PLEDGE, ASSIGNMENT, AND SECURITY AGREEMENT

Exhibit 10.3

PLEDGE, ASSIGNMENT, AND SECURITY AGREEMENT
Dated as of August 28, 2009
among
ALLIED CAPITAL CORPORATION,
as a Grantor,
THE OTHER GRANTORS PARTY HERETO FROM TIME TO TIME,
and
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent for the Secured Parties

 

6.13.

JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL 39

 

 

 

Exhibits: 4.2.2 Form of Asset Report Certificate

 

4.6.3(i) Form of Notice of Grant of Security Interest in Copyrights

 

4.6.3(ii) Form of Notice of Grant of Security Interest in Trademarks

 

4.6.3(iii) Form of Notice of Grant of Security Interest in Patents

 

4.17

Form of Joinder

PLEDGE, ASSIGNMENT, AND SECURITY AGREEMENT

THIS PLEDGE, ASSIGNMENT, AND SECURITY AGREEMENT (this “ Security Agreement ”) is executed as of August 28, 2009, by ALLIED CAPITAL CORPORATION , a Maryland corporation (“ Borrower ”), each of the Subsidiaries of Borrower set forth on the signature pages hereof (collectively with Borrower and any Additional Grantor (as hereafter defined), “ Grantors ”), and U.S. Bank National Association , a national banking association, solely in its capacity as collateral agent for the Secured Parties (as hereafter defined) pursuant to the Intercreditor Agreement (in such capacity as collateral agent, together with its permitted successors and/or assigns from time to time, “ Collateral Agent ”).

RECITALS

WHEREAS, Borrower has entered into that certain Amended and Restated Credit Agreement dated as of August 28, 2009 (as the same may be further amended, modified, supplemented, renewed, replaced or restated from time to time, the “ Credit Agreement ”) among Borrower, Bank of America, N.A., as a lender and as Administrative Agent (together with its permitted successors and/or assigns, in such capacity, “ Administrative Agent ”) for the lenders now or hereafter a party to the Credit Agreement (together with their respective permitted successors and/or assigns, “ Lenders ”) and the Lenders party thereto.

WHEREAS, Borrower has entered into that certain Amended, Restated and Consolidated Note Agreement dated as of August 28, 2009 (as the same may be amended, modified, supplemented or restated from time to time the “ Note Agreement ”) with the Noteholders (as defined in the Intercreditor Agreement) party to such Note Agreement.

WHEREAS, prior to or concurrently herewith, Collateral Agent, Administrative Agent, the Lenders, and the Noteholders have executed that certain Intercreditor and Collateral Agency Agreement dated as of August 28, 2009 (as the same may be amended, modified, supplemented or restated from time to time, the “ Intercreditor Agreement ”), which Intercreditor Agreement has been acknowledged and agreed to by Grantors and Pledge LLC.

WHEREAS, pursuant to and subject to the terms and conditions of the Intercreditor Agreement, the Secured Parties (i) appointed Collateral Agent to act as agent for the benefit of the Secured Parties with respect to the Collateral (as hereinafter defined) and (ii) authorized and directed Collateral Agent to execute the Collateral Documents and perform the duties and obligations delegated to it pursuant to the terms of the Intercreditor Agreement.

WHEREAS, pursuant to the requirements of the Credit Agreement and the Note Agreement, Grantors are required to enter into this Security Agreement.

NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in consideration of the mutual covenants and undertakings and the terms and conditions contained herein, each Grantor and Collateral Agent (for the benefit of the Secured Parties) hereby agree as follows:

ARTICLE I
DEFINITIONS

1.1. Certain Definitions . Unless otherwise defined herein, or the context hereof otherwise requires, each term defined in the UCC is used in this Security Agreement with the same meaning; provided that , if any definition given to such term in Article 9 of the UCC conflicts with the definition given to such term in any other chapter of the UCC, the Article 9 definition shall prevail. As used herein, the following terms have the meanings indicated:

Additional Grantor means each additional Person who grants a Lien on any Collateral after the date hereof in accordance with Section 4.17 hereof.

Administrative Agent has the meaning set forth in the Recitals, together with any other Person serving in the capacity of administrative agent or similar capacity under the Credit Agreement.

Affiliate means, (a) as to Borrower and its Consolidated Subsidiaries, any Person (other than a Consolidated Subsidiary or Portfolio Company) which directly or indirectly, or through one or more intermediaries controls, is controlled by, or is under common control with, Borrower and (b) as to any other Person, any other Person which (i) directly or indirectly, or through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, (ii) beneficially owns or holds 5% or more of any class of the equity interests of such Person entitled to vote or (iii) 5% or more of whose voting equity interests are beneficially owned or held by such Person. The term “ control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of equity interests, by contract or otherwise, other than, with respect to Borrower and its Consolidated Subsidiaries, by investment advisory contracts entered into in the ordinary course of business of Borrower or a Consolidated Subsidiary of Borrower.

Applicable Law means all applicable provisions of constitutions, statutes, rules, regulations, and orders of all Governmental Authorities and all applicable orders and decrees of all courts, tribunals, and arbitrators.

Applicable Triggering Event means with respect to the exercise of any specific right, remedy, or action relating to the Collateral or arising under the Collateral Documents, the occurrence of a Triggering Event with respect to which Collateral Agent is directed to take (or forbear from taking) such action or to exercise (or forbear from exercising) such right or remedy under the Intercreditor Agreement. The words “continuing” or “continuation” or any derivation thereof, when used with reference to an Applicable Triggering Event, shall mean that the Triggering Event giving rise to such Applicable Triggering Event is continuing.

Asset Report Certificate means a certificate duly completed and executed by two (2) Senior Financial Officers of the Borrower substantially in the form of Exhibit 4.2.2 , together with such changes thereto or departures therefrom as the Collateral Agent (as directed in accordance with the Intercreditor Agreement) may from time to time reasonably request.

Bank Loan Documents has the meaning set forth in the Intercreditor Agreement.

Borrower has the meaning set forth in the Preamble.

Business Day means any day other than a Saturday, Sunday, or other day on which banks in New York City, New York, Boston, Massachusetts and Washington, D.C. are authorized or required to close.

Capitalized Lease Obligation means indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

Cash Management Bank has the meaning set forth in the Intercreditor Agreement.

Collateral has the meaning set forth in Section 2.1 .

Collateral Agent has the meaning set forth in the Preamble.

Collateral Documents means each security agreement, pledge agreement (including, without limitation, this Security Agreement), mortgage, deed of trust, control agreement, assignment and endorsement of insurance, or any other agreement, joinder, ratification, or document, together with all related Control Agreements, financing statements, and stock and transfer powers, now or hereafter executed and delivered by a Grantor in connection with the Financing Documents and intended to create a Lien on any real or personal property in favor of Collateral Agent (for the benefit of the Secured Parties), as the same may be amended, supplemented, replaced, modified and restated from time to time in accordance with the terms of the Financing Documents.

Collateral Notes has the meaning set forth in Section 2.1.2 hereof.

Collateral Note Security has the meaning set forth in Section 2.1.2 hereof.

Collateral Records means books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain any material information relating to any of the Collateral or are otherwise reasonably necessary in the collection thereof or realization thereupon.

Collateral Support means all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a Lien or security interest in such real or personal property.

Commodity Account means any “ commodity account, ” as such term is defined in Section 9.102(a)(14) of the UCC, and all sub-accounts thereof.

Confidential Information has the meaning set forth in Section 6.20 hereof.

Consolidated Subsidiaries means any Subsidiary which is required to be consolidated on financial statements of Borrower prepared in accordance with GAAP, other than Allied Capital Beteiligungsberatung GmbH.

Control has the meaning set forth in Sections 7-106, 8-106, 9-104, 9-105, 9-106, or 9-10 7 of the UCC, as applicable.

Control Agreement means, with respect to any Collateral consisting of Pledged Equity Interests, Deposit Accounts, Securities Accounts, Commodities Accounts, Custodial Accounts, electronic chattel paper, and letter-of-credit rights, an agreement evidencing that Collateral Agent has Control of such Collateral, so long as Collateral Agent is directed to enter into such Control Agreement pursuant to the Intercreditor Agreement.

Controlled Foreign Corporation means a “controlled foreign corporation” as defined in the Internal Revenue Code of 1986.

Copyrights means all United States and foreign copyrights (including community designs), including 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: (a) all registrations and applications therefor, including the registrations and applications referred to on Schedule 3.16 , (b) all extensions and renewals thereof, (c) all rights corresponding thereto throughout the world, (d) all rights to sue for past, present, and future infringements thereof, and (e) all products and proceeds of the foregoing, including any income, royalties, and awards and any claim by any Grantor against third parties for past, present, or future infringement of any Copyright or any Copyright licensed under any Copyright License.

Copyright Licenses means any and all agreements providing for the granting of any right in or to Copyrights (whether a Grantor is licensee or licensor thereunder), including each agreement referred to on Schedule 3.16 .

Credit Agreement has the meaning set forth in the Recitals.

Custodial Account means any account maintained by any Grantor with any Custodian, including those custodial accounts identified on Schedule 3.10 , together with all Instruments, certificates, Pledged Equity Interests, Collateral Notes, Collateral Note Security, monies, checks, drafts, wire transfer receipts, trust receipts, and other property deposited therein and all balances therein, and any account which is a replacement or substitute for any such Custodial Account.

Custodial Collateral means all Collateral (including certain Collateral Notes, Collateral Note Security, Pledged Equity Interests and Instruments) and proceeds thereof which are deposited in a Custodial Account maintained with and held by a Custodian that has entered into a Custody Control Agreement, so long as such Custodian’s books and records indicate that such Collateral is credited to or recorded in such Custodial Account.

Custodian means a custodian, and its permitted successor and assigns or permitted designee or nominee, holding any Custodial Collateral in a Custodial Account.

Custody Control Agreement means any Control Agreement entered into by a Custodian, the applicable Grantor, and Collateral Agent, so long as Collateral Agent is directed to enter into such Custody Control Agreement pursuant to the Intercreditor Agreement.

Default has the meaning set forth in the Intercreditor Agreement.

Deposit Account Control Agreement means any Control Agreement that establishes Control with respect to a Deposit Account.

Deposit Accounts means any “deposit account”, as such term is defined in Section 9.102(a)(29) of the UCC, including those deposit accounts identified on Schedule 3.9 , and any account which is a replacement or substitute for any of such accounts, together with all monies, instruments, certificates, checks, drafts, wire transfer receipts, and other property deposited therein and all balances therein, but excluding payroll accounts, special accounts, trust accounts, or escrow accounts maintained by any Grantor in a fiduciary capacity or as an agent for unrelated third parties or for the benefit of any Portfolio Company.

Disposition or Dispose has the meaning set forth in the Intercreditor Agreement.

Enforcement Direction has the meaning set forth in the Intercreditor Agreement.

Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other membership, ownership, or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

Event of Default has the meaning set forth in the Intercreditor Agreement.

Excess Collateral has the meaning set forth in the definition of “ Second Tier Collateral .”

Excluded Assets means (i) the assets of Grantors, which in accordance with the terms of the documents (or Applicable Law) which govern such assets and after taking into account the obligations of Grantors under the Financing Documents, the Collateral Documents and Sections 3.17 and 4.19 hereof are not permitted to be pledged, or otherwise used to secure the indebtedness of Grantors without having obtained the consent of any third Person, (ii) assets of a Pledge LLC to the extent permitted by the Financing Documents, (iii) equipment covered by Capitalized Lease Obligations and assets securing Interest Rate Agreements, to the extent such Capitalized Lease Obligations or Interest Rate Agreements are permitted under the Financing Documents, (iv) for the avoidance of doubt, assets of any Portfolio Company, (v) the assets of Allied Capital Beteiligungsberatung GmbH, (vi) the capital stock of Allied Capital REIT, Inc., and (vii) such other assets of the Grantors as the Collateral Agent (as directed in accordance with the Intercreditor Agreement) may agree in writing shall not constitute Collateral.

Financing Documents has the meaning set forth in the Intercreditor Agreement.

GAAP means generally accepted accounting principles at the time in the United States.

General Intangibles means: (a) any “ general intangibles ”, as such term is defined in Section 9.102(a)(42) of the UCC; and (b) all interest rate or currency protection or hedging arrangements, computer software, computer programs, all Tax refunds and Tax refund claims, all licenses, permits, concessions, and authorizations, all contract rights, all joint venture interests, partnership interests, or membership interests that do not constitute a security, all Material Agreements, and all Intellectual Property (in each case, regardless of whether characterized as general intangibles under the UCC).

Governmental Approvals means all authorizations, consents, approvals, licenses, and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

Governmental Authority means any national, state, or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public, or statutory instrumentality, authority, body, agency, bureau, or entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, or the Federal Reserve Board, any central bank, or any comparable authority) or any arbitrator with authority to bind a party at law.

Grantor’s Knowledge means the actual knowledge of the senior officers set forth on Schedule 1.1 hereto.

Grantors has the meaning set forth in the Preamble.

Instrument means any “ instrument ”, as such term is defined in Section 9.102(a)(47) of the UCC, including the Collateral Notes.

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.

Interest Rate Agreement means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, foreign exchange contract, currency swap agreement, repurchase agreement, or other similar contractual agreement or arrangement entered into for the purpose of protecting against fluctuations in interest rates or in currency values.

Intercreditor Agreement has the meaning set forth in the Recitals.

Investment means, with respect to any Person, and whether or not such investment constitutes a controlling interest in such Person, (a) the purchase or other acquisition of any share of capital stock, evidence of indebtedness, or other security issued by any other Person; (b) any loan, advance, or extension of credit to, or contribution (in the form of money or goods) to the capital of, or the acquisition of a sale leaseback asset from and the lease thereof to, any other Person; (c) any guaranty of the indebtedness of any other Person; (d) any other investment in any other Person; and (e) any commitment or option to make an Investment in any other Person.

Investment Related Property means: (a) any “ investment property ”, as such term is defined in Section 9.102(a)(49) of the UCC; and (b) all Pledged Equity Interests (regardless of whether such interest is classified as investment property under the UCC).

LC means the letter(s) of credit issued pursuant to the terms and conditions of the Credit Agreement or other Bank Loan Documents.

LC Issuer means Bank of America, N.A., its permitted successors as “ LC Issuer ” under the Credit Agreement and each other entity that may hereafter be a “ LC Issuer ” under the Credit Agreement.

Lenders has the meaning set forth in the Recitals.

Lien means, as applied to the property of any Person, (a) any security interest, encumbrance, mortgage, deed to secure indebtedness, deed of trust, pledge, lien, charge, ground lease, or lease constituting a Capitalized Lease Obligation, conditional sale, or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income or profits therefrom and (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered, or otherwise identified for the purpose of subjecting the same to the repayment of indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person.

Material Adverse Effect means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of Borrower and its Consolidated Subsidiaries taken as a whole, or (b) the ability of Borrower to perform its material obligations under (i) this Security Agreement, (ii) the Note Agreement, (iii) the Intercreditor Agreement, (iv) the Credit Agreement or (v) the remaining Financing Documents (taken as a whole for all such remaining Financing Documents), or (c) the validity or enforceability of (i) this Security Agreement, (ii) the Note Agreement, (iii) the Intercreditor Agreement, (iv) the Credit Agreement or (v) the remaining Financing Documents (taken as a whole for all such remaining Financing Documents), or (d) the value of the Collateral, taken as a whole, or the validity or the perfection of the Security Interest.

Material Agreements means (a) all of Grantors’ rights, titles, and interests in, to, and under any managing, consulting or servicing contracts or other similar agreements pursuant to which any Grantor is entitled to be compensated for managing, consulting or servicing services, in an annual amount in excess of $750,000; (b) any other agreement or contract that is material to the business operations of Borrower and its Consolidated Subsidiaries, taken as a whole; (c) all rights of any Grantor to receive moneys due and to become due under or pursuant to any agreements described in (a) or (b) above; (d) all rights of Grantors to receive proceeds of any insurance, indemnity, warranty, or guaranty with respect to any agreements described in (a) or (b) above; (e) all claims of Grantors for damages arising out of or for breach of or default under any agreements described in (a) or (b) above; and (f) all rights of Grantors to compel performance and otherwise exercise all rights and remedies under any agreements described in (a) or (b) above.

Net Proceeds has the meaning set forth in the in the Intercreditor Agreement.

Note Agreement has the meaning set forth in the Recitals.

Noteholders has the meaning set forth in the Intercreditor Agreement.

Notes has the meaning set forth in the Intercreditor Agreement.

Obligor means any Person obligated with respect to any of the Collateral, whether as an account debtor, obligor on an instrument, issuer of securities, or otherwise.

Patent Licenses means all agreements providing for the granting of any right in or to Patents (whether a Grantor is licensee or licensor thereunder), including each agreement referred to on Schedule 3.16 .

Patents means all United States and foreign patents, certificates of invention, or similar industrial property rights, and applications for any of the foregoing, including: (a) each patent and patent application referred to on Schedule 3.16 ; (b) all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof; (c) all rights corresponding thereto throughout the world; (d) all inventions and improvements described therein; (e) all rights to sue for past, present and future infringements thereof; (f) all licenses, claims, damages, and proceeds of suit arising therefrom; and (g) all products and proceeds of the foregoing, including any income, royalties, and awards and any claim by any Grantor against third parties for past, present, or future infringement of any Patent or any Patent licensed under any Patent License.

Perfection Requirement means, (x) with respect to any Second Tier Collateral, following the occurrence and during the continuance of an Event of Default, the requirement to perfect the Liens and Security Interests granted hereunder with respect to such Second Tier Collateral pursuant to Section 4.19.3 , (y) with respect to any Real Property not subject to Section 4.20 , following the occurrence and during the continuance of an Event of Default, the requirement to grant a mortgage on such Real Property pursuant to Section 4.19.3 , and (z) with respect to any Excess Collateral, the requirement to perfect the Liens and Security Interests granted hereunder with respect to such Excess Collateral pursuant to Section 4.19.4 , in each of cases (x), (y) and (z), within the time frames set forth in Section 4.19.3 and 4.19.4 (as applicable).

Permitted Liens means any Lien that is permitted under both (i) Section 12.8 of the Note Agreement and (ii) Section 9.3 of the Credit Agreement.

Permitted Preferred Stock means preferred stock that is issued from time to time by a Subsidiary for the purpose of qualifying such Subsidiary as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code and having an aggregate stated value not exceeding $500,000 at any one time outstanding; provided that , in any event Permitted Preferred Stock shall not include any voting stock.

Person means an individual, corporation, partnership, limited liability company, association, trust or unincorporated organization, or a government or any agency or political subdivision thereof.

Pledge LLC means one or more Wholly Owned Consolidated Subsidiaries of any Grantor, each of which (i) has title to personal property which would constitute Collateral but for limitations in the documents which govern such personal property, or has title to real property, (ii) has no indebtedness outstanding other than (x) indebtedness owing to Borrower, which has been reflected as intercompany indebtedness on its books and records or is evidenced by a promissory note and the holder thereof has pledged the same to the Collateral Agent pursuant to this Security Agreement and any other applicable Collateral Document, and (y) guaranties of the Senior Secured Obligations, and (iii) has had all of its Equity Interests owned by its members pledged to the Collateral Agent as Collateral.

Pledged Equity Interests means all Pledged Stock, Pledged LLC Interests, and Pledged Partnership Interests.

Pledged LLC Interests means all interests owned by a Grantor in any limited liability company, including all limited liability company interests listed on Schedule 3.8 and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest 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 limited liability company interests.

Pledged Partnership Interests means all interests owned by a Grantor in any general partnership, limited partnership, limited liability partnership or other partnership, including all partnership interests listed on Schedule 3.8 and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest 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 partnership interests.

Pledged Stock means all shares of capital stock owned by a Grantor, including all             shares of capital stock described on Schedule 3.8 , and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books of any securities intermediary pertaining to such             shares, 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 shares.

Portfolio Company means any Person that is accounted for under GAAP as a portfolio Investment of Borrower or a Consolidated Subsidiary of Borrower.

Real Property means any estates or interests in real property held in fee simple now owned or hereafter acquired by any Grantor or any Subsidiary of any Grantor and the improvements thereto.

Receivables means the accounts, chattel paper, documents, Investment Related Property, Instruments, or commercial tort claims, and any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral, together with all of the applicable Grantor’s rights, if any, in all Collateral Support and Supporting Obligations related thereto.

Required Noteholders has the meaning set forth in the Intercreditor Agreement.

Required Secured Creditors has the meaning set forth in the Intercreditor Agreement.

Second Tier Collateral means Collateral pledged hereunder to the extent such Collateral falls below the following minimum thresholds required for perfection: (a) the Deposit Accounts, Securities Accounts and Custodial Accounts identified on Schedules 3.9 and 3.10 as “ Second Tier Collateral ” to the extent that the balance (including any assets held therein) of such accounts is an amount less than $2,500,000 in the aggregate, (b) items of Intellectual Property that are valued on the books of Grantors in an amount less than $2,500,000 in the aggregate, (c) letters of credit with an undrawn amount of less than $1,000,000 in the aggregate, (d) commercial tort claims where the amount claimed is less than $1,000,000 in the aggregate, and (e) Vehicles owned by the Grantors with a value in an amount less than $1,000,000 in the aggregate; provided , that , (x) the Collateral listed in the foregoing clauses (a)-(e) shall constitute “ Second Tier Collateral ” solely to the extent that the total value of such Collateral is less than $10,000,000 in the aggregate, and (y) to the extent that the value of any such Collateral exceeds (i) $10,000,000 in the aggregate, or (ii) any of the individual sublimits set forth in the foregoing clauses (a)-(e), the Collateral with values in excess of such amounts in clauses (i) or (ii) above (such Collateral, the “ Excess Collateral ”) shall no longer constitute “ Second Tier Collateral. ”

Secured Obligations means the Senior Secured Obligations, whether or not (a) such Senior Secured Obligations arise or accrue before or after the filing by or against any Grantor of a petition under the Bankruptcy Code, or any similar filing by or against any Grantor under the laws of any jurisdiction, or any bankruptcy, insolvency, receivership or other similar proceeding, (b) such Senior Secured Obligations are allowable under Section 502(b)(2) of the Bankruptcy Code or under any other insolvency proceedings, (c) the right of payment in respect of such Senior Secured Obligations is reduced to judgment, or (d) such Senior Secured Obligations are liquidated, unliquidated, similar, dissimilar, related, unrelated, direct, indirect, fixed, contingent, primary, secondary, joint, several, or joint and several, matured, disputed, undisputed, legal, equitable, secured, or unsecured.

Secured Parties means the Administrative Agent, the Collateral Agent, the Lenders, the Noteholders, the LC Issuer, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to the Credit Agreement and each co-agent or sub-agent appointed by the Collateral Agent from time to time under the Intercreditor Agreement.

Securities Account means any “ securities account ”, as such term is defined in Section 8.501(a) of the UCC, and all sub-accounts thereof.

Securities Account Control Agreement means any Control Agreement that establishes Control with respect to a Securities Account.

Securities Act means, collectively, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder

Security Interest means the security interest granted and the pledge and assignment made under Section 2.1 .

Senior Financial Officer means the chief financial officer, chief operating officer, chief accounting officer, treasurer or controller of the Borrower.

Senior Secured Obligations has the meaning set forth in the Intercreditor Agreement.

Special Collateral Account has the meaning set forth in the Intercreditor Agreement.

Special Event of Default has the meaning set forth in the Intercreditor Agreement.

Subsidiary means, for any Person, any corporation, partnership, limited liability company, or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions of such corporation, partnership, limited liability company, or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person. Notwithstanding the foregoing, for purposes hereof, no Portfolio Company shall be deemed a “ Subsidiary ” of Borrower or any of its Subsidiaries.

Supporting Obligations means all “supporting obligations” as defined in Section 9.102(a)(77) of the UCC.

Taxes means, for any Person, taxes, assessments, duties, imposts, or other governmental charges, deductions, withholdings, or levies imposed upon such Person, its income, or any of its properties, franchises, or assets, and all liabilities with respect thereto.

Trademark Licenses means any and all agreements providing for the granting of any right in or to Trademarks (whether a Grantor is licensee or licensor thereunder), including each agreement referred to on Schedule 3.16 .

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, all registrations and applications for any of the foregoing, including: (a) the registrations and applications referred to on Schedule 3.16 ; (b) all extensions or renewals of any of the foregoing; (c) all of the goodwill of the business connected with the use of and symbolized by the foregoing; (d) the right to sue for past, present and future infringement or dilution of any of the foregoing or for any injury to goodwill; and (e) all products and proceeds of the foregoing, including any income, royalties, and awards and any claim by any Grantor against third parties for past, present, or future infringement of any Trademark or any Trademark licensed under any Trademark License.

Trade Secret Licenses means any and all agreements providing for the granting of any right in or to Trade Secrets (whether a Grantor is licensee or licensor thereunder), including each agreement referred to on Schedule 3.16 .

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: (a) the right to sue for past, present and future misappropriation or other violation of any Trade Secret; and (b) all products and proceeds of the foregoing, including any income, royalties, and awards and any claim by any Grantor against third parties for past, present, or future infringement of any Trade Secrets or any Trade Secrets licensed under any Trade Secret License.

Triggering Event means the occurrence and continuance of an Event of Default and the provision of an Enforcement Direction by the requisite Secured Parties permitted in accordance with the Intercreditor Agreement, directing Collateral Agent to take (or forbear from taking) certain actions or to exercise (or to forbear from exercising) certain rights or remedies. The words “continuing” or continuation” or any derivation thereof, when used with reference to a Triggering Event, shall mean either that the Event of Default giving rise to such Triggering Event shall be continuing, or that the applicable Enforcement Direction by the requisite Secured Parties has not been fully carried out and has not been rescinded, or both.

Vehicles means all automobiles, trucks, truck tractors, trailers, semi-trailers, or other motor vehicles or rolling stock.

Wholly Owned means, when used in connection with any Subsidiary, any corporation, partnership, limited liability company, or other entity of which all of the equity securities or other ownership interests (other than Permitted Preferred Stock and, in the case of a corporation, directors’ qualifying shares) are so owned or controlled.

UCC and Uniform Commercial Code each means the Uniform Commercial Code as adopted in the applicable jurisdiction from time to time.

1.2. Principals of Construction . References in this Security Agreement to “ Sections ,” “ Exhibits ,” and “ Schedules ” are to sections, exhibits, and schedules in this Security Agreement unless otherwise indicated. References in this Security Agreement to any document, instrument, or agreement (a) shall include all exhibits, schedules, and other attachments thereto, (b) shall include all documents, instruments, or agreements issued or executed in replacement thereof, to the extent permitted hereby, and (c) shall mean such document, instrument, or agreement, or replacement or predecessor thereto, as amended, supplemented, restated, or otherwise modified from time to time to the extent permitted hereby and by any applicable Financing Document and in effect at any given time. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, the feminine and the neuter. Any reference herein to any Person shall be construed to include such Person’s successors and assigns. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Furthermore, any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing, or interpreting such law, and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, or supplemented from time to time. Titles and captions of sections, subsections, and clauses in this Security Agreement are for convenience only, and neither limit nor amplify the provisions of this Security Agreement.

ARTICLE II
GRANT OF SECURITY INTEREST

2.1. Security Interest . To secure the prompt and complete payment and performance of the Secured Obligations when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar provisions of other Applicable Law), each Grantor hereby grants (subject to the last paragraph of this Section 2.1 ) to Collateral Agent (for the benefit of the Secured Parties) a continuing security interest in, a Lien upon, and a right of set off against, and hereby pledges, collaterally transfers and assigns to Collateral Agent (for the benefit of the Secured Parties) as security, all personal property of such Grantor, whether now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Secured Obligations at any time granted to or held or acquired by or under the Control of Collateral Agent, collectively, the “ Collateral ”), including:

2.1.1. All personal property and fixture property of every kind and nature including, without limitation, all accounts, chattel paper (whether tangible or electronic), goods (including inventory), equipment (and any accessions thereto), software (specifically including, but not limited to, all accounting software), Instruments, investment property, documents, Deposit Accounts, Securities Accounts, Commodities Accounts, Custodial Accounts, money, commercial tort claims, letter-of-credit rights, supporting obligations, Tax refunds, and General Intangibles (including payment intangibles);

2.1.2. All promissory notes and other Instruments payable to any Grantor, including, without limitation, all inter-company notes from Subsidiaries and those set forth on Schedule 3.8 (“ Collateral Notes ”) and all Liens under all present and future loan agreements, security agreements, pledge agreements, deeds of trust, mortgages, guarantees, or other documents assuring or securing payment of or otherwise evidencing the Collateral Notes (“ Collateral Note Security ”);

2.1.7. All present and future distributions, income, increases, profits, combinations, reclassifications, improvements, and products of, accessions, attachments, and other additions to, tools, parts, and equipment used in connection with, and substitutes and replacements for, all or part of the Collateral described above;

2.1.8. All present and future security for the payment to any Grantor of any of the Collateral described above and goods which gave or will give rise to any such Collateral or are evidenced, identified, or represented therein or thereby;

2.1.9. All products and proceeds of the Collateral listed above (including, but not limited to, all claims to items referred to in the Collateral listed above) and (x) all claims of any Grantor against third parties for (i) loss of, damage to, or destruction of, and (ii) payments due or to become due under leases, rentals and hires of, any or all of the Collateral listed above and (y) proceeds payable under, or unearned premiums with respect to, policies of insurance in whatever form; and

2.1.10. To the extent not otherwise included above, all Collateral Records and Supporting Obligations relating to any of the foregoing.

Notwithstanding anything herein to the contrary, in no event shall the Security Interest granted in this Section 2.1 attach to, or the term “ Collateral ” be deemed to include, any of the Excluded Assets; provided that , if such Excluded Assets are being excluded as a result of the grant of any security interest therein being prohibited by the documents governing or creating such interest, such Excluded Assets (or proceeds thereof) shall not be excluded and shall constitute “ Collateral ” to the extent that any consent or waiver to such prohibition has been obtained or any such prohibition would be rendered ineffective pursuant to Sections 9-406 , 9-407 , 9-408, or 9-409 of the UCC (or any successor provision or provisions) of the jurisdiction the UCC of which would govern such determination (unless the application of Sections 9-406 , 9-407 , 9-408, or 9-409 of the UCC would automatically result in (x) additional affirmative obligations on the part of any Grantor or (y) the granting of rights and remedies not previously held to, or exercise of rights or remedies not previously entitled to be exercised by, third parties, in which event such assets shall remain “ Excluded Assets ”) or any other Applicable Law (including the Bankruptcy Code) or principles of equity. In addition, the Collateral shall not include the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse Tax consequences, the Collateral shall include, and the Security Interest shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation. Furthermore, notwithstanding any contrary provision, each Grantor agrees that, if, but for the application of this Section 2.1 , granting a security interest in the Collateral would constitute a fraudulent conveyance under 11 U.S.C. § 548 or a fraudulent conveyance or transfer under any state fraudulent conveyance, fraudulent transfer, or similar Law in effect from time to time (each a “ fraudulent conveyance ”), then, to the extent permitted by Applicable Law, the Security Interest remains enforceable to the maximum extent possible without causing such Security Interest to be a fraudulent conveyance, and this Security Agreement is automatically amended to carry out the intent of this sentence.

2.2. Authorization to File Financing Statements . Each Grantor shall have filed, caused to be filed or authorized the filing of any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all assets of such Grantor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or (ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other information required by subchapter E of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organization identification number issued to such Grantor and (B) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Grantor agrees to furnish any such information reasonably requested by Collateral Agent (as directed in accordance with the Intercreditor Agreement), promptly upon request, that is necessary to effectuate the provisions of this Section 2.2 . Any failure to file any initial financing statements or amendments thereto shall not impair the validity or enforceability of this Security Agreement against the Grantors. From time to time thereafter, the Grantors shall file, cause to be filed or authorize the filing of such financing statements and shall file, cause to be filed or authorize the filing of such continuation statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Collateral Agent and Secured Parties under this Security Agreement in the Collateral and in the proceeds thereof. To the extent any Grantor files any financing statements in respect of the Collateral, such Grantor shall deliver (or cause to be delivered) to the Collateral Agent file stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. In the event that the Grantor fails to perform its obligations under this subsection, the Collateral Agent may do so, in each case at the expense of the Grantor.

2.3. Release of Collateral . No Collateral shall be released from the Security Interest except in accordance with the terms, conditions and procedures set forth in Section 3.4 of the Intercreditor Agreement. The Collateral Agent shall release its Lien on Collateral to the extent required by Section 3.4 of the Intercreditor Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES

Each Grantor represents and warrants to Collateral Agent and the Secured Parties that:

3.1. Financing Documents . Each representation and warranty in the Financing Documents (other than this Security Agreement) to which such Grantor is a party that is by its terms applicable to such Grantor or its assets or operations, is true and correct in all material respects (except to the extent already qualified by materiality, in which case such representation and warranty shall be true and correct in all respects) as of the date hereof (except to the extent such representation or warranty relates solely to an earlier date, in which case such representation and warranty shall have been true and correct on and as of such earlier date).

3.2. Title; Authorization; Enforceability; Perfection . (a) Each Grantor has good and valid rights in and title to the Collateral with respect to which it has purported to grant a Security Interest hereunder, to each Grantor’s Knowledge, free and clear of all Liens except for Permitted Liens, and has all necessary power and authority to grant to Secured Party the Security Interest in such Collateral; (b) the execution and delivery by each Grantor of this Security Agreement has been duly authorized, and this Security Agreement constitutes a legal, valid, and binding obligation of such Grantor and creates a Security Interest enforceable against such Grantor in all now owned and hereafter acquired Collateral except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally; (c) (i) upon the filing of all UCC financing statements naming each Grantor as “ debtor ” and Secured Party as “ secured party ” and describing the Collateral in the filing offices set forth opposite such Grantor’s name on Schedule 3.5 hereof, (ii) upon delivery of all Instruments, chattel paper, certificated Pledged Equity Interests, and Collateral Notes (in each case, unless constituting Second Tier Collateral or Excluded Assets) to Collateral Agent, or if delivered to a Custodian for deposit in a Custodial Account, upon execution of a Custody Control Agreement establishing Collateral Agent’s Control with respect to any such Custodial Accounts, (iii) upon sufficient identification of commercial tort claims (unless constituting Second Tier Collateral or Excluded Assets), (iv) upon execution of a Control Agreement establishing Collateral Agent’s Control with respect to any Deposit Account, Securities Account, Commodity Account, Custodial Account, or uncertificated Pledged Equity Interest (in each case, unless constituting Second Tier Collateral or Excluded Assets), (v) upon consent of the issuer or any nominated Person with respect to letter of credit rights (unless constituting Second Tier Collateral or Excluded Assets), and (vi) to the extent not subject to Article 9 of the UCC, upon recordation of the Security Interests granted hereunder in Intellectual Property (unless constituting Second Tier Collateral or Excluded Assets) in the applicable intellectual property registries, including the United States Patent and Trademark Office and the United States Copyright Office, the Security Interests granted to Collateral Agent hereunder constitute valid and perfected (other than in respect of Collateral constituting Second Tier Collateral or Excluded Assets) Liens (and to each Grantor’s Knowledge, first priority Liens, subject in the case of priority only to Permitted Liens).

3.3. Conflicting Legal Requirements and Contracts . Except as set forth on Schedule 3.3 , neither the execution and delivery by any Grantor of this Security Agreement, the creation and perfection of the Security Interest in the Collateral, nor compliance by such Grantor with the terms and provisions hereof will (a) violate (i) any legal requirement binding on such Grantor, (ii) such Grantor’s organizational documents, or (iii) to such Grantor’s Knowledge, the provisions of any indenture, instrument, or agreement to which such Grantor is a party or is subject, or by which it, or its property, is bound; or (b) to such Grantor’s Knowledge, conflict with or constitute a default under, or result in the creation or imposition of any Lien pursuant to, the terms of any such indenture, instrument, or agreement (other than any Lien of a Secured Party), which in the case of clauses (a)(i), (a)(iii) or (b) , would reasonably be expected to have a Material Adverse Effect.

3.4. Governmental Authority . To each Grantor’s Knowledge, after reasonable inquiry, no authorization, approval, or other action by, and no notice to or filing with, any Governmental Authority is required for the pledge by any Grantor of the Collateral pursuant to this Security Agreement or for the execution, delivery, or performance of this Security Agreement by any Grantor (other than the filing of financing statements on Form UCC-1 as provided for herein).

3.5. Grantor Information . Each Grantor’s exact legal name, jurisdiction of organization, type of entity, state issued organizational identification number, and the location of its principal place of business or chief executive office are disclosed on Schedule 3.5 ; no Grantor has any other places of business except those set forth on Schedule 3.5 . No Grantor has done in the last five (5) years, or currently does, business under any other name (including any trade-name or fictitious business name) except for those names set forth on Schedule 3.5 . Except as provided on Schedule 3.5 , no Grantor has changed its name, jurisdiction of organization, principal place of business, or chief executive office (or principal residence if such Grantor is a natural Person) or its corporate structure in any way ( e.g. , by merger, consolidation, change in corporate form or otherwise) within the past five (5) years.

3.6. Property Locations . The location of each Grantor’s books and records are located solely at the locations described on Schedule 3.6 ( provided that duplicate copies may be located at other locations).

3.7. No Financing Statements or Control Agreements . Other than the financing statements and Control Agreements with respect to this Security Interest, there are no other Control Agreements or to each Grantor’s Knowledge, financing statements covering any Collateral, other than those evidencing Permitted Liens and those financing statements set forth on Schedule 3.7 hereto.

3.8. Collateral . Schedule 3.8 lists all Pledged Equity Interests, Collateral Notes, Collateral Note Security (which for purposes of this Schedule 3.8 shall include only the documents evidencing loans or other indebtedness owed to a Grantor to the extent not evidenced by a Collateral Note), commercial tort claims, Material Agreements, and all letters of credit rights, in which any Grantor has any right, title, or interest (other than Second Tier Collateral and Excluded Assets), and is true, correct and complete in all material respects. All information supplied by any Grantor to Collateral Agent or any Secured Party with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is true, correct, and complete in all material respects. Schedule 3.8 lists all Excluded Assets, and is true, correct and complete in all material respects.

3.9. Deposit, Commodity, and Securities Accounts . Schedule 3.9 identifies all Deposit Accounts, Commodity Accounts, and Securities Accounts constituting Collateral and the institutions holding such accounts and whether any such account constitutes Second Tier Collateral. Each Grantor is the sole account holder of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than Collateral Agent and the financial institution maintaining such account) having Control over, or any other interest in (other than Permitted Liens), any such account or the property credited thereto. The Control Agreement for each Deposit Account, Commodity Account, and Securities Account (other than accounts constituting Second Tier Collateral) is in full force and effect and is sufficient to create a valid, perfected and to each Grantor’s Knowledge, first priority security interest in favor of Collateral Agent in and to each such Deposit Account, Commodity Account, and Securities Account, subject to Permitted Liens.

3.10. Custodial Accounts . (a) Schedule 3.10 accurately lists all Custodial Accounts maintained by each Grantor and identifies (i) the institutions serving as Custodian therefor and (ii) whether any such account constitutes Second Tier Collateral. (b) Schedule 3.10 accurately lists the Custodial Collateral on deposit in each Custodial Account listed therein as of the date listed therein. (c) Each Grantor is the sole account holder of each Custodial Account maintained by such Grantor, and has not consented to, and is not otherwise aware of any Person (other than Collateral Agent and the financial institution maintaining such account) having Control over any such account or Custodial Collateral deposited and maintained therein. (d) To each Grantor’s Knowledge, all Custodial Collateral on deposit in any Custodial Account is indicated on such Custodian’s books as being credited to or recorded in such Custodial Account. The Custody Control Agreement for each Custodial Account (other than any such account constituting Second Tier Collateral) is in full force and effect and is sufficient to create a valid, perfected and to each Grantor’s Knowledge, first priority security interest in favor of Collateral Agent in the Custodial Account and the Custodial Collateral held by the respective Custodian of such Custodial Account, subject to the Permitted Liens.

3.11. Accounts; General Intangibles . To each Grantor’s Knowledge, all Collateral that is accounts, contract rights, chattel paper, Collateral Notes, Collateral Note Security, Instruments, payment intangibles, or General Intangibles is free from any claim for credit, deduction, or allowance of an Obligor and free from any claim, deduction, allowance, defense, condition, dispute, setoff, or counterclaim, except, in each case, any such claim, deduction, allowance, defense, condition, dispute, setoff, or counterclaim that arise in the ordinary course of business and do not materially impair the value of the Collateral, taken as a whole, or as set forth on Schedule 3.11 .

3.12. Letter of Credit Rights . All letters of credit to which any Grantor has rights are listed on Schedule 3.8 (other than those constituting Second Tier Collateral), and with respect to any such letter of credit (other than those constituting Second Tier Collateral), such Grantor has entered into a tri-party agreement with Collateral Agent and the issuer or confirming bank with respect to such letter-of-credit rights, assigning such letter-of-credit rights to Collateral Agent and directing all payments thereunder to Collateral Agent (to be applied to the Secured Obligations), subject to the terms and conditions of such agreement, all in form and substance reasonably satisfactory to Collateral Agent (to be determined in accordance with the terms of the Intercreditor Agreement).

3.13. Instruments; Chattel Paper; Collateral Notes; and Collateral Note Security . All chattel paper and Instruments constituting Collateral, including the Collateral Notes, have been delivered to Collateral Agent or, in the case of the Custodial Collateral, to a Custodian (which has executed and delivered a Custody Control Agreement to Collateral Agent), together with corresponding endorsements duly executed by the appropriate Grantor in favor of Collateral Agent, and such endorsements have been duly and validly executed and are binding and enforceable against such Grantor in accordance with their terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

3.14. Material Agreements . All Material Agreements to which any Grantor is a party are set forth on Schedule 3.8 . True and correct copies of all such Material Agreements have been furnished or made available to Collateral Agent. To each applicable Grantor’s Knowledge, each Material Agreement is in full force and effect. Except as set forth on Schedule 3.8 , no Material Agreement prohibits collateral assignment or pledge or requires consent of or notice to any Person in connection with the collateral assignment or pledge to Collateral Agent hereunder, other than those that have been received on or prior to the date hereof.

3.15. Investment Related Property .

3.15.1. Schedule 3.8 sets forth all of the Pledged Stock, Pledged LLC Interests, and Pledged Partnership Interests owned by any Grantor, and, to each Grantor’s Knowledge, such Pledged Equity Interests constitute the percentage categories of voting ownership set forth in Schedule 3.15.1 of (i) issued and outstanding shares of stock, (ii) membership interests, (iii) partnership interests, or (iv) beneficial interest, of the respective issuers thereof indicated on Schedule 3.15.1 .

3.15.2. Each Grantor is the record and beneficial owner of the Pledged Equity Interests, owned by it, to each Grantor’s Knowledge, free of all Liens, rights, or claims of other Persons other than Permitted Liens, and, in the case of Pledged Equity Interests issued by a Consolidated Subsidiary and owned by such Grantor, to each Grantor’s Knowledge there are no outstanding warrants, options, or other rights 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 such Pledged Equity Interests, except as set forth on Schedule 3.11.

3.15.3. 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 or perfection of the Security Interest in any Pledged Equity Interests, other than (i) such consents as have been obtained and are in full force and effect and (ii) Excluded Assets, so long as each Grantor is in compliance with Sections 3.17 and 4.19 .

3.15.4. To each Grantor’s Knowledge, none of the Pledged LLC Interests or Pledged Partnership Interests are or represent interests in issuers that (a) are registered as investment companies or (b) are dealt in or traded on securities exchanges or markets.

3.15.5. Except as otherwise set forth on Schedule 3.11 , all of the Pledged LLC Interests issued by a Consolidated Subsidiary and owned by a Grantor are or represent interests in issuers that have not opted to be treated as securities under the uniform commercial code of any jurisdiction.

3.15.6. (a) With the exception of the Custodial Collateral, each Grantor has delivered to Collateral Agent all stock certificates or other instruments or documents representing or evidencing the Pledged Equity Interests, together with corresponding assignment or transfer powers duly executed in blank by such Grantor, and such powers have been duly and validly executed and are binding and enforceable against such Grantor in accordance with their terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally; and (b) to the extent such Pledged Equity Interests are uncertificated or constitute Custodial Collateral, each Grantor has taken all actions necessary to establish Collateral Agent’s Control over such Pledged Equity Interests (other than with respect to clause (a) and (b), Pledged Equity Interests constituting Second Tier Collateral or Excluded Assets).

3.16. Intellectual Property .

3.16.1. To each Grantor’s Knowledge, all of the Intellectual Property is subsisting, valid, and enforceable. The information contained on Schedule 3.16 is true, correct, and complete in all material respects. All issued Patents, Patent Licenses, Trademarks, Trademark Licenses, Copyrights, Copyright Licenses, and Trade Secret Licenses of each Grantor are identified on Schedule 3.16 .

3.16.2. To each Grantor’s Knowledge, each of the Patents and Trademarks identified on Schedule 3.16 has been properly registered with the United States Patent and Trademark Office and each of the Copyrights identified on Schedule 3.16 has been properly registered with the United States Copyright Office.

3.17. Consents; Pledge LLC .

3.17.1. Consents . Each Grantor has used, and shall continue to use, subject to the provisions contained in this Section 3.17 , commercially reasonable efforts to obtain the consent or approval of, or other action by, all third parties required to permit Grantors to subject all of their respective assets to the Lien and Security Interest of this Security Agreement and the other Collateral Documents; provided, however , that Grantors shall not be obligated to obtain consents or approvals in respect of assets (a) where the value of such assets would not reasonably justify the burden, costs and expenses necessary to obtain such consent or approval; in making such a determination, Grantors may take into account the cost or charges imposed by such third parties (on any Grantor or any entity in which any Grantor has an Investment) to grant any such consent or approval or take such other action and/or any undue burden,