Common use of Collateral Agent Clause in Contracts

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby s rights upon default (a) The Pledgor irrevocably constitutes and appoints Empery Tax Efficientthe Collateral Agent, LP with full power of substitution, as the collateral agent hereunder Pledgor’s true and under lawful attorney-in-fact, in the Security Documents (Pledgor’s name or in such capacity, the “Collateral Agent”)’s name or otherwise, and at the Pledgor’s expense, to take any of the actions authorized by this Agreement or permitted under applicable law upon the occurrence and during the continuation of an Event of Default, without notice to or the consent of the Pledgor. This power of attorney is a power coupled with an interest and cannot be revoked. The Pledgor ratifies and confirms all actions taken by the Collateral Agent or its agents under this power of attorney. (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent Pledgor agrees that 10 days notice shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, constitute reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or notice in connection with the performance by such Collateral Agent Indemnitee any sale, transfer or other disposition of the duties and obligations of Collateral Agent pursuant hereto or any of the Security DocumentsPledged Collateral. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iiic) The Collateral Agent may resign from comply with any applicable state or federal law requirements in connection with a disposition of Pledged Collateral and compliance will not be considered adversely to affect the performance commercial reasonableness of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder sale of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided abovePledged Collateral. (ivd) The Company hereby covenants and agrees grant to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (under this Agreement of any right, power or its successor), from time to time pursuant to remedy does not impose upon the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory any duty to such requesting part(y)(ies)exercise that right, in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor power or remedy. The Collateral Agent and by each of the Company executing a collateral agency agreement will have no obligation to take any steps to preserve any claim or similar agreement and/or other right against any amendment person or with respect to the Security Documents reasonably requested or required by the successor Collateral Agentany Pledged Collateral. (ve) The Company Pledgor bears the risk of loss, damage, diminution in value, or destruction of the Pledged Collateral. (f) The Collateral Agent will have no responsibility for any act or omission of any courier, bailee, broker, bank, investment bank or any other person chosen by it with reasonable care. (g) The Collateral Agent makes no express or implied representations or warranties with respect to any Pledged Collateral or other property released to the Pledgor or its successors and assigns (other than as to the absence of liens created by the Pledgor). (h) The Pledgor agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted will have met its duty of care under applicable law if it holds, maintains and disposes of Pledged Collateral in the same manner that it holds, maintains and disposes of property for its own account. (i) Except as collateral agent set forth in accordance with this Section 4(q) and the Security Documents during such calendar quarterClause or as required under applicable law, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtednesswill have no duties or obligations under this Agreement or otherwise with respect to the Pledged Collateral. (j) The sale, transfer or other disposition under this Agreement of any right, title, or interest of the Pledgor in any item of Pledged Collateral will: (i) operate to divest the Pledgor permanently and all persons claiming under or through the Pledgor of that right, title, or interest, and (ii) be a perpetual bar, both at law and in equity, to any claims by the Pledgor or any person claiming under or through the Pledgor

Collateral Agent. (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the secured party of record for purposes of the grants of security and collateral contained in the various Loan Documents. (b) Each Lender hereby irrevocably (i) Each Buyer hereby (a) designates and appoints Empery Tax EfficientBank of America, LP N.A. as the collateral agent hereunder Collateral Agent with respect to the agreements and under other documents listed on Schedule XXXIII (collectively, the Security Documents “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement secured party of record, and (iii) authorizes the Collateral Agent, in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such Buyer’s behalf in accordance powers and perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms hereof of this Agreement and thereofthe other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. The Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security responsibilities except those expressly set forth herein or in the Collateral Loan Documents, a or any fiduciary relationship in respect with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any Buyeragents or attorneys-in-fact selected by it with reasonable care. Neither the Collateral Agent nor any of its officers, directors, employees and employees, agents or attorneys-in-fact shall have any liability to any Buyer be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection hereof with this Agreement or the Security Documents any other Loan Document (except to the extent caused by for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, and each Buyer agrees statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to defendor provided for in, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred or received by such Collateral Agent Indemniteeunder or in connection with, whether directthis Agreement or any other Loan Document or for the value, indirect validity, effectiveness, genuineness, enforceability or consequentialsufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, arising or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” (c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall (or shall cause its designee to) review the Loan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the performance by origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent Indemnitee (or its designee) shall continue to act as the custodian of the duties Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto. (d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Collateral Agent (for the benefit of each Lender) at the direction of the Servicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the Debt, the Collateral Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of each Lender any Loan Documents necessary or appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent pursuant hereto to take any action hereunder or under any of the Security Documents. other Loan Document shall not (iia) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith deemed to be genuine and correct and to have been signed, sent a waiver of any term or made by the proper Person, and with respect to all matters pertaining to condition of this Agreement or any of the other Transaction Documents and its duties Loan Documents, or (b) adversely affect any rights of Lender hereunder or thereunder, upon advice of counsel selected by itunder any other Loan Document. (iiie) The Collateral Agent (i) may resign from at any time upon notice to each Lender, and (ii) may be removed at any time upon the performance decision of Lender made in accordance with the applicable provisions of the Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all its functions of the liens upon and duties hereunder security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Notes and Collateral Loan Documents. In the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by event that a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor replacement Collateral Agent shall not have been so appointed selected as provided in this Agreement or shall not have assumed such obligations within said ten ninety (1090) Business Day period, days after the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority resignation or removal of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or Agent, then the Collateral Agent (or its successor), from time may apply to time a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of this Section 4(q)the Co-Lender Agreement, to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agentif any. (vf) The Company agrees parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to pay the Mortgage Loan but remains as Collateral AgentAgent with respect to the Loan, by wire transfer of immediately available funds in accordance with Borrower shall be responsible for the Collateral Agent’s written wire instructions, a quarterly agency annual fee of $10,000 within three (3) Business Days following the end of each calendar quarter that payable to the Collateral Agent acted as collateral agent in accordance with this Section 4(q) the amount and pursuant to the Security Documents during such calendar quarter, provided, terms set forth in the Mortgage Loan Agreement. The payment of such fee shall not be non-duplicative to of any existing such fee arrangements with under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Collateral Agent arising from existing IndebtednessLoan or any Other Mezzanine Loan).

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” (and to the extent required for purposes of holding any Ship Mortgage or any other Security Document, as the “collateral trustee”) under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and to the extent required for purposes of holding any Ship Mortgage or any other Security Document, as the “collateral trustee”) and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” (or for purposes of holding any Ship Mortgage or any other Security Document “collateral trustee”) under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at and acknowledge and agree that any time such action by giving at least ten (10) Business Days prior written notice the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against the Company and each holder or any other Loan Party or any other obligor under any of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignationLoan Documents (including, in each case, the holders exercise of a majority any right of the outstanding principal amount setoff, rights on account of Notes shall appoint a successor Collateral Agent. Upon the acceptance any banker’s lien or similar claim or other rights of the appointment as Collateral Agentself-help), such successor Collateral Agent shall succeed or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required foreclosure by the successor Collateral Agent. (v) The Company agrees to pay Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, by wire transfer as agent for and representative of immediately available funds the Lenders (but not any Lender or Lenders in accordance its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the Collateral Agent’s written wire instructionsconsent or at the direction of the Required Lenders, a quarterly agency fee for the purpose of $10,000 within three (3) Business Days following bidding and making settlement or payment of the end purchase price for all or any portion of each calendar quarter that the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during at such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtednesssale.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe provisions of Section 9 that apply to the Administrative Agent shall apply, LP mutatis mutandis, to the Collateral Agent and to any successor Collateral Agent, as applicable; provided that, notwithstanding anything herein to the collateral agent hereunder and under the Security Documents (in such capacitycontrary, the “Collateral Agent”), Agent shall have the right to appoint a successor to itself as Collateral Agent and without the consent of any Lender. (b) authorizes The Collateral Agent is authorized on behalf of all the Lenders, without the necessity of any notice to or further consent from the Lenders, from time to time to take any action with respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain a perfected security interest in and Liens upon the Collateral granted pursuant to the Loan Documents. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder or under any of the other Loan Documents, the Collateral Agent shall not have any duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, trades or other matters relative to any Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as to taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral (including the filing of UCC Financing and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofContinuation Statements). The Collateral Agent shall not have, by reason hereof or pursuant be deemed to any Security Documents, a fiduciary relationship have exercised appropriate and due care in respect the custody and preservation of any Buyer. Neither the Collateral Agent nor any of in its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by possession if such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentsis accorded treatment substantially equal to that which other collateral agents accord similar property. (iic) The Each of the Administrative Agent and the Collateral Agent Agent, in its capacity as an agent under the Intercreditor Agreement, shall be entitled to rely upon any written noticesall right, statementsprivileges, certificatesprotections, orders or other documents or any telephone message believed by it in good faith to be genuine immunities, benefits and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice indemnities provided to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Administrative Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above9. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP as The Trustee and each of the collateral agent hereunder and under Holders by acceptance of the Security Documents (in such capacity, Notes hereby authorize the “Collateral Agent”), and (b) authorizes appointment of the Collateral Agent (as the Trustee’s and its officersthe Holders’ collateral agent under the Collateral Agreements, directors, employees and agents) the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorize the Collateral Agent to take such action on their behalf under the provisions of the Collateral Agreements, including the Intercreditor Agreements, and to exercise such Buyer’s behalf in accordance with the terms hereof powers and thereof. The Collateral Agent shall not have, by reason hereof or pursuant perform such duties as are expressly delegated to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any by the terms of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectivelythis Indenture, the “Intercreditor Agreements and the other Collateral Agent Indemnitees”) from and against any lossesAgreements, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by together with such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentspowers as are reasonably incidental thereto. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iiib) The Collateral Agent may resign from and its successor appointed in accordance with the performance terms of all the Intercreditor Agreement. (c) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (1) enter into the Intercreditor Agreement, (2) bind the Holders on the terms as set forth in the Intercreditor Agreement, (3) perform and observe its functions obligations and duties hereunder exercise its rights and powers under the Notes Intercreditor Agreement, including entering into amendments permitted by the terms of this Indenture, the Intercreditor Agreement or the other Collateral Agreements and (4) cause the Collateral Agent to enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Trustee and the Security Documents at any time Holders and the Holders by giving at least ten (10) Business Days prior written notice acquiring the Notes are deemed to have authorized the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, to (i) enter into the other Collateral Agreements to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in such successor Collateral Agent shall succeed Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and become vested with all agreed to the rights, powers, privileges and duties terms of the retiring Intercreditor Agreement and each other Collateral AgentAgreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Trustee and the Holders by acquiring the Notes is hereby deemed to (A) agree that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and the Collateral Trust Agreement and (B) acknowledge that it has received copies of the Intercreditor Agreement and the Collateral Trust Agreement and that the exercise of certain of the Trustee’s rights and remedies hereunder may be subject to, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunderrestricted by, the provisions of this Section 4(qthe Intercreditor Agreement and the Collateral Trust Agreement. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS INDENTURE, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS INDENTURE AND THE INTERCREDITOR AGREEMENT OR THE COLLATERAL TRUST AGREEMENT, THE INTERCREDITOR AGREEMENT OR THE COLLATERAL TRUST AGREEMENT, AS APPLICABLE, SHALL CONTROL. (d) The Collateral Agent shall inure have no obligation whatsoever to its benefit. If a successor the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any of the Collateral Grantors or is cared for, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the applicable Collateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Collateral Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto. (e) The grant of permissive rights or powers to the Collateral Agent shall not have been so appointed within said ten (10) Business Day periodbe construed to impose duties to act. For the avoidance of doubt, the retiring Collateral Agent nothing herein shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or require the Collateral Agent (to file financing statements or its successor)continuation statements, from time or be responsible for maintaining the security interests purported to time pursuant to be created by the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to Agreements and such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each responsibility shall be solely that of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentCompany. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall appoint be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a successor Collateral Agentsettlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as Collateral Agentbenefits hereof, such successor Collateral Agent agrees that it shall succeed have no right individually to and become vested with all the rights, powers, privileges and duties realize upon any of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until it being understood and agreed by such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants Secured Party that all rights and agrees to take all actions as promptly as practicable reasonably requested remedies hereunder may be exercised solely by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), Section. The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with are incorporated herein by this Section 4(q) reference and shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Loan Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall appoint be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a successor Collateral Agentsettlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as Collateral Agentbenefits hereof, such successor Collateral Agent agrees that it shall succeed have no right individually to and become vested with all the rights, powers, privileges and duties realize upon any of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until it being understood and agreed by such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants Secured Party that all rights and agrees to take all actions as promptly as practicable reasonably requested remedies hereunder may be exercised solely by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), Section. The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with are incorporated herein by this Section 4(q) reference and shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (i) Each Buyer hereby (a) Each Secured Party irrevocably designates, appoints Empery Tax Efficientand authorizes ▇▇▇▇▇▇▇▇▇▇ to act as Agent ▇▇▇▇▇▇▇▇▇, LP with such powers as are specifically delegated to Agent by the collateral agent hereunder terms of this Agreement, together with such other powers as are reasonably incidental thereto and under Agent ▇▇▇▇▇▇ accepts such appointment. Agent shall be obligated, and has the Security Documents right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (in such capacity, including the “Collateral Agent”release or substitution of Collateral), and (b) authorizes solely at the direction of the Required Secured Parties. In furtherance of the foregoing provisions of this Section 9(a), each Secured Party, by its acceptance of the benefits hereof, agrees that it has no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf for the benefit of the Secured Parties in accordance with the terms hereof and thereof. The Collateral of this Section 9. (b) Agent shall not have, by reason hereof or pursuant be responsible to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer Secured Parties for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection hereof or the Security Documents herewith, except to the extent caused by for its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all misconduct as determined by a final non-appealable judgment of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee a court of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentscompetent jurisdiction. (iic) The Collateral Agent shall be entitled to rely upon any written noticescertification, statements, certificates, orders notice or other documents communication (including any thereof by telephone, or any telephone message email) believed by it in good faith to be genuine and correct and to have been signedsigned or sent by or on behalf of the proper Person or Persons, sent and upon advice and statements of legal counsel, independent accountants and other experts selected by Agent in good faith. As to any matters not expressly provided for by this Agreement, Agent shall in all cases be fully protected in acting, or made in refraining from acting, hereunder or thereunder in accordance with instructions given by the proper PersonRequired Secured Parties and any action taken or failure to act pursuant thereto shall be binding on all Secured Parties. (d) The Secured Parties agree to indemnify Agent (to the extent not reimbursed by the Grantor hereunder and without limiting any obligations of the Grantor hereunder) ratably, in accordance with their pro rata share, for any and with respect all claims of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Agent arising out of or by reason of any investigation in or in any way relating to all matters pertaining to or arising out of this Agreement or any other documents contemplated by or referred to herein or the transactions contemplated hereby (including the costs and expenses that Agent is obligated to pay hereunder) or the enforcement of any of the terms hereof or of any such other Transaction Documents documents; provided, that, no Secured Party shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. The foregoing indemnity shall survive the payment of the Secured Obligations and the termination or non-renewal of this Agreement; provided, further, that no Secured Party (nor any of its duties hereunder respective subsidiaries or thereunderaffiliates) shall be liable for any indirect, upon advice of counsel selected by itspecial, punitive or consequential (including lost profits) damages. (iiie) The powers conferred on Agent hereunder are solely to protect Agent’s interest (for the benefit of the Secured Parties) in the Collateral and shall not impose any duty upon it to exercise any such powers without the direction of the Required Secured Parties. Except for the exercise of good faith and of reasonable care in the accounting for monies actually received by Agent (on behalf of and for the benefit of the Secured Parties and Agent) hereunder, Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Agent shall have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Agent accords its own property. Neither Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Grantor or otherwise. If the Grantor fails to perform any agreement contained herein, Agent may resign from the itself perform, or cause performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agentof, such successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agentagreement, and the retiring Collateral expenses of Agent incurred in connection therewith shall be discharged from its duties payable by the Grantor under Section 12. (f) The Secured Parties hereby irrevocably authorize Agent, with the consent of the Required Secured Parties, to submit a bid at a public or private sale in connection with the purchase of all or any portion of the Collateral, in which any of the Secured Obligations may be used and obligations applied as a credit on account of the purchase price (a “credit bid”) and purchase at any such sale (either directly or through one or more entities established for such purpose) all or any portion of the Collateral on behalf of and for the benefit of the Secured Parties (but not as agent for any individual Secured Party or Secured Parties, unless the Secured Parties shall otherwise unanimously agree in writing). Each Secured Party agrees that it will not exercise any right that it might otherwise have to credit bid at any sales of all or any portion of the Collateral conducted under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day periodthe UCC, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Bankruptcy Code, foreclosure sales or other similar dispositions of Collateral, unless such Secured Party offers each other Secured Party a bona fide opportunity to participate in such foreclosure sale or other similar dispositions of Collateral Agent (or its successor), from time to time pursuant to on a ratable basis and on the same terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to as such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of Secured Party proposing such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agenttransaction. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Agent shall also act as the “collateral agent hereunder and agent” under the Security Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by Borrowers to secure any of the Obligations. Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as collateral agent, to enter into any of the Loan Documents as secured party for purposes of acquiring, holding and enforcing all Liens on Collateral (in such capacity, and any other collateral from time to time securing the “Collateral Agent”Obligations), and (b) authorizes as Agent for and representative of Lender thereunder, and each Lender agrees to be bound by the Collateral terms of each such document. All powers, rights and remedies under the Loan Documents may be exercised solely by Agent, at the direction of the Required Lenders, for the benefit of Lenders and Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The In the event of a foreclosure on any of the Collateral Agent shall not have, by reason hereof or pursuant to a public or private sale, either Agent or any Security Documents, a fiduciary relationship in respect Lender may be the purchaser of any Buyer. Neither or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled (subject to the proviso at the end of this sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of its officersthe Required Lenders. Without limiting the generality of the foregoing, directors, employees and agents shall have Agent is hereby expressly authorized to execute any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents documents (collectively, the “Collateral Agent Indemnitees”including releases) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and that bind Lenders with respect to all matters pertaining to this Agreement or any of (i) the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder rights of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and become vested Lenders 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyrespect thereto, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants contemplated by and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructionsprovisions of the Loan Documents, a quarterly agency fee of $10,000 within three and (3ii) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance any other subordination agreement with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative respect to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessSubordinated Debt.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Bank Product Provider) and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender and the Issuing Banks for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Finance Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by the Administrative Agent or any of its co-agents, sub-agents or attorneys-in-fact shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against the Borrowers or any other Loan Party or any other obligor under any of the Loan Documents, any Bank Product Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of the Borrowers or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code or any other Debtor Relief Laws, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Finance Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent hereunder and agent” under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Loan Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees of the Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to defendact as the agent of such Lender and the L/C Issuer for purposes of acquiring, protect, indemnify holding and hold harmless the Collateral Agent enforcing any and all of its officers, directors, employees and agents (collectively, the “Liens on Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred granted by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by Without limiting the proper Person, and with respect to all matters pertaining to this Agreement or any powers of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time “collateral agent” pursuant to the terms hereof or the other Loan Documents, for the purposes of this Section 4(q)holding any Liens granted by any of the Loan Parties under the laws of the Province of Quebec pursuant to the Collateral Documents, to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing Lenders (including in its capacities as a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agentpotential Hedge Bank, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, and a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(qpotential Cash Management Bank) and the Security Documents during such calendar quarter, provided, such fee L/C Issuer hereby acknowledges that the collateral agent shall be non-duplicative and act as the hypothecary representative of all present and future Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer for all purposes of Article 2692 of the Civil Code of Quebec (the “Hypothecary Representative”). Each of the Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer hereby appoints, to the extent necessary, the collateral agent as its Hypothecary Representative to hold the Liens created pursuant to such Collateral Documents in order to secure any existing fee arrangements with of the Collateral Agent arising from existing IndebtednessSecured Obligations. The collateral agent accepts to act as Hypothecary Representative of all present and future Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer for all purposes of Article 2692 of the Civil Code of Quebec.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Agent shall also act as the “collateral agent hereunder and agent” under the Security Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by Borrower to secure any of the Obligations. Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as collateral agent, to enter into any of the Loan Documents as secured party for purposes of acquiring, holding and enforcing all Liens on Collateral (in such capacity, and any other collateral from time to time securing the “Collateral Agent”Obligations), and (b) authorizes as Agent for and representative of Lender thereunder, and each Lender agrees to be bound by the Collateral terms of each such document. All powers, rights and remedies under the Loan Documents may be exercised solely by Agent (for the benefit of Lenders and its officers, directors, employees and agents) to take such action on such Buyer’s behalf Agent in accordance with the terms hereof and thereof. The In the event of a foreclosure on any of the Collateral Agent shall not have, by reason hereof or pursuant to a public or private sale, either Agent or any Security Documents, a fiduciary relationship in respect Lender may be the purchaser of any Buyer. Neither or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled (subject to the proviso at the end of this sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of its officersthe Required Lenders. Without limiting the generality of the foregoing, directors, employees and agents shall have Agent is hereby expressly authorized to execute any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents documents (collectively, the “Collateral Agent Indemnitees”including releases) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and that bind Lenders with respect to all matters pertaining to this Agreement or any of (i) the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder rights of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and become vested Lenders 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyrespect thereto, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants contemplated by and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructionsprovisions of the Loan Documents, a quarterly agency fee of $10,000 within three and (3ii) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance any other subordination agreement with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative respect to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessSubordinated Debt.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Agent shall also act as the “collateral agent hereunder and agent” under the Security Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by Borrowers to secure any of the Obligations. Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as collateral agent, to enter into any of the Loan Documents as secured party for purposes of acquiring, holding and enforcing all Liens on Collateral (in such capacity, and any other collateral from time to time securing the “Collateral Agent”Obligations), and (b) authorizes as Agent for and representative of Lender thereunder, and each Lender agrees to be bound by the Collateral terms of each such document. All powers, rights and remedies under the Loan Documents may be exercised solely by Agent (for the benefit of Lenders and its officers, directors, employees and agents) to take such action on such Buyer’s behalf Agent in accordance with the terms hereof and thereof. The In the event of a foreclosure on any of the Collateral Agent shall not have, by reason hereof or pursuant to a public or private sale, either Agent or any Security Documents, a fiduciary relationship in respect Lender may be the purchaser of any Buyer. Neither or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled (subject to the proviso at the end of this sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of its officersthe Required Lenders. Without limiting the generality of the foregoing, directors, employees and agents shall have Agent is hereby expressly authorized to execute any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents documents (collectively, the “Collateral Agent Indemnitees”including releases) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and that bind Lenders with respect to all matters pertaining to this Agreement or any of (i) the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder rights of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and become vested Lenders 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyrespect thereto, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants contemplated by and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructionsprovisions of the Loan Documents, a quarterly agency fee of $10,000 within three and (3ii) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance any other subordination agreement with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative respect to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessSubordinated Debt.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Pledged Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter all Secured Obligations have been Paid in Full under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance instructions of the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by such the appropriate swap counterparties and reported to the Collateral Agent Indemnitee upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. In furtherance of the duties and obligations foregoing provisions of Collateral Agent pursuant hereto or this Section 10, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Security DocumentsPledged Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section 10. The provisions of the Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Credit Agreement. (iib) The Collateral Agent shall be entitled have the right to rely upon any written notices, statements, certificates, orders appoint one or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by more sub-agents for the proper Person, and with respect to all matters pertaining to this Agreement or any purpose of retaining physical possession of the other Transaction Documents and its duties hereunder or thereunderPledged Collateral, upon advice of counsel selected by it. which may be held (iii) The Collateral Agent may resign from in the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder discretion of the Notes. Such resignation shall take effect upon Collateral Agent) in the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority name of the outstanding principal amount relevant Grantor, endorsed or assigned in blank or in favor of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to any nominee or nominees of the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing or a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required sub-agent appointed by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and each of the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such ▇▇▇▇▇▇ and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under the parallel debt) to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against the Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of the Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender and the Issuing Lenders for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) Each of the Lenders hereby irrevocably appoints Empery Tax Efficient, LP the Collateral Agent as the collateral its agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action actions on its behalf, including execution of the other Loan Documents, and to exercise such Buyer’s behalf powers as are delegated to the Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, Collateral Agent shall have the sole and exclusive authority to (a) [reserved]; (b) execute and deliver as Collateral Agent, each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as collateral agent for Lenders for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein and execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (e) manage, supervise or otherwise deal with Collateral; (f) exclusively receive, apply, and distribute payments and proceeds of the Collateral as provided in the Loan Documents, (g) open and maintain such bank accounts and cash management arrangements as Collateral Agent deems necessary and appropriate in accordance with the terms hereof Loan Documents, (h) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral or under any Loan Documents, applicable law or otherwise, and thereof(i) incur and pay such expenses as Collateral Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents, whether or not any Loan Party is obligated to reimburse Collateral Agent or Lenders for such expenses pursuant to the Loan Documents or otherwise. The provisions of this Section 22 are solely for the benefit of Collateral Agent and the Lenders, and the Loan Parties and the Parent shall not have, by reason hereof or pursuant to any Security Documents, have rights as a fiduciary relationship in respect third-party beneficiary of any Buyerof such provisions. Neither It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) with reference to the Collateral Agent nor is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Lenders irrevocably authorize Collateral Agent, at its officersoption and in its discretion, directors(a) to release any Lien granted to or held by Collateral Agent under any Loan Document (i) as required pursuant to the Intercreditor Agreement, employees (ii) upon payment in full of all Loans and agents shall all other Obligations (other than contingent obligations for which no claims have any liability to any Buyer for any action taken been made); (ii) constituting property sold or omitted to be taken in connection hereof sold or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all disposed of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from as part of or in connection with any disposition permitted hereunder (including the performance by such Collateral Agent Indemnitee release of the duties and obligations of Collateral Agent pursuant hereto any guarantor); or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The subject to Section 17 above, if approved, authorized or ratified in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at to any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance a Lien on such Collateral which is permitted by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority clause (a) or (b) of the outstanding principal amount definition of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten “Permitted Liens” (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter it being understood that the Collateral Agent acted as collateral agent may conclusively rely on a certificate from Borrower in accordance with determining whether the Indebtedness secured by any such Lien is permitted hereunder). Upon request by Collateral Agent at any time, the Lenders will confirm in writing Agent’s authority to release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 4(q) 22(b). Collateral Agent may, and at the Security Documents during such calendar quarterdirection of Required Lenders shall, providedsubject to the Intercreditor Agreement, such fee shall be non-duplicative to any existing fee arrangements give blockage notices in connection with the Intercompany Subordinated Debt and each Lender hereby authorizes the Collateral Agent arising from existing Indebtednessto give such notices. Each Lender further agrees that it will not act unilaterally to deliver such notices. (c) Sections 14.3 (Duties and Obligations), 14.4 (Reliance), 14.5 (Sub-Agents), 14.6 (Resignation), 14.7(a) (Non-Reliance), 14.8 (Not Partners or Co-Venturers; Collateral Agent as Representative of the Secured Parties) (other than the last sentence of Section 14.8(a)); 14.9 (Credit Bidding), 14.11 (Restrictions on Actions by Lenders), 14.12 (Expenses); 14.13 (Notice of Default or Event of Default), and 14.14 (Liability of Agent) of the Senior Secured Credit Agreement are hereby incorporated into this Agreement, mutatis mutandis, as a part hereof for all purposes (for the avoidance of doubt, with references to “Agent” in such provisions (and defined terms used in such provisions) being deemed for all purposes hereof to refer to Collateral Agent).

Collateral Agent. (a) The Secured Parties hereby: (i) Each Buyer hereby irrevocably designate the Collateral Agent as their agent to act on behalf of the Secured Parties as their representative and on their behalf for the purposes of all the terms of this Security Agreement and the Notes; (aii) appoints Empery Tax Efficient, LP agree and consent that the Collateral Agent be named as the collateral agent hereunder sole secured party on any and under all security documents, filings or notices executed or filed pursuant to or in respect of this Security Agreement; and (iii) agree that the Security Documents (in Collateral Agent is authorized to file any and all terminations of such capacitydocuments, the “Collateral Agent”), and filings or notices at such time or times as it determines is appropriate. (b) authorizes As soon as practicable following the Collateral Agent (execution and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect delivery of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, deliver this Security Agreement for registration at the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided aboveCompanies Registry. (ivc) The Company hereby Until the Obligations are paid and performed in full, MTIX covenants and agrees that it will, at its own expense and upon the request of the Collateral Agent, but in all cases subject to the rights of the grantees of the Permitted Liens: (i) after an Event of Default, file or cause to be filed such applications and take all such other actions as promptly as practicable the Majority in Interest or a duly appointed Collateral Agent may reasonably requested by either request to obtain the holders consent or approval of a majority any governmental authority to the rights of the outstanding principal amount of Notes or Secured Parties and the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretionhereunder, including, without limitation, by paying the right to sell all fees the Collateral upon an Event of Default without additional consent or approval from such successor Collateral Agentgovernmental authority; (ii) from time to time, by having either before or after an Event of Default, promptly execute and deliver to the Company agree to indemnify any successor duly appointed Collateral Agent all such other assignments, certificates, supplemental documents, and by each do all other acts or things as the Collateral Agent may reasonably request in order to more fully create, evidence, perfect, continue, and preserve the priority of the Company executing a collateral agency agreement Security Interest and to carry out the provisions of this Agreement; and (iii) either before or similar agreement and/or after an Event of Default, pay all filing fees in connection with any amendment financing, continuation, or termination statement or other instrument with respect to the Security Documents reasonably requested or required by the successor Collateral AgentInterest. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall appoint be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a successor Collateral Agentsettlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as Collateral Agentbenefits hereof, such successor Collateral Agent agrees that it shall succeed have no right individually to and become vested with all the rights, powers, privileges and duties realize upon any of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until it being understood and agreed by such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants Secured Party that all rights and agrees to take all actions as promptly as practicable reasonably requested remedies hereunder may be exercised solely by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), Section. The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with are incorporated herein by this Section 4(q) reference and shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (i) Each Buyer hereby (a) Each Secured Party hereby appoints Empery Tax Efficient, LP ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Collateral Agent for the collateral agent hereunder and benefit of the Secured Parties under this Agreement to serve from the Security Documents (in such capacity, date hereof until the “Collateral Agent”), and termination of this Agreement. (b) Each Secured Party hereby irrevocably authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on and to exercise such Buyer’s behalf powers hereunder as provided herein or as requested in writing by the Secured Parties who hold a majority in interest of outstanding principal and interest under the Notes (the “Majority Note Holders”) in accordance with the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor may execute any of its officers, directors, duties hereunder by or through agents or employees and agents shall have any liability be entitled to any Buyer request and act in reliance upon the advise of counsel concerning all matters pertaining to its duties hereunder and shall not be liable for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith in accordance therewith. (c) Collateral Agent shall not be liable or responsible to any Secured Party or to LLCL or any of its Affiliates for any action taken or omitted to be genuine and correct and to have been signedtaken by Collateral Agent or any other such person hereunder or under any related agreement, sent instrument or made by document, except in the proper Personcase of gross negligence or willful misconduct on the part of Collateral Agent, and with respect to all matters pertaining to nor shall Collateral Agent be liable or responsible for (A) the validity, effectiveness, sufficiency, enforceability or enforcement of the Notes, this Agreement or any instrument or document delivered hereunder or relating hereto; (B) the title of LCLX or any of its Affiliates to any of the Collateral or the freedom of any of the Collateral from any prior or other Transaction Documents liens or security interests; (C) the determination, verification or enforcement of LCLL’s compliance with any of the terms and conditions of this Agreement; (D) the failure by LCLX or any of its duties hereunder Affiliates to deliver any instrument or thereunderdocument required to be delivered pursuant to the terms hereof; or (E) the receipt, upon advice disbursement, waiver, extension or other handling of counsel selected by itpayments or proceeds made or received with respect to the Collateral, the servicing of the Collateral or the enforcement or the collection of any amounts owing with respect to the Collateral. (iiid) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes In connection with this Security Agreement and the Security Documents at transactions contemplated hereby and any time by giving at least ten (10) Business Days prior written notice related document relating to the Company and each holder any of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignationCollateral, the holders of a majority each of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Secured Parties agrees to pay to Collateral Agent, such successor Collateral Agent shall succeed to on demand, its pro rata share (based on relative Secured Obligations) of all fees and become vested all expenses incurred in connection with all the rights, powers, privileges operation and duties enforcement of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes or any related agreement to the extent that such fees or expenses have not been paid by LCLL or its Affiliates. In connection with this Security Agreement and each instrument and document relating to any of the Collateral, each of the Secured Parties (on a pro rata basis based upon the outstanding Secured Obligations owing to the Secured Parties) and LCLX, on behalf of itself and its Affiliates, hereby agree to hold Collateral Agent harmless, and to indemnify Collateral Agent from and against any and all loss, damage, expense or liability which may be incurred by Collateral Agent under this Agreement and the Security Agreement. After transactions contemplated hereby and any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyrelated agreement or other instrument or document, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor)case may be, from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to unless such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required liability shall be caused by the successor willful misconduct or gross negligence of Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section ‎10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this ‎Section 10 and Section‎ 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the secured party of record and mortgagee of record for purposes of the grants of security and collateral contained in the various Loan Documents. (b) Each Lender hereby irrevocably (i) Each Buyer hereby (a) designates and appoints Empery Tax EfficientBank of America, LP N.A., as the collateral agent hereunder Collateral Agent with respect to the agreements, instruments, insurance policies and under certificates (including title policies and endorsements) and other documents listed on Schedule XXXIV (collectively, the Security Documents “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement mortgagee of record and the replacement secured party of record, and (iii) authorizes the Collateral Agent, in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such Buyer’s behalf in accordance powers and perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement mortgagee of record and as the replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms hereof of this Agreement and thereofthe other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. The Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security responsibilities except those expressly set forth herein or in the Collateral Loan Documents, a or any fiduciary relationship in respect with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any Buyeragents or attorneys-in-fact selected by it with reasonable care. Neither the Collateral Agent nor any of its officers, directors, employees and employees, agents or attorneys-in-fact shall have any liability to any Buyer be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection hereof with this Agreement or the Security Documents any other Loan Document (except to the extent caused by for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, and each Buyer agrees statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to defendor provided for in, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred or received by such Collateral Agent Indemniteeunder or in connection with, whether directthis Agreement or any other Loan Document or for the value, indirect validity, effectiveness, genuineness, enforceability or consequentialsufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, arising or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” (c) Collateral Agent agrees that it will confirm receipt (in a writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall (or shall cause its designee) to review the Loan Documents constituting the custodial file (as set forth on the closing checklist of the Loan Documents to be delivered in connection with the performance by origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent Indemnitee (or its designee) shall continue to act as the custodian of the duties Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto. (d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Collateral Agent (for the benefit of each Lender) at the direction of the Servicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the Debt, the Collateral Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of each Lender any Loan Documents necessary or appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement. Upon request by the Collateral Agent at any time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent pursuant hereto to take any action hereunder or under any of the Security Documents. other Loan Document shall not (iia) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith deemed to be genuine and correct and to have been signed, sent a waiver of any term or made by the proper Person, and with respect to all matters pertaining to condition of this Agreement or any of the other Transaction Documents and its duties Loan Documents, or (b) adversely affect any rights of Lender hereunder or thereunder, upon advice of counsel selected by itunder any other Loan Document. (iiie) The Collateral Agent (i) may resign from at any time upon notice to each Lender, and (ii) may be removed at any time upon the performance decision of Lender made in accordance with the applicable provisions of the Co-Lender Agreement. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all its functions of the liens upon and duties hereunder security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Notes Collateral Loan Documents. In the event that a replacement Collateral Agent shall not have been selected as provided in this Agreement or shall not have assumed such obligations within ninety (90) days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of the Co-Lender Agreement. (f) The Collateral Agent shall be paid an annual fee of $15,000 for its services by Borrower. For 2010, Borrower shall pay the prorated amount of such fee to Collateral Agent on the Closing Date (i.e. services from the Closing Date forward until December 31, 2010). Commencing January 2011 and the Security Documents at any time by giving at least annually each January thereafter, Collateral Agent shall submit its invoice for $15,000 to Borrower for payment. Borrower shall promptly pay such invoice within ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided abovereceipt. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter all Obligations have been Paid in Full under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes shall appoint a successor Collateral Agentexpenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Upon the acceptance For purposes of the appointment foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as Collateral Agent, such successor of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall succeed to and become vested with all be disregarded for purposes of determining the rights, powers, privileges and duties Majority Holders. In furtherance of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the foregoing provisions of this Section 4(q) shall inure to 10, each Secured Party, by its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority acceptance of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and benefits hereof, agrees that it shall have no right individually to take all actions as promptly as practicable reasonably requested by either the holders of a majority realize upon any of the outstanding principal amount of Notes or Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), 10. The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing Collateral Agent are incorporated herein by this reference and shall survive any termination of the Credit Agreement. The Collateral Agent shall have the right to appoint one or more sub-agents for the purpose of retaining physical possession of the Collateral, which may be held (in the discretion of the Collateral Agent) in the name of the relevant Grantor, endorsed or assigned in blank or in favor of the Collateral Agent or any nominee or nominees of the Collateral Agent or a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required sub-agent appointed by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints Empery Tax Efficient, LP the Collateral Agent as its agent under this Indenture and the collateral agent hereunder Collateral Documents and under the Security Documents (in such capacity, Trustee and each of the “Collateral Agent”), and (b) Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such Buyer’s behalf in accordance with powers and perform such duties as are expressly delegated to the Collateral Agent by the terms hereof of this Indenture and thereofthe Collateral Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 11.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither responsibilities hereunder nor shall the Collateral Agent nor have or be deemed to have any fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, and the Collateral Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders. (b) None of the Collateral Agent or any of its officers, directors, employees and agents respective Affiliates shall have any liability to any Buyer (i) be liable for any action taken or omitted to be taken by any of them under or in connection hereof with this Indenture or the Security Documents transactions contemplated hereby (except to the extent caused by for its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from under or in connection with any Collateral Document or the performance transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by such the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Collateral Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent Indemnitee under or in connection with, this or any other Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Collateral Documents, or for any failure of any Grantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. None of the duties and obligations of Collateral Agent pursuant hereto or any of its respective Affiliates shall be under any obligation to the Security Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture or the Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds. (d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) bind the Holders on the terms as set forth in the Collateral Documents and (iii) perform and observe its obligations under the Collateral Documents. (iie) The Trustee agrees that it shall not (and shall not be obligated to), and shall not instruct the Collateral Agent shall be entitled to, unless specifically requested to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed do so by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount Holders, take or cause to be taken any action to enforce its rights under this Indenture or against any Grantor, including the commencement of Notes shall appoint a successor Collateral Agent. Upon the acceptance any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefitCollateral. If a successor at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral Agent shall not have been so appointed within said ten (10) Business Day periodor any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or Trustee from the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q)Indenture, to secure a successor or (ii) payments from the Collateral Agent satisfactory in excess of the amount required to such requesting part(y)(ies)be paid to the Trustee pursuant to Article 6, in their sole discretion, including, without limitation, by paying all fees of such successor the Trustee shall promptly turn the same over to the Collateral Agent, by having in kind, and with such endorsements as may be required to negotiate the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment same to the Security Documents reasonably requested or required by the successor Collateral Agent. (vf) The Company agrees to pay Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent, by wire transfer of immediately available funds ’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s written wire instructions. (g) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, a quarterly agency fee protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained (through the filing of $10,000 within three (3continuation statements under the Uniform Commercial Code or otherwise) Business Days following or enforced or are entitled to any particular priority, or to determine whether all or the end Issuer or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of each calendar quarter the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent acted shall have no other duty or liability whatsoever to the Trustee or any Holder as collateral agent to any of the foregoing. (h) No provision of this Indenture or any Collateral Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. (i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with this Section 4(q) and the Security Documents during advice or opinion of such calendar quarter, provided, such fee shall be non-duplicative counsel. The grant of permissive rights or powers to any existing fee arrangements with the Collateral Agent arising shall not be construed to impose duties to act. (j) Neither the Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from existing Indebtednessacts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes the The Collateral Agent (and its officers, directors, employees and agents) has been appointed to take such action on such Buyer’s behalf in accordance with act as Collateral Agent hereunder by each Secured Party either pursuant to the terms hereof and thereofTransaction Documents or by their acceptance of the benefits hereof. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Indenture. Without the written consent of the Collateral Agent Indemniteethat would be affected thereby, whether directno amendment, indirect modification, termination, or consequential, arising from consent shall be effective if the effect thereof would release all or in connection with the performance by such Collateral Agent Indemnitee substantially all of the duties and obligations Collateral except as expressly provided herein. In furtherance of Collateral Agent pursuant hereto or the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Security Documents. (ii) The Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it for the benefit of each Secured Party in good faith to be genuine and correct and to have been signed, sent or made by accordance with the proper Person, and with respect to all matters pertaining to terms of this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Section. Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten thirty (1030) Business Days days' prior written notice thereof to each Secured Party and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Company Grantors and each holder Collateral Agent signed by the parties holding more than 50% of the Notes. Such resignation shall take effect upon Secured Obligations, including for this purpose any unfunded commitments (the acceptance by a successor Collateral Agent of appointment as provided below"Requisite Parties"). Upon any such notice of resignationresignation or any such removal, the holders of a majority Requisite Parties shall have the right, upon five (5) Business Days' notice to the Collateral Agent, following receipt of the outstanding principal amount Grantors' consent (which shall not be unreasonable withheld or delayed and which shall not be required while an Event of Notes shall Default exists), to appoint a successor Collateral Agent. Upon the acceptance of the any appointment as Collateral Agent hereunder by a successor Collateral Agent, such that successor Collateral Agent under this Agreement shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral AgentAgent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any retiring or removed Collateral Agent’s 's resignation hereunderor removal hereunder as the Collateral Agent, the provisions of this Section 4(q) Agreement shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, benefit as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all any actions as promptly as practicable reasonably requested taken or omitted to be taken by either the holders of a majority of the outstanding principal amount of Notes or it under this Agreement while it was the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agenthereunder. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientAt the direction of the Holders of the Notes, LP the Trustee shall appoint a collateral agent, which shall be authorized to act on behalf of and for the benefit of the Holders of the Notes. In accordance with the foregoing, on the Issue Date, Deutsche Bank Trust Company Americas is hereby appointed by the Trustee, at the direction of the Holders of the Notes, to serve as Collateral Agent for the collateral agent hereunder and benefit of the Holders of the Notes. (b) The Collateral Agent appointed by the Trustee as provided in Section 10.08(a) hereof shall be the secured party of record with respect to the security interests created in respect of the Collateral under the Security Collateral Documents and shall hold such Collateral for the benefit of the Holders of the Notes. (in such capacity, the “c) The Collateral Agent”Agent shall hold (directly or through co-agents), and (b) authorizes shall be entitled to enforce, all Liens on the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf created by the Collateral Documents in accordance with the terms hereof of the Collateral Documents. Neither the Company or any of the Guarantors nor their respective Affiliates may serve as Collateral Agent. (d) Except as provided in the Collateral Documents, the Collateral Agent shall not be obligated to: (i) act upon directions purported to be delivered to it by any Person; (ii) foreclose upon or otherwise enforce any Lien; or (iii) take any other action whatsoever pursuant to any or all of the Collateral Documents, the Liens created thereby or the Collateral. (e) A resignation or removal of the Collateral Agent and thereofappointment of a successor Collateral Agent will become effective pursuant to the terms of the Collateral Documents. (f) The Collateral Agent shall be entitled to all the rights, protections, privileges and immunities granted to the Trustee under this Indenture. Whenever reference is made in this Indenture or the Collateral Documents to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be acting, giving, withholding, suffering, omitting, taking or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) as directed by the Trustee. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto. (g) The duties of the Collateral Agent shall be mechanical and administrative in nature. The Collateral Agent shall not have, by reason hereof or pursuant to any Security of the Collateral Documents, a fiduciary relationship with any Holder, the Company, any Guarantor or any other Person, and nothing herein or in respect any of any Buyer. Neither the Collateral Documents, inferred or implied, is intended to or shall be so construed as to impose upon the Collateral Agent nor any of its officersduties, directors, employees and agents shall have any liability to any Buyer for any action taken responsibilities or omitted to be taken obligations in connection respect hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Collateral Documents, except as expressly set forth herein or therein. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement, the Intercreditor Agreement and expenses) incurred by such the Second Lien Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Second Lien Credit Agreement, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall appoint be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a successor Collateral Agentsettlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as Collateral Agentbenefits hereof, such successor Collateral Agent agrees that it shall succeed have no right individually to and become vested with all the rights, powers, privileges and duties realize upon any of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until it being understood and agreed by such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants Secured Party that all rights and agrees to take all actions as promptly as practicable reasonably requested remedies hereunder may be exercised solely by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), Section. The provisions of the Second Lien Credit Agreement and the Intercreditor Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with are incorporated herein by this Section 4(q) reference and shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with Second Lien Credit Agreement or the Collateral Agent arising from existing IndebtednessIntercreditor Agreement.

Collateral Agent. (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the secured party of record for purposes of the grants of security and collateral contained in the various Loan Documents. (b) Each Lender hereby irrevocably (i) Each Buyer hereby (a) designates and appoints Empery Tax EfficientBank of America, LP N.A. as the collateral agent hereunder Collateral Agent with respect to the agreements and under other documents listed on Schedule XXXIV (collectively, the Security Documents “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement secured party of record, and (iii) authorizes the Collateral Agent, in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such Buyer’s behalf in accordance powers and perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms hereof of this Agreement and thereofthe other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. The Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security responsibilities except those expressly set forth herein or in the Collateral Loan Documents, a or any fiduciary relationship in respect with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any Buyeragents or attorneys-in-fact selected by it with reasonable care. Neither the Collateral Agent nor any of its officers, directors, employees and employees, agents or attorneys-in-fact shall have any liability to any Buyer be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection hereof with this Agreement or the Security Documents any other Loan Document (except to the extent caused by for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, and each Buyer agrees statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to defendor provided for in, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred or received by such Collateral Agent Indemniteeunder or in connection with, whether directthis Agreement or any other Loan Document or for the value, indirect validity, effectiveness, genuineness, enforceability or consequentialsufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, arising or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” (c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall (or shall cause its designee to) review the Loan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the performance by origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent Indemnitee (or its designee) shall continue to act as the custodian of the duties Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto. (d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Collateral Agent (for the benefit of each Lender) at the direction of the Servicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the Debt, the Collateral Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of each Lender any Loan Documents necessary or appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent pursuant hereto to take any action hereunder or under any of the Security Documents. other Loan Document shall not (iia) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith deemed to be genuine and correct and to have been signed, sent a waiver of any term or made by the proper Person, and with respect to all matters pertaining to condition of this Agreement or any of the other Transaction Documents and its duties Loan Documents, or (b) adversely affect any rights of Lender hereunder or thereunder, upon advice of counsel selected by itunder any other Loan Document. (iiie) The Collateral Agent (i) may resign from at any time upon notice to each Lender, and (ii) may be removed at any time upon the performance decision of Lender made in accordance with the applicable provisions of the Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all its functions of the liens upon and duties hereunder security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Notes and Collateral Loan Documents. In the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by event that a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor replacement Collateral Agent shall not have been so appointed selected as provided in this Agreement or shall not have assumed such obligations within said ten ninety (1090) Business Day period, days after the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority resignation or removal of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or Agent, then the Collateral Agent (or its successor), from time may apply to time a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of this Section 4(q)the Co-Lender Agreement, to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agentif any. (vf) The Company agrees parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to pay the Mortgage Loan but remains as Collateral AgentAgent with respect to the Loan, by wire transfer of immediately available funds in accordance with Borrower shall be responsible for the Collateral Agent’s written wire instructions, a quarterly agency annual fee of $10,000 within three (3) Business Days following the end of each calendar quarter that payable to the Collateral Agent acted as collateral agent in accordance with this Section 4(q) the amount and pursuant to the Security Documents during such calendar quarter, provided, terms set forth in the Mortgage Loan Agreement. The payment of such fee shall not be non-duplicative to of any existing such fee arrangements with under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Collateral Agent arising from existing IndebtednessLoan or any Other Mezzanine Loan).

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under the parallel debt) to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall appoint be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a successor Collateral Agentsettlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as Collateral Agentbenefits hereof, such successor Collateral Agent agrees that it shall succeed have no right individually to and become vested with all the rights, powers, privileges and duties realize upon any of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until it being understood and agreed by such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants Secured Party that all rights and agrees to take all actions as promptly as practicable reasonably requested remedies hereunder may be exercised solely by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to for the benefit of Secured Parties in accordance with the terms of this Section 4(q), Section. The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with are incorporated herein by this Section 4(q) reference and shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent hereunder and agent” under the Security Documents Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such capacityLender and the L/C Issuers for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent”, shall be entitled to the benefits of all provisions of this Article IX and Article X (including the second paragraph of Section 10.05), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall not have been so appointed within said ten (10) Business Day period, bind the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided aboveLenders. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto, and all references to Administrative Agent in this Article IX and Article XI (including Section 11.04(c)) shall, where applicable, be read as including a reference to the Administrative Agent acting as the “collateral agent”. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to (i) Each Buyer hereby execute any and all documents (aincluding releases) appoints Empery Tax Efficient, LP as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes with respect to the Collateral Agent (including any intercreditor agreement and its officersany amendment, directorssupplement, employees modification or joinder with respect thereto) and agents) to take such action on such Buyer’s behalf the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms hereof provisions of this Agreement and thereof. The the Collateral Documents and acknowledge and agree that any such action by the Administrative Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither bind the Collateral Agent nor any of its officers, directors, employees Lenders and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon negotiate, enforce or settle any written noticesclaim, statementsaction or proceeding affecting the Lenders in their capacity as such, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by at the proper Person, and with respect to all matters pertaining to this Agreement or any direction of the other Transaction Documents and its duties hereunder Required Lenders, which negotiation, enforcement or thereunder, settlement will be binding upon advice of counsel selected by iteach Lender. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against the Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of the Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Secured Party is hereby designated as the collateral agent hereunder and under this Agreement, the Security Documents (in such capacity, and the “Collateral Agent”)Note Documents, and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) Holders irrevocably authorize the Secured Party to take such action on their behalf under the provisions of this Agreement, the Security Documents and the other Note Documents, and to exercise such Buyer’s behalf powers and perform such duties as are expressly delegated to the Secured Party by the terms of this Agreement and the other Note Documents, and consents and agrees to the terms of the each Note Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Each Holder, by accepting the benefits of this Agreement, agrees to the appointment of the Secured Party pursuant to this Section 6.12. The Secured Party agrees to act as such on the express conditions contained in this Section 6.12. The Holders agree that any action taken by the Secured Party in accordance with the terms hereof provisions of this Agreement and thereofthe other Note Documents, and the exercise by the Secured Party of any rights or remedies set forth herein and therein shall be authorized and binding upon the Holders. The Collateral Agent Notwithstanding any provision to the contrary contained elsewhere in this Agreement and the other Note Documents, the duties of the Secured Party shall be ministerial and administrative in nature, and the Secured Party shall not havehave any duties or responsibilities, by reason hereof or pursuant to any except those expressly set forth herein and in the Security Documents, to which the Secured Party is a party, nor shall the Secured Party have or be deemed to have any trust or other fiduciary relationship with the Holders, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Security Documents and the other Note Documents, or otherwise exist against the Secured Party. Without limiting the generality of the foregoing sentence, the use of the term “agent” in respect this Agreement with reference to the Secured Party is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Buyerapplicable law. Neither the Collateral Agent nor Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Secured Party may perform any of its duties under this Agreement or the other the Note Documents, by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees employees, agents, advisors and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by attorneys-in-fact of such Person and its own gross negligence or willful misconductAffiliates (a “Related Person”), and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any written noticesadvice or opinion given by legal counsel. The Secured Party shall not be responsible for the acts or omissions of any receiver, statementsagent, certificatesemployee, orders attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. (c) The Secured Party shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, order, letter, telegram, facsimile, certification, telephone message, statement, or other documents communication, document or any conversation (including those by telephone message or e-mail) believed by it in good faith to be genuine and correct and to have been signed, sent sent, or made by the proper PersonPerson or Persons, and with respect upon advice and statements of legal counsel (including, without limitation, counsel to all the any Grantor), independent accountants and other experts and advisors selected by the Secured Party. The Secured Party shall not be bound to make any investigation into the facts or matters pertaining stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Secured Party shall be fully justified in failing or refusing to take any action under this Agreement and the other Note Documents. The Secured Party shall in all cases be fully protected in acting, or any in refraining from acting, under this Agreement and the other Note Documents, in accordance with a request, direction, instruction or consent of the other Transaction Documents Holders and its duties hereunder such request and any action taken or thereunder, failure to act pursuant thereto shall be binding upon advice all of counsel selected by itthe Holders. (iiid) The Collateral Agent Secured Party shall not be deemed to have knowledge or notice of the occurrence of any default or Event of Default. (e) The Secured Party may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least 5 days’ written notice to the Holders, such resignation to be effective upon the acceptance of a successor agent to its appointment as Secured Party. If the Secured Party resigns under this Agreement, the Pledgor shall appoint a successor collateral agent. If no successor collateral agent is appointed pursuant to the preceding sentence within ten (10) Business Days prior written notice to days after the Company and each holder intended effective date of resignation (as stated in the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, ) the holders Secured Party shall be entitled to petition a court of a majority of the outstanding principal amount of Notes shall competent jurisdiction to appoint a successor Collateral Agentsuccessor. Upon the acceptance of the its appointment as Collateral Agentsuccessor collateral agent hereunder, such successor Collateral Agent collateral agent shall succeed to and become vested with all the rights, powers, privileges powers and duties of the retiring Collateral AgentSecured Party, and the retiring Collateral Agent Secured Party’s appointment, powers and duties as the Secured Party shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreementterminated. After any Collateral Agentthe retiring Secured Party’s resignation hereunder, the provisions of this Section 4(q6.12(e) shall continue to inure to its benefit. If a successor Collateral Agent benefit and the retiring Secured Party shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Secured Party under this Agreement. (f) High Trail Investments ON LLC shall initially act as collateral agent and shall be authorized to appoint co-collateral agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Secured Party nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Secured Party shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Secured Party nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct. (g) The Secured Party is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Closing, (ii) bind the Holders on the terms as set forth in the Security Documents and the other Note Documents, and (iii) perform and observe its obligations under the Security Documents and the other Note Documents. (h) The Secured Party shall have no obligation whatsoever to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Secured Party’s Liens have been so appointed within said ten (10) Business Day periodproperly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or part of the retiring Grantor’s property constituting Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyintended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the holders case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of a majority care, disclosure, or fidelity, or to continue exercising, any of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided aboverights, authorities, and powers granted or available to the Secured Party pursuant to this Agreement, any Security Document or the other Note Documents. (ivi) The Company hereby covenants and agrees No provision of this Agreement, any Security Document or the other Note Documents shall require the Secured Party to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (omit to take any action hereunder or its successor), from time to time pursuant thereunder unless it shall have received indemnity satisfactory to the terms of Secured Party in its sole discretion against potential costs and liabilities incurred by the Secured Party relating thereto. Notwithstanding anything to the contrary contained in this Section 4(q)Agreement, to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or the other Note Documents, in the event the Secured Party is entitled or required by to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the successor Collateral, the Secured Party shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Secured Party has determined that the Secured Party may incur personal liability as a result of the presence at, or release on or from, the Collateral Agentor such property, of any hazardous substances. The Secured Party shall at any time be entitled to cease taking any action described in this clause (i) if it no longer reasonably deems any indemnity, security or undertaking to be sufficient. (vj) The Company agrees Secured Party (i) shall not be liable for any action taken or omitted to pay be taken by it in connection with this Agreement, any Security Document, the Collateral Agentother Note Documents, or any instrument referred to herein or therein, except to the extent that any of the foregoing are found by wire transfer a final, non-appealable judgment of immediately available funds a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the Collateral Agent’s written wire instructionsadvice or opinion of such counsel. The grant of permissive rights or powers to the Secured Party shall not be construed to impose duties to act. (k) The Secured Party shall not be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, a quarterly agency fee strikes, lockouts, riots, acts of $10,000 within three war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. The Secured Party shall not be liable for any indirect, special, punitive, incidental or consequential damages (3included but not limited to lost profits) Business Days following whatsoever, even if it has been informed of the end likelihood thereof and regardless of each calendar quarter that the Collateral Agent acted as collateral agent form of action. (l) The Secured Party does not assume any responsibility for any failure or delay in accordance with performance or any breach by the Pledgor or any Grantor under this Section 4(q) Agreement, the Security Documents and the other Note Documents. The Secured Party shall not be responsible any Person for any recitals, statements, information, representations or warranties contained in this Agreement, the Security Documents, the other Note Documents, or in any certificate, report, statement, or other document referred to or provided for in, or received by the Secured Party under or in connection with, this Agreement, the Security Documents or the other Note Documents; the execution, validity, genuineness, effectiveness or enforceability of the Security Documents and any other Note Document of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its obligations under this Agreement, the Security Documents and the other Note Documents. The Secured Party shall have no obligation to any Person to ascertain or inquire into the existence of any default or Event of Default, the observance or performance by any obligor of any terms of this Agreement, the Security Documents or the other Note Documents, or the satisfaction of any conditions precedent contained in this Agreement, the Security Documents or the other Note Documents. The Secured Party shall not be required to initiate or conduct any litigation or collection or other proceeding under this Agreement, the Intercreditor Agreements, and the Security Documents during such calendar quarterunless expressly set forth hereunder or thereunder. (m) The parties hereto hereby agree and acknowledge that the Secured Party shall not assume, providedbe responsible for or otherwise be obligated for any liabilities, such fee shall be non-duplicative claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any existing fee arrangements environmental law as a result of this Agreement, the Security Documents or the other Note Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto hereby agree and acknowledge that in the exercise of its rights under Agreement, the Security Documents or the other Note Documents, the Secured Party may hold or obtain indicia of ownership primarily to protect the security interest of the Secured Party in the Collateral and that any such actions taken by the Secured Party shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Secured Party is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in either of the Secured Party’s sole discretion may cause the Secured Party to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Secured Party to incur liability under CERCLA or any other federal, state or local law, each of the Secured Party and the Secured Party reserves the right, instead of taking such action, to either resign as the collateral agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver. The Secured Party shall not be liable to the Pledgor, the Grantors, or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Secured Party’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. (n) Subject to the provisions of the applicable Security Documents and the other Note Documents, the Secured Party shall execute and deliver this Agreement, the Security Documents and the other Note Documents to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the Collateral Agent arising from existing Indebtedness.terms thereof. For the avoidance of doubt, the Secured Party shall have no discretion under this Agreement, the Security Documents or the other Note Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Hold

Collateral Agent. (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the secured party of record for purposes of the grants of security and collateral contained in the various Loan Documents. (b) Each Lender hereby irrevocably (i) Each Buyer hereby (a) designates and appoints Empery Tax EfficientBank of America, LP N.A. as the collateral agent hereunder Collateral Agent with respect to the agreements and under other documents listed on Schedule XXXIII (collectively, the Security Documents “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement secured party of record, and (iii) authorizes the Collateral Agent, in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such Buyer’s behalf in accordance powers and perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms hereof of this Agreement and thereofthe other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. The Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security responsibilities except those expressly set forth herein or in the Collateral Loan Documents, a or any fiduciary relationship in respect with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any Buyeragents or attorneys-in-fact selected by it with reasonable care. Neither the Collateral Agent nor any of its officers, directors, employees and employees, agents or attorneys-in-fact shall have any liability to any Buyer be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection hereof with this Agreement or the Security Documents any other Loan Document (except to the extent caused by for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, and each Buyer agrees statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to defendor provided for in, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred or received by such Collateral Agent Indemniteeunder or in connection with, whether directthis Agreement or any other Loan Document or for the value, indirect validity, effectiveness, genuineness, enforceability or consequentialsufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, arising or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” (c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collection Agent shall (or shall cause its designee to) review the Loan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the performance by origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent Indemnitee (or its designee) shall continue to act as the custodian of the duties Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto. (d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Collateral Agent (for the benefit of each Lender) at the direction of the Servicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the Debt, the Collateral Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of each Lender any Loan Documents necessary or appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent pursuant hereto to take any action hereunder or under any of the Security Documents. other Loan Document shall not (iia) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith deemed to be genuine and correct and to have been signed, sent a waiver of any term or made by the proper Person, and with respect to all matters pertaining to condition of this Agreement or any of the other Transaction Documents and its duties Loan Documents, or (b) adversely affect any rights of Lender hereunder or thereunder, upon advice of counsel selected by itunder any other Loan Document. (iiie) The Collateral Agent (i) may resign from at any time upon notice to each Lender, and (ii) may be removed at any time upon the performance decision of Lender made in accordance with the applicable provisions of the Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all its functions of the liens upon and duties hereunder security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Notes and Collateral Loan Documents. In the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by event that a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor replacement Collateral Agent shall not have been so appointed selected as provided in this Agreement or shall not have assumed such obligations within said ten ninety (1090) Business Day period, days after the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority resignation or removal of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or Agent, then the Collateral Agent (or its successor), from time may apply to time a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of this Section 4(q)the Co-Lender Agreement, to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agentif any. (vf) The Company agrees parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to pay the Mortgage Loan but remains as Collateral AgentAgent with respect to the Loan, by wire transfer of immediately available funds in accordance with Borrower shall be responsible for the Collateral Agent’s written wire instructions, a quarterly agency annual fee of $10,000 within three (3) Business Days following the end of each calendar quarter that payable to the Collateral Agent acted as collateral agent in accordance with this Section 4(q) the amount and pursuant to the Security Documents during such calendar quarter, provided, terms set forth in the Mortgage Loan Agreement. The payment of such fee shall not be non-duplicative to of any existing such fee arrangements with under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Collateral Agent arising from existing IndebtednessLoan or any Other Mezzanine Loan).

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance instructions of the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, the settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by such the appropriate swap counterparties and reported to the Collateral Agent Indemnitee upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. In furtherance of the duties and obligations foregoing provisions of Collateral Agent pursuant hereto or this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Security Documents. (ii) The Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it for the benefit of Secured Parties in good faith to be genuine and correct and to have been signed, sent or made by accordance with the proper Person, and with respect to all matters pertaining to terms of this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Section. Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten thirty (1030) Business Days days’ prior written notice thereof to Lenders and the Grantor, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Company Grantor and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided belowsigned by the Requisite Lenders. Upon any such notice of resignationresignation or any such removal, Requisite Lenders shall have the holders of a majority right, upon five (5) Business Days’ notice to the Collateral Agent, following receipt of the outstanding principal amount Grantor’s consent (which shall not be unreasonably withheld or delayed and which shall not be required while an Event of Notes shall Default exists), to appoint a successor Collateral Agent. Upon the acceptance of the any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor will become Collateral Agent under this Agreement. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereby also be deemed the successor Collateral Agent and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral AgentAgent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall be discharged from its promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties and obligations of the successor Collateral Agent under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.and

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientUMB Bank, LP National Association, is hereby appointed as the collateral agent hereunder Collateral Agent and under the Security Documents (shall be authorized to appoint co-Collateral Agents as necessary in such capacity, the “Collateral Agent”), and (b) authorizes its sole discretion. Each Holder agrees that any action taken by the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Collateral Agent makes no representations as to, and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the Collateral created or intended to be created by any of the Security Documents, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, all such responsibilities and obligations being responsibilities and obligations of the Company and the Guarantors. The Collateral Agent shall not havehave any responsibility for recording, by reason hereof registering, filing, re-recording, re-registering or pursuant refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any Security Documents, a fiduciary relationship in respect action to perfect or maintain the perfection of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability security interest granted to any Buyer for any action taken or omitted to be taken in connection hereof or it under the Security Documents or otherwise (except to for the extent caused safe custody of any Collateral in its possession and the accounting for moneys actually received by its own gross negligence it hereunder or willful misconduct, under any Security Document) and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee responsibility shall be solely that of the duties and obligations of Collateral Agent pursuant hereto or any of the Security DocumentsCompany. (iic) The Collateral Agent shall be entitled to rely rely, and shall be fully protected in relying, upon any written noticeswriting, statementsresolution, certificatesnotice, orders consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other documents communication, document or any conversation (including those by telephone message or e- mail) believed by it in good faith to be genuine and correct and to have been signed, sent sent, or made by the proper PersonPerson or Persons, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice and statements of legal counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by paying all fees of such successor the Collateral Agent, by having the Company agree to indemnify any successor . The Collateral Agent and by each of shall not be bound to make any investigation into the Company executing a collateral agency agreement facts or similar agreement and/or matters stated in any amendment to resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents reasonably requested in accordance with a request, direction, instruction or required by consent of the successor Collateral Agent. (v) Company, the Trustee or the Holders of a requisite percentage in aggregate principal amount of the then outstanding Notes. This Article 10 and the provisions of each other Security Document are subject to the terms, conditions and benefits set forth in the Intercreditor Agreement. The Company and each Guarantor consents to, and agrees to pay be bound by, the terms of the Intercreditor Agreement, as the same may be in effect from time to time, and to perform its obligations thereunder in accordance with the terms thereof. Each Holder of Notes, by its acceptance of the Notes (a) consents to the terms provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Trustee and the Collateral Agent, by wire transfer in each case, on behalf of immediately available funds each Holder of Notes to enter into the Intercreditor Agreement as Second Lien Representative and as Second Lien Collateral Agent (as such terms are defined in the Intercreditor Agreement), in each case, on behalf of such Holders of Notes. In addition, each Holder of Notes authorizes and instructs the Trustee and the Collateral Agent to enter into any amendments or joinders to the Intercreditor Agreement, without the consent of any Holder, to add additional Indebtedness as Second Lien Debt and add other parties (or any authorized agent or trustee therefor) holding such Indebtedness thereto and to establish that the Lien on any Collateral securing such Indebtedness ranks equally with the Liens on such Collateral securing the other Second Lien Debt then outstanding. The foregoing provisions are intended as an inducement to the lenders under the Credit Agreement to extend credit to the Company and certain of its Subsidiaries, and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement. (d) In addition, to the extent required under the laws of any jurisdiction other than within the United States and for Mexican law purposes, each Holder hereby grants to the Collateral Agent a comisión mercantil con representación in accordance with Articles 273, 274 and any other applicable Articles of the Commerce Code of Mexico (Código de Comercio) to act on its behalf as its agent in connection with this Agreement and the Security Documents, and authorizes the Collateral Agent’s written wire instructionsAgent to enter into the Security Documents governed by the laws of Mexico and to hold the Liens granted to it under such documents acting on behalf of itself and for the benefit of the Second Lien Secured Parties under this Agreement to secure the Second Lien Obligations; furthermore, each Holder hereby authorizes the Collateral Agent to delegate the above mentioned comisión mercantil con representación pursuant to Article 280 and any other applicable Articles of the Commerce Code of Mexico (Código de Comercio) to the extent permitted by and under the Secured Debt Documents. Without limiting the foregoing, each Holder hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of the Security Documents to which the Collateral Agent is a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter party, and to exercise all rights, powers and remedies that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the may have under such Security Documents during such calendar quarterDocuments, provided, such fee shall be non-duplicative to any existing fee arrangements with however, the Collateral Agent arising from existing Indebtednessdoes not have an obligation to undertake any action unless directed in writing by a majority of Holders (or the Trustee acting upon direction of the same) and it has been provided indemnity and or security satisfactory to it.

Collateral Agent. (ia) Each Buyer Purchaser hereby (a) irrevocably appoints Empery Tax Efficient, LP the Lead Investor as the collateral agent hereunder and under the Security Documents and Pledge Agreement (in such capacity, the “Collateral Agent”), and (b) authorizes and empowers the Collateral Agent (to perform its duties as Collateral Agent as set forth in this Agreement and the Security and Pledge Agreement, together with such actions and powers as are reasonably incidental thereto and to act with respect to all Collateral under this Agreement and the Security and Pledge Agreement, including for purposes of acquiring, holding and enforcing any and all liens on Collateral granted by the Company to secure any of the all present and future indebtedness, obligations, and liabilities of the Company and its officersSubsidiaries to the Collateral Agent and the Purchasers arising under or in connection with this Agreement, directorsthe Notes or any other Transaction Document (as defined in the Notes), employees and agents) whether or not the right of payment in respect of such claim is reduced to take such action on such Buyer’s behalf in accordance with judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured (the terms hereof and thereof“Obligations”). The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documentsand Pledge Agreement, a fiduciary relationship in respect of any BuyerPurchaser. Neither the Collateral Agent nor any of its Affiliates nor its or its Affiliates’ direct and indirect equity holders, partners, officers, directors, employees and agents agents, consultants, trustees, administrators, managers, advisors and representatives (collectively, “Related Parties”) shall have any liability to any Buyer Purchaser for any action taken or omitted to be taken in connection hereof or the Security Documents and Pledge Agreement except to the extent caused by its own gross negligence or willful misconductmisconduct as determined by a final non-appealable judgment of a court of competent jurisdiction, and each Buyer Purchaser agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents Related Parties (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentsand Pledge Agreement. (iib) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement Agreement, the Notes, or any of the other documents executed in connection therewith (the “Transaction Documents Documents”) and its duties hereunder or thereunder, upon advice of counsel selected by it. (iiic) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and Pledge Agreement at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes Required Holders (defined below) shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes Notes, the Security Agreement and the other Security and Pledge Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) 5.20 shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes Required Holders appoints a successor Collateral Agent as provided above. . For purposes of this Agreement, the term “Required Holders” shall mean (ivi) The Company hereby covenants prior to the Closing Date, each of the Purchasers and agrees to take all actions as promptly as practicable reasonably requested by either (ii) on or after the Closing Date, holders of at least a majority of the outstanding principal amount aggregate Principal Amount of Notes or issued and shall include the Collateral Agent (or Lead Investor so long as the Lead Investor, together with all of its successor)Affiliates, from time to time pursuant to the terms of this Section 4(q), to secure holds Notes with a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agentbalance still outstanding. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientWilmington Savings Fund Society, LP FSB is hereby appointed as the collateral agent hereunder Collateral Agent and under the Security Documents (shall be authorized to appoint co-Collateral Agents as necessary in such capacity, the “Collateral Agent”), and (b) authorizes its sole discretion. Each Holder agrees that any action taken by the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof provisions of this Indenture and the Security Document, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Collateral Agent makes no representations as to, and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the Collateral created or intended to be created by any of the Security Documents, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent as determined by a court of competent jurisdiction in a final and non- appealable decision, for the validity or sufficiency of the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, all such responsibilities and obligations being responsibilities and obligations of the Company and the Guarantors. The Collateral Agent shall not havehave any responsibility for recording, by reason hereof registering, filing, re-recording, re-registering or pursuant refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any Security Documents, a fiduciary relationship in respect action to perfect or maintain the perfection of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability security interest granted to any Buyer for any action taken or omitted to be taken in connection hereof or it under the Security Documents or otherwise (except to for the extent caused safe custody of any Collateral in its possession and the accounting for moneys actually received by its own gross negligence it hereunder or willful misconduct, under any Security Document) and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee responsibility shall be solely that of the duties and obligations of Collateral Agent pursuant hereto or any of the Security DocumentsCompany. (iic) The Collateral Agent shall be entitled to rely rely, and shall be fully protected in relying, upon any written noticeswriting, statementsresolution, certificatesnotice, orders consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other documents communication, document or any conversation (including those by telephone message or e-mail) believed by it in good faith to be genuine and correct and to have been signed, sent sent, or made by the proper PersonPerson or Persons, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice and statements of legal counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by paying all fees of such successor the Collateral Agent, by having the Company agree to indemnify any successor . The Collateral Agent and by each of shall not be bound to make any investigation into the Company executing a collateral agency agreement facts or similar agreement and/or matters stated in any amendment to resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with a request, direction, instruction or consent of the Collateral Agent’s written wire instructions, Trustee or the Holders of a quarterly agency fee majority in aggregate principal amount of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtednessthen outstanding Notes.

Collateral Agent. (i) Each Buyer Lender and the Administrative Agent hereby (a) irrevocably appoints Empery Tax Efficientand authorizes, LP and hereby agrees that it will require any transferee of any of its interest in its Loans and in its Notes irrevocably to appoint and authorize, the Collateral Agent to take such actions as the collateral its agent hereunder on its behalf and to exercise such powers under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with as are delegated by the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyertogether with such powers as are reasonably incidental thereto. Neither the Collateral Agent nor any of its directors, officers, directors, employees and or agents shall have any liability to any Buyer be liable for any action taken or omitted to be taken in connection hereof by it or them under any of the Security Documents or in connection therewith, except to the extent caused by for its or their own gross negligence or willful misconductmisconduct as determined by a final non-appealable judicial order of a court of competent jurisdiction. The Collateral Agent may execute any of its duties under the Loan Documents by or through agents or attorneys selected by it using reasonable care and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible to any Lender for the negligence or misconduct of any agents or attorneys selected by it with reasonable care. The Collateral Agent may treat each Lender, or the Person designated in the last notice filed with the Administrative Agent under Section 9.2 hereof of this Agreement, as the holder of all of the interests of such Lender in its Loans and in its Notes until written notice of transfer, signed by such Lender (or the Person designated in the last notice filed with the Administrative Agent) and by the Person designated in such written notice of transfer, in form and substance reasonably satisfactory to the Administrative Agent, shall have been filed with the Administrative Agent. The Collateral Agent may consult with legal counsel selected by it and shall not be liable for any action taken or suffered by it in good faith in reliance thereon. The Collateral Agent shall not be under any duty to examine, inquire into, or pass upon the validity, effectiveness or genuineness of any Security Document or other document or communication furnished pursuant thereto or in connection therewith, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent shall be entitled to assume that they are valid, effective and all of its officersgenuine, directors, employees have been signed or sent by the proper parties and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) are what they purport to be. The Collateral Agent shall be entitled to rely upon use its discretion with respect to exercising or refraining from exercising any written notices, statements, certificates, orders or other documents or any telephone message believed by rights which may be vested in it in good faith to be genuine and correct and to have been signed, sent or made by the proper Personby, and with respect to all matters pertaining taking or refraining from taking any action or actions which it may be able to this Agreement take under or in respect of, any of Security Document, unless the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed have been instructed by the Majority Lenders to and become vested with all exercise or refrain from exercising such rights or to take or refrain from taking such action, provided that the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day periodexercise any rights under any Security Document without the request of the Majority Lenders unless time is of the essence, the retiring in which case, such action can be taken. The Collateral Agent shall then appoint incur no liability under or in respect of any Security Document with respect to anything which it may do or refrain from doing in the reasonable exercise of its judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or willful misconduct as determined by a successor final, non-appealable judicial order of a court of competent jurisdiction. The Collateral Agent who shall serve until such time, if any, as not be liable to the holders of a majority Lenders or to any Lender in acting or refraining from acting under any Security Document in accordance with the instructions of the outstanding principal amount of Notes appoints a successor Majority Lenders, and any action taken or failure to act pursuant to such instructions shall be binding on all Lenders. The Collateral Agent as provided above. (iv) The Company hereby covenants and agrees shall not be obligated to take any action which is contrary to law or which would in its reasonable opinion subject it to liability. All indemnity provisions herein that pertain to the Administrative Agent shall apply equally to the Collateral Agent. Each Lender and the Administrative Agent hereby agree that all actions Collateral now or hereafter delivered as promptly as practicable reasonably requested security for the Obligations shall be held by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time delivered to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, if received by wire transfer of immediately available funds any Lender) in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessDocuments.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”)other Secured Parties. Subject to the terms of the Intercreditor Agreement, and (b) authorizes the Collateral Agent (shall be obligated, and its officersshall have the right hereunder, directorsto make demands, employees to give notices, to exercise or refrain from exercising any rights, and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Pledged Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter all Secured Obligations have been Paid in Full under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance instructions of the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by such the appropriate swap counterparties and reported to the Collateral Agent Indemnitee upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. In furtherance of the duties and obligations foregoing provisions of Collateral Agent pursuant hereto or this Section 10, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Security DocumentsPledged Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section 10. The provisions of the Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Credit Agreement. (iib) The Collateral Agent shall be entitled have the right to rely upon any written notices, statements, certificates, orders appoint one or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by more sub-agents for the proper Person, and with respect to all matters pertaining to this Agreement or any purpose of retaining physical possession of the other Transaction Documents and its duties hereunder or thereunderPledged Collateral, upon advice of counsel selected by it. which may be held (iii) The Collateral Agent may resign from in the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder discretion of the Notes. Such resignation shall take effect upon Collateral Agent) in the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority name of the outstanding principal amount relevant Grantor, endorsed or assigned in blank or in favor of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to any nominee or nominees of the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing or a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required sub-agent appointed by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. By acceptance of the benefits of this Indenture and the Security Documents each Holder and the Trustee, as applicable, (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP consents to the appointment of The Chase Manhattan Bank as the collateral agent Collateral Agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes grants the Collateral Agent all rights and powers necessary for the Collateral Agent to perform its obligations hereunder and under the Security Documents, (and its officers, directors, employees and agentsii) to take such action on such Buyer’s behalf in accordance with confirms that the terms hereof and thereof. The Collateral Agent shall not havehave the authority to act as the exclusive agent of such Holders and the Trustee, by reason hereof as applicable, to make claims under and otherwise act in all respects as the beneficiary of and for enforcement of any remedies under or pursuant with respect to any Security Documents, a fiduciary relationship in respect Document and the giving or withholding of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability consent or approval relating to any Buyer for any action taken or omitted to be taken in connection hereof Collateral or the Security Documents except or any obligations with respect thereto or otherwise take any action on behalf of the such Holders and the Trustee pursuant to and in accordance with this Indenture or the extent caused Security Documents, (iii) acknowledges that the transactions contemplated by its own gross negligence or willful misconductthis Indenture will by their nature require the execution and delivery of certain amendments, modifications and supplements to this Indenture and the Security Documents, and each Buyer Holder and the Trustee hereby agrees to defend, protect, indemnify and hold harmless that the Collateral Agent is authorized, to execute, deliver, file and all record any such amendment, modification or supplement necessary or desirable for any purpose not inconsistent with the terms of its officers, directors, employees and agents (collectively, this Indenture or the “Collateral Agent Indemnitees”) from and against Security Documents or to cure any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect ambiguity or consequential, arising from to correct or supplement any provision contained herein or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall Documents which may be entitled defective or inconsistent with any other provision contained herein or in any Security Document, or to rely upon any written notices, statements, certificates, orders make such other provisions in regard to matters or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 questions arising under this Agreement, the Notes and the Indenture or in any Security Agreement. After any Collateral Agent’s resignation hereunder, Document which shall not be inconsistent with the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent Indenture or any Security Document and which shall not have been so appointed within said ten (10) Business Day period, adversely affect the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority interests of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. Holders or the Trustee, and (iv) The Company hereby covenants and agrees that such Holders or the Trustee, as applicable, shall not given any approval or consent relating to take all actions as promptly as practicable reasonably requested by either the holders of a majority or bring any suit, action or proceeding to enforce any term or provision of the outstanding principal amount Security Documents or to enforce any of Notes or its rights in respect of the Collateral, except through the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) Indenture and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessDocuments.

Collateral Agent. 13.1 By their execution of the Purchase Agreement, the Investors have authorized the Collateral Agent to exercise for the pro rata pari passu benefit of the Investors all rights, powers and remedies provided to it under or pursuant to this Agreement, including all rights, powers and remedies upon an Event of Default, subject always to the terms, conditions, limitations and restrictions provided in this Agreement. Except with respect to those matters as to which the Collateral Agent is expressly required to act under the terms of this Article XIII, the Collateral Agent may act or refrain from acting with the written consent of holders of a majority of the aggregate principal amount of outstanding Notes as of the date of such consent (the “Requisite Holders”), which Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Collateral Agent; provided, however, that such direction shall not be in conflict with any rule of law or expose the Collateral Agent to personal liability, such direction shall not be unduly prejudicial to the rights of any non-consenting holder, and the Collateral Agent may take any action deemed proper by the Collateral Agent, in its discretion, which is not inconsistent with such direction or the terms of this Agreement. It is agreed that the duties of the Collateral Agent are only such as are herein specifically provided, and the Collateral Agent shall have no other duties, implied or otherwise. 13.2 Anything herein to the contrary notwithstanding, none of the provisions of this Agreement shall be construed to require the Collateral Agent to expend or risk its own funds or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall be satisfied that one or more Grantors, the Investors, are at the time obligated and in a financial position to pay the Collateral Agent’s reasonably anticipated fees for its services and its out-of-pocket expenses (including fees of its counsel) in the performance of such duties or the exercise of any of such rights or powers and to indemnify it against any such risk or liability. In no event shall the Collateral Agent be liable (i) Each Buyer hereby for any consequential, punitive or special damages or (aii) appoints Empery Tax Efficientfor the acts or omissions of its nominees, LP as the collateral agent hereunder and under the Security Documents (in such capacitycorrespondents, the “Collateral Agent”)designees, and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofsubagents or subcustodians. The Collateral Agent shall not haveincur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither occurrence beyond the control of the Collateral Agent nor (including any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility). 13.3 The Collateral Agent shall not be required or bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Collateral Agent may execute any of its the powers under the Security Agreement or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible or liable for the acts or omissions, including any willful misconduct or gross negligence, on the part of any agent, attorney, custodian or nominee so appointed. 13.4 Each Grantor hereby agrees to indemnify on a joint and several basis the Collateral Agent, each Investor, any affiliate thereof, and their respective directors, officers, directorsemployees, employees agents, counsel and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconductother advisors (each an “Indemnified Person”) against, and hold each Buyer agrees to defendof them harmless from, protect, indemnify and hold harmless the Collateral Agent any and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, feescosts, costs expenses or disbursements of any kind or nature whatsoever, including the reasonable fees and expenses (includingdisbursements of counsel to an Indemnified Person, without limitation, reasonable attorneys’ fees, costs and expenses) which may be imposed on or incurred by such Collateral Agent Indemniteeany Indemnified Person, whether director asserted against any Indemnified Person by any third party or by Grantor, indirect in any way relating to or consequentialarising out of, arising from or in connection with with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by such Collateral Agent Indemnitee the parties hereto of their respective obligations hereunder or thereunder, the duties and obligations of Collateral Agent pursuant hereto transactions contemplated hereby or the Collateral, or (ii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the Security Documentsforegoing, whether based on contract, tort or any other theory, whether brought by a third party or by Grantor (the “Indemnified Liabilities”); provided that Grantor shall not be liable to any Indemnified Person for any portion of such Indemnified Liabilities to the extent they are found by a final decision of a court of competent jurisdiction to have resulted from such Indemnified Person’s gross negligence or willful misconduct. If and to the extent that the foregoing indemnification is for any reason held unenforceable, Grantor agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. The indemnification provisions contained in this Section 13.4 are in addition to any other rights any of the indemnified parties may have by law or otherwise and shall survive the termination of this Agreement or the resignation or removal of the Collateral Agent. (ii) 13.5 Any corporation or other entity whatsoever into which the Collateral Agent may be merged or converted or with which it may be consolidated, any corporation or other entity whatsoever resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party or any corporation or other entity whatsoever succeeding to the business of the Collateral Agent shall be the successor of the Collateral Agent hereunder without the execution or filing of any paper with any party hereto except where an instrument of transfer or assignment is required by law to effect such succession. 13.6 The Collateral Agent shall be entitled transmit by overnight mail to rely upon any written noticesthe Investors, statementsor their successors or permitted assigns, certificatesas the names and addresses appear in a register of Investors maintained by Cardium, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any notice of the other Transaction Documents and its duties hereunder or thereunder, upon advice an Event of counsel selected by itDefault. (iii) 13.7 The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time resign by giving written notice thereof to Cardium at least ten (10) Business Days 20 business days prior written notice to the Company and each holder date of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided belowsuch proposed resignation. Upon any receiving such notice of resignation, the holders of a majority of the outstanding principal amount of Notes Requisite Holders shall promptly appoint a successor Collateral Agent. Upon collateral agent by written instrument executed by authority of its board of directors, a copy of which shall be delivered to the acceptance of the appointment as Collateral Agent, such successor resigning Collateral Agent shall succeed and a copy 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefitsuccessor collateral agent. If an instrument of acceptance by a successor Collateral Agent collateral agent shall not have been so appointed delivered to the Collateral Agent within said ten (10) Business Day period20 business days after giving such notice of resignation, the retiring resigning Collateral Agent shall then appoint may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent who shall serve until collateral agent. Such court may thereupon, after such timenotice, if any, as the holders of a majority of the outstanding principal amount of Notes appoints it may deem proper, appoint a successor collateral agent. The Collateral Agent as provided above. (iv) The Company hereby covenants and agrees may be removed at any time by written action by the Requisite Holders delivered to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time and to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that Cardium. If the Collateral Agent acted as shall be so removed, the Requisite Holders shall promptly appoint a successor collateral agent in accordance with the procedures in this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessArticle XIII.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement, the Credit Agreement and expenses) incurred by such the Intercreditor Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations (excluding contingent obligations in respect of customary indemnification liabilities that survive termination of the Credit Documents or such Person's release or discharge therefrom) under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes shall appoint a successor Collateral Agentexpenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral Agenthereunder, it being understood and agreed by such successor Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent shall succeed to and become vested for the benefit of Lenders/Secured Parties in accordance with all the rights, powers, privileges and duties terms of the retiring Collateral Agent, and the retiring this Section. Collateral Agent shall may resign or be discharged from its duties removed and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day periodmay be appointed, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with Section 9.7 of the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientNotwithstanding anything else to the contrary herein, LP as the collateral agent hereunder and under whenever reference is made in this Indenture or the Security Documents (in such capacityincluding the Intercreditor Agreement or any Other Intercreditor Agreement) to any discretionary action by, the “Collateral Agent”)consent, and designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (bor not to be) authorizes suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (and its officersor not to be made) by the Collateral Agent, directors, employees and agents) it is understood that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action on if it shall not have received written instruction, advice or concurrence from, as applicable, the Holders representing such Buyer’s behalf number or percentage of outstanding aggregate principal of the Notes as shall be expressly provided for herein or in accordance with any other Security Document, or in the terms hereof manner required pursuant to the Intercreditor Agreement, in respect of such action and, if it so requests, it shall first be indemnified to its satisfaction against any and thereofall liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any no liability to any Buyer for any action taken failure or omitted delay in taking any actions contemplated above as a result of a failure or delay on the part of such Holders or such other party as required by the Intercreditor Agreement, as applicable, to be taken in connection hereof provide such instruction, advice or concurrence. This provision is intended solely for the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless benefit of the Collateral Agent and all its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto. Subject to the foregoing (and the other provisions of its officers, directors, employees this Section 12.15) and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any terms of the Security DocumentsDocuments and any other applicable provisions of this Indenture, the Collateral Agent shall take such action with respect to any Default or Event of Default as may be requested by the Holders of a majority in principal amount of the outstanding Notes. For avoidance of doubt, nothing herein shall be deemed to require the Collateral Agent to obtain a consent or instruction from the Holders if the Indenture provides that such action can be taken at the request or direction of the Company without the consent of the Holders. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iiib) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Collateral Agent may be removed by the Company at least ten (10) Business Days prior any time, upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and each holder has accepted such appointment within 30 days after the Collateral Agent gives notice of resignation or is removed, the retiring Collateral Agent may (at the expense of the Notes. Such resignation shall take effect upon the acceptance by Company), at its option, appoint a successor Collateral Agent or petition a court of competent jurisdiction for the appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agentsuccessor. Upon the acceptance of the its appointment as Collateral Agentsuccessor collateral agent hereunder, such successor Collateral Agent collateral agent shall succeed to and become vested with all the rights, powers, privileges powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreementterminated. After any the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Section 4(q12.15 (and Section 7.06) shall continue to inure to its benefit. If a successor benefit and the retiring or removed Collateral Agent shall not have been so by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture. (c) Wilmington Trust, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents, agents or subagents as necessary in its sole discretion and shall not be responsible for the acts or omissions of any co-Collateral Agent, subagent or other agents appointed within said ten (10) Business Day periodwith due care. Except as otherwise explicitly provided herein, in the Security Documents, the retiring Intercreditor Agreement or any Other Intercreditor Agreement, neither the Collateral Agent nor any of its Affiliates or its and their respective officers, directors, employees or agents persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Agent shall then appoint be accountable only for amounts that it actually receives as a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority result of the outstanding principal amount exercise of Notes appoints a successor Collateral Agent as provided abovesuch powers. (d) The Collateral Agent is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Closing Date, (ii) enter into the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03, (iii) make the representations of the Holders set forth in the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03, (iv) The Company hereby covenants bind the Holders on the terms as set forth in the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03 and agrees (v) perform and observe its obligations under the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to take all actions as promptly as practicable reasonably requested Section 11.03. (e) If at any time or times the Trustee shall receive (i) by either payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the holders of a majority of Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the outstanding principal amount of Notes or Trustee from the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q)Indenture, to secure a successor or (ii) payments from the Collateral Agent satisfactory in excess of the amount required to such requesting part(y)(ies)be paid to the Trustee pursuant to Article 7, the Trustee shall promptly turn the same over to the Collateral Agent, in their sole discretionkind, and with such endorsements as may be required to negotiate the same to the Collateral Agent, with such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03. (f) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture, any Security Document, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03, other than pursuant to the instructions of the Holders of a majority in principal amount of the outstanding Notes or as otherwise provided in this Indenture or the Security Documents. (g) Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement, any Other Intercreditor Agreement or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under any mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient. (h) The Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement, any Other Intercreditor Agreement and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, and (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law). (i) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which they accord similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral (or for determining the value of the Collateral), including, without limitation, by paying all fees reason of the act or omission of any carrier (including overnight carriers with respect to the delivery of possessory collateral), forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (j) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreement, any Other Intercreditor Agreement, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement, any Other Intercreditor Agreement and the Security Documents, the Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent or the Trustee in the Collateral and that any such actions taken by the Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such successor Collateral. In the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, by having Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Company agree Collateral Agent or the Trustee to indemnify incur liability under CERCLA or any successor other federal, state or local law, the Collateral Agent and by each the Trustee reserves the right, instead of taking such action, to either resign as the Collateral Agent or the Trustee or arrange for the transfer of the Company executing title or control of the asset to a collateral agency agreement or similar agreement and/or any amendment court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to the Security Documents reasonably requested Company, the Guarantors or required any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the successor Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. (vk) The Company agrees Collateral Agent is authorized to pay receive any funds for the Collateral Agentbenefit of itself, by wire transfer the Trustee and the Holders distributed under the Security Documents, the Intercreditor Agreement or any Other Intercreditor Agreement and to the extent not prohibited under the Intercreditor Agreement or any Other Intercreditor Agreement, for turnover to the Trustee to make further distributions of immediately available such funds to itself, the Trustee and the Holders in accordance with the Collateral Agent’s written wire instructionsprovisions of Section 6.06 and the other provisions of this Indenture. (l) Notwithstanding anything to the contrary in this Indenture or in any Security Document, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that Intercreditor Agreement or any Other Intercreditor Agreement, in no event shall the Collateral Agent acted as collateral agent in accordance be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Section 4(q) and Indenture, the Security Documents during such calendar quarteror the Intercreditor Agreement, providedor Other Intercreditor Agreement (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), such fee nor shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising be responsible for, or makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby. (m) Before the Collateral Agent acts or refrains from existing Indebtednessacting in each case at the request or direction of the Company or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 12.03. The Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion. (n) The Collateral Agent, in executing and performing its duties under the Security Documents, shall be entitled to all of the rights, protections, immunities and indemnities granted to it hereunder, including after the satisfaction and discharge of this Indenture or the payment in full of the Notes. (o) The Collateral Agent (and Trustee) shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Company or any Guarantor, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made. (p) For avoi

Collateral Agent. The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Hold- ers of the Notes. The Collateral Agent shall be obligated, and shall have the right hereunder, to make de- mands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (i) Each Buyer hereby (a) appoints Empery Tax Efficientincluding, LP as the collateral agent hereunder and under the Security Documents (in such capacitywithout limitation, the “Collateral Agent”release or substitution of Collateral), solely in accordance with this Agreement and (b) authorizes the Note Purchase Agreement. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf for the benefit of Secured Parties in accordance with the terms hereof of this Section. The provisions of the Note Purchase Agreement relating to the Collateral Agent, including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and thereofthe protections, rights, indemnities, powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Note Purchase Agreement or removal or resignation of the Collateral Agent. In connection with exercising any right or discretionary duty hereunder (including, without limitation, the exercise of any rights following the occurrence of an Event of Default), the Collateral Agent shall be entitled to request and rely upon the direction of Holders of a majority in aggregate outstanding amount of the Notes to direct the Collateral Agent pursuant to the Note Purchase Agreement. The Collateral Agent shall not havehave any liability for taking any action at such direction or for its failure to take any action pending the receipt of such direction. The Collateral Agent shall not be responsible for and makes no representation as to the validity or adequacy of this Agreement, by reason hereof and it shall not be responsible for any statement or pursuant to any Security Documents, a fiduciary relationship recital in respect of any Buyerthis Agreement. Neither the Collateral Agent nor any of its officersaffiliates, directors, officers, agents or employees and agents shall be responsible for or have any liability duty to ascertain, inquire into or verify (i) any Buyer for any action taken statement, warranty or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or representation made in connection with this Agreement; (ii) the performance by such Collateral Agent Indemnitee or observance of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders covenants or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any agreements of the other Transaction Documents and its duties hereunder Grantor herein; or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance receipt of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice items required to be delivered to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”)other Secured Parties. Subject to the terms of the Intercreditor Agreement, and (b) authorizes the Collateral Agent (shall be obligated, and its officersshall have the right hereunder, directorsto make demands, employees to give notices, to exercise or refrain from exercising any rights, and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter all Obligations have been Paid in Full under the Credit Agreement and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance instructions of the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by such the appropriate swap counterparties and reported to the Collateral Agent Indemnitee upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of determining the Majority Holders. In furtherance of the duties and obligations foregoing provisions of Collateral Agent pursuant hereto or this Section 10, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Security DocumentsCollateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section 10. The provisions of the Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Credit Agreement. (iib) The Collateral Agent shall be entitled have the right to rely upon any written notices, statements, certificates, orders appoint one or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by more sub-agents for the proper Person, and with respect to all matters pertaining to this Agreement or any purpose of retaining physical possession of the other Transaction Documents and its duties hereunder or thereunderCollateral, upon advice of counsel selected by it. which may be held (iii) The Collateral Agent may resign from in the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder discretion of the Notes. Such resignation shall take effect upon Collateral Agent) in the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority name of the outstanding principal amount relevant Grantor, endorsed or assigned in blank or in favor of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to any nominee or nominees of the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing or a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required sub-agent appointed by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Agent shall also act as the “collateral agent hereunder and agent” under the Security Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by Borrower or any other Loan Party to secure any of the Obligations. Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as collateral agent, to enter into any of the Loan Documents as secured party for purposes of acquiring, holding and enforcing all Liens on Collateral (in such capacity, and any other collateral from time to time securing the “Collateral Agent”Obligations), and (b) authorizes as Agent for and representative of Lender thereunder, and each Lender agrees to be bound by the Collateral terms of each such document. All powers, rights and remedies under the Loan Documents may be exercised solely by Agent (for the benefit of Lenders and its officers, directors, employees and agents) to take such action on such Buyer’s behalf Agent in accordance with the terms hereof and thereof. The In the event of a foreclosure on any of the Collateral Agent shall not have, by reason hereof or pursuant to a public or private sale, either Agent or any Security Documents, a fiduciary relationship in respect Lender may be the purchaser of any Buyer. Neither or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled (subject to the proviso at the end of this sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of its officersthe Required Lenders. Without limiting the generality of the foregoing, directors, employees and agents shall have Agent is hereby expressly authorized to execute any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents documents (collectively, the “Collateral Agent Indemnitees”including releases) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and that bind Lenders with respect to all matters pertaining to this Agreement or any of (i) the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder rights of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and become vested Lenders 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if anyrespect thereto, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants contemplated by and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructionsprovisions of the Loan Documents, a quarterly agency fee of $10,000 within three and (3ii) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance any other subordination agreement with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative respect to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessSubordinated Debt.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent hereunder and agent” under the Security Documents Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and each of the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such capacityLender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto and references in this Agreement to “Administrative Agent” will include the “Collateral Agent”)” as the context may require. In this connection, the Administrative Agent, as “collateral agent” and (b) authorizes any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (and its officers, directors, employees and agentsincluding under the parallel debt) to take such action on such Buyer’s behalf execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, any Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (a) The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture and the Security Documents, and the Issuer and each of the Holders by acceptance of the Notes hereby (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) irrevocably authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Indenture and the Security Documents, and to exercise such Buyer’s behalf powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms and (ii) irrevocably authorizes and directs the Trustee to execute the Additional Pari Passu Joinders and any intercreditor agreement or joinder to any Security Document in connection with Indebtedness or other obligations not prohibited by this Indenture (including obligations with respect to future Pari Passu Indebtedness). In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed Wilmington Trust, National Association, as Collateral Agent to act as its collateral agent under the Security Documents and any other relevant documents to which the Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the Security Documents or other documents to which the Collateral Agent is a party, together with any other incidental rights, power and discretions and (ii) execute each document expressed to be executed by ▇▇▇▇▇▇▇▇▇▇ Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the terms hereof provisions of this Indenture and thereofthe Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Collateral Agent may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not have, by reason hereof be responsible for the negligence or pursuant to any Security Documents, a fiduciary relationship in respect misconduct of any Buyer. Neither the Collateral Agent nor any of its officersreceiver, directorsagent, employees employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentsdue care. (iic) The Collateral Agent shall be entitled to rely rely, and shall be fully protected in relying, upon any written noticeswriting, statementsresolution, certificatesnotice, orders consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other documents communication, document or any conversation (including those by telephone message or e-mail) believed by it in good faith to be genuine and correct and to have been signed, sent sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Company shall furnish to the Trustee, at such time as required by the TIA, such Opinions of Counsel and certificates or opinions of engineers, appraisers or other experts as may be required by Section 314(b) or 314(d) of the TIA and shall take such other action as may be necessary to cause TIA Section 314(d) relating to the release of Collateral from the security interests created by this Indenture and the Security Documents to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Company, except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected or approved by the Trustee in the exercise of reasonable care. A Person is “independent” if such Person (a) is in fact independent, (b) does not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company and (c) is not an officer, employee, promoter, underwriter, trustee, partner or director or person performing similar functions to any of the foregoing for the Company. The Trustee and the Collateral Agent shall be entitled to receive and rely upon a certificate provided by any such Person confirming that such Person is independent within the foregoing definition. (e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to all matters pertaining such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by itSection 12.7). (iiif) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior 30 days’ written notice to the Company Trustee and each holder of the Notes. Such Issuer, such resignation shall take effect to be effective upon the acceptance by of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of appointment the resignation of the Collateral Agent (as provided below. Upon any such stated in the notice of resignation), the holders Trustee, at the direction of the Holders of a majority of the outstanding aggregate principal amount of the Notes shall then outstanding, may appoint a successor collateral agent, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral AgentAgent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of the its appointment as Collateral Agentsuccessor collateral agent hereunder, such successor Collateral Agent collateral agent shall succeed to and become vested with all the rights, powers, privileges powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreementterminated. After any the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 4(q12.7 (and Section 7.7 hereof) shall continue to inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, benefit and the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until not by reason of such time, if any, resignation be deemed to be released from liability as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all any actions as promptly as practicable reasonably requested taken or omitted to be taken by either the holders of a majority of the outstanding principal amount of Notes or it while it was the Collateral Agent (or its successor), from time to time pursuant to the terms of under this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentIndenture. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. Section 10.1 Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or authorized to act for, any other Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Section 10.2 Each Lender, by signing this Agreement (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold its portion of the Loan hereunder and (ii) expressly acknowledges that neither any other Lender nor any of its respective officers, directors, employees, agents, attorneys in fact have made any representations or warranties to it and that no act by any other Lender hereafter taken, including any review of the affairs of a Relevant Party, shall be deemed to constitute any representation or warranty by any Lender. Each Buyer Lender shall, independently and without reliance upon any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. Section 10.3 U.S. Bank Trust Company, National Association has been appointed Collateral Agent for the benefit of Lenders hereunder pursuant to the Collateral Agency Agreement. It is expressly understood and agreed by the parties hereto that any authority conferred upon Collateral Agent hereunder is subject to the terms of the delegation of authority made by Lenders to Collateral Agent pursuant to the Collateral Agency Agreement, and that Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Collateral Agency Agreement (including the rights and protections of Collateral Agent thereunder). Any successor Collateral DB1/ 149149761.5 Agent appointed pursuant to the Collateral Agency shall be entitled to all the rights, interests and benefits of Collateral Agent hereunder. Section 10.4 Collateral Agent is a “representative” of Lenders within the meaning of the term “secured party” as defined in the UCC. ▇▇▇▇▇▇▇ hereby authorize and direct Collateral Agent to enter into each of the Collateral Documents and the other Loan Documents and to take all action contemplated by such documents. Lenders agree that they shall not have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by Collateral Agent (for the benefit of Lenders) upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, pursuant to the terms of the Collateral Agency Agreement, Collateral Agent shall be authorized, and shall be granted a power of attorney, to execute and deliver on behalf of Lenders any Collateral Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of Collateral Agent on behalf of Lenders. Lenders have authorized Collateral Agent to release any Lien granted to or held by Collateral Agent upon any Collateral (i) as expressly described herein; (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders (unless such release is required to be approved by all of Lenders hereunder). Upon request by Collateral Agent at any time, ▇▇▇▇▇▇▇ will confirm in writing Collateral Agent’s authority to release particular types or items of Collateral pursuant hereto. DB1/ 149149761.5 The parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. MLIC LENDER: METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory MTLIC LENDER: METROPOLITAN TOWER LIFE INSURANCE COMPANY, a Nebraska corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory DB1/ 149149761.5 BORROWER: VB NINE, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory DB1/ 149149761.5 Each of the undersigned Equity Owner and Parent hereby joins in the execution and delivery of this Agreement and hereby: (a) appoints Empery Tax Efficient, LP represents and warrants that each of the representations and warranties set forth in the Loan Agreement and each other Loan Document and applicable to it is true and correct as of the collateral agent hereunder date hereof; and (b) agrees to be bound by all of the covenants and agreements set forth in Article V of the Loan Agreement and each other Loan Document applicable to it. The existence and provisions of this Joinder shall in no event be interpreted to imply recourse against any of the Equity Owner or Parent under the Security Loan Documents except as otherwise explicitly set forth in the Loan Documents. EQUITY OWNER: VB NINE EQUITY, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory PARENT: VINEBROOK HOMES TRUST, INC., a Maryland corporation By: Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: President DB1/ 149149761.5 (a) Borrower shall obtain and maintain, at its sole cost and expense for the term of this Agreement or cause to be maintained, insurance for Borrower and the Properties providing at least the following coverages: (i) comprehensive “all risk” or special causes of loss form insurance, as is available in such capacitythe insurance market as of the Closing Date, on the Properties (A) in an amount equal to one hundred percent (100%) of the “Collateral Agentfull replacement cost”, which for purposes of this Agreement means actual replacement value of the Properties, subject to a loss limit equal to Fifty Million and No/100ths Dollars ($50,000,000.00) per occurrence; (B) containing an agreed amount endorsement with respect to the Improvements and personal property at any Property waiving all co insurance provisions or to be written on a no co insurance form and (C) providing for no deductible in excess of Twenty-Five Thousand and No/100ths Dollars ($25,000.00) (it being understood that, so long as no Default or Event of Default has occurred and is continuing (1) Borrower may utilize a Three Million and No/100ths Dollars ($3,000,000.00) aggregate deductible stop loss subject to a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) per occurrence deductible and a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) maintenance deductible following the exhaustion of the aggregate, (2) the aggregate stop loss does not apply to any losses arising from named windstorm, earthquake or flood, (3) the perils of named windstorm and the peril of “other wind and hail” shall be permitted to have a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any and all affected Properties, except that the permitted minimum deductible for the named windstorm peril shall be permitted to (a) have a per occurrence deductible in certain Tier 1 locations in Texas of three percent (3.0%) of the total insurable value of the affected Properties, (b) have a per occurrence deductible for properties in Florida of five percent (5.0%) of the total insurable value of the affected Properties, and (c) have a per occurrence deductible in certain Tier 1 locations from Georgia to Virginia of two percent (2.0%) of the total insurable value of the affected Properties (each with a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any and all affected Properties), and (b4) authorizes the perils of flood shall be permitted to have a minimum deductible of Fifty Thousand and No/100ths Dollars ($50,000.00) for any and all affected Properties, except that the perils of special flood shall be permitted to have a minimum of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) per occurrence for any and all affected Properties, In addition, Borrower shall obtain (x) flood insurance in an amount equal to Five Million and No/100ths Dollars ($5,000,000.00) applying per occurrence and in the aggregate, and (y) with respect to named storm insurance the greater of (1) the amount of coverage in place on the Closing Date and (2) the greater of (i) coverage in an amount equal to the Probable Maximum Loss (PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 475 year event for the entire portfolio at risk or (ii) one hundred percent ( 100%) of Gross Loss Probable Maximum Loss (Gross Loss PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 10,000-year event for the entire portfolio at risk (such analysis to be secured by Borrower using a third-party firm qualified to perform such named storm risk analysis using the most current RMS software, or its equivalent, to include consideration of storm surge, if applicable, and loss amplification, at the expense of Borrower at least two (2) times per year or more frequently as may reasonably be requested by Required Lenders and shared with all Lenders); provided, that such flood, earth movement and named storm insurance shall otherwise be on terms consistent with the comprehensive all risk insurance policy required under this Section (a)(i). In addition, Borrower shall obtain the flood insurance coverage described in subclause (x) above for a Property if any portion of such Property is currently or at any time in the future located in a federally designated “special flood hazard area,” flood hazard insurance or its equivalent in an amount equal to the maximum amount of such insurance available under the DB1/ 149149761.5 National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; (ii) business income or rental loss insurance, written on an “Actual Loss Sustained Basis” (A) with loss payable to Collateral Agent for the benefit of Lenders; (B) covering all risks required to be covered by the insurance provided for in Section (a)(i), (iii), (iv) and its officers(viii); (C) in an amount equal to one hundred percent (100%) of the aggregate projected net income plus continuing expenses from the operation of the Properties for a period of at least twelve (12) months after the date of the Casualty; and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property at a Property has been repaired, directorsthe continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, employees or the expiration of thirty (30) days from the date that the applicable Property is repaired or replaced and agents) operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to take the end of such action on such Buyer’s behalf in accordance with the terms hereof and thereofperiod. The amount of such business income or rental loss insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the net income from each Property for the succeeding twelve (12) month period. All proceeds payable to Collateral Agent shall not have, by reason hereof or for the benefit of Lenders pursuant to any Security Documentsthis subsection shall be held in the Casualty and Condemnation Subaccount and disbursed to the Cash Management Account during the month to which such proceeds relate (or in the month received if such proceeds relate to a month prior to the month in which such proceeds were received); provided, a fiduciary relationship however, that nothing herein contained shall be deemed to relieve Borrower of their obligation to pay the Obligations on the respective dates of payment provided for in respect of any Buyer. Neither this Agreement and the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security other Loan Documents except to the extent caused by its own gross negligence such amounts are actually paid out of the proceeds of such business income insurance; (iii) at all times during which structural construction, repairs or willful misconductrenovations are being made with respect to any Property, and only if each Buyer agrees of the property coverage form and the liability insurance coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance, otherwise known as Owner Contractor’s Protective Liability (or its equivalent), covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy and (B) the insurance provided for in Section (a) written in a so-called builder’s risk completed value form including coverage for all insurable hard and soft costs of construction (x) on a non-reporting basis, (y) against all risks insured against pursuant to defendSection (a)(i), protect(iii), indemnify (iv) and hold harmless (viii), (z) including permission to occupy such Property and (C) with an agreed amount endorsement waiving co-insurance provisions; (iv) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any Property, such insurance (A) to be on the Collateral Agent so-called “occurrence” form with a combined limit of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; Two Million and No/100 Dollars ($2,000,000.00) in the aggregate “per location” and overall Twenty Million and No/100 Dollars ($20,000,000.00) in the aggregate; (B) to continue at not less than the aforesaid limit until required to be changed by Required Lenders in writing by reason of changed economic conditions making such protection inadequate and (C) to be at least as broad as Insurance Services Offices (ISO) policy form CG 00 01; (v) if applicable, automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles, containing minimum limits per occurrence of its officersOne Million and No/100 Dollars ($1,000,000.00); (vi) if applicable, directorsworker’s compensation subject to the worker’s compensation laws of the applicable state, employees and agents employer’s liability in amounts reasonably acceptable to Required Lenders; DB1/ 149149761.5 (vii) umbrella and excess liability insurance in an amount not less than Ten Million and No/100 Dollars ($10,000,000.00) per occurrence and in the aggregate on terms consistent with the commercial general liability insurance policy required under Section (a)(iv), and including employer liability and automobile liability, if applicable; and (viii) upon sixty (60) days’ written notice, such other reasonable insurance, and in such reasonable amounts as Required Lenders from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Properties located in or around the region in which Properties are located. (b) All Policies required pursuant hereto shall: (i) be obtained under valid and enforceable policies (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from Policies” or in connection with the performance by such Collateral Agent Indemnitee singular, the “Policy”), and shall be subject to the approval of the duties Required Lenders as to insurance companies, amounts, deductibles, loss payees and obligations of Collateral Agent pursuant hereto or any of the Security Documents. insureds and (ii) The Collateral Agent shall be entitled issued by financially sound and responsible insurance companies authorized to rely upon any written noticesdo business in the states where the applicable Properties are located and having a rating of “A3” or better by Moody’s or, statementsif Moody’s does not provide a rating of an applicable insurance company, certificatesa rating of “A-” or better by S&P or Fitch; provided, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and however, that if Borrower elects to have been signedits insurance coverage provided by a syndicate of insurers, sent then, if such syndicate consists of five (5) or made by the proper Personmore members, and with respect to all matters pertaining to this Agreement or any (A) at least sixty percent (60%) of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent insurance coverage (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to seventy-five percent (75%) if such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.syndicate consis

Collateral Agent. (a) If an Event of Default occurs and the Collateral Agent gives notice to the Company that the Transaction Security is enforceable, the Collateral Agent shall be entitled to take all such steps as it sees fit to collect the total amount outstanding under the Secured Obligations and to realize, at the Company’s expense, any of the Security Interests created under this Agreement by any means allowed by Applicable Law including, without limitation: (i) Each Buyer hereby exercising any of the rights, remedies and powers available to it under Applicable Law (including under Article VIII (Events of Default and Remedies) of the Credit Agreement); and (ii) appointing or applying to the competent court for appointment of a Receiver (as set out in Clause 11.2 (Receiver)). (b) To the extent permitted by Applicable Law, all or any of the powers, authorities and discretions which are conferred by this Agreement upon a Receiver may be exercised by the Collateral Agent following an Event of Default without first appointing a Receiver or notwithstanding the appointment of a Receiver. Without derogating from the above, following an Event of Default the Collateral Agent shall be entitled to exercise any right charged or pledged hereunder in the same manner in which the Company is entitled to exercise such right in accordance with the terms of Section 20 of the Pledges Law. (c) Subject to Applicable Law and without derogating from subclauses (a) appoints Empery Tax Efficient, LP as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), and (b) authorizes above, the Collateral Agent shall be entitled, in any proceedings concerning the bankruptcy, liquidation, winding up or receivership (or similar proceedings) of the Company, to: (i) demand, claim, collect and enforce and prove the Secured Obligations and give acquittal thereunder; (ii) file any claims and proofs, give receipts and take all such proceedings and do all such things as the Collateral Agent sees fit to recover the Secured Obligations; and (iii) receive all distributions on and payments with respect to the Secured Obligations. (d) The Company irrevocably makes, constitutes and appoints the Collateral Agent (and its officersdesignees) as the Company’s true and lawful agent (and attorney-in-fact) for the purpose, directorsupon the occurrence and during the continuation of an Event of Default and written notice to the Company of its intent to exercise its remedies under Article VIII (Events of Default and Remedies) of the Credit Agreement, employees of making, settling and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship adjusting claims in respect of the Security Assets under policies of insurance, endorsing the name of the Company on any Buyercheck, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. Neither All sums disbursed by the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or with this paragraph, including reasonable out-of-pocket attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable reasonably promptly upon demand by the Security Documents except Company to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and shall be additional Obligations secured by this Agreement. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, all insurance payments, proceeds of its officers, directors, employees insurance and agents (collectively, any awards arising from condemnation of any Security Assets received by the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with any loss, damage or destruction of any Security Assets shall be transferred to the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security DocumentsCompany. (iie) The Collateral Agent shall be entitled to rely upon any written noticeshave all powers that it may, statementsin its full discretion, certificates, orders or other documents or any telephone message believed by it in good faith determine to be genuine and correct and desirable or necessary to have been signed, sent or made by preserve the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes Security Assets and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company Interests created hereby and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either such steps for such purpose at the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentCompany’s expense. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed by the Lenders to act as Collateral Agent and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement, the Intercreditor Agreement and expenses) incurred by such the Credit Agreement; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement (other than contingent indemnification obligations for which no claim has been asserted) and the other Credit Documents, indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes shall appoint a successor Collateral Agentexpenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Upon In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the appointment as benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for its benefit and for the benefit of the other Secured Parties in accordance with the terms of this Section. Collateral Agent may resign or be removed in accordance with the provisions of the Credit Agreement. If any Grantor fails to perform or comply with any of its agreements contained in this Agreement and the Collateral Agent, as provided for by the terms of this Agreement or any other Credit Document, shall itself perform or comply, or otherwise cause performance or compliance, with such agreement, the expenses of the Collateral Agent incurred in connection with such performance or compliance, together with interest thereon at the rate then in effect in respect of the Loans, shall be payable by such Grantor to the Collateral Agent on demand and shall constitute Obligations secured by the Collateral. Wilmington Trust Company has been appointed the Collateral Agent hereunder pursuant to Section 9 of the Credit Agreement. It is expressly understood and agreed by the parties to this Agreement that any authority conferred upon the Collateral Agent hereunder is subject to the terms of the delegation of authority made by the Secured Parties (other than the Collateral Agent) to the Collateral Agent pursuant to the Credit Agreement and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall succeed to and become vested with all act) as such hereunder only on the rights, powers, privileges and duties of express conditions contained in the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten Credit Agreement (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any Section 9 thereof). Any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds appointed in accordance with Section 9.7 of the Collateral Agent’s written wire instructionsCredit Agreement shall be entitled to all the rights, a quarterly agency fee interests and benefits of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtednesshereunder.

Collateral Agent. (i1) Each Buyer Noteholder, by its acceptance of the Indenture, and each Authorized Representative of any Additional Secured Creditors on behalf of itself and the Additional Secured Creditors that it represents, by its execution of an Additional Secured Creditor Joinder, has appointed, and each other Secured Creditor, by accepting the benefits hereof, hereby (a) appoints Empery Tax Efficientappoints, LP BNY Trust Company of Canada to serve as the collateral agent hereunder Collateral Agent and representative of itself and any other Secured Creditors that it represents under each of the Security Documents (in such capacity, the “Collateral Agent”)Documents, and (b) authorizes the Collateral Agent (to act as agent for itself and such Secured Creditors for the purpose of executing and delivering, on behalf of itself and such Secured Creditors, each of the Security Documents and any other documents or instruments related thereto or necessary or, as determined by the Collateral Agent, desirable to perfect the Liens granted to the Collateral Agent thereunder, for the purpose of holding the Liens on the Collateral granted pursuant to the Security Documents, and, subject to the provisions of this Debenture, for the purpose of enforcing its officersand such Secured Creditors’ rights in respect of the Collateral and the obligations of the Obligors under the Security Documents, directorsand for the purpose of, employees or in connection with, releasing the obligations of the Obligors under the Security Documents. The Collateral Agent hereby agrees that it shall so act as Collateral Agent and agents) to take representative of the Secured Creditors subject to, in respect of any Additional Secured Creditors, compliance by the Authorized Representative on behalf of such action on such Buyer’s behalf in accordance Additional Secured Creditors with the terms hereof and thereofSection 5.22. The Collateral Agent shall not have, by reason hereof or pursuant have the sole authority to any exercise remedies under the Security Documents. The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Collateral), in accordance with the Secured Agreements. The Collateral Agent may resign, may be removed and a fiduciary relationship successor Collateral Agent may be appointed in respect the manner provided under Section 5.24. (2) The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Buyer. Neither the Charged Property in its possession if such Charged Property is accorded treatment substantially equivalent to that which a reasonable person accords his own property consisting of similar property, instruments or interests, it being understood that neither the Collateral Agent nor any of its officers, directors, employees and agents the Secured Creditors shall have responsibility for taking any liability necessary steps to preserve rights against any Person with respect to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security DocumentsCharged Property. (ii3) The Collateral Agent shall be entitled to rely upon any written noticesnotice, statementsstatement, certificatescertificate, orders order or other documents document or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and and, with respect to all matters pertaining to this Agreement or any of the other Transaction Documents Secured Agreements and its duties hereunder or thereunder, upon advice of counsel selected by it (who may be counsel to one or more of the Obligors). The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Collateral Agent has received written notice from a Secured Creditor, the Issuers or an Obligor referring to the applicable Secured Agreement, describing such Default or Event of Default and stating that it is a “notice of default” or a “notice of event of default”, setting forth in reasonable detail the facts and circumstances thereof and stating that the Collateral Agent may rely on such notice without further inquiry. The Collateral Agent shall have no obligation or duty prior to or after receiving any such notice to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to conclusively rely, and shall be fully protected in so relying, on any such notice furnished to it. (iii4) If any item of Charged Property also constitutes collateral granted to the Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the terms of this Debenture shall apply. (5) Notwithstanding anything to the contrary contained herein, the Collateral Agent is authorized, but not obligated, (i) to take any action reasonably required to perfect or continue the perfection of the liens on the Charged Property for the benefit of the Secured Creditors and (ii) when instructions from the Authorized Representatives on behalf of the applicable Secured Creditors have been requested by the Collateral Agent but have not yet been received, to take any action which the Collateral Agent, in good faith, believes to be reasonably required to promote and protect the interests of the Secured Creditors in the Charged Property; provided that once instructions have been received, the actions of the Collateral Agent shall be governed thereby and the Collateral Agent shall not take any further action which would be contrary thereto. (6) Notwithstanding anything to the contrary contained herein or in any Security Document, the Collateral Agent shall not be required to take or refrain from taking, and shall have no liability to any Secured Creditor for taking or refraining from taking, any action that exposes or, in the good faith judgment of the Collateral Agent may expose, the Collateral Agent or its officers, directors, agents or employees to personal liability, unless the Collateral Agent shall be adequately indemnified, or that is, or in the good faith judgment of the Collateral Agent may be, contrary to any Security Document, any other Secured Agreement or applicable law. Upon receipt of such indemnity, however, the Collateral Agent shall act upon the specific instructions of the Authorized Representatives provided in accordance with the provisions of this Debenture, except for any instructions that in the good faith judgment of the Collateral Agent may be contrary to any Security Document, any other Secured Agreement or applicable law. (7) For purposes of this Debenture and other Security Documents, each Secured Creditor shall appoint a Person as its Authorized Representative for the purpose of giving or delivering any notices or instructions hereunder and thereunder. Any instructions given by the Authorized Representatives (other than the Trustee) on behalf of the applicable Secured Creditors to the Collateral Agent pursuant to the Security Documents shall be in writing signed by the Authorized Representative(s) of the applicable Secured Creditors with respect to such instructions and such instructions shall certify to and for the benefit of the Collateral Agent the outstanding aggregate principal amount (or, in the case of discount notes, accreted value) of all Secured Obligations that the Secured Creditors authorizing such instructions hold. In determining whether the applicable Secured Creditors have consented to any action under the Security Documents, the Collateral Agent may conclusively rely on each Authorized Representative as to the amount of Secured Obligations held by holders represented by such Authorized Representative. The Collateral Agent may resign from shall be entitled to conclusively and absolutely rely on such instructions and certification as to the performance identity of all its functions and duties hereunder and under the Notes applicable Secured Creditors with respect to such instructions, and the Security Documents at Collateral Agent shall not be required to take any time action, and shall not be liable to any Secured Creditor for failing or refusing to act, pursuant to any instructions which are not given or delivered by giving at least ten (10) Business Days prior written notice to the Company and each holder Authorized Representatives of various Secured Creditors comprising the applicable Secured Creditors as required by Section 3.11 of the Notes. Such resignation shall take effect upon Security Agreements. (8) Each Obligor acknowledges that the acceptance rights and responsibilities of the Collateral Agent under this Debenture with respect to any action taken by a successor the Collateral Agent or the exercise or nonexercise by the Collateral Agent of appointment any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Debenture shall, as provided below. Upon any between the Collateral Agent and the other Secured Creditors, be governed by the provisions of this Debenture and by such notice of resignationother agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Obligors, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed be conclusively presumed to be acting as agent for the Collateral Agent and become vested the other Secured Creditors with all full and valid authority so to act or refrain from acting, and no Obligor shall be under any obligation, or entitlement, to make any inquiry respecting such authority. (9) Subject to clause (6) of this Section 5.23, neither the rightsCollateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Charged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Charged Property upon the request of any Obligor or any other Person or to take any other action whatsoever with regard to the Charged Property or any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Collateral Agent in the Charged Property and, subject to clause (6) of this Section 5.23, shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, privileges and duties neither it nor any of its officers, directors, employees or agents shall have any duty or liability or be responsible to any Obligor for any act or failure to act hereunder, except for its own gross negligence or wilful misconduct. The Collateral Agent shall have no duty or liability as to the retiring taking of any necessary steps to preserve or protect the Charged Property or to preserve rights against prior parties. Nothing contained in this Debenture shall be construed as requiring or obligating the Collateral Agent, and the retiring Collateral Agent shall not be required or obligated, to (i) present or file any claim or notice or take any action with respect to any Charged Property or in connection therewith or (ii) notify any Obligor of any decline in the value of any Charged Property. The Collateral Agent shall have no duty as to the collection of any Charged Property in its possession or control or in the possession or control of any agent or nominee of the Collateral Agent, or any income thereon or any other rights pertaining thereto. (10) No provision of the Secured Agreements shall be deemed to impose any duty or obligation on the Collateral Agent to perform any act or acts, receive or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Collateral Agent shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Collateral Agent shall be construed to be a duty. (11) The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of Charged Property), in each case in accordance with the Secured Agreements. (12) Upon resignation of the Collateral Agent in accordance with the terms of Section 5.24, the Collateral Agent shall thereupon be discharged from its duties and obligations under this Agreement, the Notes and Secured Agreements. Following the Security Agreement. After any resignation of the Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) the Secured Agreements shall inure to its benefit. If a successor benefit as to any actions taken or omitted to be taken by it under the Secured Agreements while it was the Collateral Agent. (13) The Collateral Agent shall not have been so appointed within said ten any liability hereunder except for its own gross negligence or wilful misconduct, or material breach and under no circumstances shall the Collateral Agent be liable for any special, punitive, exemplary or consequential damages. (1014) Business Day period, the retiring The Collateral Agent shall then appoint a successor be vested with all of the rights, powers, benefits, privileges and protections of the Collateral Agent who set forth in the Indenture, all of which are incorporated herein and shall serve until such time, if any, as the holders of a majority apply to all of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided aboveSecurity Documents. (iv15) The Company hereby covenants Collateral Agent may perform any and agrees to take all actions as promptly as practicable reasonably requested of its duties and exercise its rights and powers hereunder or under any other Indenture Document by either the holders of or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent, including a majority sub-agent which is a non-U.S. affiliate of the outstanding principal amount Collateral Agent. Except as otherwise provided in this Section 5.23, neither the Collateral Agent nor any of Notes its respective officers, directors, employees, attorney or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the First Lien Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any such Liens or Security Documents or any delay in doing so provided that if instructed by the Required Secured Creditors in accordance with the provisions of the Security Documents, the Collateral Agent (subject to receipt of an indemnity requested by it and acceptable to it and any other applicable provisions of the Security Documents) shall comply with instructions from such Required Secured Creditors. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or its successor), from time to time pursuant to the terms through their respective Affiliates. The exculpatory provisions of this Section 4(q)5.23 shall apply to any agent, attorneys-in-fact or sub-agent and to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the Affiliates of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each any such agent, attorneys-in-fact or sub-agent, and shall apply to their respective activities in connection with the exercise of the Company executing a collateral agency agreement or similar agreement and/or any amendment to rights and remedies of the Security Documents reasonably requested or required by the successor Collateral Agent provided for hereunder, as well as all other activities as Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (on behalf of the Lenders) and Tenant agree that upon the conveyance of the Property by reason of the foreclosure of the Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or otherwise, the Lease shall not be terminated or affected thereby (at the option of the transferee of the Property (the “Transferee”) if the conditions set forth in Section 2 above have not been met at the time of such transfer) but shall continue in full force and effect as a direct lease between the Transferee and Tenant upon all of the terms, covenants and conditions set forth in the Lease and in that event, Tenant agrees to attorn to the Transferee and the Transferee shall accept such attornment, and the Transferee shall not be (a) obligated to complete any construction work required to be done by Landlord pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant, in each case prior to Transferee’s ownership of the Property, (b) liable (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP as the collateral agent hereunder and for Landlord’s failure to perform any of its obligations under the Security Documents Lease which have accrued prior to the date on which the Transferee shall become the owner of the Property, or (in ii) for any act or omission of Landlord, whether prior to or after such capacityforeclosure or sale, (c) required to make any repairs to the “Collateral Agent”)Property or to the premises demised under the Lease required as a result of fire, or other casualty or by reason of condemnation unless the Transferee shall be obligated under the Lease to make such repairs and shall have received sufficient casualty insurance proceeds or condemnation awards to finance the completion of such repairs, (bd) authorizes required to make any capital improvements to the Collateral Agent Property or to the premises demised under the Lease which Landlord may have agreed to make, but had not completed, or to perform or provide any services not related to possession or quiet enjoyment of the premises demised under the Lease, (and its officerse) subject to any offsets, directorsdefenses, employees and agentsabatements or counterclaims which shall have accrued to Tenant against Landlord prior to the date upon which the Transferee shall become the owner of the Property, (f) liable for the return of rental security deposits, if any, paid by Tenant to take such action on such Buyer’s behalf Landlord in accordance with the terms hereof and thereof. The Collateral Agent shall not haveLease unless such sums are actually received by the Transferee, (g) bound by reason hereof any payment of rents, additional rents or pursuant other sums which Tenant may have paid more than one (1) month in advance to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither prior Landlord unless (i) such sums are actually received by the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken Transferee or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent such prepayment shall have been expressly approved of by the Transferee, (h) bound to make any payment to Tenant which was required under the Lease, or otherwise, to be entitled made prior to rely upon the time the Transferee succeeded to Landlord’s interest, (i) bound by any agreement amending, modifying or terminating the Lease made without the prior written noticesconsent of the Lenders prior to the time the Transferee succeeded to Landlord’s interest or (j) bound by any assignment of the Lease or sublease of the Property, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signedportion thereof, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of time the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed Transferee succeeded 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 under this Agreement, the Notes and the Security Agreement. After any Collateral AgentLandlord’s resignation hereunder, interest other than if pursuant to the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided aboveLease. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer The Senior Secured Holders shall designate a collateral agent with respect to the Collateral. Kensington Clene 2021, LLC is hereby (a) appoints Empery Tax Efficient, LP designated and appointed by the Senior Secured Holders as the initial collateral agent hereunder as of the date of this Agreement. The Company acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Security Documents (in such capacityCollateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Senior Secured Holders, be governed by this Section 1.4(g), but, as between the Collateral Agent and the Company, the Collateral Agent shall be conclusively presumed to be acting as agent for the Senior Secured Holders with full and valid authority so to act or refrain from acting, and the Company shall be under no obligation or entitlement to make any inquiry respecting such authority. (ii) Each Senior Secured Holder understands and acknowledges that the rights and remedies of the Senior Secured Holders upon an Event of Default may only be exercised by the Collateral Agent. Without limiting the generality of the immediately preceding sentence, the Collateral Agent shall have the sole and exclusive right and authority (to the exclusion of the other Senior Secured Holders), and is hereby authorized, to (A) file and prove claims and file other documents necessary or desirable to allow the claims of the Senior Secured Holders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such person), (B) act as collateral agent for each Senior Secured Holder for purposes of the perfection of all liens created by this Agreement and all other purposes stated herein, (C) manage, supervise and otherwise deal with the Collateral, (D) take such other action as is necessary or desirable to maintain the perfection and priority of the liens created or purported to be created by this Agreement, and (E) exercise all remedies given to the Collateral Agent and the other Senior Secured Holders with respect to the Collateral, whether under this Agreement, the Senior Notes, applicable requirements of law or otherwise. (iii) Under this Agreement and the Senior Notes, the Collateral Agent (A) is acting solely on behalf of the Senior Secured Holders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Collateral Agent”), the terms “agent” and “collateral agent” and similar terms in this Agreement or the Senior Notes to refer to the Collateral Agent, which terms are used for title purposes only, (B) is not assuming any obligation under this Agreement or the Senior Notes other than as expressly set forth herein or any role as agent, fiduciary or trustee of or for any Senior Secured Holder or any other person, and (bC) authorizes shall have no implied functions, responsibilities, duties, obligations or other liabilities under this Agreement or the Senior Notes, and each Senior Secured Holder hereby waives and agrees not to assert any claim against the Collateral Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (A) through (C) above. (iv) The Collateral Agent shall not be required to exercise any discretion or take, or to omit to take, any action, including with respect to enforcement or collection, except any action it is required to take or omit to take under this Agreement, the Senior Notes or pursuant to instructions from the Senior Secured Holders. The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its officerspossession shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. The powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent’s interest in the Collateral and shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it receives as a result of the exercise of such powers, directorsand neither it nor any persons acting on behalf of the Collateral Agent in accordance with this Section 1.4(g) shall be responsible to the Company for any act or failure to act hereunder, employees except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. In addition, the Collateral Agent shall not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehousemen, carrier, forwarding agency, consignee or other bailee if such person has been selected by the Collateral Agent in good faith. (v) The Collateral Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and agentsremedies under, and delegate or perform any of its duties or any other action with respect to, this Agreement or the Senior Notes by or through any trustee, co-agent, employee, attorney-in-fact and any other person (including any Senior Secured Holder). Any such person shall benefit from this Section 1.4(g) to take the extent provided by the Collateral Agent. (vi) The Collateral Agent may, without incurring any liability hereunder, (A) treat the payee of any Senior Note as its holder until the Collateral Agent has received written notice from the holder of such action on Senior Note that such Buyer’s behalf note has been assigned in accordance with the terms hereof of such Senior Note, (B) consult with any advisors, accountants and thereof. The Collateral Agent shall not haveother experts (including advisors to, and accountants and experts engaged by, the Company), and (C) rely and act upon any document and information (including those transmitted by reason hereof electronic transmission) and any telephone message or pursuant conversation, in each case believed by it to any Security Documentsbe genuine and transmitted, a fiduciary relationship in respect signed or otherwise authenticated by the appropriate parties. (vii) None of any Buyer. Neither the Collateral Agent nor any persons acting on behalf of its officers, directors, employees and agents the Collateral Agent in accordance with this Section 1.4(g) shall have any liability to any Buyer be liable for any action taken or omitted to be taken by any of them under or in connection hereof with this Agreement or the Security Documents Senior Notes, and the Company and each Senior Secured Holder hereby waive and shall not assert any right, claim or cause of action based thereon, except to the extent caused of liabilities resulting primarily from the gross negligence or willful misconduct of the Collateral Agent or, as the case may be, such other persons (each as determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection with the duties expressly set forth herein. (viii) Each Senior Secured Holder agrees to reimburse the Collateral Agent and each person acting on behalf of the Collateral Agent in accordance with this Section 1.4(g) (to the extent not reimbursed by the Company) promptly upon demand, severally and ratably, of any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and taxes paid in the name of, or on behalf of, the Company) that may be reasonably incurred by the Collateral Agent or any of such persons acting on behalf of the Collateral Agent in connection with the preparation, execution, delivery, administration, modification, consent, waiver or enforcement (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement and the Senior Notes. Each Senior Secured Holder further agrees to indemnify the Collateral Agent and each person acting on behalf of the Collateral Agent in accordance with this Section 1.4(g) (to the extent not reimbursed by the Company), severally and ratably, from and against liabilities (including taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to on or for the account of any Senior Secured Holder) that may be imposed on, incurred by or asserted against the Collateral Agent or any of such persons acting on behalf of the Collateral Agent in any matter relating to or arising out of, in connection with or as a result of this Agreement, or the Senior Notes or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by the Collateral Agent or any of such persons acting on behalf of the Collateral Agent under or with respect to any of the foregoing; provided, however, that no Senior Secured Holder shall be liable to the Collateral Agent or any of such persons acting on behalf of the Collateral Agent to the extent such liability has resulted primarily from the gross negligence or willful misconduct of the Collateral Agent or, as the case may be, such other person acting on behalf of the Collateral Agent, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. (ix) No Senior Secured Holder nor the Collateral Agent shall be liable for failure to demand, collect or realize upon any Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Company or any other person or to take any other action whatsoever with regard to any Collateral. The powers conferred on the Collateral Agent hereunder shall not impose any duty upon any other Senior Secured Holder to exercise any such powers. The other Senior Secured Holders shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their respective officers, directors, employees or agents shall be responsible to the Company for any act or failure to act hereunder, except for their own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless misconduct as finally determined by a court of competent jurisdiction. (x) Each Senior Secured Holder authorizes the Collateral Agent and to execute, on such Senior Secured Holder’s behalf, a release of such Senior Secured Holder’s security interest in the Collateral if (A) the Company has performed and/or satisfied all of its officersthe Obligations owed to such Senior Secured Holder, directors, employees and agents (collectively, B) if the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with Senior Secured Holders otherwise agree to the performance by such Collateral Agent Indemnitee release of the duties and obligations of Senior Secured Holders’ security interest in the Collateral Agent pursuant hereto or any of (C) the Security DocumentsSenior Notes have converted in accordance with their terms. (iixi) The Collateral Agent shall be entitled to rely upon may at any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by time request instructions from the proper Person, and Senior Secured Holders with respect to all matters pertaining any actions or approvals which, by the terms of this Agreement, the Collateral Agent is permitted or required to take or to grant. If such instructions are requested, the Collateral Agent shall be absolutely entitled to refrain from taking any action and withhold any approval and shall not be under any liability whatsoever to any person for refraining from taking any action or withholding any approval under this Agreement or Agreement, until it shall have received such instructions from the Senior Secured Holders. A Senior Secured Holder shall not have any right of action whatsoever against the Collateral Agent as a result of the other Transaction Documents and its duties Collateral Agent’s acting or refraining from acting hereunder or thereunder, upon advice in accordance with instructions of counsel selected by itthe Senior Secured Holders. (iiixii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice thereof to the Senior Secured Holders and the Company and each holder of may be removed at any time for cause by the NotesRequired Holders. Such Except as provided above, upon any such resignation or removal, the Required Holders shall take effect upon have the acceptance by right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed by the Required Holders, and shall have accepted such appointment, within thirty (30) days after the retiring Collateral Agent’s giving of appointment as provided below. Upon any such notice of resignation, resignation or the holders of a majority Required Holders’ removal of the outstanding principal amount retiring Collateral Agent, then the retiring Collateral Agent may, on behalf of Notes shall the Senior Secured Holders, appoint a successor Collateral Agent. Upon the acceptance of the any appointment as the Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon 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 as the Collateral Agent under this Agreement, the Notes and the Security Agreement. After any resignation of the Collateral Agent or removal hereunder as the Collateral Agent’s resignation hereunder, the provisions of this Section 4(q1.4(g) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, benefit as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all any actions as promptly as practicable reasonably requested taken or omitted to be taken by either the holders of a majority of the outstanding principal amount of Notes or it while it was the Collateral Agent (or its successor), from time to time pursuant to the terms of under this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentAgreement. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”)other Secured Parties (including the LVSC Notes Secured Parties who, and (b) authorizes by accepting the benefits of the security interest granted hereunder, are deemed to have appointed the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with as their agent for purposes of the terms hereof and thereofgrant of the security interests provided hereunder which secure the LVSC Note Obligations). The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement, the Credit Agreement and expenses) incurred by such the LVSC Notes Indenture; provided, the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Credit Documents (other than obligations under Hedging Agreements), indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate notional amount (or, with respect to any Hedging Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedging Agreement) under all Hedging Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders, the LVSC Notes Trustee and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by the Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to the Administrative Agent and the Grantors, to appoint a successor Collateral AgentAgent which must be acceptable to Grantors (unless an Event of Default has occurred and is continuing). Upon the acceptance of the any appointment as Collateral Agent hereunder by a successor Collateral Agent, such that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral AgentAgent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any retiring or removed Collateral Agent’s resignation hereunderor removal hereunder as the Collateral Agent, the provisions of this Section 4(q) Agreement shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, benefit as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all any actions as promptly as practicable reasonably requested taken or omitted to be taken by either the holders of a majority of the outstanding principal amount of Notes or it under this Agreement while it was the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor hereunder. The Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such (including any successor Collateral Agent, by having ) shall enjoy the Company agree to indemnify any successor Collateral Agent and by each benefits afforded it under Section 9.6 of the Company executing a collateral agency agreement or similar agreement and/or any amendment to Credit Agreement, it being understood that the Security Documents reasonably requested indemnification provided thereunder shall come from the Lenders based on their Pro Rata Share as set forth therein, and that no indemnification shall be sought from, or required by the successor Collateral Agentby, any LVSC Notes Secured Parties. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Company, LP the Guarantors, and each of the Holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designate and appoint each Collateral Agent as the collateral its agent hereunder and under the Security Notes Documents (in such capacity, and each of the “Collateral Agent”), and (b) Holders by acceptance of the Notes hereby irrevocably authorizes the each Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of the Notes Documents and to exercise such Buyer’s behalf powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of the Notes Documents, and consents and agrees to the terms of each Notes Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture and such Notes Document. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.07. The provisions of this Section 12.07 are solely for the benefit of the Collateral Agent and none of the Company, any of the Guarantors nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the terms hereof provision of the Notes Documents, and thereofthe exercise by any Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall have only those duties or responsibilities expressly provided hereunder or thereunder and the Collateral Agent shall not have nor be deemed to have any fiduciary relationship with the Trustee, the Company, any other Guarantor or any Holder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Notes Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture and the Notes Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an ad-ministrative relationship between independent contracting parties. (b) The Collateral Agent shall not have, by reason hereof or act pursuant to any Security the instructions of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and the Trustee (or such other persons as set forth in this Indenture and in the Notes Documents) with respect to the Notes Documents and the Collateral. For the avoidance of doubt, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor shall have no discretion under this Indenture or the Notes Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable, or, if applicable, such other persons as set forth in this Indenture and the Notes Documents. After the occurrence and during the continuance of an Event of Default, subject to the provisions of the Notes Documents, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture or the Notes Documents. (c) Notwithstanding anything to the contrary, none of the Collateral Agent or any of its officers, directors, employees and agents respective Affiliates shall have any liability to any Buyer (i) be liable for any action taken or omitted to be taken by any of them under or in connection hereof with this Indenture or the Security Documents transactions contemplated hereby (except to the extent caused by for its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from under or in connection with any Security Document or the performance transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any Holder for any recital, statement, representation, warranty, covenant or agreement made by such the Company, the Guarantors, or any Officer or related person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent Indemnitee under, or in connection with, the Notes Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of the duties and Notes Documents, or for any failure of the Company or any Guarantor to the Notes Documents to perform its obligations of hereunder or thereunder. The Collateral Agent pursuant hereto shall not be under any obligation to any Holder to ascertain or to inquire as to the observance or performance of any of the Security Documentsagreements contained in, or conditions of, this Indenture or the Notes Documents or to inspect the properties, books, or records of the Company or any Guarantor. (iid) Other than in connection with a release of Collateral permitted under Section 12.02 (except as may be required by Section 9.02), in each case that the Collateral Agent may or is required hereunder or under any Security Document to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise act hereunder or under any Notes Documents, the Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of at least a majority in aggregate principal amount of the then outstanding Notes. Subject to the Notes Documents, if the Collateral Agent shall request direction from the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be entitled to refrain from such Action unless and until the Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (e) Beyond the exercise of reasonable care in the custody of the Collateral in its possession, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent will be deemed to have exercised reasonable care in the custody of the collateral in its possession if it complies with the standard of care of the Collateral Agent set forth herein, and the Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (f) The Collateral Agent will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, as determined by a court of competent jurisdiction in a final, non-appealable order, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any grantor to the Collateral, for insuring the collateral or for the payment of taxes, charges, assessments or liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Collateral Agent hereby disclaims any representation or warranty to the present and future Holders of the Notes concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral. Notwithstanding anything to the contrary in this Indenture, Security Document, or any other Notes Document, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the preparing recording, filing, re-recording, re-filing, registering, perfection, protection or maintenance any financing statement, perfection statement, continuation statement or other instrument evidencing the security interests or Liens intended to be created by this Indenture or the other Notes Documents (including without limitation the filing or continuation of any UCC) in any public office or for otherwise ensuring the perfection or maintenance of any security interest granted pursuant to this Indenture or any Security Document. (g) In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent, as applicable, to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any person for any environmental claims or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment. Notwithstanding anything to the contrary contained in this Indenture or the other Notes Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under any mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient and the Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent in accordance with Section 12.07(g) or arrange for the transfer of the title or control of the asset to a court-appointed receiver. (h) The Collateral Agent shall be entitled to rely upon all of the protections, immunities, indemnities, rights and privileges of the Trustee set forth in this Indenture and all such protections, immunities, indemnities, rights and privileges shall apply to the Collateral Agent in its roles under any written noticesother Security Document, statementswhether or not expressly stated therein; provided however, certificatesthat in and during an Event of Default, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by only the proper PersonTrustee, and with respect not the Collateral Agent, shall be subject to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by itprudent person standard. (iiii) The Collateral Agent may resign from the performance of all its functions has no duty to monitor, and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to there can be no assurance that the Company and each holder of will inform the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of, the future acquisition of appointment as provided belowproperty that is of a type constituting Collateral. Upon Accordingly, there can be no assurance that the actions required to properly perfect a security interest in any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 after-acquired property will be taken. (j) The Collateral Agent shall be discharged from entitled to compensation, reimbursement and indemnity as set forth in Section 7.06. (k) Each Holder, by acceptance of the Notes, agrees that each Collateral Agent shall execute and deliver the Notes Documents to which it is a party and all agreements, documents and instruments incidental thereto (including any releases permitted hereunder), and act in accordance with the terms thereof. The Collateral Agent is authorized and directed by the Company, each Guarantor, and the Holders to (i) enter into the Notes Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the First Priority/Second Priority Intercreditor Agreement, (iii) make the representations of the Holders set forth in the Notes Documents, (iv) bind the Holders on the terms as set forth in the Notes Documents and (v) perform and observe its duties and obligations under this Agreementthe Notes Documents. Any execution of a Notes Document by the Collateral Agent shall be at the direction and expense of the Company, upon delivery to the applicable Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to the Indenture and applicable Notes Documents. (l) Notwithstanding anything in the Notes Documents to the contrary, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day periodany duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Notes Documents that the Collateral Agent is required to exercise as directed in writing by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes; provided, the retiring Collateral Agent shall then appoint a successor be entitled to refrain from any act or the taking of any action hereunder or under any of the Notes Documents or from the exercise of any power or authority vested in it hereunder or thereunder unless and until the Collateral Agent who shall serve until such time, if any, as have received instructions from the holders Holders of at least a majority of the outstanding in aggregate principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants the then outstanding Notes, and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or if the Collateral Agent (or its successor)deems necessary, from time to time pursuant to the terms of this Section 4(q)satisfactory indemnity, to secure a successor and shall not be liable for any such delay in acting. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Notes Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any bankruptcy or insolvency law. For purposes of clarity, phrases such as “satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent”, “approved by wire transfer of immediately available funds the Collateral Agent”, “acceptable to the Collateral Agent”, “as determined by the Collateral Agent”, “in accordance with the Collateral Agent’s written wire instructionsdiscretion”, a quarterly agency fee of $10,000 within three (3) Business Days following “selected by the end of each calendar quarter that Collateral Agent”, “requested by the Collateral Agent”, “the Collateral Agent acted as collateral agent in accordance with this Section 4(q) may deem necessary or desirable” and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with phrases of similar import authorize and permit the Collateral Agent arising from existing Indebtednessto approve, disapprove, determine, act or decline to act in its discretion. The Collateral Agent shall not have any liability for any delay in acting or failure to exercise any such discretionary action, right or power nor shall the Collateral Agent be obligated to act at the direction of the required Holders unless it has received indemnity and/or security satisfactory to it. (m) If any indemnity in favor of the Collateral Agent shall be or become, in the Collateral Agent’s reasonable determination, inadequate, the Collateral Agent may by written request call for additional indemnification and cease to do the acts indemnified against hereunder until such additional indemnity is given. The permissive authorizations, entitlements, powers and rights (in

Collateral Agent. Section 10.1 Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or authorized to act for, any other Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Section 10.2 Each Lender, by signing this Agreement (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold its portion of the Loan hereunder and (ii) expressly acknowledges that neither any other Lender nor any of its respective officers, directors, employees, agents, attorneys in fact have made any representations or warranties to it and that no act by any other Lender hereafter taken, including any review of the affairs of a Relevant Party, shall be deemed to constitute any representation or warranty by any Lender. Each Buyer Lender shall, independently and without reliance upon any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. Section 10.3 U.S. Bank Trust Company, National Association has been appointed Collateral Agent for the benefit of Lenders hereunder pursuant to the Collateral Agency Agreement. It is expressly understood and agreed by the parties hereto that any authority conferred upon Collateral Agent hereunder is subject to the terms of the delegation of authority made by Lenders to Collateral Agent pursuant to the Collateral Agency Agreement, and that Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Collateral Agency Agreement (including the rights and protections of Collateral Agent thereunder). Any successor Collateral Agent appointed pursuant to the Collateral Agency shall be entitled to all the rights, interests and benefits of Collateral Agent hereunder. Section 10.4 Collateral Agent is a “representative” of Lenders within the meaning of the term “secured party” as defined in the UCC. ▇▇▇▇▇▇▇ hereby authorize and direct Collateral Agent to enter into each of the Collateral Documents and the other Loan Documents and to take all action contemplated by such documents. Lenders agree that they shall not have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by Collateral Agent (for the benefit of Lenders) upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, pursuant to the terms of the Collateral Agency Agreement, Collateral Agent shall be authorized, and shall be granted a power of attorney, to execute and deliver on behalf of Lenders any Collateral Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of Collateral Agent on behalf of Lenders. Lenders have authorized Collateral Agent to release any Lien granted to or held by Collateral Agent upon any Collateral (i) as expressly described herein; (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders (unless such release is required to be approved by all of Lenders hereunder). Upon request by Collateral Agent at any time, ▇▇▇▇▇▇▇ will confirm in writing Collateral Agent’s authority to release particular types or items of Collateral pursuant hereto. The parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. MLIC LENDER: METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory MTLIC LENDER: METROPOLITAN TOWER LIFE INSURANCE COMPANY, a Nebraska corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory BORROWER: VB TEN, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory Each of the undersigned Equity Owner and Parent hereby joins in the execution and delivery of this Agreement and hereby: (a) appoints Empery Tax Efficient, LP represents and warrants that each of the representations and warranties set forth in the Loan Agreement and each other Loan Document and applicable to it is true and correct as of the collateral agent hereunder date hereof; and (b) agrees to be bound by all of the covenants and agreements set forth in Article V of the Loan Agreement and each other Loan Document applicable to it. The existence and provisions of this Joinder shall in no event be interpreted to imply recourse against any of the Equity Owner or Parent under the Security Loan Documents except as otherwise explicitly set forth in the Loan Documents. EQUITY OWNER: VB TEN EQUITY, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory PARENT: VINEBROOK HOMES TRUST, INC., a Maryland corporation By: Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: President (a) Borrower shall obtain and maintain, at its sole cost and expense for the term of this Agreement or cause to be maintained, insurance for Borrower and the Properties providing at least the following coverages: (i) comprehensive “all risk” or special causes of loss form insurance, as is available in such capacitythe insurance market as of the Closing Date, on the Properties (A) in an amount equal to one hundred percent (100%) of the “Collateral Agentfull replacement cost”, which for purposes of this Agreement means actual replacement value of the Properties, subject to a loss limit equal to Fifty Million and No/100ths Dollars ($50,000,000.00) per occurrence; (B) containing an agreed amount endorsement with respect to the Improvements and personal property at any Property waiving all co insurance provisions or to be written on a no co insurance form and (C) providing for no deductible in excess of Twenty-Five Thousand and No/100ths Dollars ($25,000.00) (it being understood that, so long as no Default or Event of Default has occurred and is continuing (1) Borrower may utilize a Three Million and No/100ths Dollars ($3,000,000.00) aggregate deductible stop loss subject to a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) per occurrence deductible and a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) maintenance deductible following the exhaustion of the aggregate, (2) the aggregate stop loss does not apply to any losses arising from named windstorm, earthquake or flood, (3) the perils of named windstorm and the peril of “other wind and hail” shall be permitted to have a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any and all affected Properties, except that the permitted minimum deductible for the named windstorm peril shall be permitted to (a) have a per occurrence deductible in certain Tier 1 locations in Texas of three percent (3.0%) of the total insurable value of the affected Properties, (b) have a per occurrence deductible for properties in Florida of five percent (5.0%) of the total insurable value of the affected Properties, and (c) have a per occurrence deductible in certain Tier 1 locations from Georgia to Virginia of two percent (2.0%) of the total insurable value of the affected Properties (each with a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any and all affected Properties), and (b4) authorizes the perils of flood shall be permitted to have a minimum deductible of Fifty Thousand and No/100ths Dollars ($50,000.00) for any and all affected Properties, except that the perils of special flood shall be permitted to have a minimum of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) per occurrence for any and all affected Properties, In addition, Borrower shall obtain (x) flood insurance in an amount equal to Five Million and No/100ths Dollars ($5,000,000.00) applying per occurrence and in the aggregate, and (y) with respect to named storm insurance the greater of (1) the amount of coverage in place on the Closing Date and (2) the greater of (i) coverage in an amount equal to the Probable Maximum Loss (PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 475 year event for the entire portfolio at risk or (ii) one hundred percent ( 100%) of Gross Loss Probable Maximum Loss (Gross Loss PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 10,000-year event for the entire portfolio at risk (such analysis to be secured by Borrower using a third-party firm qualified to perform such named storm risk analysis using the most current RMS software, or its equivalent, to include consideration of storm surge, if applicable, and loss amplification, at the expense of Borrower at least two (2) times per year or more frequently as may reasonably be requested by Required Lenders and shared with all Lenders); provided, that such flood, earth movement and named storm insurance shall otherwise be on terms consistent with the comprehensive all risk insurance policy required under this Section (a)(i). In addition, Borrower shall obtain the flood insurance coverage described in subclause (x) above for a Property if any portion of such Property is currently or at any time in the future located in a federally designated “special flood hazard area,” flood hazard insurance or its equivalent in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; (ii) business income or rental loss insurance, written on an “Actual Loss Sustained Basis” (A) with loss payable to Collateral Agent for the benefit of Lenders; (B) covering all risks required to be covered by the insurance provided for in Section (a)(i), (iii), (iv) and its officers(viii); (C) in an amount equal to one hundred percent (100%) of the aggregate projected net income plus continuing expenses from the operation of the Properties for a period of at least twelve (12) months after the date of the Casualty; and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property at a Property has been repaired, directorsthe continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, employees or the expiration of thirty (30) days from the date that the applicable Property is repaired or replaced and agents) operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to take the end of such action on such Buyer’s behalf in accordance with the terms hereof and thereofperiod. The amount of such business income or rental loss insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the net income from each Property for the succeeding twelve (12) month period. All proceeds payable to Collateral Agent shall not have, by reason hereof or for the benefit of Lenders pursuant to any Security Documentsthis subsection shall be held in the Casualty and Condemnation Subaccount and disbursed to the Cash Management Account during the month to which such proceeds relate (or in the month received if such proceeds relate to a month prior to the month in which such proceeds were received); provided, a fiduciary relationship however, that nothing herein contained shall be deemed to relieve Borrower of their obligation to pay the Obligations on the respective dates of payment provided for in respect of any Buyer. Neither this Agreement and the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security other Loan Documents except to the extent caused by its own gross negligence such amounts are actually paid out of the proceeds of such business income insurance; (iii) at all times during which structural construction, repairs or willful misconductrenovations are being made with respect to any Property, and only if each Buyer agrees of the property coverage form and the liability insurance coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance, otherwise known as Owner Contractor’s Protective Liability (or its equivalent), covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy and (B) the insurance provided for in Section (a) written in a so-called builder’s risk completed value form including coverage for all insurable hard and soft costs of construction (x) on a non-reporting basis, (y) against all risks insured against pursuant to defendSection (a)(i), protect(iii), indemnify (iv) and hold harmless (viii), (z) including permission to occupy such Property and (C) with an agreed amount endorsement waiving co-insurance provisions; (iv) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any Property, such insurance (A) to be on the Collateral Agent so-called “occurrence” form with a combined limit of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; Two Million and No/100 Dollars ($2,000,000.00) in the aggregate “per location” and overall Twenty Million and No/100 Dollars ($20,000,000.00) in the aggregate; (B) to continue at not less than the aforesaid limit until required to be changed by Required Lenders in writing by reason of changed economic conditions making such protection inadequate and (C) to be at least as broad as Insurance Services Offices (ISO) policy form CG 00 01; (v) if applicable, automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles, containing minimum limits per occurrence of its officersOne Million and No/100 Dollars ($1,000,000.00); (vi) if applicable, directorsworker’s compensation subject to the worker’s compensation laws of the applicable state, employees and agents employer’s liability in amounts reasonably acceptable to Required Lenders; (vii) umbrella and excess liability insurance in an amount not less than Ten Million and No/100 Dollars ($10,000,000.00) per occurrence and in the aggregate on terms consistent with the commercial general liability insurance policy required under Section (a)(iv), and including employer liability and automobile liability, if applicable; and (viii) upon sixty (60) days’ written notice, such other reasonable insurance, and in such reasonable amounts as Required Lenders from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Properties located in or around the region in which Properties are located. (b) All Policies required pursuant hereto shall: (i) be obtained under valid and enforceable policies (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from Policies” or in connection with the performance by such Collateral Agent Indemnitee singular, the “Policy”), and shall be subject to the approval of the duties Required Lenders as to insurance companies, amounts, deductibles, loss payees and obligations of Collateral Agent pursuant hereto or any of the Security Documents. insureds and (ii) The Collateral Agent be issued by financially sound and responsible insurance companies authorized to do business in the states where the applicable Properties are located and having a rating of “A3” or better by Moody’s or, if Moody’s does not provide a rating of an applicable insurance company, a rating of “A-” or better by S&P or Fitch; provided, however, that if Borrower elects to have its insurance coverage provided by a syndicate of insurers, then, if such syndicate consists of five (5) or more members, (A) at least sixty percent (60%) of the insurance coverage (or seventy-five percent (75%) if such syndicate consists of four (4) or fewer members) and one hundred percent (100%) of the first layer of such insurance coverage shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.pr

Collateral Agent. (1) Each of the Holders by acceptance of the Notes hereby irrevocably appoints ▇▇▇▇▇ Fargo Bank, National Association as the initial Collateral Agent (and any successor appointed pursuant to the terms of this Indenture) for the benefit of the Holders under this Indenture and the Security Documents and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. The Trustee and the Collateral Agent each is authorized and directed by the Holders, and the Holders by acquiring the Notes have deemed to have authorized the Trustee or the Collateral Agent, as applicable, to (i) Each Buyer hereby enter into the Security Documents (aincluding any amendments thereto), (ii) appoints Empery Tax Efficient, LP bind the Holders on the terms as set forth in the collateral agent hereunder Security Documents (including any amendments thereto) and (iii) perform and observe its obligations under the Security Documents (in such capacity, including any amendments thereto). (2) Neither the “Company nor any of its Affiliates nor any Person acting as collateral agent for the benefit of the lenders under the Senior Loan Documents may serve as Collateral Agent”), and . (b3) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not havehold (directly or through agents), by reason hereof or pursuant and will be entitled to any Security Documentsenforce, a fiduciary relationship in respect of any Buyer. Neither all Liens on the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused created by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii4) The Except as provided in the Intercreditor Agreement, the Collateral Agent shall not be entitled obligated: (a) to rely act upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith directions purported to be genuine and correct and delivered to have been signed, sent it by any Person; (b) to foreclose upon or made by the proper Person, and otherwise enforce any Lien; or (c) to take any other action whatsoever with respect regard to any or all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder Security Documents, the Liens created thereby or thereunder, upon advice the Collateral. A resignation or removal of counsel selected by it. (iii) The the Collateral Agent may resign from the performance and appointment of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and will 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time effective pursuant to the terms set forth above with respect to the resignation or removal of this Section 4(q), to secure the Trustee and the appointment of a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentTrustee. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax EfficientThe Collateral Agent has been appointed to act as Collateral Agent hereunder by the Lenders and, LP as by their acceptance of the collateral agent hereunder and under the Security Documents (in such capacitybenefits hereof, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereofother Secured Parties. The Collateral Agent shall not havebe obligated, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability rights, and to any Buyer for take or refrain from taking any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ feesthe release or substitution of Collateral), costs solely in accordance with this Agreement and expenses) incurred by such the Credit Agreement; provided that the Collateral Agent Indemniteeshall, whether directafter payment in full of all Obligations under the Credit Agreement and the other Loan Documents (other than Secured Hedging Agreements), indirect exercise, or consequentialrefrain from exercising, arising from or any remedies provided for herein in connection accordance with the performance by such Collateral Agent Indemnitee instructions of the duties and obligations of Collateral Agent pursuant hereto or any of holders (the Security Documents. (ii“Majority Holders”) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal aggregate “settlement amount” as defined in the Secured Hedging Agreements (or, with respect to any Secured Hedging Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of Notes shall appoint a successor Collateral Agentexpenses and similar payments but including any early termination payments then due) under such Secured Hedging Agreement) under all Secured Hedging Agreements. Upon the acceptance For purposes of the appointment foregoing sentence, settlement amount for any Secured Hedging Agreement that has not been terminated shall be the settlement amount as Collateral Agent, such successor of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate Lender Counterparties and reported to the Collateral Agent upon request; provided that any Secured Hedging Agreement with a settlement amount that is a negative number shall succeed to and become vested with all be disregarded for purposes of determining the rights, powers, privileges and duties Majority Holders. In furtherance of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the foregoing provisions of this Section 4(q) shall inure to 10, each Secured Party, by its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority acceptance of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and benefits hereof, agrees that it shall have no right individually to take all actions as promptly as practicable reasonably requested by either the holders of a majority realize upon any of the outstanding principal amount of Notes or Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent (or its successor), from time to time pursuant to for the benefit of the Secured Parties in accordance with the terms of this Section 4(q), 10 and with the terms of Article IX of the Credit Agreement The provisions of the Credit Agreement relating to secure a successor the Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees the provisions relating to resignation or removal of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each the powers and duties and immunities of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted are incorporated herein by this reference, mutatis mutandis, as collateral agent in accordance with this Section 4(q) if fully set forth herein, and such incorporation shall survive any termination of the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing IndebtednessCredit Agreement.

Collateral Agent. (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the secured party of record for purposes of the grants of security and collateral contained in the various Loan Documents. (b) Each Lender hereby irrevocably (i) Each Buyer hereby (a) designates and appoints Empery Tax EfficientBank of America, LP N.A. as the collateral agent hereunder Collateral Agent with respect to the agreements and under other documents listed on Schedule XXXIII (collectively, the Security Documents “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insurer and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement secured party of record, and (iii) authorizes the Collateral Agent, in such capacity, the “Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such Buyer’s behalf in accordance powers and perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms hereof of this Agreement and thereofthe other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. The Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have, by reason hereof have any duties or pursuant to any Security responsibilities except those expressly set forth herein or in the Collateral Loan Documents, a or any fiduciary relationship in respect with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any Buyeragents or attorneys-in-fact selected by it with reasonable care. Neither the Collateral Agent nor any of its officers, directors, employees and employees, agents or attorneys-in-fact shall have any liability to any Buyer be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection hereof with this Agreement or the Security Documents any other Loan Document (except to the extent caused by for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, and each Buyer agrees statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to defendor provided for in, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred or received by such Collateral Agent Indemniteeunder or in connection with, whether directthis Agreement or any other Loan Document or for the value, indirect validity, effectiveness, genuineness, enforceability or consequentialsufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, arising or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” (c) Collateral Agent agrees that it will confirm receipt (in a writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall (or shall cause its designee to) review the Loan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the performance by origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent Indemnitee (or its designee) shall continue to act as the custodian of the duties Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto. (d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Collateral Agent (for the benefit of each Lender) at the direction of the Servicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement, if any, and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the Debt, the Collateral Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of each Lender any Loan Documents necessary or appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent pursuant hereto to take any action hereunder or under any of the Security Documents. other Loan Document shall not (iia) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith deemed to be genuine and correct and to have been signed, sent a waiver of any term or made by the proper Person, and with respect to all matters pertaining to condition of this Agreement or any of the other Transaction Documents and its duties Loan Documents, or (b) adversely affect any rights of Lender hereunder or thereunder, upon advice of counsel selected by itunder any other Loan Document. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) Each of the Buyers hereby irrevocably appoints Empery Tax Efficient, LP and authorizes the Secured Party to act as the collateral agent hereunder and under the Security Documents (in such capacity, the “Collateral Agent”), to enter into each of the instruments, documents and agreements, including any pledge agreement, guaranty, financing statements, mortgage, Account Control Agreement or any other Bridge Security Documents (bcollectively with this Agreement, the “Financing Documents”), to which it is a party as agent (including as a collateral agent) authorizes on Buyers’ behalf and to take such actions as Collateral Agent on Buyers’ behalf under the Financing Documents and to exercise such powers under the Financing Documents as are delegated to Collateral Agent (as agent, secured party or otherwise) by the terms thereof, together with all such powers as are reasonably incidental thereto. The Collateral Agent shall take such action under this Agreement and/or any other Transaction Documents as the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf shall reasonably be directed by Buyers in accordance with the terms hereof of the Transaction Documents (and, in any event, as reasonably directed by written direction of Majority Buyers). Subject to Section 5.4, Secured Party is authorized and thereof. The Collateral Agent empowered to amend, modify, or waive any provisions of this Agreement or the other Financing Documents to which it is a party or which run in its favor on behalf of the Buyers; provided, however, that the parties hereto hereby agree that no such amendment, modification or waiver shall be effective without the unanimous written consent of the Buyers. (b) Whether or not havethe transactions contemplated hereby shall be consummated, by reason hereof or pursuant to any Security Documentsupon demand therefor, a fiduciary relationship in respect of any Buyer. Neither the Buyers shall indemnify the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except (to the extent caused not reimbursed by its own gross negligence or willful misconducton behalf of the Company and without limiting the obligation of the Company to do so), and each ratably (based on the ratio of the amount of Obligations a Buyer agrees holds to defend, protect, indemnify and hold harmless the Collateral Agent and aggregate Obligations held by all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”Buyers) from and against any and all liabilities, obligations, losses, damages, liabilities, obligations, penalties, actions, judgments, suits, feescosts, expenses and disbursements of any kind whatsoever, including, for purposes of clarification, all taxes, which may at any time (including at any time following the payment in full of the Notes and the termination or resignation of the Collateral Agent) be imposed on, incurred by or asserted against the Collateral Agent in any way relating to or arising out of this Agreement, any other Transaction Document or any document contemplated hereby or referred to herein or the transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent under or in connection with any of the foregoing; provided, however, that Buyers shall not be liable for the payment to the Collateral Agent of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Collateral Agent’s gross negligence or willful misconduct. In addition, Buyers shall reimburse the Collateral Agent upon demand for its ratable share (based on the ratio of the amount of Obligations a Buyer holds to the aggregate Obligations held by all Buyers) of any costs or out-of-pocket expenses (including attorney costs) incurred by the Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document, or any document contemplated hereby or referred to herein to the extent that the Collateral Agent is not reimbursed for such expenses by or on behalf of the Company. Without limiting the generality of the foregoing, if any Governmental Authority of any jurisdiction asserts a claim that the Collateral Agent did not properly withhold tax from amounts paid to or for the account of a Buyer (because the appropriate form was not delivered, was not properly executed, or because such Buyer failed to notify the Collateral Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), Buyers shall indemnify the Collateral Agent fully for all amounts paid, directly or indirectly, by the Collateral Agent as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to the Collateral Agent under this Section 5.12(b), together with all related costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expensesincluding attorney costs). The obligation of Buyers in this Section 5.12(b) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with shall survive the performance by such Collateral Agent Indemnitee payment of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documentsall Obligations. (iic) The Collateral Agent shall not be entitled deemed to rely upon have knowledge or notice of the occurrence of any written notices, statements, certificates, orders or other documents Event of Default or any telephone message believed by it in good faith to be genuine event that with the giving of notice or passage of time would constitute an Event of Default unless the Collateral Agent shall have received written notice from Buyers describing such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default and correct stating that such notice is a “notice of default”. Upon the occurrence and to have been signedcontinuance of an Event of Default, sent or made by an event that with the proper Persongiving of notice or passage of time would constitute an Event of Default, and the Collateral Agent shall take such action under this Agreement and/or any other Transaction Documents with respect to all matters pertaining such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default as Collateral Agent shall reasonably be directed by Buyers in accordance with the terms of the Transaction Documents (and, in any event, as reasonably directed by written direction of Majority Buyers); provided that, unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default as the Collateral Agent shall deem advisable in the best interests of Buyers. In taking such action or refraining from taking such action without specific direction from Buyers, the Collateral Agent shall use the same degree of care and skill as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. (d) Nothing in this Section 5.12 shall be deemed to limit or otherwise affect the rights of Secured Party or Buyers to exercise any remedy provided in this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by itDocument. (iiie) The Collateral Agent may resign from the performance of all of its functions and duties hereunder and and/or under the Notes and the Security other Transaction Documents at any time by giving at least ten thirty (1030) Business Days Days’ prior written notice to the Company and each holder of the NotesBuyers. Such resignation shall take effect upon the acceptance by appointment of a successor Collateral Agent of appointment pursuant to clause (f) below or as otherwise provided below. . (f) Upon any such (i) Buyers’ receipt of a notice of resignationresignation by the Collateral Agent in accordance with clause (e) above, or (ii) written notice by Buyers to Collateral Agent of Buyers’ election to remove the holders of existing Collateral Agent and appoint a majority of successor Collateral Agent, Buyers shall have the outstanding principal amount of Notes shall right to appoint a successor Collateral Agent. Upon the acceptance of the a successor's appointment as Collateral Agent hereunder and notice of such acceptance to the retiring Collateral Agent, such successor Collateral Agent shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, the retiring Collateral Agent's resignation shall become immediately effective and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other Transaction Documents (if such resignation was not already effective and such duties and obligations not already discharged, as provided below in this paragraph). If no such successor shall have been so appointed by Buyers and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation or Buyers give notice of their election to replace the retiring Collateral Agent, then the retiring Collateral Agent may, on behalf of Buyers (but without any obligation) appoint a successor Collateral Agent without the consent of Buyers. From and following the expiration of such thirty (30) day period, Collateral Agent shall have the exclusive right without any Person's consent, upon one (1) Business Days' notice to Buyers, to make its resignation or removal effective immediately. From and following the effectiveness of such notice, (i) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Transaction Documents and (ii) all actions, payments, communications and determinations provided to be made by, to or through Collateral Agent shall instead be made by or to Buyers directly, until such time as Buyers appoint a Collateral Agent as provided for above in this Agreement, the Notes and the Security Agreementparagraph. After any Collateral Agent’s resignation hereunder, the The provisions of this Section 4(q) Agreement shall inure to its benefit. If a successor continue in effect for the benefit of any retiring Collateral Agent shall not have been so appointed within said ten (10) Business Day period, and its sub-agents after the effectiveness of its resignation or removal hereunder and under the other Transaction Documents in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, was acting or was continuing to act as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (vg) The Company agrees If pursuant to pay any Financing Document the Collateral Agent is given the discretion to allocate proceeds received by Collateral Agent pursuant to the exercise of remedies under the Financing Documents or at law or in equity (including without limitation with respect to any secured creditor remedies exercised against the Collateral and any other collateral security provided for under any Financing Document), Collateral Agent shall apply such proceeds to the then outstanding Obligations in the following order of priority (with amounts received being applied in the numerical order set forth below until exhausted prior to the application to the next succeeding category and each of the Buyers or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses second, third and fourth below): first, to payment of fees, costs and expenses (including reasonable attorney’s fees) owing to the Collateral Agent; second, by wire transfer to payment of immediately available funds in accordance with the all accrued unpaid interest and fees (other than fees owing to Collateral Agent’s written wire instructions) on the Obligations; third, a quarterly agency fee to payment of $10,000 within three (3) Business Days following principal of the end Obligations; fourth, to payment of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) any other amounts owing constituting Obligations; and the Security Documents during such calendar quarterfifth, provided, such fee any remainder shall be non-duplicative for the account of and paid to any existing fee arrangements with the Collateral Agent arising from existing Indebtednesswhoever may be lawfully entitled thereto.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent hereunder of such ▇▇▇▇▇▇ and the Issuing Lenders for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents (as if set forth in such capacityfull herein with respect thereto. Without limiting the generality of the foregoing, the “Collateral Agent”), Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (bincluding releases) authorizes with respect to the Collateral Agent (and its officersthe rights of the Secured Parties with respect thereto, directors, employees as contemplated by and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect provisions of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any time by giving at least ten (10) Business Days prior written notice to such sale and the Company Administrative Agent, as agent for and each holder representative of the Notes. Such resignation Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall take effect upon otherwise agree in writing) shall be entitled, with the acceptance by a successor consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral Agent of appointment as provided below. Upon sold at any such notice of resignationsale, the holders of a majority to use and apply any of the outstanding principal amount of Notes shall appoint Obligations as a successor Collateral Agent. Upon the acceptance credit on account of the appointment as 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 under this Agreement, the Notes and the Security Agreement. After purchase price for any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required payable by the successor Collateral AgentAdministrative Agent at such sale. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (1) Each of the Holders by acceptance of the Notes hereby irrevocably appoints W▇▇▇▇ Fargo Bank, National Association as the initial Collateral Agent (and any successor appointed pursuant to the terms of this Indenture) for the benefit of the Holders under this Indenture and the Security Documents and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. The Trustee and the Collateral Agent each is authorized and directed by the Holders, and the Holders by acquiring the Notes have deemed to have authorized the Trustee or the Collateral Agent, as applicable, to (i) Each Buyer hereby enter into the Security Documents (aincluding any amendments thereto), (ii) appoints Empery Tax Efficient, LP bind the Holders on the terms as set forth in the collateral agent hereunder Security Documents (including any amendments thereto) and (iii) perform and observe its obligations under the Security Documents (in such capacity, including any amendments thereto). (2) Neither the “Company nor any of its Affiliates nor any Person acting as collateral agent for the benefit of the lenders under the Senior Loan Documents may serve as Collateral Agent”), and . (b3) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not havehold (directly or through agents), by reason hereof or pursuant and will be entitled to any Security Documentsenforce, a fiduciary relationship in respect of any Buyer. Neither all Liens on the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused created by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents. (ii4) The Except as provided in the Intercreditor Agreement, the Collateral Agent shall not be entitled obligated: (a) to rely act upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith directions purported to be genuine and correct and delivered to have been signed, sent it by any Person; (b) to foreclose upon or made by the proper Person, and otherwise enforce any Lien; or (c) to take any other action whatsoever with respect regard to any or all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder Security Documents, the Liens created thereby or thereunder, upon advice the Collateral. A resignation or removal of counsel selected by it. (iii) The the Collateral Agent may resign from the performance and appointment of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and will 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 under this Agreement, the Notes and the Security Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time effective pursuant to the terms set forth above with respect to the resignation or removal of this Section 4(q), to secure the Trustee and the appointment of a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral AgentTrustee. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.

Collateral Agent. (i) Each Buyer hereby (a) appoints Empery Tax Efficient, LP Castlerigg Master Investments Ltd. ("Castlerigg") as the collateral agent hereunder and under the other Security Documents (in such capacity, the “Collateral Agent”"COLLATERAL AGENT"), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyer’s 's behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any of the other Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection hereof or the any other Security Documents Document except to the extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”"INDEMNITEES") from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ ' fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequentialIndemnitee ("INDEMNITY COSTS"), arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents; provided, that, (i) the liability of any Buyer pursuant to this Section 4(q) shall be several and not joint with any other Buyer, and shall not exceed in the aggregate its pro rata percentage of such Indemnity Costs (based on the percentage of Securities that such Buyer shall acquire at the Closing as a percentage of all Securities sold at the Closing) and (ii) no Buyer shall be obligated under this Section 4 (q) for any indirect or consequential Indemnity Costs. (ii) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it reasonably and in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. (iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the New Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the New Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of under the New Notes shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the New Notes and the other Security AgreementDocuments. After any Collateral Agent’s 's resignation hereunder, the provisions of this Section 4(q) shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of under the New Notes appoints appoint a successor Collateral Agent as provided above. (iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent. (v) The Company agrees to pay the Collateral Agent, by wire transfer of immediately available funds in accordance with the Collateral Agent’s written wire instructions, a quarterly agency fee of $10,000 within three (3) Business Days following the end of each calendar quarter that the Collateral Agent acted as collateral agent in accordance with this Section 4(q) and the Security Documents during such calendar quarter, provided, such fee shall be non-duplicative to any existing fee arrangements with the Collateral Agent arising from existing Indebtedness.