtedness        (including all schedules and exhibits, and all amendments or supplements,        thereto); and               (c)    identifying the Financing Agent, if any, for such Designated        Indebtedness (or, if there is no Financing Agent for such Designated        Indebtedness, identifying each holder of such Designated Indebtedness).               No such designation shall be effective unless and until the Borrower and  such Financing Agent (or, if there is no Financing Agent, each such Designated  Indebtedness Holder) shall have executed and delivered to the Collateral Agent (x) a  joinder substantially in the form attached hereto as Exhibit E or (y) an agreement in form  and substance reasonably satisfactory to the Collateral Agent, appropriately completed                                      34  





 






   and duly executed and delivered by each party thereto, pursuant to which such Financing  Agent (or, if there is no Financing Agent, each such Designated Indebtedness Holder)  shall have become a party hereto and assumed the obligations of a Financing Agent (or  Designated Indebtedness Holder) hereunder, as applicable.               6.02  Recordkeeping.  The Collateral Agent will maintain books and  records necessary to enable it to determine at any time all transactions under this  Agreement which have occurred on or prior to such time.  Each Obligor agrees that such  books and records maintained in good faith by the Collateral Agent shall be conclusive as  to the matters contained therein absent manifest error.  Each Obligor shall have the right  to inspect such books and records at any time upon reasonable prior notice.  In the event  of any conflict between the books and records maintained by any Secured Party and the  books and records of the Collateral Agent in respect of such matters, the books and  records of the Collateral Agent shall control in the absence of manifest error.               Section 7.  Covenants of the Obligors.  In furtherance of the grant of  the security interest pursuant to Section 4, each Obligor hereby agrees with the Collateral  Agent for the benefit of the Secured Parties as follows:               7.01  Delivery and Other Perfection.                     (a)   With respect to any Portfolio Investment or other Collateral  as to which physical possession by the Collateral Agent, the Custodian is required in  order for such Portfolio Investment or Collateral to have been “Delivered”, such Obligor  shall take such actions as shall be necessary to effect Delivery thereof on or prior to the  Effective Date and within twenty (20) days after the acquisition thereof by an Obligor  with respect to any such Portfolio Investment or Collateral acquired after the Effective  Date.  As to all other Collateral, such Obligor shall cause the same to be Delivered within  five (5) Business Days of the acquisition thereof, provided that Delivery shall not be  required with respect to (1) accounts of the type described in clauses (A) – (F) of  Section 7.06 to the extent set forth therein, and (2) immaterial assets so long as (x) such  assets are not included in the Borrowing Base, (y) the Collateral Agent has a perfected  first priority lien (subject to Permitted Liens) on such assets and no other Person  exercises NYUCC Control over such assets and such assets have not been otherwise  “Delivered” to any other Person, and (z) the aggregate value of all such assets  collectively described in this Section 7.01(a)(2) does not at any time exceed $500,000;  and provided further that the proviso in clause (h) of the definition of “Delivery” does not  apply to any participation in a loan held by an Obligor pursuant only to a customary  participation agreement (it being understood that under no circumstances will  participations in a loan be included as an Eligible Portfolio Investment whether or not  such clause (h) has been complied with).  In addition, and without limiting the generality  of the foregoing (but subject to the limitations therein), each Obligor shall promptly from  time to time give, execute, deliver, file, record, authorize or obtain all such financing  statements, continuation statements, notices, instruments, documents, account control  agreements or any other agreements or consents or other papers as may be necessary or  as may be reasonably requested by the Collateral Agent to create, preserve, perfect,  maintain the perfection of or validate the security interest granted pursuant hereto or to                                      35  





 






   enable the Collateral Agent to exercise and enforce its rights hereunder with respect to  such security interest, and without limiting the foregoing, shall:               (i)   keep full and accurate books and records relating to the Collateral        in all material respects and (to the extent reasonably necessary to create, perfect or        maintain the priority of any liens granted to the Collateral Agent in such        Collateral pursuant hereto) stamp or otherwise mark such books and records in        such a manner as the Collateral Agent may reasonably require in order to reflect        the security interests granted to the Collateral Agent in such Collateral pursuant        hereto;                (ii)  permit representatives of the Collateral Agent, upon reasonable        prior notice, at the sole expense of the Borrower, at reasonable times during        normal business hours, and in each case to the extent such information can be        provided or discussed without violation of law, rule or regulation (it being        understood that the Obligors will use their commercially reasonable efforts to be        able to provide such information not in violation of law, rule or regulation), to        examine and make extracts from its books and records pertaining to the        Collateral, and permit representatives and advisors of the Collateral Agent to be        present during any inspection to receive copies of communications and        remittances relating to the Collateral, and forward copies of any notices or        communications received by such Obligor with respect to the Collateral, all in        such manner as the Collateral Agent may reasonably require; provided that each        such Obligor shall be entitled to have its representatives and advisors present        during any inspection of its books and records;               (iii) take all actions necessary to ensure the recordation of appropriate        evidence of the liens and security interest granted hereunder in the Intellectual        Property with any Intellectual Property registry in which said Intellectual Property        is registered or in which an application for registration is pending including,        without limitation, the United States Patent and Trademark Office and the United        States Copyright Office; and               (iv)  at the Collateral Agent’s request, appear in and defend any action        or proceeding that may affect such Obligor’s title to or the Collateral Agent’s        security interest in all or any part of the Intellectual Property included in the        Collateral.                     (b)   Unless released from the Collateral pursuant to  Section 10.03(e) or (f), once any Collateral has been Delivered, the Obligors shall not  take or permit any action that would result in such Collateral no longer being Delivered  hereunder and shall promptly from time to time give, execute, deliver, file, record,  authorize or obtain all such financing statements, continuation statements, notices,  instruments, documents, account control agreements or any other agreements or consents  or other papers as may be necessary or desirable in the reasonable judgment of the  Collateral Agent to continue the Delivered status of any Collateral.  Without limiting the  generality of the foregoing, the Obligors shall not terminate any arrangement with the                                      36  





 






   Custodian unless and until a successor Custodian reasonably satisfactory to the Collateral  Agent has been appointed and has executed all documentation necessary to continue the  Delivered status of the Collateral, which documentation shall be in form and substance  reasonably satisfactory to the Collateral Agent.               7.02  Name; Jurisdiction of Organization, Etc.  Each Obligor agrees that  (a) without providing at least twenty (20) days prior written notice to the Collateral Agent  (or such shorter period as may be approved by the Collateral Agent in its sole discretion),  such Obligor will not change its name, its place of business or, if more than one, chief  executive office, or its mailing address or organizational identification number if it has  one, (b) if such Obligor does not have an organizational identification number and later  obtains one, such Obligor will forthwith notify the Collateral Agent of such  organizational identification number and (c) such Obligor will not change its type of  organization, jurisdiction of organization or other legal structure unless such change is  specifically permitted hereby or by the Revolving Credit Agreement (as long as the  Revolving Credit Agreement Obligations are outstanding (other than any contingent,  unasserted indemnification obligations)) and such Obligor provides the Collateral Agent  with at least twenty (20) days prior written notice of such permitted change (or such  shorter period as may be approved by the Collateral Agent in its sole discretion).               7.03  Other Liens, Financing Statements or Control.  Except as  otherwise permitted under Section 6.02 of the Revolving Credit Agreement (as long as  the Revolving Credit Agreement Obligations are outstanding (other than any contingent,  unasserted indemnification obligations)) and the applicable provisions of each other Debt  Document, the Obligors shall not (a) create or suffer to exist any Lien upon or with  respect to any Collateral, (b) file or suffer to be on file, or authorize or permit to be filed  or to be on file, in any jurisdiction, any financing statement or like instrument with  respect to any of the Collateral in which the Collateral Agent is not named as the sole  Collateral Agent for the benefit of the Secured Parties, or (c) cause or permit any Person  other than the Collateral Agent to have NYUCC Control of any Deposit Account,  Electronic Chattel Paper, Investment Property or Letter-of-Credit Right constituting part  of the Collateral.               7.04  Transfer of Collateral.  Except as otherwise permitted under  Section 6.03 of the Revolving Credit Agreement and the applicable provisions of each  other Debt Document, the Obligors shall not sell, transfer, assign, license or grant an  option or otherwise dispose of any Collateral.               7.05  Additional Subsidiary Guarantors.  As contemplated by Section  5.08 of the Revolving Credit Agreement, new Subsidiaries (other than a Financing  Subsidiary, a CFC, a Subsidiary of a CFC, an Immaterial Subsidiary, a Transparent  Subsidiary or a Subsidiary of a Transparent Subsidiary) of the Borrower formed or  acquired by the Borrower after the date hereof, existing Subsidiaries of the Borrower that  after the date hereof cease to constitute Financing Subsidiaries, CFCs, Subsidiaries of a  CFC, Immaterial Subsidiaries, Transparent Subsidiaries or Subsidiaries of a Transparent  Subsidiary under the Revolving Credit Agreement, and any other Person that otherwise                                       37  





 






   becomes a Subsidiary (other than a Financing Subsidiary, a CFC, a Subsidiary of a CFC,  an Immaterial Subsidiary, a Transparent Subsidiary or a Subsidiary of a Transparent  Subsidiary) within the meaning of the definition thereof, are required to become a  “Subsidiary Guarantor” under this Agreement, by executing and delivering to the  Collateral Agent a Guarantee Assumption Agreement in the form of Exhibit B hereto.   Accordingly, upon the execution and delivery of any such Guarantee Assumption  Agreement by any such Subsidiary, such Subsidiary shall automatically and immediately,  and without any further action on the part of any Person, become a “Subsidiary  Guarantor” and an “Obligor” for all purposes of this Agreement, and Annexes 2.05, 2.07,  2.08, 2.09, 2.10 and 2.11 hereto shall be deemed to be supplemented in the manner  specified in such Guarantee Assumption Agreement.  In addition, upon execution and  delivery of any such Guarantee Assumption Agreement, the new Subsidiary Guarantor  makes the representations and warranties set forth in Section 2 as of the date of such  Guarantee Assumption Agreement and shall be permitted to update the Annexes with  respect to such Subsidiary.               7.06  Control Agreements.  No Obligor shall open or maintain any  account with any bank, securities intermediary or commodities intermediary (other than  (A) any such accounts that are maintained by the Borrower in its capacity as “servicer”  for a Financing Subsidiary or any Agency Account (as defined in the Revolving Credit  Agreement), (B) any such accounts which hold solely money or financial assets of a  Financing Subsidiary, (C) any payroll account so long as such payroll account is coded as  such, (D) withholding tax and fiduciary accounts or any trust account maintained solely  on behalf of a Portfolio Investment, (E) any checking account of the Obligors in which  the aggregate value of deposits therein, together with all other such accounts under this  clause (E), does not at any time exceed $1,000,000, provided that Borrower will, and will  cause each of its Subsidiary Guarantors to, use commercially reasonable efforts to obtain  control agreements governing any such account in this clause (E), and (F) any account in  which the aggregate value of deposits therein, together with all other such accounts under  this clause (F), does not at any time exceed $75,000; provided that in the case of each of  the foregoing clauses (A) through (F), no other Person (other than the depository  institution at which such account is maintained) shall have NYUCC Control over such  account and such account shall not have been otherwise “Delivered” to any other Person)  unless such Obligor has notified the Collateral Agent of such account and the Collateral  Agent has NYUCC Control over such account pursuant to a control agreement in form  and substance reasonably satisfactory to the Collateral Agent.               7.07  Revolving Credit Agreement.  Each Subsidiary Guarantor agrees  to perform, comply with and be bound by the covenants of the Revolving Credit  Agreement (which provisions are incorporated herein by reference) (as long as the  Revolving Credit Agreement Obligations are outstanding (other than any contingent,  unasserted indemnification obligations)), applicable to such Subsidiary Guarantor as if  each Subsidiary Guarantor were a signatory to the Revolving Credit Agreement.                                       38  





 






                         7.08  Pledged Equity Interests.           (a)   In the event any Obligor acquires rights in any Pledged Equity  Interest after the date hereof or any Excluded Equity Interest held by any Obligor  becomes a Pledged Equity Interest after the date hereof because it ceases to  constitute an Excluded Equity Interest, such Obligor shall promptly deliver to the  Collateral Agent a completed Pledge Supplement, together with all supplements  to Annexes thereto, reflecting such new Pledged Equity Interests.  Notwithstanding the foregoing, it is understood and agreed that the security  interest of the Collateral Agent shall attach to all Pledged Equity Interests  immediately upon any Obligor’s acquisition of rights therein and shall not be  affected by the failure of any Obligor to deliver a supplement to Annex 2.07 as  required hereby;          (b)   Without the prior written consent of the Collateral Agent, no  Obligor shall vote to enable or take any other action to: (a) amend or (other than  in connection with a liquidation permitted under Section 6.03 of the Revolving  Credit Agreement and under each other Debt Document) terminate any  partnership agreement, limited liability company agreement, certificate of  incorporation, by-laws or other organizational documents in any way that  materially and adversely changes the rights of such Obligor with respect to any  Pledged Equity Interest or that adversely affects the validity, perfection or priority  of the Collateral Agent’s security interest or the ability of the Collateral Agent to  exercise its rights and remedies under this Agreement with respect to such  Pledged Equity Interest, (b) other than as permitted under the Revolving Credit  Agreement and each other Debt Document, permit any issuer of any Pledged  Equity Interest to dispose of all or a material portion of their assets, (c) cause any  issuer of any Pledged Equity Interests which are interests in a partnership or  limited liability company and which are not securities (for purposes of the  NYUCC) on the date hereof or the date acquired (if later) to elect or otherwise  take any action to cause such Pledged Equity Interests to be treated as securities  for purposes of the NYUCC; except if such Obligor shall promptly notify the  Collateral Agent in writing of any such election or action and, in such event, shall  take all steps necessary or advisable in the Collateral Agent’s reasonable  discretion to establish the Collateral Agent’s NYUCC Control thereof, or (d)  cause any issuer of any Pledged Equity Interests which are interests in a  corporation and which are not Certificated Securities at any time to become  Certificated Securities; except if such Obligor shall promptly notify the Collateral  Agent in writing of any such election or action and, in such event, shall promptly,  and in any case within five (5) Business Days (or such longer period as may be  approved by the Collateral Agent in its sole discretion) of such election or action,  Deliver any such Certificated Security to the Collateral Agent;         (c)   Each Obligor consents to the grant by each other Obligor of a  security interest in all Pledged Equity Interests to the Collateral Agent and,  without limiting the foregoing, consents to the transfer of any Pledged Equity  Interest to the Collateral Agent or its nominee following the occurrence and                                39  





 






                   during the continuation of an Event of Default and to the substitution of the  Collateral Agent or its nominee as a partner in any partnership or as a member in  any limited liability company with all the rights and powers related thereto;         (d)   Each Obligor that is a corporation that is an issuer of any  uncertificated Pledged Equity Interests hereby agrees that it will, subject to the  terms and conditions of Section 7.09 and the other terms and conditions hereof,  comply with all instructions of the Collateral Agent with respect to such  uncertificated Pledged Equity Interests without further consent by the applicable  owner or holder of such uncertificated Pledged Equity Interests.         (e)   All Pledged Interests that are Equity Interests of Subsidiaries shall  at all times be Delivered; and         (f)   Notwithstanding anything to the contrary contained herein, in no  event shall any Obligor be required to pledge more than 65% of the Equity  Interests in any Portfolio Company to the extent such entity would constitute a  CFC or a Transparent Subsidiary if it was a Subsidiary.         7.09  Voting Rights, Dividends, Etc. in Respect of Pledged Interests.           (a)   So long as no Event of Default or Trigger Event shall have  occurred and be continuing:         (i)   each Obligor may exercise any and all voting and other consensual  rights pertaining to any Pledged Interests for any purpose not inconsistent with the  terms of this Agreement or any Debt Document; provided, however, that (A) each  Obligor will give the Collateral Agent at least five (5) Business Days’ notice of  the manner in which it intends to exercise, or the reasons for refraining from  exercising, any such right that could reasonably be expected to adversely affect in  any material respect the value, liquidity or marketability of any Collateral or the  creation, perfection and priority of the Collateral Agent’s Lien; and (B) none of  the Obligors will exercise or refrain from exercising any such right, as the case  may be, if the Collateral Agent gives an Obligor notice that, in the Collateral  Agent’s judgment, such action (or inaction) could reasonably be expected to  adversely affect in any material respect the value, liquidity or marketability of any  Collateral or the creation, perfection and priority of the Collateral Agent’s Lien or  the ability of the Collateral Agent to exercise its rights and remedies under this  Agreement with respect to such Pledged Interest;          (ii)  each of the Obligors may receive and retain any and all dividends,  interest or other distributions paid in respect of the Pledged Interests to the extent  permitted by the Debt Documents; provided, however, that (except with respect to  any Pledged Interest that is also a Portfolio Investment) any and all (A) dividends  and interest paid or payable other than in cash in respect of, and Instruments and  other property received, receivable or otherwise distributed in respect of or in  exchange for, any Pledged Interests, (B) dividends and other distributions paid or                                40  





 






                   payable in cash in respect of any Pledged Interests in connection with a partial or  total liquidation or dissolution or in connection with a reduction of capital, capital  surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in  redemption of, or in exchange for, any Pledged Interests, together with any  dividend, interest or other distribution or payment which at the time of such  payment was not permitted by the Debt Documents, shall constitute Collateral, be  Delivered hereunder and remain subject to the Lien of the Collateral Agent to  hold as Pledged Interests, and shall, if received by any of the Obligors, be  received in trust for the benefit of the Collateral Agent, shall be segregated from  the other property or funds of the Obligors, and shall be forthwith delivered to the  Collateral Agent in the exact form received with any necessary indorsement  and/or appropriate stock powers duly executed in blank, to be held by the  Collateral Agent as Pledged Interests and as further collateral security for the  Secured Obligations; provided that the Obligors shall be permitted to take any  action with respect to cash described in clauses (B) and (C) not prohibited by the  other Debt Documents; and         (iii) the Collateral Agent will execute and deliver (or cause to be  executed and delivered) to any Obligor all such proxies and other instruments as  such Obligor may reasonably request for the purpose of enabling such Obligor to  exercise the voting and other rights which it is entitled to exercise pursuant to  Section 7.09(a)(i) hereof and to receive the dividends, interest and/or other  distributions which it is authorized to receive and retain pursuant to Section  7.09(a)(ii) hereof.         (b)   Automatically upon the occurrence and during the continuance of  an Event of Default or a Trigger Event:         (i)   all rights of each Obligor to exercise the voting and other  consensual rights which it would otherwise be entitled to exercise pursuant to  Section 7.09(a)(i) hereof, and to receive the dividends, distributions, interest and  other payments that it would otherwise be authorized to receive and retain  pursuant to Section 7.09(a)(ii) hereof, shall cease, and all such rights shall  thereupon become vested in the Collateral Agent, which shall thereupon have the  sole right to exercise such voting and other consensual rights and to receive and  hold as Pledged Interests such dividends, distributions and interest payments;         (ii)  the Collateral Agent is authorized to notify each debtor with  respect to the Pledged Debt or other Portfolio Investments to make payment  directly to the Collateral Agent (or its designee) and may collect any and all  moneys due or to become due to any Obligor in respect of the Pledged Debt or  other Portfolio Investments, and each of the Obligors hereby authorizes each such  debtor to make such payment directly to the Collateral Agent (or its designee)  without any duty of inquiry;         (iii) without limiting the generality of the foregoing, the Collateral  Agent may at its option exercise any and all rights of conversion, exchange,                                41  





 






         subscription or any other rights, privileges or options pertaining to any of the        Pledged Interests or any Portfolio Investments as if it were the absolute owner        thereof, including the right to exchange, in its discretion, any and all of the        Pledged Interests or any Portfolio Investments upon the merger, consolidation,        reorganization, recapitalization or other adjustment of any issuer thereof, or upon        the exercise by any such issuer of any right, privilege or option pertaining to any        Pledged Interests or any Portfolio Investments, and, in connection therewith, to        deposit and deliver any and all of the Pledged Interests or any Portfolio        Investments with any committee, depository, transfer agent, registrar or other        designated agent upon such terms and conditions as it may determine; and               (iv)  all dividends, distributions, interest and other payments that are        received by any of the Obligors contrary to the provisions of Section 7.09(b)(i)        hereof shall be received in trust for the benefit of the Collateral Agent, shall be        segregated from other funds of the Obligors, and shall be forthwith paid over to        the Collateral Agent as Pledged Interests in the exact form received with any        necessary indorsement and/or appropriate stock powers duly executed in blank, to        be held by the Collateral Agent as Pledged Interests and as further collateral        security for the Secured Obligations.               7.10  Commercial Tort Claims.  Each Obligor agrees that with respect to  any Commercial Tort Claim in excess of $100,000 individually hereafter arising it shall  deliver to the Collateral Agent a completed Pledge Supplement, together with all  supplements to Annexes thereto, identifying such new Commercial Tort Claims.               7.11  Intellectual Property.  Each Obligor hereby covenants and agrees  as follows:               (a)   it shall not do any act or omit to do any act whereby any of the        Intellectual Property which such Obligor determines in its reasonable business        judgment is material to the business of such Obligor may lapse, or become        abandoned, dedicated to the public, or unenforceable, or which would adversely        affect the validity, grant, or enforceability of the security interest granted therein;               (b)   it shall not, with respect to any Trademarks which such Obligor        determines in its reasonable business judgment are material to the business of        such Obligor, cease the use of any of such Trademarks or fail to maintain the level        of the quality of products sold and services rendered under any such Trademarks        at a level which such Obligor determines in its reasonable business judgment to        be appropriate to maintain the value of such Trademarks, and each Obligor shall        take all steps reasonably necessary to ensure that licensees of such Trademarks        use such consistent standards of quality;               (c)   it shall promptly notify the Collateral Agent if it knows or has        reason to know that any item of the Intellectual Property that in its reasonable        business judgment is material to the business of any Obligor may become (a)        abandoned or dedicated to the public or placed in the public domain, (b) invalid or                                      42  





 






                   unenforceable, or (c) subject to any material adverse determination or  development (including the institution of proceedings) in any action or proceeding  in the United States Patent and Trademark Office, the United States Copyright  Office, any state registry, any foreign counterpart of the foregoing, or any court,  other than in the ordinary course of prosecuting and/or maintaining the  applications or registrations of such Intellectual Property;         (d)   it shall take all reasonable steps in the United States Patent and  Trademark Office, the United States Copyright Office, any state registry or any  foreign counterpart of the foregoing, to pursue any application and maintain any  registration of each Trademark, Patent, and Copyright owned by any Obligor that  such Obligor determines in its reasonable business judgment is material to its  business which is now or shall become included in the Intellectual Property  Collateral;         (e)   in the event that it has knowledge that any Intellectual Property  owned by or exclusively licensed to any Obligor is infringed, misappropriated, or  diluted by a third party, such Obligor shall, except as it determines otherwise in its  reasonable business judgment, promptly take all reasonable actions to stop such  infringement, misappropriation, or dilution and protect its rights in such  Intellectual Property including, but not limited to, the initiation of a suit for  injunctive relief and to recover damages;         (f)   it shall promptly (but in no event more than thirty (30) days after  any Obligor obtains knowledge thereof) report to the Collateral Agent (i) the  filing by or on behalf of such Obligor of any application to register any  Intellectual Property with the United States Patent and Trademark Office, the  United States Copyright Office, or any state registry or foreign counterpart of the  foregoing and (ii) the registration of any Intellectual Property owned by such  Obligor by any such office, in each case by executing and delivering to the  Collateral Agent a completed Pledge Supplement, together with all supplements  to Annexes thereto;         (g)   it shall, promptly upon the reasonable request of the Collateral  Agent, execute and deliver to the Collateral Agent any document required to  acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest  in any part of the Intellectual Property Collateral, whether now owned or hereafter  acquired by or on behalf of such Obligor, including intellectual property security  agreements in the form of Exhibit C hereto;         (h)   it shall hereafter use commercially reasonable efforts so as not to  permit the inclusion in any contract to which it hereafter becomes a party of any  provision that could reasonably be expected to materially impair or prevent the  creation of a security interest in, or the assignment of, such Obligor’s rights and  interests in any property included within the definitions of any Intellectual  Property acquired under such contracts;                                 43  





 






               (i)   it shall take all steps reasonably necessary to protect the secrecy of        all Trade Secrets, including entering into confidentiality agreements with its        employees and labeling and restricting access to secret information and        documents; and               (j)   it shall continue to collect, at its own expense, all amounts due or        to become due to such Obligor in respect of the Intellectual Property Collateral or        any portion thereof.  In connection with such collections, each Obligor may take        (and, while an Event of Default exists, at the Collateral Agent’s reasonable        direction, shall take) such action as such Obligor or the Collateral Agent may        deem reasonably necessary or advisable to enforce collection of such amounts.         Notwithstanding the foregoing, while an Event of Default exists, the Collateral        Agent shall have the right at any time, to notify, or require any Obligor to notify,        any obligors with respect to any such amounts of the existence of the security        interest created hereby.               Section 8.  Acceleration Notice; Remedies; Distribution of Collateral.               8.01  Notice of Acceleration.  Upon receipt by the Collateral Agent of a  written notice from any Secured Party which (i) expressly refers to this Agreement, (ii)  describes an event or condition which has occurred and is continuing and (iii) expressly  states that such event or condition constitutes an Acceleration as defined herein, the  Collateral Agent shall promptly notify each other party hereto of the receipt and contents  thereof (any such notice is referred to herein as a “Acceleration Notice”).               8.02  Preservation of Rights.  The Collateral Agent shall not be required  to take steps necessary to preserve any rights against prior parties to any of the Collateral.                8.03  Events of Default, Etc.  During the period during which an Event  of Default or a Trigger Event shall have occurred and be continuing:               (a)   each Obligor shall, at the request of the Collateral Agent, assemble        the Collateral owned by it at such place or places, reasonably convenient to both        the Collateral Agent and such Obligor, designated in the Collateral Agent’s        request;               (b)   the Collateral Agent may make any reasonable compromise or        settlement deemed desirable with respect to any of the Collateral and may extend        the time of payment, arrange for payment in installments, or otherwise modify the        terms of, any of the Collateral;               (c)   the Collateral Agent shall have all of the rights and remedies with        respect to the Collateral of a secured party under the Uniform Commercial Code        (whether or not the Uniform Commercial Code is in effect in the jurisdiction        where the rights and remedies are asserted) and such additional rights and        remedies to which a secured party is entitled under the laws in effect in any        jurisdiction where any rights and remedies hereunder may be asserted, including                                      44  





 






         the right, to the fullest extent permitted by applicable law, to exercise all voting,        consensual and other powers of ownership pertaining to the Collateral as if the        Collateral Agent were the sole and absolute owner thereof (and each Obligor        agrees to take all such action as may be appropriate to give effect to such right);               (d)   the Collateral Agent in its discretion may, in its name or in the        name of any Obligor or otherwise, demand, sue for, collect or receive any money        or property at any time payable or receivable on account of or in exchange for any        of the Collateral, but shall be under no obligation to do so; and               (e)   the Collateral Agent may, upon reasonable prior written notice        (provided that at least ten (10) Business Days’ prior written notice shall be        deemed to be reasonable) to the Obligors of the time and place (or, if such sale is        to take place on the NYSE or any other established exchange or market, prior to        the time of such sale or other disposition), with respect to the Collateral or any        part thereof which shall then be or shall thereafter come into the possession,        custody or control of the Collateral Agent, the other Secured Parties or any of        their respective agents, sell, assign or otherwise dispose of all or any part of such        Collateral, at such place or places as the Collateral Agent deems appropriate, and        for cash or for credit or for future delivery (without thereby assuming any credit        risk), at public or private sale, without demand of performance or notice of        intention to effect any such disposition or of the time or place thereof (except such        notice as is required above or by applicable statute and cannot be waived), and the        Collateral Agent or any other Secured Party or anyone else may be the purchaser,        assignee or recipient of any or all of the Collateral so disposed of at any public        sale (or, to the extent permitted by law, at any private sale) and thereafter, to the        fullest extent permitted by law, hold the same absolutely, free from any claim or        right of whatsoever kind, including any right or equity of redemption (statutory or        otherwise), of the Obligors, any such demand, notice and right or equity being        hereby expressly waived and released, to the fullest extent permitted by law.               The Collateral Agent may, without notice or publication, adjourn any        public or private sale or cause the same to be adjourned from time to time by        announcement at the time and place fixed for the sale, and such sale may be made        at any time or place to which the sale may be so adjourned.   The proceeds of each collection, sale or other disposition under this Section 8.03 shall be  applied in accordance with Section 8.06.               The Obligors recognize that, by reason of certain prohibitions contained in  the Securities Act of 1933, as amended, and applicable state securities laws, the  Collateral Agent may be compelled, with respect to any sale of all or any part of the  Collateral, to limit purchasers to those who will agree, among other things, to acquire the  Collateral for their own account, for investment and not with a view to the distribution or  resale thereof.  The Obligors acknowledge that any such private sales may be at prices  and on terms less favorable to the Collateral Agent than those obtainable through a public  sale without such restrictions, and, notwithstanding such circumstances, agree that to the                                      45  





 






   extent any such private sale is conducted by the Collateral Agent in a commercially  reasonable manner, the Collateral Agent shall have no obligation to engage in public  sales and no obligation to delay the sale of any Collateral for the period of time necessary  to permit the Obligors, or the issuer thereof, to register it for public sale.               8.04  Deficiency. If the proceeds of sale, collection or other realization  of or upon the Collateral pursuant to Section 8.03 are insufficient to cover the costs and  expenses of such realization and the payment in full of the Secured Obligations, the  Obligors shall remain liable for any such deficiency.                8.05  Private Sale.  The Collateral Agent and the Secured Parties shall  incur no liability as a result of the sale of the Collateral, or any part thereof, at any private  sale pursuant to Section 8.03 conducted in a commercially reasonable manner.  Each  Obligor hereby waives any claims against the Collateral Agent or any other Secured  Party arising by reason of the fact that the price at which the Collateral may have been  sold at such a private sale was less than the price which might have been obtained at a  public sale or was less than the aggregate amount of the Secured Obligations, even if the  Collateral Agent accepts the first offer received and does not offer the Collateral to more  than one offeree, so long as such private sale was conducted in a commercially  reasonable manner.               8.06  Application of Proceeds.  Except as otherwise herein expressly  provided in this Section 8.06, after the occurrence and during the continuance of an Event  of Default or a Trigger Event and pursuant to the exercise of any remedies under this  Section 8, the proceeds of any collection, sale or other realization of all or any part of the  Collateral of any Obligor (including any other cash of any Obligor at the time held by the  Collateral Agent under this Agreement) shall be applied by the Collateral Agent as  follows:               First, to the payment of reasonable and documented costs and expenses of        such collection, sale or other realization, including reasonable and documented        out-of-pocket costs and expenses of the Collateral Agent and the reasonable and        documented fees and expenses of its agents and counsel, and all expenses        incurred and advances made by the Collateral Agent in connection therewith;               Second, to the payment of any fees and other amounts then owing by such        Obligor to (x) the Collateral Agent in its capacity as such, (y) the Revolving        Administrative Agent in its capacity as such and (z) any Financing Agent in its        capacity as such (in the case of clauses (x), (y) and (z), ratably based on the        aggregate amount of such fees and other amounts);               Third, to the payment of the Secured Obligations (including the Cash        Collateralization of any outstanding letters of credit) of such Obligor then due and        payable, in each case to each Secured Party ratably in accordance with the amount        of Secured Obligations then due and payable to such Secured Party (it being        understood that, for the purposes hereof, the outstanding principal amount of the                                       46  





 






         Revolving Loans under the Revolving Credit Agreement shall be deemed then        due and payable whether or not any Acceleration of such loans has occurred); and               Fourth, after application as provided in clauses “First”, “Second”, and        “Third” above, to the payment to the respective Obligor, or their respective        successors or assigns, or as a court of competent jurisdiction may direct, of any        surplus then remaining.         For the avoidance of doubt, payments made pursuant to Section 2.09(b), (c) or (d)  of the Revolving Credit Agreement (or any analogous provisions in any amendment,  modification, supplement, amendment and restatement, extension, refinancing or  replacement thereof) shall not be subject to this Section 8.06 or to Section 5.02, unless  the Collateral Agent, after the occurrence and continuation of an Event of Default, has  directed the actions giving rise to such payments.         In making the allocations required by this Section 8, the Collateral Agent may  rely upon its records and information supplied to it pursuant to Section 9.02, and the  Collateral Agent shall have no liability to any of the other Secured Parties for actions  taken in reliance on such information, except to the extent of its gross negligence or  willful misconduct as determined by a court of competent jurisdiction by final and  nonappealable judgment.  The Collateral Agent may, in its sole discretion, at the time of  any application under this Section 8, withhold all or any portion of the proceeds  otherwise to be applied to the Secured Obligations as provided above and maintain the  same in a segregated cash collateral account in the name and under the exclusive  NYUCC Control of the Collateral Agent, to the extent that it in good faith believes that  the information provided to it pursuant to Section 9.02 is either incomplete or inaccurate  and that application of the full amount of such proceeds to the Secured Obligations would  be disadvantageous to any Secured Party.  All distributions made by the Collateral Agent  pursuant to this Section 8 shall be final (subject to any decree of any court of competent  jurisdiction), and the Collateral Agent shall have no duty to inquire as to the application  by the other Secured Parties of any amounts distributed to them.         Excluded Swap Obligations with respect to any Subsidiary Guarantor shall not be  paid with amounts received from such Subsidiary Guarantor or its assets, but appropriate  adjustments shall be made with respect to payments from other Obligors to preserve the  allocation to Secured Obligations otherwise set forth above in this Section 8.06.               8.07  Attorney-in-Fact.  Without limiting any rights or powers granted  by this Agreement to the Collateral Agent while no Event of Default or Trigger Event has  occurred and is continuing, upon the occurrence and during the continuance of any Event  of Default or Trigger Event, the Collateral Agent is hereby appointed the attorney-in-fact  of each Obligor for the purpose of carrying out the provisions of this Section 8 and taking  any action and executing any instruments which the Collateral Agent may reasonably  deem necessary or advisable to accomplish the purposes hereof, which appointment as  attorney-in-fact is irrevocable and coupled with an interest.  Without limiting the  generality of the foregoing, so long as the Collateral Agent shall be entitled under this  Section 8 to make collections in respect of the Collateral, the Collateral Agent shall have                                      47  





 






   the right and power to receive, endorse and collect all checks made payable to the order  of any Obligor representing any dividend, payment or other distribution in respect of the  Collateral or any part thereof and to give full discharge for the same.               8.08  Grant of Intellectual Property License.  For the purpose of enabling  the Collateral Agent, upon the occurrence and during the continuance of an Event of  Default or a Trigger Event, to exercise rights and remedies hereunder at such time as the  Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each  Obligor hereby grants to the Collateral Agent, if and only to the extent of such Obligor’s  rights to grant the same, an irrevocable, non-exclusive license to use, assign, license or  sublicense any of the Intellectual Property Collateral (other than any Excluded Assets)  now owned or hereafter acquired by such Obligor (exercisable without payment of  royalty or other compensation to such Obligor).  Such license shall include access to all  media in which any of the licensed items may be recorded or stored and to all computer  programs used for the compilation or printout thereof.  If any Event of Default shall have  occurred and be continuing, upon the written demand of the Collateral Agent, each  Obligor shall execute and deliver to the Collateral Agent an assignment or assignments of  any registered Patents, Trademarks (including goodwill) and/or Copyrights and such  other documents as are necessary or appropriate to carry out the intent and purposes  hereof.               Section 9.  The Collateral Agent.               9.01  Appointment; Powers and Immunities.  Each Revolving Lender,  the Revolving Administrative Agent, each Financing Agent and, by acceptance of the  benefits of this Agreement and the other Security Documents, each Designated  Indebtedness Holder, hereby irrevocably appoints ING as its agent hereunder and  authorizes ING to take such actions on its behalf and to exercise such powers as are  delegated to the Collateral Agent by the terms of this Agreement, together with such  actions and powers as are reasonably incidental thereto.  Without limiting the generality  of the foregoing, it is understood that such powers authorize the Collateral Agent to enter  into the agreements and the other documents contemplated by Section 5.08 of the  Revolving Credit Agreement on behalf of itself and the other Secured Parties hereunder.   The Collateral Agent (which term as used in this sentence and in Section 9.06 and the  first sentence of Section 9.07 shall include reference to its Affiliates and its own and its  Affiliates’ officers, directors, employees and agents):               (a)   shall have no duties or obligations except those expressly set forth        in this Agreement and shall not by reason of this Agreement be a trustee for, a        fiduciary with respect to or subject to any other implied duties with respect to, the        Revolving Administrative Agent, any Revolving Lender, any Financing Agent or        any Designated Indebtedness Holder regardless of whether a Default or Trigger        Event has occurred and is continuing;               (b)   shall not be responsible to the Revolving Lenders, the Revolving        Administrative Agent, the Financing Agents or the Designated Indebtedness        Holders for or have any duty to ascertain or inquire into any recitals, statements,                                      48  





 






         representations or warranties contained in or made in connection with this        Agreement or in any notice delivered hereunder, or in any other certificate, report        or other document referred to or provided for in, or received by it under, this        Agreement, or for the value, validity, effectiveness, genuineness, enforceability or        sufficiency of this Agreement or any other agreement, instrument or document        referred to or provided for herein or therein or for any failure by the Obligors or        any other Person to perform or observe any of its obligations hereunder;               (c)   shall not be required to initiate or conduct any litigation or        collection proceedings hereunder except, subject to Section 9.07, for any such        litigation or proceedings relating to the enforcement of the guarantee set forth in        Section 3, or the Liens created pursuant to Section 4; and               (d)   shall not be responsible for any action taken or not taken by it        hereunder or under any other document or instrument referred to or provided for        herein or therein or in connection herewith or therewith, except for its own gross        negligence or willful misconduct as determined by a court of competent        jurisdiction by final and nonappealable judgment.               9.02  Information Regarding Secured Parties.  The Borrower will at such  times and from time to time as shall be reasonably requested by the Collateral Agent  supply a list in form and detail reasonably satisfactory to the Collateral Agent setting  forth the amount of the Secured Obligations held by each Secured Party (excluding, so  long as ING is both the Collateral Agent and the Revolving Administrative Agent, the  Revolving Credit Agreement Obligations) as at a date specified in such request.  The  Collateral Agent shall provide any such list to any Secured Party upon request.  The  Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying  upon, such information, and such information shall be conclusive and binding for all  purposes of this Agreement, except to the extent the Collateral Agent shall have been  notified by a Secured Party in writing that such information as set forth on any such list is  inaccurate or in dispute between such Secured Party and the Borrower.               9.03  Reliance by Collateral Agent.  The Collateral Agent shall be  entitled to rely upon, and shall not incur any liability for relying upon, any notice,  request, certificate, consent, statement, instrument, document or other writing (including  any electronic message, Internet or intranet website posting or other distribution) believed  by it to be genuine and to have been signed or sent by the proper Person.  The Collateral  Agent also may rely upon any statement made to it orally or by telephone and believed by  it to be made by or on behalf of the proper Person or Persons, and shall not incur any  liability for relying thereon.  The Collateral Agent may consult with legal counsel,  independent accountants and other experts selected by it, and shall not be liable for any  action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.  The Collateral Agent shall be entitled to rely upon, and shall not  incur any liability for relying upon, any notice, request, certificate, consent, statement,  instrument, document or other communication (including any thereof by telephone,  telecopy, telex, telegram, cable or electronic mail) believed by it to be genuine and to  have been signed or sent by or on behalf of the proper Person or Persons, and upon                                      49  





 






   advice and statements of legal counsel, independent accountants and other experts  selected by the Collateral Agent.  As to any matters not expressly provided for by this  Agreement, the Collateral Agent shall in all cases be fully protected in acting, or in  refraining from acting, hereunder or thereunder in accordance with instructions given by  (i) the Required Secured Parties or (ii) where expressly permitted in Section 10.03, the  Required Revolving Lenders and the Required Designated Indebtedness Holders, as  applicable, and such instructions of the (i) Required Secured Parties or (ii) where  expressly permitted in Section 10.03, the Required Revolving Lenders and the Required  Designated Indebtedness Holders, as applicable, and any action taken or failure to act  pursuant thereto shall be binding on all of the Secured Parties.  If in one or more  instances the Collateral Agent takes any action or assumes any responsibility not  specifically delegated to it pursuant to this Agreement, neither the taking of such action  nor the assumption of such responsibility shall be deemed to be an express or implied  undertaking on the part of the Collateral Agent that it will take the same or similar action  or assume the same or similar responsibility in any other instance.               9.04  Rights as a Secured Party.  With respect to its obligation to extend  credit under the Revolving Credit Agreement, ING (and any successor acting as  Collateral Agent) in its capacity as a Revolving Lender under the Revolving Credit  Agreement shall have the same rights and powers in its capacity as a Secured Party as  any other Secured Party and may exercise the same as though it were not acting as  Collateral Agent, and the term “Secured Party” or “Secured Parties” shall, unless the  context otherwise indicates, include the Collateral Agent in its individual capacity.  ING  (and any successor acting as Collateral Agent) and its Affiliates may (without having to  account therefor to any other Secured Party) accept deposits from, lend money to, make  investments in and generally engage in any kind of business with any of the Obligors  (and any of their Subsidiaries or Affiliates) as if it were not acting as Collateral Agent,  and ING and its Affiliates may accept fees and other consideration from any of the  Obligors for services in connection with this Agreement or otherwise without having to  account for the same to the other Secured Parties.               9.05  Indemnification.  Each Revolving Lender, the Revolving  Administrative Agent (but only to the extent the Revolving Administrative Agent and the  Collateral Agent are not the same Person), each Financing Agent and, by acceptance of  the benefits of this Agreement and the other Security Documents, each Designated  Indebtedness Holder, severally agrees to indemnify the Collateral Agent and each Related  Party of the Collateral Agent (each such Person being called an “Indemnitee”) (to the  extent not reimbursed under Section 10.04, but without limiting the obligations of the  Obligors under Section 10.04) ratably (determined at the time that the applicable  indemnity payment is sought) in accordance with the aggregate Secured Obligations held  by the Revolving Lenders and the Designated Indebtedness Holders, for any and all  liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements of any kind and nature whatsoever that may be imposed on,  incurred by or asserted against any Indemnitee (including by any other Secured Party)  arising out of, in connection with, or by reason of any actual or probable claim, litigation,  investigation or proceeding, whether based in contract, tort or any other theory and                                      50  





 






   regardless of whether any Indemnitee is a party thereto, in connection with or in any way  relating to or arising out of this Agreement, any other Debt Documents, or any other  documents contemplated by or referred to herein or therein or the transactions  contemplated hereby or thereby (including the costs and expenses that the Obligors are  obligated to pay under Section 10.04, but excluding, unless an Event of Default or a  Trigger Event has occurred and is continuing, normal administrative costs and expenses  incident to the performance of its agency duties hereunder) or the enforcement of any of  the terms hereof or thereof or of any such other documents; provided, that such indemnity  shall not as to any Indemnitee, be available to the extent that such liabilities, obligations,  losses, claims, damages, penalties or related expenses are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the  gross negligence or willful misconduct of such Indemnitee.               9.06  Non-Reliance on Collateral Agent and Other Secured Parties.  The  Revolving Administrative Agent and each Financing Agent (and each Revolving Lender  and each Designated Indebtedness Holder by acceptance of the benefits of this  Agreement and the other Security Documents) agrees that it has, independently and  without reliance on the Collateral Agent or any other Secured Party, and based on such  documents and information as it has deemed appropriate, made its own credit analysis of  the Borrower, the Subsidiary Guarantors and their Subsidiaries and decision to extend  credit to the Borrower in reliance on this Agreement and that it will, independently and  without reliance upon the Collateral Agent or any other Secured Party, and based on such  documents and information as it shall from time to time deem appropriate, continue to  make its own analysis and decisions in taking or not taking action under or based on this  Agreement and any other Debt Document to which it is a party.  Except as otherwise  expressly provided herein, the Collateral Agent shall not be required to keep itself  informed as to the performance or observance by any Obligor of this Agreement, any  other Debt Document or any other document referred to or provided for herein or therein  or to inspect the properties or books of any Obligor.  The Collateral Agent shall not have  any duty or responsibility to disclose, and shall not be liable for failure to disclose, any  information relating to any Obligor or any of its Subsidiaries (or any of their Affiliates)  that may come into the possession of the Collateral Agent or any of its Affiliates, except  for notices, reports and other documents and information expressly required to be  furnished to the other Secured Parties by the Collateral Agent hereunder.               9.07  Failure to Act.  Except for action expressly required of the  Collateral Agent hereunder, the Collateral Agent shall in all cases be fully justified in  failing or refusing to act hereunder unless it shall receive further assurances to its  satisfaction from the other Secured Parties of their indemnification obligations under  Section 9.05 against any and all liability and expense that may be incurred by it by reason  of taking or continuing to take any such action.  The Collateral Agent shall not be  required to take any action that in the judgment of the Collateral Agent would violate any  applicable law.               9.08  Resignation of Collateral Agent.  Subject to the appointment and  acceptance of a successor Collateral Agent as provided below, the Collateral Agent may                                      51  





 






   resign at any time by notifying the other Secured Parties and the Obligors.  Upon any  such resignation, the Required Secured Parties shall have the right, with the consent of  the Borrower not to be unreasonably withheld, conditioned or delayed (provided that no  such consent shall be required if an Event of Default or a Trigger Event has occurred and  is continuing), to appoint a successor Collateral Agent.  If no successor Collateral Agent  shall have been so appointed by the Required Secured Parties and shall have accepted  such appointment within thirty (30) days after the retiring Collateral Agent gives notice  of its resignation, then the retiring Collateral Agent may, on behalf of the other Secured  Parties, appoint a successor Collateral Agent, that shall be a financial institution that has  an office in New York, New York and has a combined capital and surplus and undivided  profits of at least $1,000,000,000.  Upon the acceptance of its appointment as Collateral  Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall  succeed to and become vested with all the rights, powers, privileges and duties of the  retiring Collateral Agent and the retiring Collateral Agent shall be discharged from its  duties and obligations hereunder.  After the Collateral Agent’s resignation hereunder, the  provisions of this Section 9 and Section 10.04 shall continue in effect for its benefit in  respect of any actions taken or omitted to be taken by it while it was acting as Collateral  Agent.  The Borrower shall pay to any successor Collateral Agent the fees and charges  necessary to induce such successor Collateral Agent to accept its appointment hereunder,  such payment to be made as and when invoiced by the successor Collateral Agent.               9.09  Agents and Attorneys-in-Fact.  The Collateral Agent may employ  agents and attorneys-in-fact in connection herewith and shall not be responsible in any  way for such agents or attorneys-in-fact selected by it in good faith.               Section 10. Miscellaneous.               10.01 Notices.  All notices, requests, consents and other demands  hereunder and other communications provided for herein shall be given or made in  writing, (a) to any party hereto, telecopied (to the extent provided in the Revolving Credit  Agreement), emailed or delivered to the intended recipient at the “Address for Notices”  specified below its name on the signature pages to this Agreement or, in the case of any  Financing Agent or Designated Indebtedness Holder that shall become a party hereto  after the date hereof, at such “Address for Notices” as shall be specified pursuant to or in  connection with the joinder agreement executed and delivered by such Financing Agent  or Designated Indebtedness Holder pursuant to Section 6.01 (provided that notices to any  Subsidiary Guarantor shall be given to such Subsidiary Guarantor care of the Borrower at  the address for the Borrower specified herein) or (b) as to any party, at such other address  as shall be designated by such party in a written notice to each other party.  All notices to  any Revolving Lender or Designated Indebtedness Holder that is not a party hereto shall  be given to the Revolving Administrative Agent for such Revolving Lender or the  Financing Agent for such Designated Indebtedness Holder (or, if there is no Financing  Agent, to each Designated Indebtedness Holder).               10.02 No Waiver.  No failure or delay by the Collateral Agent or any  Secured Party in exercising any right or power hereunder shall operate as a waiver                                       52  





 






   thereof nor shall any single or partial exercise of any such right or power, or any  abandonment or discontinuance of steps to enforce such a right or power, preclude any  other or further exercise thereof or the exercise of any other right or power.  The rights  and remedies of the Collateral Agent and any Secured Party hereunder are cumulative  and are not exclusive of any rights or remedies that they would otherwise have.  No  waiver of any provision of this Agreement or consent to any departure by the Borrower  therefrom shall in any event be effective unless the same shall be permitted by Section  10.03 of this Agreement, and then such waiver or consent shall be effective only in the  specific instance and for the purpose for which given.               10.03 Amendments to Security Documents, Etc.  Except as otherwise  provided in the Revolving Credit Agreement or any Security Document, the terms of this  Agreement and the other Security Documents may be waived, altered, amended or  modified only by an agreement or agreements in writing duly executed and entered into  by each Obligor and the Collateral Agent, with the consent of the Required Secured  Parties, the Required Revolving Lenders and the Required Designated Indebtedness  Holders; provided that:               (a)   no such amendment shall adversely affect the relative rights of any        Secured Party as against any other Secured Party without the prior written consent        of such first Secured Party;               (b)   without the prior written consent of each of the Revolving Lenders        under the Revolving Credit Agreement, the Collateral Agent shall not release all        or substantially all of the collateral under the Security Documents or release all or        substantially all of the Subsidiary Guarantors from their guarantee obligations        under Section 3 hereof prior to the Termination Date (except that if any amounts        have become due and payable in respect of (x) interest on or principal of any        Designated Indebtedness Obligations or (y) Hedging Agreement Obligations, and        shall have remained unpaid for thirty (30) or more days, then the prior written        consent (voting as a single group) of the holders of a majority in interest of the        Designated Indebtedness Obligations and the Hedging Agreement Obligations,        whichever of such obligations are then due and payable, will also be required to        release all or substantially all of such collateral or guarantee obligations, whether        before or after the Termination Date);               (c)   without the consent of each of the Secured Parties, no        modification, supplement or waiver shall modify the definition of the term        “Required Secured Parties” or modify in any other manner the number of        percentage of the Secured Parties required to make any determinations or waive        any rights under any Security Document;               (d)   without the consent of the Collateral Agent, no modification,        supplement or waiver shall modify the terms of Section 9 or this Section 10.03;               (e)   the Collateral Agent is authorized to release (and shall, promptly        but in any event within five (5) Business Days of written request by the Borrower                                      53  





 






         (and at the sole cost and expense of the Borrower), release) any Collateral that is        either the subject of a disposition not prohibited under the Revolving Credit        Agreement, or to which the Required Revolving Lenders (or such higher standard        provided in the applicable Revolving Loan Document) subject to the Revolving        Credit Agreement, and the Required Designated Indebtedness Holders (or such        higher standard provided in the applicable Designated Indebtedness Document)        shall have consented and will, at the Obligors’ expense, execute and deliver to        any Obligor such documents (including any UCC termination statements, lien        releases, re-assignments of trademarks, discharges of security interests, and other        similar discharge or release documents (and, if applicable, in recordable form)) as        such Obligor shall reasonably request to evidence the release of such item of        Collateral from the assignment and security interest granted hereby;        notwithstanding the foregoing, Portfolio Investments constituting Collateral shall        be automatically released from the lien of this Agreement and the other Security        Documents, without any action of the Collateral Agent or any other Secured        Party, in connection with any disposition of Portfolio Investments that (i) occurs        in the ordinary course of the Borrower’s business and (ii) is not prohibited under        any of the Debt Documents;                (f)   the Collateral Agent is authorized to release (and shall, promptly        but in any event within five (5) Business Days of written request by the Borrower        (and at the sole cost and expense of the Borrower), release) any Subsidiary        Guarantor from any of its guarantee obligations under Section 3 hereof to the        extent such Subsidiary is (w) expressly permitted to be released in accordance        with Section 9.02(c) of the Revolving Credit Agreement, (x) the subject of a        disposition not prohibited under the Debt Documents, (y) ceases to be a        Subsidiary as a result of a transaction not prohibited under the Debt Documents,        or (z) to which each of the Required Secured Parties, the Required Revolving        Lenders and the Required Designated Indebtedness Holders (or, in each case,        such higher standard provided in the applicable Revolving Loan Document or        Designated Indebtedness Document, as applicable), shall have consented, and,        upon such release, the Collateral Agent is authorized to release (and shall,        promptly but in any event within five (5) Business Days of written request by the        Borrower (and at the sole cost and expense of the Borrower), release) any        collateral security granted by such Subsidiary Guarantor hereunder and under the        other Security Documents; and               (g)   this Section 10.03 shall be subject to the provisions related to        “Defaulting Lenders” in the Revolving Credit Agreement.   Any such amendment or waiver shall be binding upon the Collateral Agent, each Secured  Party and each Obligor.  In connection with any release of Collateral from the Lien of  this Agreement and the other Security Documents, the Collateral Agent shall, promptly  but in any event within five (5) Business Days of written request by the Borrower (and at  the sole cost and expense of the Borrower), (i) execute and deliver termination statements  and other releases and instruments (in recordable form if appropriate) that the Collateral  Agent reasonably believes is necessary to effect such release and (ii) otherwise take such                                      54  





 






   actions as the Borrower may reasonably request in order to effect the release and transfer  of such Collateral.  Notwithstanding the foregoing to the contrary, if the Termination  Date shall have occurred with respect to any Class, then the consent rights of such Class  (and the related Required Revolving Lenders or Required Designated Indebtedness  Holders) under this Section 10.03 shall terminate.               10.04 Expenses; Indemnity; Damage Waiver.               (a)   Costs and Expenses.  The Obligors hereby jointly and severally  agree to reimburse the Collateral Agent and each of the other Secured Parties and their  respective Affiliates for all reasonable and documented out-of-pocket fees, costs and  expenses incurred by them (including the reasonable fees, charges and disbursements of  one outside counsel for the Collateral Agent as well as one counsel for the Secured  Parties collectively, and of any necessary additional counsel in each local jurisdiction and  additional counsel to the extent more than one counsel would be appropriate due to  differing interests between any of the Secured Parties (in each case, other than the  allocated costs of internal counsel)) in connection with (i) any Event of Default or  Trigger Event and any enforcement or collection proceeding resulting therefrom,  including all manner of participation in or other involvement with (w) performance by  the Collateral Agent of any obligations of the Obligors in respect of the Collateral that the  Obligors have failed or refused to perform in the time period required under this  Agreement, (x) bankruptcy, insolvency, receivership, foreclosure, winding up or  liquidation proceedings of any Obligor, or any actual or attempted sale, or any exchange,  enforcement, collection, compromise or settlement in respect of any of the Collateral, and  for the care of the Collateral and defending or asserting rights and claims of the Collateral  Agent in respect thereof, by litigation or otherwise, including expenses of insurance, (y)  judicial or regulatory proceedings arising from or related to this Agreement and (z)  workout, restructuring or other negotiations or proceedings (whether or not the workout,  restructuring or transaction contemplated thereby is consummated) and (ii) the  enforcement of this Section 10.04, and all such costs and expenses shall be Secured  Obligations entitled to the benefits of the collateral security provided pursuant to  Section 4.               (b)   Indemnification by the Obligors.  The Obligors shall indemnify  each Indemnitee against, and hold each Indemnitee harmless from, any and all losses,  claims, damages, liabilities and related expenses (including the reasonable and  documented out-of-pocket fees, charges and disbursements of any counsel for any  Indemnitee (other than the allocated costs of internal counsel)), incurred by or asserted  against any Indemnitee arising out of, in connection with, or as a result of (i) the  execution or delivery of this Agreement or any agreement or instrument contemplated  hereby, the performance by the parties hereto of their respective obligations hereunder, or  (ii) any actual or prospective claim, litigation, investigation or proceeding (including any  investigation or inquiry) relating to any of the foregoing, whether based on contract, tort  or any other theory and whether brought by the Borrower, any Indemnitee or a third party,  and regardless of whether any Indemnitee is a party thereto; provided that such indemnity  shall not as to any Indemnitee, be available to the extent that such losses, claims,                                      55  





 






   damages, liabilities or related expenses are determined by a court of competent  jurisdiction by final and nonappealable judgment to have resulted from (x) the willful  misconduct or gross negligence of such Indemnitee, (y) a material breach in bad faith of  such Indemnitee’s obligations hereunder or under any other Revolving Loan Document  or (z) a claim between any Indemnitee or Indemnitees, on the one hand, and any other  Indemnitee or Indemnitees, on the other hand (other than (1) any dispute involving claims  against the Administrative Agent or the Issuing Bank, in each case in their respective  capacities as such, and (2) claims arising out of any act or omission by the Borrower  and/or its Related Parties).  Notwithstanding the foregoing, it is understood and agreed  that indemnification for Taxes (as defined in the Revolving Credit Agreement) is subject  to the provisions of Section 2.15 of the Revolving Credit Agreement and analogous  provisions, if any, in Designated Indebtedness Documents.               Neither the Borrower nor any Obligor shall be liable to any Indemnitee for  any special, indirect, consequential or punitive damages (as opposed to direct or actual  damages (other than in respect of any such damages incurred or paid by an Indemnitee to  a third party)) arising out of, in connection with, or as a result of, this Agreement asserted  by an Indemnitee against the Borrower or any other Obligor; provided that the foregoing  limitation shall not be deemed to impair or affect the obligations of the Borrower under  the preceding provisions of this subsection.               10.05 Successors and Assigns.  The provisions of this Agreement shall  be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns of the Obligors and the Secured Parties, except that none of the  Obligors shall assign or otherwise transfer any of its rights or obligations hereunder  without the prior written consent of each of the Collateral Agent, the Revolving  Administrative Agent and the Financing Agents, if any (or, if there are no such Financing  Agents, the Required Designated Indebtedness Holders) (and any attempted assignment  or transfer by any Obligor without such consent shall be null and void).  Nothing in this  Agreement, expressed or implied, shall be construed to confer upon any Person (other  than the parties hereto, their respective successors and assigns permitted hereby and, to  the extent expressly contemplated hereby, the Related Parties of each of the Collateral  Agent and the Secured Parties) any legal or equitable right, remedy or claim under or by  reason of this Agreement.               10.06 Counterparts; Integration; Effectiveness; Electronic Execution.               (a)   Counterparts; Integration; Effectiveness.  This 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.  This Agreement and any separate letter agreements with respect to fees  payable to the Collateral Agent constitute the entire contract between and among the  parties relating to the subject matter hereof and supersede any and all previous  agreements and understandings, oral or written, relating to the subject matter hereof.   This Agreement shall become effective when it shall have been executed by the  Collateral Agent and when the Collateral Agent shall have received counterparts hereof                                       56  





 






   which, when taken together, bear the signatures of each of the other parties hereto, and  thereafter shall be binding upon and inure to the benefit of the parties hereto and their  respective successors and assigns.  Delivery of an executed counterpart of a signature  page to this Agreement by telecopy or electronic mail shall be effective as delivery of a  manually executed counterpart of this Agreement.               (b)   Electronic Execution of Assignments.  The words “execution,”  “signed,” “signature” shall be deemed to include electronic signatures or the keeping of  records in electronic form, each of which 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.               10.07 Severability.  Any provision of this 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 hereof; and the invalidity of a  particular provision in a particular jurisdiction shall not invalidate such provision in any  other jurisdiction.               10.08 Governing Law; Jurisdiction; Etc.               (a)   Governing Law.  This Agreement shall be construed in accordance  with and governed by the law of the State of New York.               (b)   Submission to Jurisdiction.  Each Obligor hereby irrevocably and  unconditionally submits, for itself and its property, to the exclusive jurisdiction of the  Supreme Court of the State of New York sitting in New York County and of the United  States District Court of the Southern District of New York, and any appellate court from  any thereof, in any action or proceeding arising out of or relating to this Agreement, or  for recognition or enforcement of any judgment, and each of the parties hereto hereby  irrevocably and unconditionally agrees that all claims in respect of any such action or  proceeding may be heard and determined in such New York State court or, to the extent  permitted by law, in such Federal court.  Each of the parties hereto agrees that a final  judgment in any such action or proceeding shall be conclusive and may be enforced in  other jurisdictions by suit on the judgment or in any other manner provided by law.   Nothing in this Agreement shall affect any right that the Collateral Agent or any Secured  Party may otherwise have to bring any action or proceeding relating to this Agreement  against any Obligor or its properties in the courts of any jurisdiction.               (c)   Waiver of Venue.  Each Obligor hereby irrevocably and  unconditionally waives, to the fullest extent it may legally and effectively do so, any  objection which it may now or hereafter have to the laying of venue of any suit, action or  proceeding arising out of or relating to this Agreement in any court referred to in  paragraph (b) of this Section 10.08.  Each of the parties hereto hereby irrevocably waives,                                      57  





 






   to the fullest extent permitted by law, the defense of an inconvenient forum to the  maintenance of such action or proceeding in any such court.               (d)   Service of Process.  Each party to this Agreement (i) irrevocably  consents to service of process in the manner provided for notices in Section 10.01 and (ii)  agrees that service as provided in the manner provided for notices in Section 10.01 is  sufficient to confer personal jurisdiction over such party in any proceeding in any court  and otherwise constitutes effective and binding service in every respect.  Nothing in this  Agreement will affect the right of any party to this Agreement to serve process in any  other manner permitted by law.               10.09 WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY  RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING  DIRECTLY   OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS  AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER  BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY  HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY  OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,  THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,  SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES  THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO  ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.09.               10.10 Headings.  Section headings and the Table of Contents used herein  are for convenience of reference only, are not part of this Agreement and shall not affect  the construction of, or be taken into consideration in interpreting, this Agreement.               10.11 Termination.  When all Secured Obligations of any Class have  been paid in full (other than contingent, unasserted indemnification obligations), and all  commitments of the holders thereof to extend credit that would be Secured Obligations  have expired or been terminated and any letters of credit outstanding under the Revolving  Credit Facility or any other Designated Indebtedness have (i) expired or (ii) terminated,  the Revolving Administrative Agent or any applicable Financing Agent, as applicable, or  the Issuing Bank or any other issuing bank, as applicable, in each case in accordance with  the terms of the applicable Debt Documents, and all outstanding letter of credit  disbursements under any such Debt Documents then outstanding have been reimbursed,  the Collateral Agent shall, on behalf of the holders of such Secured Obligations, deliver  to the Obligors such termination statements and releases and other documents necessary  and appropriate to evidence the termination of all agreements, obligations and liens  related to such Secured Obligations, as the Obligors may reasonably request, all at the  sole cost and expense of the Obligors; provided however that the Collateral Agent shall  not have any obligation to do so under the circumstances set forth in the parenthetical  provision in Section 10.03(b) except to the extent provided therein.                                       58  





 






               10.12 Confidentiality.  The Collateral Agent acknowledges and agrees  that Section 9.13 of the Revolving Credit Agreement will bind the Collateral Agent to the  same extent as it binds the Revolving Administrative Agent.               10.13 Replacement Custodian.  Notwithstanding anything herein or in  any other Revolving Loan Document to the contrary, from time to time, the Borrower  may replace the existing financial institution serving as Custodian with an alternative  financial institution reasonably acceptable to the Administrative Agent. The Borrower  shall deliver written notice of any such proposed replacement to the Administrative  Agent at least thirty (30) days prior to the proposed date of replacement, specifying the  name of the financial institution proposed to act as the Custodian.  In connection with any  such replacement, the Borrower shall deliver, or cause to be delivered, to the  Administrative Agent, any amendments, agreements, documents, instruments and legal  opinions, and shall take all other actions, reasonably determined by the Administrative  Agent to be necessary to comply (and to ensure compliance) with the terms and  provisions of this Guarantee and Security Agreement. From and after such time as the  replacement contemplated by this Section 10.13 is completed, the Custodian shall mean  the applicable replacement financial institution.                                            [Signature page follows]                                       59  





 






               IN WITNESS WHEREOF, the parties hereto have caused this Guarantee,  Pledge and Security Agreement to be duly executed and delivered as of the day and year  first above written.                                 BARINGS BDC, INC.                                 By:   /s/ Christopher Cary                                         Name: Christopher Cary                                Title:  Treasurer                                 Address for Notices                                 Barings BDC, Inc.                                300 South Tryon Street, Suite 2500                                Charlotte, NC 28202                                Attention:  Chris Cary                                Telephone:  (980) 417-5830                                Facsimile:  (980) 259-6762                                E-Mail: chris.cary@barings.com                                 with a copy to (which shall not constitute notice):                                 Dechert LLP                                1095 Avenue of the Americas                                New York, New York 10036                                Attention:  Jay R. Alicandri, Esq.                                Telephone:  (212) 698-3800                                Facsimile:  (212) 698-3599                                E-Mail: jay.alicandri@dechert.com                         [Guarantee, Pledge and Security Agreement]  





 






                            ENERGY HARDWARE HOLDINGS, INC.            By:   /s/ Christopher Cary                    Name: Christopher Cary           Title:  Treasurer            Address for Notices            C/O Barings BDC, Inc.           300 South Tryon Street, Suite 2500           Charlotte, NC 28202           Attention:  Chris Cary           Telephone:  (212) 698-3800           Facsimile:  (980) 259-6762           E-Mail: chris.cary@barings.com            with a copy to (which shall not constitute notice):            Dechert LLP           1095 Avenue of the Americas           New York, New York 10036           Attention:  Jay R. Alicandri, Esq.           Telephone:  (212) 698-3800           Facsimile:  (212) 698-3599           E-Mail: jay.alicandri@dechert.com                [Guarantee, Pledge and Security Agreement]  





 






                            ING CAPITAL LLC,           as Revolving Administrative Agent and Collateral           Agent            By:   /s/ Patrick Frisch                      Name: Patrick Frisch           Title:  Managing Director             By:   /s/ Grace Fu                            Name: Grace Fu           Title:  Director            Address for Notices            ING Capital LLC           1133 Avenue of the Americas           New York, New York 10036           Attention:  Grace Fu           Telephone:  (646) 424-7213           Facsimile:  (646) 424-6919           E-Mail: grace.fu@ing.com                      with a copy, which shall not           constitute notice, to:           Fried, Frank, Harris, Shriver & Jacobson LLP           One New York Plaza            New York, NY 10004           Attention:  Andrew J. Klein           Telephone:  (212) 859-9030           Facsimile:  (212) 859-4000           E-Mail:andrew.klein@friedfrank.com                                                         [Guarantee, Pledge and Security Agreement]