Common use of hereunder Clause in Contracts

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice In each case as specified in this Article 8, each Agent will (and each Lender, the Swingline Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Subordination Agreement and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Subordination Agreement and any Additional Agreement is binding upon them. Each Lender, the Swingline Lender and each Issuing Bank (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral securing the Secured Obligations on the terms set forth in the Subordination Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved the provisions of the Subordination Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Subordination Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such coSecured Parties are intended third-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves party beneficiaries of such co-trustee(sprovisions and the provisions of the Subordination Agreement and/or any Additional Agreement. To the extent the Administrative Agent, the Swingline Lender or any Issuing Bank (or in each case any affiliate thereof) is not reimbursed and indemnified by the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent, the Swingline Lender and such Issuing Bank (and in each case any affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or separate trustee(sdisbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) (which notice in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be accompanied liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s, the Swingline Lender’s or the Issuing Banks’ (or each such affiliate’s) gross negligence, bad faith or willful misconduct (as determined by the name(s) a court of competent jurisdiction in a final and non-appealable decision); provided, further, that no action taken in furtherance of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction directions of the Trustee. Any notice, request or other writing given to the Trustee Required Lenders shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee constitute gross negligence or co-trustee shall refer to this Agreement and the conditions willful misconduct for purposes of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeparagraph.

hereunder. No notice In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral other than the Revolving Facility First Lien Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this the Intercreditor Agreement relating or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the conduct of, affecting provisions thereof. The foregoing provisions are intended as an inducement to the liability of, Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement or affording protection to, the Trusteeany Additional Agreement. Every such instrument shall be filed Each Lender and Issuer appoints and designates JPMCB as collateral agent hereunder and each Lender and Issuing Bank hereby authorizes JPMCB to act as collateral agent in accordance with the Trustee. Any separate trustee or co-trustee mayterms hereof and the other Loan Documents and authorizes JPMCB, at any time, constitute as the Trustee, its agent or attorney-in-fact, with full power and authorityAdministrative Agent, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and/or collateral agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In its capacity, the Administrative Agent and/or collateral agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in its namethe New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. The Trustee Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall 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 the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective Applicable Percentage (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). JPMCB has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and related legislation (the “Flood Laws”). JPMCB, as administrative agent or collateral agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each Lender in the syndicate) documents that it receives in connection with the Flood Laws. Each Lender and Participant acknowledges and agrees that, pursuant to the Flood Laws, each federally regulated Lender (whether acting as a Lender or Participant in the facility) is responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of assuring its estates, properties, rights, remedies and trusts shall vest in and be exercised by own compliance with the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeflood insurance requirements.

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-co- trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that itthey, in its their reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. .) In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-co- trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice In each case as specified in this Article 8, each Agent will (and each Lender, the Swingline Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Subordination Agreement and any otherany intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Subordination Agreement and any Additional Agreement is binding upon them. Each Lender, the Swingline Lender and each Issuing Bank (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral securing the Secured Obligations on the terms set forth in the Subordinationany Additional Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved the provisions of the Subordination Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Subordination Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such coSecured Parties are intended third-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves party beneficiaries of such co-trustee(sprovisions and the provisions of the Subordination Agreement and/or any Additional Agreement. To the extent the Administrative Agent, the Swingline Lender or any Issuing Bank (or in each case any affiliate thereof) is not reimbursed and indemnified by the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent, the Swingline Lender and such Issuing Bank (and in each case any affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or separate trustee(sdisbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) (which notice in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be accompanied liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s, the Swingline Lender’s or the Issuing Banks’ (or each such affiliate’s) gross negligence, bad faith or willful misconduct (as determined by the name(s) a court of competent jurisdiction in a final and non-appealable decision); provided, further, that no action taken in furtherance of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction directions of the Trustee. Any notice, request or other writing given to the Trustee Required Lenders shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee constitute gross negligence or co-trustee shall refer to this Agreement and the conditions willful misconduct for purposes of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeparagraph.

hereunder. No Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to Holders participate in, and, unless in the opinion of Certificates counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the appointment defense of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior such claim with counsel reasonably acceptable to the appointment of Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any co-trustee(s) monetary or separate trustee(s) other obligation or liability on the Buyer and subject to Buyer’s participation rights set forth in this Section 13.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in defending any such claim. If Seller does not assume the SBA shall have ten Business Days from its receipt defense of such notice to notify claim, or if a conflict precludes Seller from assuming the Trustee whether itdefense, in its then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable judgment, disapproves defense expenses of such co-trustee(s) or claim through separate trustee(s)counsel of Buyer’s choice reasonably acceptable to Seller. If Even if Seller assumes the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves defense of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s))claim, such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any timeof its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, constitute Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the Trusteeright to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, its agent for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or attorney-in-fact(iv) when and if none of the first three options is reasonably available to Seller, with full power authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and authorityBOF, net of any monies paid by Seller to the extent not prohibited by law, to do Buyer for any lawful act under performance guaranties or in respect of this Agreement on its behalf and in its name. The Trustee other warranty claims; provided that Seller shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest elect the option in and be exercised by the Trustee, to the extent permitted by law, preceding clause (i) without the appointment of a new Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or successor trusteematerially increase Buyer’s operating expenses.

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-co- trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement (including as provided in Section 9.20) and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender and Issuing Bank (a) hereby consents to the appointment subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement or any co-trustee(sAdditional Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this the Intercreditor Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrower and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement and/or any Additional Agreement. To the extent the Administrative Agent or Issuing Bank (or in each case any Affiliate thereof) is not reimbursed and indemnified by the Borrower, specifically including every provision the Lenders will reimburse and indemnify the Administrative Agent and the Issuing Bank (and in each case any Affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument any other Loan Document in its (or any of its Affiliates’) capacity as Administrative Agent; provided that no Lender shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible liable for any action portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or inaction disbursements resulting from the Administrative Agent’s or the Issuing Bank’s (or each such Affiliate’s) gross negligence or willful misconduct (as determined by a court of any such separate trustee or cocompetent jurisdiction in a final and non-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeappealable decision).

hereunder. No Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to Holders participate in, and, unless in the opinion of Certificates counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt defense of such notice claim with counsel reasonably acceptable to notify the Trustee whether itBuyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer and subject to Buyer’s participation rights set forth in this Section 13.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in its reasonable judgment, disapproves defending any such claim. If Seller does not assume the defense of such co-trustee(s) claim, or separate trustee(s). If if a conflict precludes Seller from assuming the SBA does not notify the Trustee within such time framedefense, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable judgment, disapproves defense expenses of such co-trustee(s) or claim through separate trustee(s) (which notice shall be accompanied by counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the name(s) defense of the SBA's alternative proposed co-trustee(s) or separate trustee(s))such claim, such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any timeof its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, constitute Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the Trusteeright to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, its agent for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System; or attorney-in-fact(iv) when and if none of the first three options is reasonably available to Seller, with full power authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and authorityBOF, net of any monies paid by Seller to the extent not prohibited by law, to do Buyer for any lawful act under performance guaranties or in respect of this Agreement on its behalf and in its name. The Trustee other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without Buyer’s written consent if such election could reasonably be responsible for any action expected to materially decrease Buyer’s revenues or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteematerially increase Buyer’s operating expenses.

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its XII-8 123 reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice The following provisions shall apply to Holders the Securities of Certificates each series unless specifically otherwise provided in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3. In addition to discharge of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify Indenture and the SBA prior Guarantees pursuant to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether itnext preceding paragraph, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment series of a co-trustee or separate trustee pursuant Securities the exact amounts of principal of and interest subsequently due on which can be determined at the time of making the deposit referred to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed clause (whether as Trustee hereunder or as successor to the Servicer hereunder)a) below, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties Issuer and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee Guarantors shall be deemed to have been given to each paid and discharged the entire Indebtedness on all the Securities of such a series and the Coupons appertaining thereto on the 121st day after the date of the then separate trustees deposit referred to in clause (a) below, and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating Indenture with respect to the conduct ofSecurities of such series and Coupons appertaining thereto and the Guarantees shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series, affecting and of Coupons appertaining thereto, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the liability oforiginal stated due dates therefor (but not upon acceleration) and remaining rights of the Holders to receive sinking fund payments, or affording protection toif any, (iv) the rights (including the Trustee. Every 's rights under Section 10.5), obligations and immunities of the Trustee hereunder, (v) the rights of the Holders of Securities of such instrument shall be filed series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee. Any separate trustee Trustee payable to all or co-trustee may, at any time, constitute of them and (vi) the obligations of the Issuer under Section 3.2) and the Trustee, its agent or attorney-in-factat the expense of the Issuer and the Guarantors, with full power shall at the Issuer's and authorityGuarantor's request, to execute proper instruments acknowledging the extent not prohibited by lawsame, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.if:

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided XII-7 106 therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice to Holders of Certificates The use, application or retention of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund L/C or any portion thereof in by Landlord shall not prevent Landlord from exercising any such jurisdiction) and all other rights and remedies provided at law or by this Lease, it being intended that Landlord shall not first be exercised required to proceed against the L/C and performed by such separate trustee or co-trustee at the direction shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Any amount of the Trustee. Any noticeL/C which is drawn upon by Landlord, request but is not used or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferredapplied by Landlord, shall be vested with held by Landlord and deemed a Security Deposit pursuant to Section 21.2, above (the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee“L/C Security Deposit”). If any separate trustee portion of the L/C or co-trustee the L/C Security Deposit is drawn upon by Landlord, Tenant shall, within five (5) days following written demand therefor by Landlord, either (i) deposit with Landlord cash in an amount sufficient that, when added to the L/C Security Deposit and any remaining amounts available under the L/C, is equal to amount of the L/C set forth in Section 10 of the Summary, or (ii) reinstate the L/C to the amount set forth in Section 10 of the Summary, and Tenant’s failure to do so shall die, become incapable of acting, resign or be removed, a material default under this Lease entitling Landlord to exercise all of its estatesrights and remedies hereunder. Tenant acknowledges that the Landlord has the right to transfer or mortgage its interest in the Project and the Building and in this Lease and Tenant agrees that in the event of such a transfer or mortgage, properties, rights, remedies and trusts Landlord shall vest in and be exercised by have the Trustee, right to transfer or assign the L/C and/or the L/C Security Deposit to the extent permitted transferee or mortgagee, and in the event of such a transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L/C and/or the L/C Security Deposit. Tenant shall, within ten (10) days of written request therefor by lawLandlord, without execute such further documents, instruments or assurances as Landlord may deem reasonably necessary to evidence or confirm Landlord’s transfer or assignment of the appointment L/C and/or the L/C Security Deposit to such transferee or mortgagee. Provided that Tenant shall fully and faithfully perform all of a new its obligations under this Lease, the L/C and/or the L/C Security Deposit, or successor trusteeany balance remaining thereon, shall be returned to Tenant following the expiration of the Lease Term.

hereunder. No notice In each case as specified in this Article 8, the Administrative Agent will (and each Lender and Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized by each Secured Party to enter into the SBA prior Intercreditor Agreement (including as provided in Section 9.20) and any other intercreditor, subordination or similar agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated in right of payment to the appointment of Secured Obligations and/or (ii) secured by Liens and is required or permitted to be pari passu with or junior to the Liens securing the Secured Obligations, and with respect to which Indebtedness an intercreditor, subordination or similar agreement is contemplated under this Agreement (any co-trustee(s) or separate trustee(s) such other intercreditor agreement, an “Additional Agreement”), and the SBA shall have ten Business Days from its receipt parties hereto acknowledge that the Intercreditor Agreement is and each Additional Agreement when entered into will be binding upon them. Each Lender and Issuing Bank (a) hereby consents to the subordination of such notice to notify the Trustee whether itLiens on the Collateral securing the Secured Obligations on the terms set forth in any Additional Agreement, in its reasonable judgment, disapproves of such co-trustee(s(b) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such cothe provisions of any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrower and the Secured Parties are intended third-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves party beneficiaries of such coprovisions and the provisions of the Intercreditor Agreement and/or any Additional Agreement. To the extent the Administrative Agent (or any sub-trustee(s) agent thereof), any Issuing Bank, the Swingline Lender or separate trustee(s) (which notice shall be accompanied any Related Party of any of the foregoing is not reimbursed and indemnified by the name(s) of Borrower, the SBA's alternative proposed coLenders severally agree to reimburse and indemnify the Administrative Agent (or any such sub-trustee(s) or separate trustee(s)agent), such appointments shall not be effective. In Issuing Bank, the Swingline Lender or such Related Party, as the case may be, in proportion to their respective “pro rata shares” (determined as set forth below) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of any appointment of a co-trustee whatsoever kind or separate trustee pursuant to this Section 12.10nature which may be imposed on, all rights, powers, duties and obligations conferred asserted against or imposed upon the trustee shall be conferred or imposed upon and exercised or performed incurred by the Trustee and Administrative Agent (or such separate trustee sub-agent), such Issuing Bank, the Swingline Lender or co-trustee jointly except to the extent that such Related Party in performing its duties hereunder or under any law of any jurisdiction in which any particular act other Loan Document or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee way relating to or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision arising out of this Agreement relating to or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the conduct Administrative Agent’s, such Issuing Bank’s, the Swingline Lender’s or such Related Party’s, as applicable, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). For purposes of this paragraph, a Lender’s “pro rata share” shall be determined based upon its share of the sum of, affecting the liability of, or affording protection towithout duplication, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee maytotal Revolving Credit Exposures, unused Commitments and outstanding Loans, in each case, at any time, constitute the Trustee, its agent time (or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf most recently outstanding and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeeffect).

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) The Trustee and such successor shall take such action, consistent with this Agreement, as shall be required under Section 12.08 hereofnecessary to effectuate any such succession. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify Neither the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will nor any other successor master servicer shall be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, be in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied default hereunder by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case reason of any appointment of a co-trustee failure to make, or separate trustee pursuant to this Section 12.10any delay in making, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee distribution hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof or any failure to perform, or any delay in performing, any such jurisdiction) shall be exercised and performed duties or responsibilities hereunder, in either case caused by such separate trustee or co-trustee at the direction failure of the TrusteeMaster Servicer to deliver or provide, or any delay in delivering or providing, any cash, information, documents or records to it. Any noticesuccessor to the Master Servicer as master servicer shall give notice to the Mortgagors of such change of servicer and shall, request during the term of its service as master servicer maintain in force the policy or other writing given policies that the Master Servicer is required to maintain pursuant to Section 3.18. In connection with the termination or resignation of the Master Servicer hereunder, either (i) the successor Master Servicer, including the Trustee if the Trustee is acting as successor Master Servicer, shall represent and warrant that it is a member of MERS in good standing and shall agree to comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS, or (ii) the predecessor Master Servicer shall cooperate with the successor Master Servicer either (x) in causing MERS to execute and deliver an assignment of Mortgage in recordable form to transfer the Mortgage from MERS to the Trustee shall be deemed and to have been given to each of the then separate trustees execute and co-trusteesdeliver such other notices, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement documents and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, other instruments as may be provided therein, subject necessary or desirable to all effect a transfer of such Mortgage Loan or servicing of such mortgage Loan on the provisions of this Agreement, specifically including every provision of this Agreement relating MERS(R) System to the conduct of, affecting successor Master Servicer or (y) in causing MERS to designate on the liability of, MERS(R) System the successor Master Servicer as the servicer of such Mortgage Loan. The predecessor Master Servicer shall file or affording protection to, the Trustee. Every such instrument shall cause to be filed with any such assignment in the Trusteeappropriate recording office. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, The successor Master Servicer shall cause such assignment to be delivered to the extent not prohibited by law, to do any lawful act under Trustee promptly upon receipt of the original with evidence of recording thereon or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised a copy certified by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteepublic recording office in which such assignment was recorded.

hereunder. No notice In each case as specified in this Article 8, each Agent will (and each Lender hereby authorizes such Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral other than the Revolving Facility First Lien Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this the Intercreditor Agreement relating or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the conduct of, affecting provisions thereof. The foregoing provisions are intended as an inducement to the liability of, Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement or affording protection to, the Trusteeany Additional Agreement. Every such instrument shall be filed Each Lender and Issuer appoints and designates each of DBTCA and Bank of America as a Co-ABL Collateral Agent hereunder and each Lender and Issuing Bank hereby authorizes DBTCA and Bank of America to act as a Co-ABL Collateral Agent in accordance with the Trustee. Any separate trustee or coterms hereof and the other Loan Documents and authorizes the Co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, ABL Collateral Agents to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement take such actions on its behalf and to exercise such powers as are delegated to the Co-ABL Collateral Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective Applicable Percentage (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its name. The Trustee duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall not be responsible liable for any action portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or inaction disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of any such separate trustee or cocompetent jurisdiction in a final and non-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeappealable decision).

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that itthey, in its their reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. .) In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice Borrower agrees to Holders sign any instruments and documents requested by Lender to evidence, perfect, or protect the interests of Certificates Lender in the Collateral. Borrower agrees to deliver to Lender the originals of all instruments, chattel paper and documents evidencing or related to Receivables and Collateral. Borrower shall not grant or permit any lien or security in the Collateral or any interest therein other than Permitted Liens. Borrower shall not enter, and represents and warrants that it has not entered, into any agreement, document, instrument or other arrangement (except with or in favor of Lender) with any Person which directly or indirectly prohibits or has the effect of prohibiting Borrower from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s Intellectual Property in favor of Lender, except as is otherwise permitted in the definition of “Permitted Liens” herein. Lender will promptly provide to Borrower or Borrower’s designated agents, such UCC-3 and other termination statements and any other release documents as are reasonably requested with respect to any Excluded Collateral. Regardless of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment terms of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether itCredit Card Services Agreement, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame Borrower agrees that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee amounts Borrower owes Lender thereunder shall be deemed to be Obligations hereunder and that it is the intent of Borrower and Lender to have been given to each of the then separate trustees all such Obligations secured by a continuing security interest in all presently existing and co-trustees, as effectively as if given to each of themhereafter acquired or arising Collateral. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions Upon termination of this Agreement, specifically including every provision all Obligations with respect to Credit Card Services shall be secured by unencumbered cash in such amounts (to be not less than one hundred ten percent (110%) of this Agreement relating the amount of such Credit Card Services) and on terms reasonably acceptable to the conduct ofLender, affecting the liability ofand, or affording protection toeffective as of such termination date, the Trustee. Every balance in any deposit accounts held by Lender and the certificates of deposit issued by Lender in Borrower’s name (and any interest paid thereon or proceeds thereof, including any amounts payable upon the maturity or liquidation of such instrument certificates), shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, automatically secure such obligations to the extent not prohibited of the then outstanding Credit Card Services; and Borrower authorizes Lender to hold such balances in pledge and to decline to honor any drafts thereon or any requests by law, Borrower or any other Person to do pay or otherwise transfer any lawful act under or in respect part of this Agreement on its behalf and in its name. The Trustee shall not be responsible such balances for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by so long as the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeCredit Card Services continue.

hereunder. No notice In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement (including as provided in Section 9.20) and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender (a) hereby consents to the appointment subordination of the Liens on the Collateral other than the Term Loan Priority Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement or any co-trustee(sAdditional Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this the Intercreditor Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrower and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement and/or any Additional Agreement. To the extent the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower, specifically including every provision the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument any other Loan Document; provided that no Lender shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible liable for any action portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or inaction disbursements resulting from the Administrative Agent’s (or each such Affiliate’s) gross negligence or willful misconduct (as determined by a court of any such separate trustee or cocompetent jurisdiction in a final and non-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeappealable decision).

hereunder. No notice The Agent shall enter into a Secured Hedge Supplement with respect to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee Secured Hedge Agreement only at the direction of the TrusteeRequired Banks, and each of the Banks may give or withhold such direction in its absolute discretion. Any noticeA Secured Hedge Agreement shall cease to constitute a "Secured Hedge Agreement" if, request without the consent of the Agent (who shall give such consent only at the direction of the Required Banks as aforesaid), such Secured Hedge Agreement (i) is amended, unless such amendment merely eliminates, waives or other writing given renders less restrictive on the Borrower any term or condition otherwise applicable to the Trustee Borrower, reduces or defers amounts otherwise payable by the Borrower or increases or accelerates amounts otherwise receivable by the Borrower, or (ii) is supplemented by an additional transaction (unless such additional transaction is evidenced by a confirmation which itself is designated, pursuant to a separate Secured Hedge Supplement, a "Secured Hedge Agreement"). A Secured Hedge Agreement shall remain such even if the Secured Hedge Bank party thereto subsequently ceases to be a Bank party hereto (other than by virtue of its status as a Secured Hedge Bank). The parties hereby agree that the Secured Hedge Agreements existing on the date hereof and listed on Schedule 9.13 hereto are and shall be deemed to have been given to each be Secured Hedge Agreements as defined herein. (b) All cash proceeds received by the Agent in respect of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee realization upon or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, under any Security Document or any collateral granted thereunder shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided thereinapplied, subject to all the provisions of such Security Document and the provisions of this AgreementSection 9.13(b), specifically including every provision in the following order of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authoritypriority: (i) first, to the extent not prohibited by law, payment of all amounts which may be due to do any lawful act under or in respect of this Agreement on its behalf and the Agent in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trusteecapacity as such; (ii) second, to the extent permitted payment of all principal, interest, fees, indemnities, expenses and other obligations which may be due to the Agent, the Banks or the Issuing Bank under this Agreement, the Notes, any Security Document or any Secured Hedge Agreement, ratably in proportion to the amounts then due; (iii) third, if (x) any obligation under this Agreement, the Notes, any Security Document or any Secured Hedge Agreement remains outstanding but is not then due, or (y) any commitment to extend credit hereunder, any Letter of Credit issued hereunder or any Secured Hedge Agreement remains outstanding, then to the Agent, to be held by the Agent as cash collateral in a non-interest bearing account under the sole dominion and control of the Agent and thereafter applied by the Agent from time to time as provided in the foregoing clauses (i) and (ii) (in that order of priority); and (iv) fourth, if and when all obligations under this Agreement, the Notes, the Security Documents and the Secured Hedge Agreements have been paid in full, all commitments to extend credit hereunder have terminated, all Letters of Credit issued hereunder have terminated and all Secured Hedge Agreements have terminated, then to the grantor under such Security Document or as otherwise required by law, without the appointment of a new or successor trustee.

hereunder. No notice In each case as specified in this Article 8, each Agent will (and each Lender hereby authorizes such Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement and any other intercreditor agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral other than the Term Loan First Lien Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this the Intercreditor Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement or any Additional Agreement. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrowers, specifically including every provision the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument any other Loan Document; provided that no Lender shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible liable for any action portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or inaction disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of any such separate trustee or cocompetent jurisdiction in a final and non-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeappealable decision).

hereunder. No notice The parties acknowledge that the Escrow Agent undertakes to Holders of Certificates of the appointment of co-trustee(s) perform only those duties as are expressly set forth in this agreement, and no implied duties or separate trustee(s) obligations shall be required under Section 12.08 hereofread into this Agreement against the Escrow Agent. The Trustee shall notify the SBA prior to the appointment of Escrow Agent may act in reliance on any co-trustee(s) writing or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) instrument or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame signature that it, in its reasonable judgmentgood faith, disapproves of such co-trustee(s) believes to be genuine, may assume the validity or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case accuracy of any appointment statement or assertion contained in the writing or instrument, and may assume that any person purporting to give any writing, Notice, or instructions in connection with the provisions hereof has been duly authorized to do so. SELLER and BUYER jointly and severally agree to indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, lawsuits, or proceedings at law or in equity, or any other expenses, fees, or charges of a co-trustee any character or separate trustee pursuant to this Section 12.10nature, that it may incur, or with which it may be threatened, by reason of its acting as Escrow Agent, against any and all rightsexpense, powersincluding reasonable attorneys' fees and the cost of any action, duties lawsuit, or proceeding, or the resistance of any claim. If the parties disagree about the rights and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection tothe propriety of any action contemplated by, the TrusteeEscrow Agent, the Escrow Agent in its sole discretion may file an action of interpleader or for a declaratory judgment or any other action as it deems necessary to resolve the disagreement and retains the right to use said escrowed/trust funds to offset any cost or expenses incurred in the discharging of its duties and the filing of such action of interpleader or for declaratory judgment. Every such instrument The Escrow Agent shall be filed indemnified for all costs, including reasonable attorneys' fees, in connection with any of the Trustee. Any separate trustee above actions, and shall be fully protected in suspending all or co-trustee may, at any time, constitute the Trustee, a part of its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act activities under or in respect of this Agreement until a final judgment in the action is received. Upon notifying all parties concerned of such judgment, all liability on its behalf and in its name. The Trustee the part of the Escrow Agent shall not be responsible fully terminate once the Escrow Agent accounts for any action or inaction items previously delivered out of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeescrow/trust.

hereunder. No notice In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to Holders the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Certificates such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Loan Guarantor from its obligations under the Loan Guaranty, in each case in accordance with the terms of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereofLoan Documents and this Article 8. The Trustee shall notify Administrative Agent is authorized to enter into the SBA prior Intercreditor Agreement and any other intercreditor and/or subordination agreement contemplated hereby with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”), and the parties hereto acknowledge that the Intercreditor Agreement and any Additional Agreement is binding upon them. Each Lender (a) hereby consents to the appointment subordination of any co-trustee(sthe Liens on the Collateral other than the Term Loan First Lien Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement, (b) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, hereby agrees that it will be deemed bound by and will take no actions contrary to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this the Intercreditor Agreement or any Additional Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor Agreement or any Additional Agreement. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrowers, specifically including every provision the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective Applicable Percentage for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument any other Loan Document; provided that no Lender shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible liable for any action portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or inaction disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of any such separate trustee or cocompetent jurisdiction in a final and non-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trusteeappealable decision).

hereunder. No notice Failure on the part of Grantee to Holders complain of Certificates any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by Grantee of its rights hereunder or impair any rights, powers or remedies consequent on any breach or Default by Grantor. (b) If Grantee (i) grants forbearance or an extension of time for the payment of any sums secured hereby; (ii) takes other or additional security for the payment of any sums secured hereby; (iii) waives or does not exercise any right granted herein or in the Guaranty; (iv) releases any part of the appointment Premises from the lien of this Deed or otherwise changes any of the terms, covenants, conditions or agreements of the Guaranty or this Deed (provided, that the written agreement of Grantor to any such change shall first have been obtained); (v) consents to the filing of any map, plat or replat affecting the Premises; (vi) consents to the granting of any easement or other right affecting the Premises; or (vii) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under the Guaranty, this Deed or any other obligation of Grantor or any subsequent purchaser of the Premises or any part thereof, or any maker, co-trustee(s) signer, endorser, surety or separate trustee(s) guarantor; nor shall any such act or omission preclude Grantee from exercising any right, power or privilege herein granted or intended to be required under Section 12.08 hereof. The Trustee granted upon the occurrence of an Event of Default then made or any subsequent Default; nor, except as otherwise expressly provided in an instrument or instruments executed by Grantee, shall notify the SBA prior to the appointment lien or security title of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will this Deed be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effectivealtered thereby. In the case event of the sale or transfer by operation of law or otherwise of all or any appointment part of a co-trustee the Premises, Grantee, without notice, is hereby authorized and empowered to deal with any such vendee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except transferee with reference to the extent that under Premises or the indebtedness secured hereby, or with reference to any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any noticeterms, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trusteescovenants, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.or

hereunder. No notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 12.08 hereof. The Trustee shall notify the SBA prior to the appointment of any co-trustee(s) or separate trustee(s) and the SBA shall have ten Business Days from its receipt of such notice to notify the Trustee whether it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided XII-7 107 therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. The Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

hereunder. No notice indemnification provided for in such paragraphs shall be available to Holders of Certificates any party who shall fail so to give the Notice if the party to whom such Notice was not given was unaware of the appointment action, suit, investigation, inquiry or proceeding to which the Notice would have related and was prejudiced by the failure to give the Notice, but the omission so to notify such indemnifying party or parties of co-trustee(s) any such service or separate trustee(s) notification shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of such indemnity agreement. Any indemnifying party shall be required under Section 12.08 hereofentitled at its own expense to participate in the defense of any action, suit or proceeding against, or investigation or inquiry of, an indemnified party. The Trustee Any indemnifying party shall notify be entitled, if it so elects within a reasonable time after receipt of the SBA prior Notice by giving written notice (herein called the Notice of Defense) to the appointment of indemnified party, to assume (alone or in conjunction with any co-trustee(sother indemnifying party or parties) or separate trustee(s) and the SBA shall have ten Business Days from its receipt entire defense of such notice to notify the Trustee whether itaction, in its reasonable judgmentsuit, disapproves of such co-trustee(s) investigation, inquiry or separate trustee(s). If the SBA does not notify the Trustee within such time frame, it will be deemed to have approved such co-trustee(s) or separate trustee(s). If the SBA notifies the Trustee within such time frame that it, in its reasonable judgment, disapproves of such co-trustee(s) or separate trustee(s) (which notice shall be accompanied by the name(s) of the SBA's alternative proposed co-trustee(s) or separate trustee(s)), such appointments shall not be effective. In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 12.10, all rights, powers, duties and obligations conferred or imposed upon the trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or actsproceeding, in which event such rightsdefense shall be conducted, powersat the expense of the indemnifying party or parties, duties by counsel chosen by such indemnifying party or parties and obligations (including the holding of title reasonably satisfactory to the Trust Fund indemnified party or any portion thereof parties; provided, however, that (i) if the indemnified party or parties reasonably determine that there may be a conflict between the positions of the indemnifying party or parties and of the indemnified party or parties in any conducting the defense of such jurisdiction) action, suit, investigation, inquiry or proceeding or that there may be legal defenses available to such indemnified party or parties different from or in addition to those available to the indemnifying party or parties, then counsel for the indemnified party or parties shall be exercised and performed by such separate trustee or co-trustee at entitled to conduct the direction of the Trustee. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee. Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party or parties and (ii) in any event, the indemnified party or parties shall be entitled to have counsel chosen by such indemnified party or parties participate in, but not prohibited conduct, the defense. If, within a reasonable time after receipt of the Notice, an indemnifying party gives a Notice of Defense and the counsel chosen by lawthe indemnifying party or parties is reasonably satisfactory to the indemnified party or parties, to do any lawful act the indemnifying party or parties will not be liable under or in respect paragraphs (a) through (c) of this Agreement on its behalf Section 7 for any legal or other expenses subsequently incurred by the indemnified party or parties in connection with the defense of the action, suit, investigation, inquiry or proceeding, except that (A) the indemnifying party or parties shall bear the legal and other expenses incurred in its nameconnection with the conduct of the defense as referred to in clause (i) of the proviso to the preceding sentence and (B) the indemnifying party or parties shall bear such other expenses as it or they have authorized to be incurred by the indemnified party or parties. The Trustee Notwithstanding anything to the contrary set forth above, the indemnified party shall not not, in connection with any action, suit, investigation, inquiry or proceeding in the same jurisdiction, be liable for the fees and expenses of more than one firm, acting as legal counsel, for all indemnified parties. If, within a reasonable time after receipt of the Notice, no Notice of Defense has been given, the indemnifying party or parties shall be responsible for any action legal or inaction of any such separate trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised other expenses incurred by the Trusteeindemnified party or parties in connection with the defense of the action, to the extent permitted by lawsuit, without the appointment of a new investigation, inquiry or successor trusteeproceeding.