Form 8-K
8-K — SARATOGA INVESTMENT CORP.
Accession: 0001213900-26-108523
Filed: 2026-10-09
Period: 2026-10-08
CIK: 0001377936
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — ea0308242-8k_saratoga.htm (Primary)
EX-10.1 — FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT, DATED AS OF OCTOBER 8, 2026, BY AND AMONG SARATOGA INVESTMENT FUNDING II, LLC, AS BORROWER, SARATOGA INVESTMENT CORP (ea030824201ex10-1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
October 8, 2026
SARATOGA INVESTMENT CORP.
(Exact Name of Registrant as Specified in Charter)
Maryland
814-00732
20-8700615
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
535 Madison Avenue
New York, New York
10022
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including
area code (212) 906-7800
Not Applicable
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.001 per share
SAR
New York Stock Exchange
8.00% Notes due 2027
SAJ
New York Stock Exchange
8.125% Notes due 2027
SAY
New York Stock Exchange
8.50% Notes due 2028
SAZ
New York Stock Exchange
7.50% Notes due 2031
SAV
New York Stock Exchange
8.00% Notes due 2031
SAX
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On
October 8, 2026, Saratoga Investment Corp. (the “Company”) and its wholly owned financing subsidiary, Saratoga Investment
Funding II LLC (“SIF II” or the “Borrower”), entered into the First Amendment to the Credit and Security Agreement
(the “Amendment” and as amended by the Amendment, the “Credit Agreement”), by and among SIF II, as borrower, the
Company, as collateral manager and as equityholder, the lenders parties thereto, Valley National Bank, as administrative agent, and U.S.
Bank Trust Company, National Association, as collateral agent, and collateral administrator (the “Valley Credit Facility”).
The Amendment, among other things: (i) increases the borrowings available under the Valley Credit Facility from $85.0 million to $110.0
million; (ii) increases the amount whereby SIF II, during the first two years following the closing date, is permitted to request one
or more increases in the commitment amount from $100.0 million to $135.0 million, subject to certain terms and conditions and a customary
fee; (iii) provides that the Advance Rate (as defined in the Credit Agreement) with respect to Unitranche Loans (as defined in the Credit
Agreement) will not exceed 70%; (iv) increases the aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans
may be concentrated in the healthcare industry from 25.0% to 35.0% of Aggregate ECA Value (each as defined in the Credit Agreement); (v)
increases the aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which are made to the three largest
Obligors (as defined in the Credit Agreement) from 30.0% to 35.0% of Aggregate ECA Value; and (vi) amends the definition of “Key
Person” to replace Henri Steenkamp with Christine Ramdihal.
The foregoing description is
only a summary of the material provisions of the Amendment and is qualified in its entirety by reference to a copy of the Amendment, which
is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in
Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description
10.1
First Amendment to Credit and Security Agreement, dated as of October 8, 2026, by and among Saratoga Investment Funding II, LLC, as borrower, Saratoga Investment Corp., as collateral manager and equityholder, the lenders parties thereto, Valley National Bank, as administrative agent, and U.S. Bank Trust Company, National Association, as collateral agent, and collateral administrator.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
1
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SARATOGA INVESTMENT CORP.
Date: October 9, 2026
By:
/s/ Henri J. Steenkamp
Name:
Henri J. Steenkamp
Title:
Chief Financial Officer, Chief Compliance Officer, Treasurer and Secretary
2
EX-10.1 — FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT, DATED AS OF OCTOBER 8, 2026, BY AND AMONG SARATOGA INVESTMENT FUNDING II, LLC, AS BORROWER, SARATOGA INVESTMENT CORP
EX-10.1
Filename: ea030824201ex10-1.htm · Sequence: 2
Exhibit 10.1
FIRST AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
This FIRST AMENDMENT TO CREDIT
AND SECURITY AGREEMENT (this “Amendment”), dated as of October 8, 2026, is entered into by and among SARATOGA
INVESTMENT FUNDING II LLC, a Delaware limited liability company, as borrower (the “Borrower”), SARATOGA
INVESTMENT CORP., a Maryland corporation, as collateral manager (in such capacity, the “Collateral Manager”)
and as equityholder (in such capacity, the “Equityholder”), the LENDERS party hereto, VALLEY NATIONAL BANK,
as administrative agent for the Secured Parties (in such capacity, the “Administrative Agent”), and U.S. BANK TRUST
COMPANY, NATIONAL ASSOCIATION, as collateral administrator (in such capacity, the “Collateral Administrator”) and
as collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”).
A. The parties hereto are a party
to that certain Credit and Security Agreement, dated as of November 6, 2025 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by and among the Borrower, the Collateral Manager, the Equityholder, the
Administrative Agent, the Collateral Administrator, the Collateral Agent, U.S. Bank National Association, as collateral custodian, Bank
OZK, as documentation agent, and the Lenders from time to time party thereto;
B. The Borrower, Collateral Manager
and Equityholder have requested that the Administrative Agent, the Collateral Administrator, the Collateral Agent and the Lenders, as
applicable, agree to increase the Facility Amount (the “Facility Increase”) and enter into certain modifications to
the Credit Agreement and the Administrative Agent, the Collateral Administrator, the Collateral Agent and the Lenders, as applicable,
have agreed to the requested Facility Increase and modifications on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration
of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions; Construction.
All capitalized terms not otherwise defined herein are used as defined in the Credit Agreement. The provisions of Section 1.02
of the Credit Agreement are incorporated herein by reference, mutatis mutandis.
Section 2. Amendments to the
Credit Agreement. As of the First Amendment Effective Date (as defined below), the parties hereto agree that the Credit Agreement
(including the Schedules and Exhibits thereto) is hereby amended as set forth in the pages attached as Annex I hereto, by deleting
the stricken text (indicated textually in the same manner as the following example: stricken text)
and adding the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text).
Section 3. Conditions Precedent.
Section 2 hereof shall become effective on the date (the “First Amendment Effective Date”) of receipt by the
Administrative Agent of:
(a) executed
counterparts of this Amendment, duly executed and delivered by each party hereto;
(b) that
certain Fee Letter, dated as of the First Amendment Effective Date, duly executed by the Administrative Agent and the Borrower (the “First
Amendment Fee Letter”);
(c) evidence
that (i) all invoiced fees and expenses due and payable to the Administrative Agent on or prior to the First Amendment Effective Date
have been received; (ii) the reasonable and documented fees and out of pocket expenses of Mayer Brown LLP, counsel to the Administrative
Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the First Amendment Effective Date)
shall have been paid by the Borrower; and (iii) all other upfront expenses and fees that are invoiced prior to the First Amendment Effective
Date shall have been paid by the Borrower;
(d) legal
opinions (addressed to each of the Secured Parties) of counsel to the Borrower, Collateral Manager and Equityholder covering such matters
as the Administrative Agent and its counsel shall reasonably request; and
(e) one
or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as
to its respective Constituent Documents as in effect on the First Amendment Effective Date, (ii) as to their respective resolutions
approving this Amendment and the other Facility Documents to which it is a party executed and/or delivered in connection herewith and
the transactions contemplated hereby and thereby, (iii) that each of the representations and warranties set forth in this Amendment
and the other Facility Documents to which it is a party are true and correct in all material respects as of the First Amendment Effective
Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default, Event of Default
or Ratings Deficiency has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible
Officers authorized to execute this Amendment and the related Facility Documents to which it is a party executed and/or delivered in connection
herewith.
Section 4. Representations
and Warranties; Ratifications.
4.1. Representations
and Warranties. Each of the Borrower, the Collateral Manager and the Equityholder, each in its individual capacity, hereby represents
and warrants to the Administrative Agent, the Collateral Administrator, the Collateral Agent and the Lenders that (a) such party is duly
formed, validly existing and in good standing under the laws of its jurisdiction of formation; (b) such party has the power, authority
and legal right to make, deliver and perform this Amendment and each of the Facility Documents to which it is a party executed and/or
delivered in connection herewith, and has taken all necessary action to authorize the execution, delivery and performance of this Amendment
and each of the Facility Documents to which it is a party executed and/or delivered in connection herewith; (c) this Amendment and each
of the Facility Documents executed and/or delivered in connection herewith to which such party is a party constitutes the legal, valid
and binding obligation of such party, enforceable against it in accordance with their respective terms, except as the enforceability hereof
and thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’
rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law; (d) the representations
and warranties contained in the Credit Agreement, as amended hereby, and any other Facility Document made by such party are true and correct
in all material respects (except to the extent such representations and warranties expressly relate to any earlier date, in which case
such representations and warranties shall be true and correct in all material respects as of such earlier date as if made on such date);
and (e) no Default, Event of Default or Ratings Deficiency under the Credit Agreement, as amended hereby, has occurred and is continuing.
2
4.2. Ratifications.
The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the
Credit Agreement and the other Facility Documents and, except as expressly modified and superseded by this Amendment, the terms and provisions
of the Credit Agreement and the other Facility Documents are ratified and confirmed and shall continue in full force and effect. Each
of the Borrower, the Collateral Manager and the Equityholder agrees that the Credit Agreement and the other Facility Documents, as amended
hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms. The Borrower agrees that
this Amendment is not intended to and shall not cause a novation with respect to any or all of the Obligations. The Borrower and Equityholder
hereby confirm, acknowledge and agree that the existing security granted under the Facility Documents (as amended hereby) shall continue
in full force and effect as a continuing security for all indebtedness, Obligations and liabilities the payment, observance, performance
and/or discharge of which is thereby and hereby expressed to be secured.
Section 5. No Consent or Waiver.
Nothing contained herein shall be construed as a consent or waiver by the Administrative Agent, the Collateral Administrator, the
Collateral Agent or any Lenders of any covenant or provision of the Credit Agreement, the other Facility Documents, this Amendment or
any other contract or instrument among the Borrower, any of the other parties to the Facility Documents and the Administrative Agent,
the Collateral Administrator, the Collateral Agent or any Lender, and the failure of the Administrative Agent, the Collateral Administrator,
the Collateral Agent or any Lender at any time or times hereafter to require strict performance by the Borrower or any other party to
the Facility Documents of any provision thereof shall not waive, affect or diminish any right of the Administrative Agent, the Collateral
Administrator, the Collateral Agent or any Lender to thereafter demand strict compliance therewith.
Section 6. Miscellaneous.
6.1. Amendment
is a “Facility Document”. This Amendment and the First Amendment Fee Letter are Facility Documents and all references
to a “Facility Document” in the Credit Agreement and the other Facility Documents (including, without limitation, all such
references in the representations and warranties in the Credit Agreement and the other Facility Documents) shall be deemed to include
this Amendment and the First Amendment Fee Letter.
6.2. References
to the Credit Agreement. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or
delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended hereby.
3
6.3. No
Other Changes. Except as specifically amended by this Amendment, the Credit Agreement and all other documents, instruments and agreements
executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. This Amendment,
together with the other Facility Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof
and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
6.4. No
Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of
any Agent or any Lender under the Credit Agreement or any other document, instrument or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein, except as specifically set forth herein.
6.5. Severability.
If any provision of this Amendment is held to be illegal, invalid, or unenforceable under present or future laws effective during the
term of this Amendment, such provision shall be fully severable and this Amendment shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Amendment, and the remaining provisions of this Amendment shall
remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from
this Amendment.
6.6. Governing
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT OR ANY OTHER FACILITY DOCUMENT (EXCEPT,
AS TO ANY OTHER FACILITY DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
6.7. Successors
and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns as provided in the Credit Agreement.
6.8. Headings.
Section headings are for convenience of reference only and shall in no way affect the interpretation of this Amendment.
6.9. Directions
to the Collateral Administrator and the Collateral Agent. The Lenders hereby direct the Collateral Administrator and the Collateral
Agent to execute this Amendment.
6.10. Multiple
Counterparts. This Amendment may be executed by electronic transmission (including .jpeg file or any electronic signature complying
with the U.S. federal ESIGN Act of 2000, including Orbit, Adobe Sign, DocuSign, or any other similar platform identified by the Borrower)
in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile
or in electronic format (i.e., "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of
this Amendment. Any electronically signed document delivered via email from a person purporting to be a Responsible Officer shall be considered
signed or executed by such Responsible Officer on behalf of the applicable Person.
REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK
SIGNATURE PAGES FOLLOW.
4
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
SARATOGA INVESTMENT FUNDING II LLC,
as Borrower
By:
/s/ Henri Steenkamp
Name:
Henri Steenkamp
Title:
Chief Financial and Compliance Officer
SARATOGA INVESTMENT CORP., as Collateral Manager
By:
/s/ Henri Steenkamp
Name:
Henri Steenkamp
Title:
Chief Financial Officer, Chief Compliance Officer, Treasurer and Secretary
SARATOGA INVESTMENT CORP., as the Equityholder
By:
/s/ Henri Steenkamp
Name:
Henri Steenkamp
Title:
Chief Financial Officer, Chief Compliance Officer, Treasurer and Secretary
[Signature Page to First Amendment]
VALLEY NATIONAL BANK, as Administrative Agent and a Lender
By:
/s/ Michael Hood
Name:
Michael Hood
Title:
Vice President
[Signature Page to First Amendment]
BANK OZK, as a Lender
By:
/s/ Matthew Conley
Name:
Matthew Conley
Title:
Director
[Signature Page to First Amendment]
OCEANFIRST BANK, N.A., as a Lender
By:
/s/ Elizabeth Nugent
Name:
Elizabeth Nugent
Title:
SVP Loan Syndications
[Signature Page to First Amendment]
POPULAR BANK, as a Lender
By:
/s/ Peter Durichko
Name:
Peter Durichko
Title:
VP
[Signature Page to First Amendment]
u.s. bank Trust Company,
national association, as Collateral Administrator
By:
/s/ Scott DeRoss
Name:
Scott DeRoss
Title:
Senior Vice President
[Signature Page to First Amendment]
u.s. bank Trust Company,
national association, as Collateral Agent
By:
/s/ Scott DeRoss
Name:
Scott DeRoss
Title:
Senior Vice President
[Signature Page to First Amendment]
ANNEX I
AMENDED CREDIT AND SECURITY AGREEMENT
[See Attached]
[Annex I]
CONFORMED
THROUGH FIRST AMENDMENT
CREDIT AND SECURITY
AGREEMENT
Dated as of November 6, 2025
among
SARATOGA
INVESTMENT FUNDING II LLC,
as Borrower,
SARATOGA
investment corp.,
as Collateral Manager,
SARATOGA
INVESTMENT CORP.,
as Equityholder,
THE OTHER PARTIES FROM TIME TO TIME PARTY HERETO,
VALLEY NATIONAL BANK,
as Administrative Agent,
VALLEY NATIONAL BANK,
as Sole Lead Arranger and Sole Bookrunner,
and
BANK OZK,
as Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
1
Section 1.01.
Definitions
1
Section 1.02.
Rules of Construction
48
Section 1.03.
Computation of Time Periods
48
Section 1.04.
Divisions
4849
Section 1.05.
Collateral Value Calculation Procedures
49
Section 1.06.
Calculations
50
ARTICLE II ADVANCES
51
Section 2.01.
Revolving Credit Facility
51
Section 2.02.
Making of the Advances
51
Section 2.03.
Evidence of Indebtedness
52
Section 2.04.
Payment of Amounts
53
Section 2.05.
Prepayment of Advances; Cures
5354
Section 2.06.
Changes of Commitments
55
Section 2.07.
Maximum Lawful Rate
56
Section 2.08.
Several Obligations
56
Section 2.09.
Increased Costs
56
Section 2.10.
Compensation; Breakage Payments; Inability to Determine Rates
58
Section 2.11.
Effect of Benchmark Transition Event
5859
Section 2.12.
Fees
60
Section 2.13.
Rescission or Return of Payment
61
Section 2.14.
Default Interest
61
Section 2.15.
Payments Generally
61
Section 2.16.
Right of Setoff
62
Section 2.17.
Increase in Facility Amount
62
Section 2.18.
Defaulting Lender Adjustments
63
ARTICLE III CONDITIONS PRECEDENT
64
Section 3.01.
Conditions Precedent to Initial Advances
64
Section 3.02.
Conditions Precedent to Advances
66
ARTICLE IV REPRESENTATIONS AND WARRANTIES
67
Section 4.01.
Representations and Warranties of the Borrower
67
Section 4.02.
Additional Representations and Warranties of the Borrower
70
Section 4.03.
Representations and Warranties of the Equityholder and the Collateral Manager
72
Section 4.04.
Representations and Warranties of the Custodian and Collateral Administrator.
74
ARTICLE V COVENANTS
75
Section 5.01.
Affirmative Covenants of the Borrower
75
Section 5.02.
Negative Covenants of the Borrower
81
Section 5.03.
Affirmative Covenants of the Equityholder and the Collateral Manager
84
Section 5.04.
Negative Covenants of the Equityholder and the Collateral Manager
86
Section 5.05.
Certain Undertakings Relating to Separateness
87
i
TABLE OF CONTENTS
(continued)
Page
ARTICLE VI EVENTS OF DEFAULT
88
Section 6.01.
Events of Default
88
Section 6.02.
Remedies.
9190
Section 6.03.
Power of Attorney.
92
Section 6.04.
Sales.
93
ARTICLE VII PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
94
Section 7.01.
Grant of Security
94
Section 7.02.
Release of Security Interest
96
Section 7.03.
Rights and Remedies
96
Section 7.04.
Remedies Cumulative
97
Section 7.05.
Related Documents
97
Section 7.06.
Borrower Remains Liable
9897
Section 7.07.
Protection of Collateral
98
ARTICLE VIII ACCOUNTS, ACCOUNTINGS AND RELEASES
99
Section 8.01.
Collection of Money
99
Section 8.02.
Collateral Accounts
99
Section 8.03.
Account Control Agreement
100
Section 8.04.
Funds in Covered Accounts
100
Section 8.05.
Reports by Collateral Administrator
101100
Section 8.06.
Accountings
101100
Section 8.07.
Release of Collateral
101
Section 8.08.
Reports by Independent Accountants
102
ARTICLE IX APPLICATION OF FUNDS
103102
Section 9.01.
Disbursements of Funds from Collection Account
103102
ARTICLE X SALE OF COLLATERAL LOANS; PURCHASE OF ADDITIONAL COLLATERAL LOANS
105104
Section 10.01.
Sales of Collateral Loans
105104
Section 10.02.
Purchase of Additional Collateral Loans
107105
Section 10.03.
Substitution of Collateral Loans
107106
Section 10.04.
Conditions Applicable to All Sale and Purchase Transactions
108107
ARTICLE XI THE AGENTS
108107
Section 11.01.
Authorization and Action
108107
Section 11.02.
Delegation of Duties
111109
Section 11.03.
Agents’ Reliance, Etc.
111110
Section 11.04.
Indemnification; Rights
113112
Section 11.05.
Successor Agents
114112
Section 11.06.
Merger, Conversion, Consolidation or Succession to Business of Agents
114112
Section 11.07.
Erroneous Payments
114113
ii
TABLE OF CONTENTS
(continued)
Page
ARTICLE XII MISCELLANEOUS
116114
Section 12.01.
No Waiver; Modifications in Writing
116114
Section 12.02.
Notices, Etc.
117115
Section 12.03.
Taxes
118117
Section 12.04.
Costs and Expenses; Indemnification
122120
Section 12.05.
Execution in Counterparts
123122
Section 12.06.
Assignability
123122
Section 12.07.
Governing Law
126125
Section 12.08.
Severability of Provisions
126125
Section 12.09.
Confidentiality
126125
Section 12.10.
Merger
127126
Section 12.11.
Survival
127126
Section 12.12.
Submission to Jurisdiction; Waivers; Etc.
127126
Section 12.13.
IMPORTANT WAIVERS
128127
Section 12.14.
Customer Identification Notice
129128
Section 12.15.
Legal Holidays
129128
Section 12.16.
Non-Petition
130128
Section 12.17.
Waiver of Setoff
130129
Section 12.18.
Sharing of Payment by Lenders
130129
Section 12.19.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
131129
Section 12.20.
Acknowledgement Regarding Any Supported QFCs
131130
ARTICLE XIII CUSTODIAN
132131
Section 13.01.
Appointment of Custodian
132131
Section 13.02.
Duties of Custodian
133132
Section 13.03.
Delivery of Collateral Loans to Custodian.
133132
Section 13.04.
Release of Documents/Control By Agents.
134133
Section 13.05.
Records.
135133
Section 13.06.
Reporting
135134
Section 13.07.
Certain General Terms
135134
Section 13.08.
Compensation and Reimbursement of Custodian
137136
Section 13.09.
Responsibility of Custodian
137136
Section 13.10.
Resignation and Removal; Appointment of Successor
140139
Section 13.11.
Acceptance and Appointment by Successor
141140
Section 13.12.
Merger, Conversion, Consolidation or Succession to Business of Custodian
141140
ARTICLE XIV COLLATERAL MANAGEMENT
142140
Section 14.01.
Designation of the Collateral Manager
142140
Section 14.02.
Duties of the Collateral Manager
142141
Section 14.03.
Authorization of the Collateral Manager
143142
Section 14.04.
Separateness Provisions of the Borrower.
144142
Section 14.05.
Compensation.
144143
Section 14.06.
Expenses; Indemnification.
144143
Section 14.07.
The Collateral Manager Not to Resign; Assignment
145144
Section 14.08.
Appointment of Successor Collateral Manager
145144
ARTICLE XV THE COLLATERAL ADMINISTRATOR
146145
Section 15.01.
Designation of Collateral Administrator
146145
Section 15.02.
Certain Duties and Powers
146145
Section 15.03.
Certain Rights of Collateral Administrator
150148
Section 15.04.
Compensation and Reimbursement of Collateral Administrator
152151
Section 15.05.
Resignation and Removal; Appointment of Successor
152151
Section 15.06.
Acceptance and Appointment by Successor
153152
Section 15.07.
Merger, Conversion, Consolidation or Succession to Business of Collateral Administrator
153152
Section 15.08.
Certain Duties of Collateral Administrator Related to Delayed Payment of Proceeds
154152
iii
SCHEDULES
Schedule 1
Initial Commitments and Percentages
Schedule 2
Closing Date Collateral Loan Schedule
Schedule 3
Notice Information
Schedule 4
Authorized Persons
EXHIBITS
Exhibit A
Form of Notice of Borrowing (with attached form of Borrowing Base Certificate)
Exhibit B
Form of Compliance Certificate
Exhibit C
Form of Assignment and Acceptance
Exhibit D
Forms of Tax Compliance Certificates
Exhibit E
Credit Policies and Procedures
Exhibit F
Form of Custodial Trust Receipt
iv
CREDIT AND SECURITY
AGREEMENT
CREDIT AND SECURITY AGREEMENT,
dated as of November 6, 2025 (this “Agreement”), by and among saratoga investment
funding ii llc, a Delaware limited liability company, as borrower (the “Borrower”), SARATOGA INVESTMENT
CORP., a Maryland corporation, as Collateral Manager (in such capacity, the “Collateral Manager”), and as Equityholder
(in such capacity, the “Equityholder”), the LENDERS from time to time party hereto, VALLEY NATIONAL BANK (“Valley”),
as administrative agent for the Secured Parties (as hereinafter defined) (in such capacity, the “Administrative Agent”),
Lead Arranger (as hereinafter defined) and Bookrunner (as hereinafter defined), BANK OZK, as documentation agent (in such capacity, the
“Documentation Agent”) U.S. Bank national association (“U.S.
Bank”), as collateral custodian for the Secured Parties (in such capacity, the “Custodian”), and U.S.
Bank TRUST COMPANY, national association (“U.S. Bank Trust Company”), as collateral administrator (in such capacity,
the “Collateral Administrator”) and as collateral agent for the Secured Parties (in such capacity, the “Collateral
Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower desires
that the Lenders make available to the Borrower a revolving credit facility on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, each Lender is willing
to make such revolving credit facility available to the Borrower on the terms and subject to the conditions set forth in this Agreement.
WHEREAS, the Borrower has engaged
the Collateral Manager to perform investment-related and administrative duties with respect to the advances made hereunder and the management
of the loans owned by the Borrower; and
NOW, THEREFORE, in consideration
of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
Section 1.01. Definitions
As used in this Agreement, the
following terms shall have the meanings indicated:
“Account
Bank” means (i) U.S. Bank or (ii) another Qualified Institution reasonably acceptable to the
Administrative Agent.
“Account Control Agreement”
means, with respect to each Covered Account, the applicable Account Control Agreement, dated as of the Closing Date, by and among the
Borrower, the Collateral Agent and the Account Bank or Securities Intermediary, as applicable, as the same may be amended, modified, waived,
supplemented or restated from time to time.
“Acquisition Date”
means, in respect of any Collateral Loan, the date on which such Collateral Loan is originated or acquired by the Borrower or is acquired
by the Borrower from the Equityholder pursuant to the Sale Agreement.
“Adjusted Borrowing Value”
means, for any Eligible Collateral Loan as at any date of determination, an amount equal to the lower of (i) the Principal Balance of
such Collateral Loan at such time, and (ii) the Assigned Value of such Collateral Loan at such time multiplied by the Principal Balance
of such Collateral Loan; provided that the Adjusted Borrowing Value of any Collateral Loan that is no longer an Eligible Collateral
Loan shall be zero.
“Administrative Agent”
has the meaning assigned to such term in the introduction to this Agreement.
“Administrative Agent
Fee Letter” means that certain fee letter, dated as of August 6, 2025, between the Administrative Agent and the Borrower setting
forth the amounts payable by the Borrower to the Administrative Agent in connection with the transactions contemplated by this Agreement,
as the same may be amended, modified, waived, supplemented or restated from time to time.
“Advance” has
the meaning assigned to such term in Section 2.01(a).
“Advance Date Assigned
Value” means (a) with respect to any Collateral Loan acquired by the Borrower after the Closing Date, the value (expressed as
a percentage of the Principal Balance of such Collateral Loan), at the time of acquisition of such Collateral Loan, equal to the lowest
of (i) the Principal Balance of such Collateral Loan, (ii) the purchase price paid by the Borrower to acquire such Collateral Loan (expressed
exclusive of accrued interest) or (iii) the Fair Value of such Collateral Loan and (b) with respect to any Closing Date Collateral Loan,
the “Advance Date Assigned Value” for such Closing Date Collateral Loan as agreed in writing between the Borrower and the
Administrative Agent as of the Closing Date.
“Advance Rate”
means, as of any date of determination with respect to each Eligible Collateral Loan, the lowest corresponding percentage for the type
of such Eligible Collateral Loan set forth in the table below:
Type of Eligible Collateral Loan
Advance Rate
Senior Secured Loans and Secured Bonds (excluding Recurring Revenue Loans)
75%
Unitranche Loans
70%
Unitranche Loans, Qualifying Last-Out Loans and Recurring Revenue Loans (other than Recurring Revenue Loans that are Second Lien Loans)
65%
Unsecured Bonds
50%
Second Lien Loans (including Recurring Revenue Loans that are Second Lien Loans), Non-Qualifying Last-Out Loans and CLO Obligations
25%
Defaulted Loans
0%
“Advances Outstanding”
means, as of any date of determination, the aggregate principal amount of all Advances outstanding on such date, after giving effect to
all repayments of Advances made on or prior to such date and any new Advances made on such date.
“Affected Financial Institution”
means (a) any EEA Financial Institution or (b) any UK Financial Institution.
2
“Affected Person”
means (a) the Administrative Agent, each Lender and each of their respective Affiliates and (b) any assignee or participant of any Lender
(unless the benefit of any particular provision hereof to any such Affected Person is otherwise expressly excluded herein).
“Affiliate”
or “Affiliated” means, with respect to a Person, any other Person who, directly or indirectly, including through one
or more intermediaries, is in Control of, or Controlled by, or is under common Control with, such Person; provided that a Person
shall not be deemed to be an “Affiliate” of an Obligor solely because it is under the common ownership or Control of the same
financial sponsor or affiliate thereof as such Obligor (except if any such Person or Obligor provides collateral for, guarantees or otherwise
supports the obligations of the other such Person or Obligor).
“Agents” means,
collectively, the Administrative Agent and the Collateral Agent.
“Aggregate Adjusted Borrowing
Value” means, on any day, the Adjusted Borrowing Values of all Eligible Collateral Loans included as part of the Collateral
on such date.
“Aggregate Borrowing
Base Value” means, on any day, the Borrowing Base Values of all Eligible Collateral Loans included as part of the Collateral
on such date.
“Aggregate ECA Value”
means, on any day, the greater of (i) the Facility Amount in effect from time to time and (ii) the sum of (1) the Aggregate Borrowing
Base Value and (2) the Principal Proceeds on deposit in the Collection Account as of such date, and in each case in accordance with the
procedures set forth in Section 1.05.
“Aggregate Principal
Balance” means, when used with respect to all or a portion of the Collateral Loans, the sum of the Principal Balances of all
or of such portion of such Collateral Loans (other than Ineligible Collateral Loans).
“Agreement”
has the meaning assigned to such term in the introduction to this Agreement.
“Anti-Corruption Laws”
means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery
or anti-corruption laws, regulations or ordinances in any jurisdiction in which the Borrower or any of its Subsidiaries or their respective
Related Parties is located or doing business.
“Anti-Money Laundering
Laws” means Applicable Law in any jurisdiction in which the Borrower or any of its Subsidiaries or their respective Related
Parties are located or doing business that relates to money laundering or terrorism financing, any predicate crime to money laundering,
or any financial record keeping and reporting requirements related thereto.
“Applicable Conversion
Rate” means, with respect to any Collateral Loan denominated and payable in an Eligible Currency (other than Dollars) on any
date of determination (x) for an actual currency exchange, the applicable currency-Dollar spot rate obtained by the Collateral Manager
through customary banking channels or (y) for all other purposes, the applicable currency-Dollar spot rate that appeared on the Reuters
screen for such currency (i) if such date is a Calculation Date, at the end of such day or such date is not a Business Day, the end of
the immediately preceding Business Day or (ii) otherwise, at the end of the immediately preceding Business Day.
“Applicable Law”
means any Law of any Governmental Authority, including all federal and state banking or securities laws, to which the Person in question
is subject or by which it or any of its assets or properties are bound.
3
“Applicable Margin”
means 2.85% per annum (or, at any time when the Advances bear interest by reference to the Base Rate pursuant to Section 2.10(b)
or Section 2.11(e), 1.85% per annum); provided that upon the occurrence and during
the continuance of an Event of Default pursuant to Section 6.01(j) (or upon election of the Administrative Agent or the Required
Lenders upon the occurrence and during the continuance of any other Event of Default, which election may be retroactive to the date of
the initial occurrence of such Event of Default), the Applicable Margin in effect at such time shall be increased by an additional 2.00%
per annum.
“Assigned Documents”
has the meaning assigned to such term in Section 7.01(c).
“Assigned Value”
means, with respect to each Collateral Loan, as of any date of determination and expressed as a percentage of the Principal Balance of
such Collateral Loan (exclusive of PIK Interest or accrued interest), the Advance Date Assigned Value of such Collateral Loan, subject
to the following terms:
(a) If
a Value Adjustment Event of the type described in clauses (i) or (ii) of the definition thereof with respect to such Collateral Loan occurs,
the Assigned Value of such Collateral Loan will be the Fair Value thereof (subject to the limitations contained in such clauses (i)
and (ii)).
(b) If
a Value Adjustment Event of the type described in clause (iii) of the definition thereof with respect to such Collateral Loan occurs,
the Assigned Value of such Collateral Loan shall be the lowest Fair Value assigned to such Collateral Loan in the six-month period immediately
preceding such date of determination.
(c) If
a Value Adjustment Event of the type described in clause (iv) or (vi) of the definition thereof with respect to such Collateral
Loan occurs, the Assigned Value of such Collateral Loan will be zero (or such higher percentage as the Administrative Agent shall approve
in writing in its reasonable discretion).
(d) If
a Value Adjustment Event of the type described in clauses (v) or (vii) of the definition thereof with respect to such Collateral
Loan occurs, “Assigned Value” may be amended by the Administrative Agent, in its reasonable discretion; provided that
(x) the Assigned Value of any Priced Collateral Loan shall not be less than the price quoted therefor (if any) by such nationally recognized
pricing service as selected by the Administrative Agent; such quoted price to be determined after giving effect to such Value Adjustment
Event) and (y) the Assigned Value shall not be greater than the lesser of (A) the Assigned Value based upon the practices set forth in
FASB Accounting Standards Codification 820 (formerly SFAS No. 157) or any pronouncement, statement, rule or amendment with respect to
GAAP-mandated mark-to-market requirements or (B) the Assigned Value based on the amortized cost adjusted for any credit impairment of
such Collateral Loan.
In the event the Borrower disagrees
with the Administrative Agent’s determination of the Assigned Value of a Collateral Loan, the Borrower may (at its expense) retain
any nationally recognized valuation firm reasonably acceptable to the Administrative Agent to value such Collateral Loan and if the value
determined by such firm is greater than the Administrative Agent’s determination of the Assigned Value, such firm’s valuation
shall become the Assigned Value of such Collateral Loan; provided that the Assigned Value of such Collateral Loan shall be the
value assigned by the Administrative Agent until such firm has determined its value. The value determined by such firm shall be based
on the lesser of (x) the practices set forth in FASB Accounting Standards Codification 820 (formerly SFAS No. 157) or any pronouncement,
statement, rule or amendment with respect to GAAP-mandated mark-to-market requirements and (y) the amortized cost adjusted for any credit
impairment of such Collateral Loan. The Administrative Agent shall promptly notify the Collateral Manager of any change effected by the
Administrative Agent of the Assigned Value of any Collateral Loan.
4
“Assignment and Acceptance”
means an Assignment and Acceptance in substantially the form of Exhibit C hereto, entered into by a Lender, an assignee, the Administrative
Agent and, if applicable, the Borrower.
“Authorized Person(s)”
has the meaning assigned to such term in Section 13.07(d)(i).
“Availability”
means, as of any date of determination, the lesser of (a) the Facility Amount as of such date and (b) the Borrowing Base as of such date.
“Availability Block”
means an amount equal to $100,000.
“Available Loan Amount”
means the difference between the (a) Availability and (b) Advances Outstanding.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark Rate, as applicable, (a) if the then-current Benchmark
Rate is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Accrual Period or (b)
otherwise, any payment period for interest calculated with reference to such Benchmark Rate, as applicable, pursuant to this Agreement
as of such date.
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that
is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act
2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution
of unsound or failing banks, investment firms or other financial institutions or their affiliate (other than through liquidation, administration
or other insolvency proceedings).
“Bankruptcy Code”
means the United States Bankruptcy Code.
“Base Rate”
means, on any date, a fluctuating interest rate per annum equal to the highest of (a) the Prime Rate, (b) the Federal Funds Rate
plus 0.50% or (c) the Term SOFR Rate for a one-month tenor plus 1.0%. The Base Rate is
a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer of the Administrative Agent
or any Lender. Interest calculated pursuant to clauses (a) and (b) above will be determined based on a year of 365 days
or 366 days, as applicable, and interest calculated pursuant to clause (c) above will be determined based on a year of 360 days
and actual days elapsed.
“Benchmark
Rate” means, initially, the Term SOFR Rate; provided that if a Benchmark Transition
Event and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark Rate,
then “Benchmark Rate” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become
effective pursuant to Section 2.11(a).
5
“Benchmark
Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate (which may
include the Term SOFR Rate of a different tenor) that has been selected by the Administrative Agent and the Borrower giving due consideration
to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental
Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a
replacement to the then-current Benchmark Rate for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement
Adjustment; provided that, if the Benchmark Replacement as so determined would be less than the Floor, the Benchmark Replacement shall
be deemed to be the Floor for the purposes of this Agreement and the other Facility Documents.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark Rate with an Unadjusted Benchmark
Replacement for each applicable Interest Accrual Period, the spread adjustment, or method for calculating or
determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent
and Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining
such spread adjustment, for the replacement of such Benchmark Rate with the applicable Unadjusted Benchmark Replacement by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark Rate with the applicable Unadjusted Benchmark Replacement
for Dollar-denominated syndicated credit facilities at such time.
“Benchmark
Replacement Conforming Changes” means, with respect to the Term SOFR Rate or any Benchmark Replacement, any technical, administrative
or operational changes (including changes to the definition of “Base Rate”, the definition of
“Business Day”, the definition of “Interest Accrual Period”, timing and frequency of determining rates and making
payments of interest and other administrative matters) that Administrative Agent decides may be appropriate to reflect the adoption and
implementation of the Term SOFR Rate or such Benchmark Replacement and to permit the administration thereof by Administrative Agent in
a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market
practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of the
Term SOFR Rate or the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement).
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to the then-current Benchmark Rate:
(a) in
the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement
or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark Rate (or the published
component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark Rate (or such component thereof)
or, if such Benchmark Rate is a term rate, all Available Tenors of such Benchmark Rate (or such component thereof); or
(b) in
the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark Rate
(or the published component used in the calculation thereof) has been or, if such Benchmark Rate is a term rate, all Available Tenors
of such Benchmark Rate (or such component thereof)have been determined and announced by the regulatory supervisor for the administrator
of such Benchmark Rate (or such component thereof) to be no longer representative; provided, that such non-representativeness will
be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark
Rate (or such component thereof) or, if such Benchmark Rate is a term rate, any Available Tenor of such Benchmark Rate (or such component
thereof) continues to be provided on such date.
6
For the avoidance of doubt, if
such Benchmark Rate is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause
(a) or (b) with respect to any Benchmark Rate upon the occurrence of the applicable event or events set forth therein with respect to
all then-current Available Tenors of such Benchmark Rate (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means, with respect to any current Benchmark Rate, the occurrence of one
or more of the following events with respect to the then-current Benchmark Rate:
(a) a
public statement or publication of information by or on behalf of the administrator of such Benchmark Rate (or the published component
used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark Rate (or such component
thereof) or, if such Benchmark Rate is a term rate, any Available Tenor of such Benchmark Rate , permanently
or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to
provide such tenor of such Benchmark Rate (or such component thereof) or, if such Benchmark Rate is a term rate, any Available
Tenor of such Benchmark Rate;
(b) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark Rate (or the published
component used in the calculation thereof), the Board of Governors, the Federal Reserve Bank of New York (or any successor), an insolvency
official with jurisdiction over the administrator for such Benchmark Rate (or such component) the Board of Governors, the Federal Reserve
Bank of New York, a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or
an entity with similar insolvency or resolution authority over the administrator for such Benchmark Rate (or such component), which states
that the administrator of such Benchmark Rate (or such component) has ceased or will cease to provide such Benchmark Rate (or such component
thereof) or, if such Benchmark Rate is a term rate, any Available Tenor of such Benchmark Rate used
hereunder permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide such tenor of such Benchmark Rate (or such component thereof) or, if such Benchmark Rate is a term
rate, any Available Tenor of such Benchmark Rate; or
(c) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark Rate (or the published
component used in the calculation thereof) announcing that such Benchmark Rate (or such component thereof)
or, if such Benchmark Rate is a term rate, any Available Tenor of such Benchmark Rate is not, or as
of a specified future date will not be, representative.
For
the avoidance of doubt, if such Benchmark Rate is a term rate, a “Benchmark Transition Event” will be deemed to have occurred
with respect to any Benchmark Rate if a public statement or publication of information set forth above
has occurred with respect to each then-current Available Tenor of such Benchmark Rate (or the published component used in the calculation
thereof).
“Benchmark
Transition Start Date” means in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement
Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of
a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information
(or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement
or publication).
7
“Benchmark Unavailability
Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the then-current Benchmark for all purposes under the Facility Documents in accordance with Section
2.11 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes under the Facility
Documents in accordance with Section 2.11.
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, in a form
as agreed to by the Administrative Agent.
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Block Notice”
has the meaning assigned to such term in Section 13.04(b).
“Board of Governors”
means the Board of Governors of the United States Federal Reserve System or the Federal Reserve Bank of New York.
“Bookrunner”
means Valley.
“Borrower”
has the meaning assigned to such term in the introduction to this Agreement.
“Borrower Information”
has the meaning assigned to such term in Section 12.09.
“Borrowing”
has the meaning assigned to such term in Section 2.01(a).
“Borrowing Base”
means, at any date of determination, an amount equal to (i) the difference of (x) the Aggregate Borrowing Base Value less (y) the Excess
Concentration Amount, plus (ii) the amount on deposit in the Pre-Funding Account plus, without duplication, the amount of
Excess Cash on deposit in the Collection Account, minus (iii) the product of (A) with respect to each Delayed Drawdown Collateral
Loan, the portion of the Unfunded Exposure Amount attributable to such Delayed Drawdown Collateral Loan multiplied by (B) the Unfunded
Exposure Haircut Percentage with respect to such Delayed Drawdown Collateral Loan, minus (iv) the Availability Block, in each case,
as of such date.
“Borrowing Base Certificate”
means a statement in substantially the form attached to the form of Notice of Borrowing attached hereto as Exhibit A, as such
form of Borrowing Base Certificate may be modified by the Administrative Agent from time to time to the extent such form does not, in
the good faith opinion of the Administrative Agent, accurately reflect the calculation of the Borrowing Base Test required hereunder.
“Borrowing Base Deficiency”
means a condition occurring on any day on which the Borrowing Base Test is not satisfied.
“Borrowing Base Test”
means a test that will be satisfied at any time if (a) Advances Outstanding are less than or equal to (b) the Borrowing Base at such time.
“Borrowing Base Value”
means, for any Eligible Collateral Loan as of any date of determination, an amount equal to the product of (A) the Advance Rate for such
Eligible Collateral Loan as of such date times (B) the Adjusted Borrowing Value of such Eligible Collateral Loan as of such date.
8
“Borrowing Date”
means the date of a Borrowing.
“Business Day”
means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day
on which banking institutions located in such state are authorized or required by law or other governmental action to close, and (b) with
respect to all Advances, notices, determinations, fundings and payments in connection with the Term SOFR Rate,
the term “Business Day” mean any day which is a Business Day described in clause (a) and which is also not a day on
which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in United States government securities.
“Calculation Date”
means the last day of each Interest Accrual Period.
“Capital Stock”
means all outstanding membership interests of the Borrower which will have the rights and will be subject to the restrictions set forth
in the LLC Agreement.
“Cash” means
Dollars immediately available on the day in question.
“Certificated Security”
has the meaning specified in Section 8-102(a)(4) of the UCC.
“Change in Law”
means the occurrence, after the Closing Date (or, with respect to any Lender not a party hereto on the date hereof, after the date such
Lender becomes a party hereto), of any of the following: (a) the adoption of any law, rule or regulation, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes
of Section 2.09(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental Authority; provided that, notwithstanding anything herein
to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or
directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to
be a “Change in Law” regardless of the date enacted, adopted or issued.
“Change of Control”
means, at any time, the occurrence of any of the following events:
(a) the
Equityholder ceases, at any time, to directly own 100% of the Capital Stock of the Borrower free and clear of any and all Liens or other
encumbrances (other than the Lien in favor of the Collateral Agent pursuant to the Equity Pledge Agreement); or
(b) with
respect to the Equityholder, the occurrence of any of the following events: any “person” or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants, options or otherwise)
to become, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
a percentage of the total voting power of all classes of Equity Securities of the Equityholder entitled to vote generally in the election
of directors of 50% or more; or
(c) the
Specified Holders shall collectively cease to, directly or indirectly, (x) own and control at least 51% of the outstanding equity interests
of the Investment Advisor, or (y) possess the right to elect (through contract, ownership of voting securities or otherwise) at all times
a majority of the board of directors (or similar governing body) of the Investment Advisor and to direct the management policies and decisions
of the Investment Advisor, or (ii) the dissolution, termination or liquidation in whole or in part, transfer or other disposition, in
each case, of all or substantially all of the assets of, the Investment Advisor;
9
(d) the
dissolution, termination or liquidation, in whole or in part, transfer or other disposition, in each case, of all or substantially all
of the assets of the Borrower, the Equityholder or the Collateral Manager, as applicable; or
(e) any
merger or consolidation involving the Borrower, or any merger or consolidation involving the Equityholder in which the Equityholder is
not the surviving entity.
“Clearing Agency”
means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
“Clearing Corporation”
means each entity included within the meaning of “clearing corporation” under Section 8-102(a)(5) of the UCC.
“Clearing Corporation
Security” means securities which are in the custody of or maintained on the books of a Clearing Corporation or a nominee subject
to the control of a Clearing Corporation and, if they are Certificated Securities in registered form, properly endorsed to or registered
in the name of the Clearing Corporation or such nominee.
“CLO Obligation”
means a security that entitles the holders thereof to receive payments that depend on the cash flow from a portfolio of commercial or
industrial bank loans, corporate loans, other debt securities or any combination of the foregoing; provided that, CLO Obligation shall
not include (a) synthetic collateralized debt obligations or (b) obligations whereby the Collateral Manager or any Affiliate thereof manages
the portfolio of loans or is a party entitled to receive payments as a purchaser of credit protection.
“Closing Date”
means November 6, 2025.
“Closing Date Collateral
Loan Schedule” means Schedule 2 attached hereto.
“Closing Date Collateral
Loans” means the Collateral Loans set forth on the Closing Date Collateral Loan Schedule.
“Code” means
the Internal Revenue Code of 1986.
“Collateral”
has the meaning assigned to such term in Section 7.01(a).
“Collateral Administrator”
has the meaning assigned to such term in the introduction to this Agreement.
“Collateral Agent”
has the meaning assigned to such term in the introduction to this Agreement.
“Collateral Loan”
means a commercial loan or bond or CLO Obligation owned or acquired by the Borrower.
10
“Collateral Loan Documents”
means, for each Collateral Loan, all instruments, documents and agreements evidencing, guaranteeing, securing,
governing or giving rise to such Collateral Loan (including those
identified on the Collateral Loan File Checklist) including but not limited to the following: (a) an executed copy of the assignment
from the prior owner to the Borrower, if applicable, for such Collateral Loan; (b)(i) the original executed promissory note (if any) or,
in the case of a lost note, a copy of the executed underlying promissory note accompanied by an original executed affidavit and indemnity
endorsed by the Borrower in blank (and an unbroken chain of endorsements from each prior holder of such promissory note to the Borrower)
or (ii) if such promissory note is not issued in the name of the Borrower or such Collateral Loan is a Noteless Loan, an executed copy
of each assignment and assumption agreement, transfer document or instrument relating to such Collateral Loan evidencing the assignment
of such Collateral Loan from any prior third party owner thereof to the Borrower and from the Borrower in blank; (c) an executed copy
of the Underlying Loan Agreement; (d) any principal security agreement securing such Collateral Loan;
(e) any guarantee executed in connection with the Collateral Loan; (f) all warrants to acquire equity
interests of any Obligor or any Affiliate of an Obligor; (g) all assumption, modification, consolidation
or extension agreements; (h) any and all UCC-1 financing statements; the funding memo (if any) in respect of the Collateral Loan;
and (i) all other documents evidencing, securing, guarantying, governing or giving rise to such Collateral
Loan, and in each case, all amendments, restatements, modifications and supplements with respect thereto.
“Collateral Loan File”
means, with respect to each Collateral Loan delivered to the Custodian, each of the Collateral Loan Documents in original or copy and
any other document delivered in connection therewith.
“Collateral
Loan File Checklist” means an electronic or hard copy, as applicable, checklist delivered
by or on behalf of the Borrower to the Custodian, for each Collateral Loan, of all Collateral Loan Documents to be included within the
respective Collateral Loan File.
“Collateral Loan Schedule
and Exception Report” means, with respect to any Collateral Loan File, a list of all the Collateral Loan Documents being held
by the Custodian in respect thereof, together with a list identifying all Exceptions related thereto.
“Collateral Management
Fee” means the fee to the Collateral Manager for services rendered and performance of its obligations under this Agreement,
in arrears on each Payment Date (subject to the availability of funds and the Priority of Payments), in an amount equal to (x) prior to
any replacement of the Collateral Manager in accordance with Section 14.08(a), 1.00% per annum of the outstanding principal
amount of the Collateral Loans; measured as of the Calculation Date immediately preceding such Payment Date (calculated on the basis of
a 360-day year and the actual number of days elapsed in the related Interest Accrual Period), and (y) from and after the date of replacement
of the Collateral Manager in accordance with Section 14.08(a), the amount agreed between the Required Lenders and such replacement
Collateral Manager.
“Collateral Management
Standard” means the performance (including the exercise of any discretion) by the Collateral Manager of its obligations under
this Agreement and the other Facility Documents in good faith and with reasonable care using a degree of skill and attention no less than
that exercised by institutional managers of national standing relating to assets of the nature and character of the Collateral Loans in
substantially similar types of transactions for clients having similar investment objectives and restrictions. To the extent not inconsistent
with the foregoing, the Collateral Manager shall follow its customary standards, policies and procedures and exercise a degree of skill
and attention no less than that which it exercises with respect to comparable assets that it manages for itself and for other clients
having similar investment objectives and restrictions.
“Collateral Manager”
has the meaning assigned to such term in the introduction to this Agreement, together with any successors permitted hereunder.
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“Collateral Manager Default”
means any one or more of the following:
(a) (x)
any failure by the Collateral Manager to make any payment, transfer or deposit into any Covered Account as required by this Agreement
within the period of time expressly required hereunder or (y) any withdrawal from a Covered Account not in accordance with the terms of
this Agreement or the other Facility Documents;
(b) any
failure by the Collateral Manager to deliver any report required to be delivered by it under this Agreement or the other Facility Documents
on or before the date on which such report is required to be delivered by it under this Agreement or such other Facility Document (which
failure continues for more than the lesser of (i) any applicable grace period expressly pertaining thereto and (ii) three (3) Business
Days, it being understood that the delivery of any Borrowing Base Certificate hereunder shall not be subject to a grace period);
(c) except
as otherwise provided in this definition, a default in any material respect in the performance or breach in any material respect of any
covenant or agreement of the Collateral Manager under any Facility Document to which it is a party, or the failure of any representation
or warranty of the Collateral Manager made in any Facility Document to be true and correct in any material respect when made or deemed
made, in each case, which failure, if capable of being cured (it being understood that no negative covenant shall be deemed capable of
being cured) continues unremedied for more than the lesser of (i) any applicable grace period expressly pertaining thereto and (ii) thirty
(30) days after the first to occur of (x) the date on which written notice of such failure requiring the same to be remedied shall have
been given to the Collateral Manager by the Administrative Agent and (y) the date on which the Collateral Manager becomes aware thereof;
(d)
an Insolvency Event shall occur with respect to the Collateral Manager;
(e)
the occurrence of an Event of Default (other than a Collateral Manager Default);
(f) the
rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money
in excess individually or in the aggregate of $1,000,000 against the Collateral Manager (exclusive of judgment amounts fully covered by
insurance for which the applicable insurer has not denied coverage), and the Collateral Manager shall not have perfected a timely appeal
of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within
thirty (30) Business Days from the date of entry thereof;
(g) the
failure of the Collateral Manager to make any payment when due (after giving effect to the longer of (i) any related grace period and
(ii) thirty (30) days from the initial due date for such payment) under any agreement for borrowed money to which it is a party and the
indebtedness for borrowed money thereunder is in an amount in excess of $10,000,000, individually or in the aggregate, or the occurrence
of any event or condition that has resulted in the acceleration of such indebtedness;
(h)
a Change of Control occurs with respect to the Equityholder or the Collateral Manager; or
(i) the
indictment or conviction of the Collateral Manager or any Key Person for a felony offense, or any act of fraud, embezzlement or misappropriation
of funds by the Collateral Manager or any Key Person and, with respect to any such act by, or indictment or conviction of, any Key Person,
a reputable, experienced individual reasonably satisfactory to the Administrative Agent has not been appointed to replace such Key Person
within thirty (30) days of such event.
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“Collection Account”
has the meaning assigned to such term in Section 8.02(b).
“Collection Period”
means a period commencing on and including the first (1st) day of each calendar month and ending on and including the last
day of such calendar month; provided that the initial Collection Period shall be the period commencing on the Closing Date and
ending on and including November 30, 2025; provided further, that the final Collection Period hereunder shall end on and include
the day of the Payment in Full of the Advances hereunder.
“Collections”
means all cash collections, distributions, payments and other amounts received, and to be received by the Borrower, from any Person in
respect of any Collateral Loan, including all principal, interest, fees, distributions and redemption and withdrawal proceeds payable
to the Borrower under or in connection with any such Collateral Loan, all servicing fees received by
the Borrower in respect of any portion of a Collateral Loan sold to a third party, guaranty payments,
all Proceeds from any sale or disposition of any such Collateral Loan or other recoveries from the Obligor or the Related Security with
respect to such Collateral Loan and all payment pursuant to any Hedging Agreement.
“Commitment”
means, as to each Lender, the obligation of such Lender to make, on and subject to the terms and conditions hereof, Advances to the Borrower
pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding for such Lender up to but not exceeding
the amount set forth opposite the name of such Lender on Schedule 1 or in the Assignment and Acceptance or other documentation
pursuant to which such Lender shall have assumed its Commitment, as applicable, as such amount may be reduced from time to time pursuant
to Section 2.06 or increased or reduced from time to time pursuant to assignments effected in accordance with Section 12.06(a).
“Commitment Termination
Date” means November 6, 2028 (as such date may be extended from time to time pursuant to Section 2.17); provided that,
if the Commitment Termination Date would otherwise not be a Business Day, then the Commitment Termination Date shall be the immediately
succeeding Business Day.
“Compliance Certificate”
has the meaning assigned to such term in Section 5.01(d)(v).
“Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch
profits Taxes.
“Constituent Documents”
means, in respect of any Person, the trust agreement, certificate or articles of formation or organization, the limited liability company
agreement, operating agreement, partnership agreement, joint venture agreement or other applicable agreement of formation or organization
(or equivalent or comparable constituent documents) and other organizational documents and by-laws and any certificate of trust, certificate
of incorporation, certificate of formation, certificate of limited partnership and other agreement or similar instrument filed or made
in connection with its formation or organization, in each case, as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.
“Continued Errors”
has the meaning specified in Section 14.08(c).
“Control” means
the direct or indirect possession of the power to direct or cause the direction of the management or policies of a Person whether through
ownership, by contract, arrangement or understanding, or otherwise. “Controlled” and “Controlling”
have the meaning correlative thereto.
“Corporate Trust Office”
means the applicable designated corporate trust office of the Custodian, the Collateral Administrator, the Account Bank, or the Securities
Intermediary, as applicable, specified on Schedule 3, or such other address within the United States as it may designate from time to
time by notice to the Administrative Agent.
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“Corresponding
Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length
(disregarding business day adjustment) as the applicable tenor for the applicable Interest Accrual Period with
respect to the then-current Benchmark Rate.
“Coverage Test”
means each of the Interest Coverage Test and the Overcollateralization Test.
“Coverage Test Deficiency”
means a condition occurring on any day on which any Coverage Test is not satisfied.
“Covered Accounts”
means each of the Collection Account, the Pre-Funding Account and the Custodian Account.
“Credit Policies and
Procedures” means the Credit and Collection Policies and Procedures of the Collateral Manager attached hereto as Exhibit
E, as in effect on the Closing Date or as modified from time to time in a manner expressly permitted pursuant to Section 5.02(u);
provided that the Credit Policies and Procedures shall include risk rating methodology and provide that the Obligors of the Collateral
Loans shall have some (but not necessarily all) of the following characteristics: (i) a strong management team, (ii) a proven ability
to withstand industry and credit cycles, (iii) revenue greater than $10,000,000 on an annual basis, (iv) EBITDA greater than $2,000,000
(other than Recurring Revenue Loans), (v) strong margins and free cashflow (other than Recurring Revenue Loans), (vi) modest capital expenditures
and (vii) recurring revenue and stable historical performance.
“Currency Hedge Transaction”
means each currency swap transaction, index rate swap or interest rate cap transaction or comparable derivative arrangements, in each
case, as the Administrative Agent may approve in its discretion between the Borrower and a Hedge Counterparty that is entered into pursuant
to Section 5.01(q) and is governed by a Hedging Agreement.
“Custodian”
has the meaning assigned to such term in the introduction to this Agreement.
“Custodian Fee Letter”
means the fee letter, dated October 10, 2025, by and among the Borrower and U.S. Bank Trust Company, the Collateral Administrator, the
Custodian and the Securities Intermediary setting forth the amounts payable by the Borrower to the Collateral Administrator, the Custodian
and the Securities Intermediary in connection with the transactions contemplated by this Agreement.
“Custodian Account”
has the meaning assigned to such term in Section 8.02(c).
“Data File”
has the meaning specified in Section 8.06(a).
“Debtor Relief Laws”
means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in effect.
“Default” means
any event which, with the passage of time, the giving of notice, or both, would constitute an Event of Default.
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“Defaulting Lender”
means, subject to Section 6.18(d), any Lender that (a) has failed to (i) fund all or any portion of its Advances within two Business
Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower
in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each
of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days
of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its
funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such
Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination that
a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in
such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative
Agent or the Borrower to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding
obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt
of such written confirmation by the Administrative Agent or the Borrower), or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business
or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity,
or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority
so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the
United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority)
to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative
Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(d)) upon delivery of written
notice of such determination to the Borrower and each Lender.
“Default Rate”
means a rate per annum equal to the rate of interest otherwise in effect pursuant to this Agreement (or, if no such rate is specified,
the Base Rate) plus 2.00% per annum; provided that such additional margin shall not be applied pursuant to this definition in any
case where it has already been applied pursuant to the definition of “Applicable Margin.”
“Defaulted Loan”
means any Collateral Loan:
(a) with
respect to which a default as to the payment of principal and/or interest has occurred and is continuing; provided that any such
default may continue for a period of up to the lesser of (i) the length of any applicable grace period or waiver set forth in the Related
Documents for such Collateral Loan and (ii) 10 days from the date of such default (in the case of a Collateral Loan other than a Secured
Bond or Unsecured Bond) or 30 days from the date of such default (in the case of a Collateral Loan consisting of a Secured Bond or an
Unsecured Bond);
(b) [reserved;]
(c) in
respect of which the Borrower or the Collateral Manager (or the applicable agent on behalf of the lenders under the applicable Related
Documents) shall have taken (and not rescinded or otherwise terminated) any of the following actions: acceleration of the Collateral Loan
or the exercise of rights and remedies against the collateral for the Collateral Loan; or
(d) with
respect to which the Obligor thereunder or others have instituted proceedings to have such Obligor adjudicated as bankrupt or insolvent
or placed into receivership and such proceedings have not been stayed or dismissed or such Obligor has filed for protection under the
Bankruptcy Code; provided that any Collateral Loans consisting of pre-petition loans owed to the Borrower shall become ineligible upon
the occurrence of an Insolvency Event with respect to the related Obligor.
15
“Delayed Drawdown Collateral
Loan” means a Collateral Loan that provides for an unfunded delayed draw term commitment to advance amounts to the applicable
Obligor during a specified term; provided that, for the avoidance of doubt, any uncommitted or discretionary delayed draw capacity
shall not be a Delayed Drawdown Collateral Loan; provided further that any such Collateral Loan will be a Delayed Drawdown Collateral
Loan only to the extent of unfunded commitments and solely until all commitments by the Borrower to make advances on such Collateral Loan
to the Obligor under the Related Documents expire or are terminated.
“Deliver” or
“Delivered” or “Delivery” means the taking of the following steps:
(a) with
respect to such of the Collateral as constitutes an instrument that does not constitute a Financial Asset forming the basis of a Security
Entitlement Delivered to the Custodian pursuant to the other clauses of this definition, causing the Custodian to take and continuously
maintain possession of such instrument indorsed to the Collateral Agent or in blank by an effective indorsement;
(b) with
respect to such of the Collateral as constitutes a Certificated Security, (A) causing the delivery of such Certificated Security to the
Custodian registered in the name of the Collateral Agent or its affiliated nominee or endorsed to the Collateral Agent or in blank, (B)
causing the Custodian to continuously identify on its books and records that such Certificated Security is credited to the appropriate
Covered Account and (C) causing the Custodian to maintain continuous possession of such Certificated Security;
(c) with
respect to such of the Collateral as constitutes an Uncertificated Security, either (i) causing the issuer of such Uncertificated Security
to register the Collateral Agent as the registered owner of such Uncertificated Security or (ii) causing the issuer of such Uncertificated
Security to agree to comply with instructions of the Collateral Agent without further consent of the Borrower, upon original issue or
registration of transfer by the issuer of such Uncertificated Security;
(d) with
respect to such of the Collateral as constitutes a Security Entitlement, causing the Custodian as Securities Intermediary to indicate
by book entry that the Financial Asset relating to such Security Entitlement has been credited to the appropriate Covered Account;
(e) with
respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be maintained in the name of the Account
Bank and causing the bank with which such deposit account is maintained to agree in writing with the parties hereto that (i) such bank
shall comply with instructions originated by the Collateral Agent directing disposition of the funds in the deposit account without further
consent of any other Person, (ii) such bank will not agree with any Person other than the Collateral Agent to comply with instructions
originated by any Person other than the Collateral Agent, (iii) such deposit account and the funds on deposit therein shall not be subject
to any Lien or right of set-off in favor of such bank or anyone claiming through it (other than the Collateral Agent) other than as permitted
by the applicable Account Control Agreement, (iv) such agreement shall be governed by the laws of the State of New York, and (v) with
respect to such bank, the State of New York shall be the “bank’s jurisdiction” for purposes of Article 9 of the UCC;
16
(f) with
respect to such of the Collateral as constitutes an account or a general intangible or is not otherwise described in the foregoing clauses
(a)-(e), causing to be filed with the Secretary of State for the State of Delaware a properly completed UCC financing statement that names
the Borrower as debtor and the Collateral Agent as secured party and that describes such Collateral (which financing statement may have
been previously filed) or any equivalent filing in any applicable jurisdiction; or
(g) in
the case of each of clauses (a) through (f) above, such additional or alternative procedures as may hereafter become necessary
or desirable to perfect the security interest granted to the Collateral Agent hereunder in such items of the Collateral, consistent with
Applicable Law.
In addition, the Collateral Manager
on behalf of the Borrower will obtain any and all consents required by the Related Documents relating to any Instruments, accounts or
general intangibles for the transfer of ownership and/or pledge hereunder (except to the extent that the requirement for such consent
is rendered ineffective under Section 9-406 of the UCC).
“Determination Date”
means the last day of each calendar month.
“DIP Loan”
means any Collateral Loan (i) which is an obligation of a debtor-in-possession pursuant to Section 364 of the Bankruptcy Code, (ii) the
terms of which have been approved by an order of a United States Bankruptcy Court, a United States District Court, or any other court
of competent jurisdiction, the enforceability of which order is not subject to any pending contested matter or proceeding (as such terms
are defined in the Federal Rules of Bankruptcy Procedure), (iii) which is secured by Liens having the priority allowed by either Section
364(c) or 364(d) of the Bankruptcy Code, (iv) which pays cash interest on a current basis, and (v) which has paid its most recent scheduled
interest and principal payments (if any) and the Collateral Manager reasonably expects that the Collateral Loan will continue to pay interest
and principal on a current basis. Notwithstanding the foregoing, a DIP Loan which otherwise satisfies the criteria set forth in the definition
of Last-Out Loan or Second Lien Loan shall be treated as a Last-Out Loan or Second Lien Loan, as the case may be.
“Documentation Agent”
has the meaning assigned to such term in the introduction to this Agreement.
“Dollars”,
“USD” and “$” mean lawful money of the United States of America.
“Due Date”
means each date on which any payment is due on a Collateral Loan in accordance with its terms.
“EBITDA” means,
with respect to any period and any Collateral Loan, the meaning of “EBITDA”, “Adjusted EBITDA” or any comparable
definition in the Related Documents for each such Collateral Loan (together with all add-backs and exclusions as designated in such documents),
and in any case that “EBITDA”, “Adjusted EBITDA” or such comparable definition is not defined in such Related
Documents, an amount, for the principal obligor on such Collateral Loan and any of its parents or subsidiaries that are obligated pursuant
to the Related Documents for such Collateral Loan (determined on a consolidated basis without duplication in accordance with GAAP) equal
to earnings from continuing operations for such period plus interest expense, income taxes and unallocated depreciation and amortization
for such period (to the extent deducted in determining earnings from continuing operations for such period), and any other item the Borrower
and the Administrative Agent mutually deem to be appropriate.
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“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of
this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described
in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Collateral
Loan” means a Collateral Loan that satisfies each of the following eligibility requirements on any date of determination
(unless otherwise expressly waived by the Administrative Agent, in its sole discretion on a case-by-case basis; provided that, in the
event that greater than 10% of the Borrowing Base Value is derived from Collateral Loans for which (i) one or more of the below eligibility
requirements have been waived or (ii) Excess Concentration Amounts have been approved, by the Administrative Agent in its sole discretion,
any additional waivers by the Administrative Agent shall require the consent of the Required Lenders):
(a) is
a Senior Secured Loan, a Secured Bond, a Unitranche Loan, a Recurring Revenue Loan, a Qualifying Last-Out Loan, a Non-Qualifying Last
Out Loan, a Second Lien Loan, a CLO Obligation with an original rating of “BB-” or higher by S&P, “BB-“”
or higher by Fitch or “Ba3” or higher by Moody’s or an Unsecured Bond;
(b) is
originated, underwritten, purchased and re-underwritten, documented and managed in accordance with the Credit Policies and Procedures,
including (x) with respect to each Closing Date Collateral Loan, the completion of a valuation assessment by the board of directors of
the Collateral Manager, and (y) with respect to each Collateral Loan purchased or acquired after the Closing Date, the completion at the
first quarterly reporting period of the Collateral Manager of a valuation assessment by the board of directors of the Collateral Manager
or confirmation by the Borrower to the Administrative Agent that such Collateral Loan has been originated at par;
(c) the
origination and/or acquisition of such Collateral Loan is unanimously approved by each member of the investment committee of the Collateral
Manager or the Equityholder;
(d) is
rated “Green” at the time it is originated or acquired by the Borrower, and at all times thereafter in accordance with the
Risk Rating System; provided that, if a Collateral Loan declines to “Yellow” or “Red” and is subsequently rated
“Green”, then the Administrative Agent shall have the right to approve the reinstatement of such Collateral Loan as an Eligible
Collateral Loan;
(e) is
not a Defaulted Loan;
(f) does
not have an original term to maturity of greater than 120 months (other than any CLO Obligation which may have a longer original term
to maturity); provided that only the portion of any Collateral Loan that causes the remaining Weighted Average Life of Eligible
Collateral Loans to exceed 78 months shall be ineligible;
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(g) such
Collateral Loan provides for periodic payments of accrued and unpaid interest in cash no less frequently than semi-annually;
(h) such
Collateral Loan is not a PIK Loan;
(i) such
Collateral Loan is not a DIP Loan;
(j) such
Collateral Loan is not a Mezzanine Loan;
(k) such
Collateral Loan is not a Hybrid Secured Bond;
(l) if
such Collateral Loan is a Delayed Drawdown Collateral Loan, such Borrower has not failed to make any required advance thereunder and as
a result become a “Defaulting Lender” pursuant to the applicable Related Documents;
(m) is
not a Revolving Loan and does not otherwise subject the Borrower to ongoing and future funding obligations following origination or acquisition
by the Borrower throughout such Collateral Loan’s commitment term until maturity (it being understood that the foregoing shall not
include Delayed Drawdown Collateral Loans);
(n) such
Collateral Loan provides for a fixed amount of principal payable in cash no later than its stated maturity;
(o) such
Collateral Loan (other than any Recurring Revenue Loan) does not have EBITDA for the most recent Relevant Test Period for which financial
statements were (or were required to be) delivered by the Obligor of less than zero;
(p) neither
the Borrower nor any Affiliate thereof shall own 10.0% or more of the voting equity interests of the related Obligor or any Affiliate
thereof, or any equity interests that are immediately convertible into or immediately exercisable or exchangeable for 10.0% or more of
the voting securities of the related Obligor or any Affiliate thereof;
(q) the
proceeds of such Collateral Loan were not used to finance real estate construction projects or activities (which, for the avoidance of
doubt, shall not include the build-out or remodeling of an Obligor’s improvements);
(r) the
Borrower owns and has legal, marketable and beneficial title to such Collateral Loan and the Borrower’s interest in such Collateral
Loan and Related Property is owned by the Borrower free and clear of any adverse claim in favor of any Person except for Permitted Liens,
and all filings and other actions required to perfect the security interest of the Administrative Agent on behalf of the Secured Parties
in such Collateral Loan have been made or taken;
(s) such
Collateral Loan is not an Equity Security and such Collateral Loan does not by its terms permit the payment obligation of the Obligor
thereunder to be converted into or exchanged for equity capital;
(t) the
Related Documents with respect to the Collateral Loan contain a provision substantially to the effect that the related Obligor’s
payment obligations are not subject to rights of rescission, set-off and counterclaim against the Borrower and its assignees;
19
(u) no
right of rescission, set off, counterclaim, defense or other material dispute has been asserted with respect to such Collateral Loan;
(v) such
Collateral Loan does not contain a confidentiality provision that expressly restricts the ability of the Administrative Agent, on behalf
of the Secured Parties, to exercise its rights under the Facility Documents, including its rights to review the Collateral Loan and Related
Documents; provided however that a provision which requires the Custodian or other prospective recipient of confidential information
to maintain the confidentiality of such information shall not be deemed to restrict the exercise of such rights;
(w) such
Collateral Loan has not been prepaid or repaid in full;
(x) such
Obligor or its related guarantor with respect to such Collateral Loan is not engaged in any of the following: (1) assault weapons, firearms
or ammunition manufacturing, (2) consumer lending, payday lending, title lending, pawn shops, or adult entertainment, (3) illegal or internet
gaming (excluding, for the avoidance of doubt, hospitality and/or resorts development or management thereof), or (4) the sale or cultivation
of marijuana or directly related businesses;
(y) the
sale or transfer of such Collateral Loan does not contravene any Applicable Laws and such Collateral Loan is not subject to the law of
a state or province that prohibits such sale or transfer;
(z) the
financing of such Collateral Loan by the Administrative Agent or any Lender does not contravene in any material respect Regulation U nor
require the Administrative Agent or any Lender to undertake reporting thereunder which it would not otherwise have cause to make;
(aa) the primary
Obligor with respect to such Collateral Loan (i) is domiciled in the United States or Canada (or, in each case, in any territory thereof),
(ii) is operating in compliance with all Applicable Laws and regulations in the United States or Canada, as applicable, and (iii) has
a billing address in the United States or Canada, as applicable;
(bb) the Related
Documents with respect to such Collateral Loan are governed by the laws of the United States or Canada (or a state or province thereof);
(cc) is denominated
and payable in an Eligible Currency and does not permit the currency in which such Collateral Loan is denominated to be changed (other
than, in the case of a Collateral Loan denominated in Canadian Dollars, a conversion to Dollars); provided further that for any
transaction denominated in Canadian Dollars, the Borrower has entered into a Currency Hedge Transaction in accordance with Section
5.01(q);
(dd) the Obligor
with respect to such Collateral Loan is not (i) a Governmental Authority, (ii) an Affiliate of the Borrower, the Equityholder or the Collateral
Manager or (iii) an entity to which the Borrower, the Equityholder or the Collateral Manager would be deemed an Insider (as defined in
Section 1010(31) of the Bankruptcy Code), unless the related Obligor has been approved by the Administrative Agent;
(ee) all information
set forth in the applicable Data File pertaining to such Collateral Loan or otherwise delivered to the Administrative Agent or any Lender
hereunder with respect thereto is true and correct in all material respects;
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(ff) such Collateral
Loan was purchased or originated by the Borrower and the documentation evidencing and securing such Collateral Loan complies with all
Applicable Laws and regulations, and there is no pending or overtly threatened litigation with respect to the validity or enforceability
of the documentation, and such legal documents are held in an electronic vault or other safekeeping arrangement acceptable to the Administrative
Agent in its sole discretion within five (5) Business Days (or other reasonable period acceptable to the Administrative Agent) following
the addition thereof;
(gg) such Collateral
Loan was originated and is being serviced in compliance with Applicable Laws and regulations;
(hh) such Collateral
Loan has not been amended after the origination or acquisition thereof (or, in the case of a Closing Date Collateral Loan, after the Closing
Date) in a manner that would constitute a Material Modification, unless consented to in writing by the Administrative Agent, in its sole
discretion (or, in the event that more than 15% of the Aggregate Adjusted Borrowing Value is derived from Collateral Loans subject
to a Material Modification, acting at the direction of the Required Lenders);
(ii) the
Underlying Loan Agreement and the Related Documents for such Collateral Loan constitute the genuine, legal, valid and binding obligations
of the related Obligors thereunder and each guarantor thereof, enforceable against such Person in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally or general equitable principles, regardless of whether applied in a proceeding at law or in equity;
(jj) such Collateral
Loan does not arise from a transaction that requires (i) additional performance by the Borrower or (ii) acceptance by or other act of
the Obligor thereunder, which remains to be performed;
(kk) the Related
Documents for such Collateral Loan do not contravene in any material respect any Applicable Laws (including laws, rules and regulations
relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices
and privacy) and no party to such Collateral Loan is in violation of any such law, rule or regulation that would reasonably be expected
to have a material adverse effect on the collectability, value or payment terms of such Collateral Loan;
(ll) no proceedings
or investigations are pending or threatened before any Governmental Authority (i) asserting the invalidity of any payment under such Collateral
Loan, (ii) seeking to rescind such Collateral Loan or any payment thereunder, or (iii) seeking any determination or ruling that might
materially and adversely affect the validity or enforceability of such Collateral Loan or any payment thereunder;
(mm) the Related
Documents for such Collateral Loan are not subject to any provision prohibiting or otherwise restricting the assignment or transfer thereof,
or the granting of a security interest therein, in either case, to Borrower by the applicable originator or to the Administrative Agent
by Borrower (except for such consents which have been obtained prior to the related Acquisition Date and restrictions on assignment or
transfer of such contract payment or related loan agreement to competitors of the obligor thereunder, which in any event do not restrict
the transfer to Borrower or any transfer to the Administrative Agent and Lender hereunder);
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(nn) such Collateral
Loan does not arise under an Underlying Loan Agreement which was not originated by Borrower in the ordinary course of business or acquired
by Borrower from the Equityholder under the Sale Agreement and which represents a bona fide indebtedness of the Obligor;
(oo) Such
Related Documents are not incomplete in contravention of the Credit Policies and Procedures, and are Delivered to the Custodian within
five (5) Business Days in accordance with the terms hereof;
(pp) Such Collateral
Loan requires that such collateral securing such Collateral Loan be insured (notwithstanding any provision of the Credit Policies and
Procedures to the contrary);
(qq) the applicable
Obligor and the Related Property securing such Collateral Loan are subject to one or more valid and effective UCC-1 financing statements
or provincial filings in the appropriate jurisdiction;
(rr) the Related
Documents for such Collateral Loan do not permit such Collateral Loan or any payment obligation in respect thereof to be converted into
or exchanged for equity capital of the related Obligor at the Obligor’s option;
(ss) the Related
Documents for such Collateral Loan contain provisions customary for similar financing agreements with respect to the Related Property
thereunder in order to enable the Borrower (or the applicable secured party) to realize against such Related Property (to the extent such
collateral secures or supports the payment of the Collateral Loan), including provisions that permit the lenders or bondholders, as applicable,
to accelerate all remaining payments if the Obligor is in default under any of its obligations under such Related Documents, and is permitted
to sell any such collateral securing such loan or bond to repay any obligations owed under the Related Documents (subject to customary
notice and cure periods under the Related Documents);
(tt) such Collateral
Loan is documented to include the Borrower’s and the Collateral Manager’s standard features and requirements for a loan and
security agreement, bond indenture and other required agreements;
(uu) no Obligor in
respect of such Collateral Loan is an Affiliate of the Borrower or is a governmental authority;
(vv) no portion of
such Collateral Loan is held by the Borrower pursuant to a participation interest and the Borrower has not granted a participation interest
in any portion of such Collateral Loan to any Person; and
(ww) no withholding
Tax is imposed on payments on such Collateral Loan (or such payments will be grossed up for any such withholding Tax).
Notwithstanding the foregoing
or any other provision of any Facility Documents, no Collateral Obligation denominated in Canadian Dollars shall be an Eligible Collateral
Loan prior to the date on which the Collateral Agent has received evidence that appropriate Collection Accounts for the receipt of Collections
denominated in Canadian Dollars have been established with the Account Bank and are subject to the Account Control Agreement.
“Eligible Currency”
“means Dollars and Canadian Dollars.
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“Eligible Investments”
means any Dollar-denominated investment that, at the time it is Delivered, is Cash or money market funds that have, at all times,
ratings in the highest credit rating category by Moody’s and S&P (based on tranche rating not corporate family rating). Any
such investment may be made or acquired from or through the Account Bank or any of its Affiliates, or any entity for whom the Account
Bank or any of its Affiliates provides services and receives compensation (so long as such investment otherwise meets the applicable requirements
of the foregoing definition of Eligible Investment at the time of its acquisition).
“Equity Security”
means, with respect to any Person, all of the shares of capital stock, limited liability company interests or membership interests of
(or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition
from such Person of shares of capital stock, limited liability company interests or membership interests of (or other ownership or profit
interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock, limited liability company
interests or membership interests of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase
or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.
“Equity Pledge Agreement”
means that certain Equity Pledge Agreement, dated as of the Closing Date, by and between the Equityholder and the Collateral Agent.
“Equityholder”
has the meaning assigned to such term in the introduction to this Agreement.
“Equityholder Collateral
Loan” means each Collateral Loan sold and/or contributed by the Equityholder to the Borrower pursuant to the Sale Agreement.
“Equityholder Purchased
Loan Balance” means, as of any date of determination, an amount equal to (a) the Aggregate Principal Balance of all Equityholder
Collateral Loans acquired by the Borrower prior to such date minus (b) the Aggregate Principal Balance of all Equityholder
Collateral Loans sold by the Borrower to the Equityholder prior to such date.
“ERISA” means
the Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder.
“ERISA Event”
means:
(a) any
“reportable event,” within the meaning of Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the thirty (30) day notice requirement is waived);
(b) the
failure with respect to any Plan to satisfy the “minimum funding standard” within the meaning of Section 412 of the Code or
Section 302 of ERISA;
(c) the
filing pursuant to Section 412(c) of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan;
(d) a
determination that any Plan is, or is expected to be, in “at risk” status within the meaning of Section 430(i)(4) of the Code
or Section 303(i)(4) of ERISA;
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(e) the
incurrence by the Borrower or any member of its ERISA Group of any liability under Title IV of ERISA with respect to the termination of
any Plan;
(f) (1)
the receipt by the Borrower or any member of its ERISA Group from the PBGC of a notice of determination that the PBGC intends to seek
termination of any Plan or to have a trustee appointed for any Plan, or (2) the filing by the Borrower or any member of its ERISA Group
of a notice of intent to terminate any Plan;
(g) the
incurrence by the Borrower or any member of its ERISA Group of any liability (1) with respect to a Plan pursuant to Sections 4063 and
4064 of ERISA, (2) with respect to a facility closing pursuant to Section 4062(e) of ERISA, or (3) with respect to the withdrawal or partial
withdrawal from any Multiemployer Plan;
(h) the
receipt by the Borrower or any member of its ERISA Group of any notice concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, in endangered status or critical status, within the meaning of Section 432 of the
Code or Section 305 of ERISA or is or is expected to be insolvent or terminated within the meaning of Title IV of ERISA; or
(i) the
failure of the Borrower or any member of its ERISA Group to make any required contribution to a Multiemployer Plan.
“ERISA Group”
means each controlled group of corporations or trades or businesses (whether or not incorporated) under common control that is treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code with the Borrower.
“Erroneous Payment”
has the meaning assigned to such term in Section 11.07(a).
“Erroneous Payment Notice”
has the meaning assigned to such term in Section 11.07(b).
“Erroneous Payment Subrogation
Rights” has the meaning assigned to such term in Section 11.07(d).
“Errors” has
the meaning specified in Section 14.08(c).
“Event of Default”
has the meaning assigned to such term in Section 6.01.
“Exception”
means, with respect to any Collateral Loan, (i) any variance from the documents purported to be delivered
in any related Collateral Loan File Checklist, or (ii) any Collateral Loan Document which has been released from the possession of the
Custodian for a period in excess of twenty (20) calendar days.
“Excess Cash”
means as (a) of any Payment Date, the aggregate amount of Cash on deposit in the Collection Account (whether in the Interest Collection
Account or the Principal Collection Account) that would be eligible for distribution to Borrower pursuant to Section 9.01(a)(i)(H),
and (b) as of any other date, the aggregate amount of Cash on deposit in the Collection Account on such date, net of the aggregate amount
of cash necessary to make the distributions pursuant to Section 9.01(a)(i)(A) through (G) in full on the next succeeding
Payment Date, as certified by the Borrower to the Administrative Agent in the applicable Borrowing Base Certificate delivered as of such
date in accordance with Section 5.02(r).
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“Excess Concentration
Amount” means, as of any date of determination, the sum of, without duplication and unless the Administrative Agent in its sole
discretion otherwise approves any such excess in writing:
(a) if
there are 10 or less Obligors under Collateral Loans, the aggregate amount by which the total of the Borrowing Base Value of all Collateral
Loans which are made to any single Obligor exceeds 5% of the Borrower’s Tangible Net Worth;
(b) if
there are greater than 10, but less than or equal to 15 Obligors under Collateral Loans, the aggregate amount by which the total of the
Borrowing Base Value of all Collateral Loans which are made to any single Obligor exceeds 7.5% of the Borrower’s Tangible Net Worth;
(c) if
there are greater than 15, but less than or equal to 20 Obligors under Collateral Loans, the aggregate amount by which the total of the
Borrowing Base Value of all Collateral Loans which are made to any single Obligor exceeds 10% of the Borrower’s Tangible Net Worth;
(d) if
there are greater than 20 Obligors under Collateral Loans, the aggregate amount by which the total of the Borrowing Base Value of all
Collateral Loans which are made to any single Obligor exceeds 15% of the Borrower’s Tangible Net Worth;
(e) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which are made to the three largest Obligors in
the aggregate exceeds 3035%
of the Aggregate ECA Value;
(f) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans with a single Obligor with an Assigned Value of
less than 65% exceeds 10% of the Aggregate ECA Value;
(g) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans rated “Yellow” or “Red”
in accordance with the Risk Rating System exceeds 0% of the Aggregate ECA Value;
(h) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans to Obligors in any one Industry (other than healthcare)
exceeds more than 15.0% of the Aggregate ECA Value;
(i) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans to Obligors in the healthcare Industry exceeds
more than 25.035.0%
of the Aggregate ECA Value;
(j) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans in respect of which interest is paid in cash less
frequently than quarterly exceeds more than 25.0% of the Aggregate ECA Value;
(k) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans denominated in Canadian Dollars exceeds more than
10.0% of the Aggregate ECA Value; provided that all Collections received on such Eligible Collateral Loans denominated in Canadian
Dollars shall be subject to a Currency Hedge Transaction in accordance with Section 5.01(q);
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(l) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans denominated in currencies other than Dollars or
Canadian Dollars exceeds more than 0.0% of the Aggregate ECA Value;
(m) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which are principally secured by real property
exceeds more than 10.0% of the aggregate ECA Value;
(n) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of Unsecured Bonds in the aggregate
exceeds more than 15.0% of the Aggregate ECA Value;
(o) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of Recurring Revenue Loans exceeds
more than 25.0% of the Aggregate ECA Value;
(p) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of Second Lien Loans exceeds more
than 25.0% of the Aggregate Adjusted Borrowing Value;
(q) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of Non-Qualifying Last Out Loans
exceeds more than 25.0% of the Aggregate Adjusted Borrowing Value;
(r) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of CLO Obligations exceeds more
than 25.0% of the Aggregate Adjusted Borrowing Value;
(s) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans which consist of Second Lien Loans, Non-Qualifying
Last Out Loans and CLO Obligations, in the aggregate exceeds more than 50.0% of the Aggregate Adjusted Borrowing Value; and
(t) the
aggregate amount by which the total of the Borrowing Base Value of all Collateral Loans where the Borrower does not have Sacred Rights
exceeds more than 10.0% of the Aggregate ECA Value.
“Exchange Act”
means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, all as from time to time in effect, or
any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference
to any successor statutory or regulatory provision.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to a Secured Party or required to be withheld or deducted from a payment to
a Secured Party (a) Taxes imposed on or measured by net income (however denominated), or that are franchise Taxes or branch
profits Taxes, in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under the laws of which such
Secured Party is organized or in which its principal office is located, or in the case of any Lender, in which its applicable lending
office is located or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Commitment or Advance pursuant to a Law in effect
on the date on which (i) such Lender acquires such interest in the Commitment or Advance or (ii) such Lender designates a new lending
office, except in each case to the extent that, pursuant to Section 12.03, amounts with respect to such Taxes were payable either
to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its
lending office, (c) Taxes attributable to such Secured Party’s failure to comply with Section 12.03(f), and (d) any withholding
Taxes imposed by FATCA.
26
“Facility Amount”
means $85,000,000110,000,000
(as such amount may be reduced from time to time pursuant to Section 2.06 or increased from time to time pursuant to Section
2.17).
“Facility Documents”
means this Agreement, the Account Control Agreement, the Administrative Agent Fee Letter, the Custodian Fee Letter, the LLC Agreement,
the Sale Agreement, the Equity Pledge Agreement, the Springing Guaranty Agreement, any promissory note issued hereunder, and any other
security agreements and other instruments entered into or delivered by or on behalf of the Borrower, the Equityholder or the Collateral
Manager in favor of the Administrative Agent, the Collateral Agent or any Lender from time to time pursuant to this Agreement.
“Fair Value”
means with respect to each Collateral Loan, expressed as a percentage of the par amount of such Collateral Loan unless the context requires
otherwise, the lower of (a) the remaining Principal Balance of such Collateral Loan, and (b) if such Collateral Loan has been reduced
in value on the books of the Equityholder below the remaining Principal Balance thereof, the value of such Collateral Loan on such books
as required by, and in accordance with, the Investment Company Act, as amended, and any orders of the SEC issued to the Equityholder,
to be determined by the Board of Directors of the Equityholder (based on input from its audit committee, investment advisor and independent
valuation firm (if applicable)) and reviewed by its auditors.
“FATCA” means
Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended versions of Sections 1471 through 1474 of the
Code that are substantively comparable and not materially more onerous to comply with), any current or future regulations or official
interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation,
rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing
such Sections of the Code.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received
by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Federal
Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at
http://www.newyorkfed.org, or any successor source.
“Final Maturity Date”
means the earliest to occur of (i) the date on which the Borrower (or the Collateral Manager on its behalf) reduces the Facility Amount
in full pursuant to Section 2.06(b); (ii) the Commitment Termination Date; and (iii) the date on which the Commitments are terminated
pursuant to Section 6.02(a); provided, that, in the case of the foregoing clauses (i) and (ii), if such day
is not a Business Day, then the Final Maturity Date shall be the next succeeding Business Day.
“Financial Asset”
has the meaning specified in Section 8-102(a)(9) of the UCC.
27
“Fitch” means
Fitch Ratings, Inc., together with its successors.
“Floor” means
1.00% per annum.
“Fundamental Amendment”
means any amendment, modification, waiver or supplement of or to this Agreement that would (as determined by the Required Lenders) (a)
increase or extend the term of the Commitments or change the Final Maturity Date, (b) extend the date fixed for the payment of principal
of or interest on any Advance or any fee hereunder, (c) reduce the amount of any scheduled payment of principal or the amount of any other
payment due to any Lender, (d) reduce the rate at which interest is payable thereon or any fee is payable hereunder (other than any
waiver or rescission of the Default Rate), (e) release any material portion of the Collateral, except in connection with dispositions
expressly permitted hereunder, (f) subordinate, or have the effect of subordinating, the Obligations under the Facility Documents to any
other Indebtedness, (g) subordinate, or have the effect of subordinating, the Liens securing the Obligations to Liens securing any other
Indebtedness, (h) alter the terms of Section 9.01 or Section 12.01(b) or, for purposes of Sections 9.01 or 12.01(b),
alter any defined term or alter any other provision of this Agreement to the extent such alteration would alter the order of application
of proceeds or the pro rata sharing of payments required thereby or (i) modify the definitions of the terms “Required Lenders”
or “Fundamental Amendment” or modify in any other manner the number or percentage of the Lenders required to make any determinations
or waive any rights hereunder or to modify any provision hereof.
“GAAP” means
generally accepted accounting principles in effect from time to time in the United States.
“Governmental Authority”
means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body,
administrative tribunal, central bank, public office, court, arbitration or mediation panel, or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of government, including the SEC, the stock exchanges, any federal,
state, territorial, county, municipal or other government or governmental agency, arbitrator, board, body, branch, bureau, commission,
court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of
any of the foregoing, whether domestic or foreign.
“Governmental Authorizations”
means all franchises, permits, licenses, approvals, consents and other authorizations of all Governmental Authorities.
“Governmental Filings”
means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated
with such filings with all Governmental Authorities.
“Guarantor”
means the Equityholder.
“Hedge Collateral”
has the meaning assigned to such term in Section 7.01(d).
“Hedge Counterparty”
means any entity that (a) on the date of entering into any Currency Hedge Transaction (i) has been approved in writing by the Administrative
Agent (which approval shall not be unreasonably withheld), and (ii) has a short-term unsecured debt rating of not less than A-1 by S&P
and not less than P-1 by Moody’s, and (b) in a Hedging Agreement (i) consents to the assignment of the Borrower’s rights under
the Hedging Agreement to the Administrative Agent pursuant to Section 5.01(q) and (ii) agrees that in the event that S&P or
Moody’s reduces its short-term unsecured debt rating below A-1 or P-1, respectively, it shall transfer its rights and obligations
under each Currency Hedge Transaction to another entity that meets the requirements of clause (a) and (b) hereof or make other arrangements
acceptable to the Administrative Agent.
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“Hedging Agreement”
means each agreement between the Borrower and a Hedge Counterparty that governs one or more Currency Hedge Transactions entered into pursuant
to Section 5.01(q), which agreement shall consist of a “Master Agreement” in a form published by the International
Swaps and Derivatives Association, Inc., together with a “Schedule” thereto substantially in a form as the Administrative
Agent shall approve in writing, and each “Confirmation” thereunder confirming the specific terms of each such Currency Hedge
Transaction.
“Hybrid Secured Bond”
means an unsubordinated first priority bond obligation that (a) is not secured solely or primarily by the underlying Obligor’s common
stock or other equity interests, (b) has an initial Loan-to-Value Ratio of less than or equal to 65%, (c) with respect to which the Obligor
Net Leverage Ratio is less than 4.5 to 1.00, and (d) is subject only to (x) Liens that do not secure a maximum principal amount (including
unfunded commitments) in excess of 20% of the sum of such maximum principal amount thereof plus the maximum principal amount (including
unfunded commitments) of all Indebtedness under the same bond issue to which such Hybrid Secured Bond was issued and (y) any “permitted
liens” as defined in the applicable Related Documents or such comparable definition in “permitted liens” is not defined
therein, so long as such definition is reasonable and customary; provided that only the amount of such Hybrid Secured Bond that
exceeds the foregoing limitations on initial Loan-to-Value Ratio or Obligor Net Leverage Ratio shall be ineligible.
“Indebtedness”
means for any Person (without duplication) (a) all indebtedness created, assumed or incurred in any manner by such Person representing
money borrowed (including by the issuance of debt securities), (b) all indebtedness for the deferred purchase price of property or services
(other than trade accounts payable arising in the ordinary course of business, (c) all indebtedness secured by any Lien upon property
of such Person, whether or not such Person has assumed or become liable for the payment of such indebtedness, (d) all capitalized lease
obligations of such Person, (e) all obligations of such Person on or with respect to letters of credit, bankers’ acceptances and
other extensions of credit whether or not representing obligations for borrowed money, (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any equity interest in such Person or any other Person or any warrant,
right or option to acquire such equity interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends, (g) all obligations in respect of hedging agreements and (h)
all guarantees of such Person in respect of any of the foregoing. The amount of any Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms
of such Indebtedness expressly provide that such Person is not liable therefor.
“Indemnified Party”
has the meaning assigned to such term in Section 12.04(b).
“Independent
Accountants” has the meaning assigned to such term in Section 8.08(a).
29
“Independent Manager”
means an independent manager or director who is provided by Stewart Management Company, CT Corporation, Puglisi & Associates, Corporation
Service Company, National Registered Agents, Inc., Wilmington Trust Company, Lord Securities Corporation, Citadel SPV or, if none of those
companies is then providing professional Independent Managers, another nationally recognized company reasonably approved by the Administrative
Agent, in each case that is not an Affiliate of the Borrower or the Collateral Manager and that provides professional Independent Managers
and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager
and is not, and has never been, and will not while serving as Independent Manager be, any of the following: (a) a member, partner,
equityholder, manager, director, officer or employee of the Borrower or any of its equityholders, the Collateral Manager or Affiliates
(other than as an Independent Manager of an Affiliate of the Borrower that is not in the direct chain of ownership of the Borrower and
that is required by a creditor to be a single purpose bankruptcy-remote entity, provided that such Independent Manager is employed
by a company that routinely provides professional independent managers or directors); (b) a creditor, supplier or service provider
(including provider of professional services) to the Borrower, the Collateral Manager or any of its equityholders or Affiliates (other
than a nationally recognized company that routinely provides professional independent managers and other corporate services to the Borrower,
the Collateral Manager or any of its equityholders or Affiliates in the ordinary course of business); (c) a family member of any
such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or (d) a Person
that controls (whether directly, indirectly or otherwise) any of (a), (b) or (c) above. A natural person who otherwise satisfies the foregoing
definition and satisfies subparagraph (a) by reason of being the Independent Manager of a “special purpose entity” Affiliated
with the Borrower shall be qualified to serve as an Independent Manager of the Borrower.
“Industry”
means the industry of an Obligor as determined by reference to the industry categories used in the Equityholder’s Form 10-K and/or
Form 10-Q filings with the SEC.
“Ineligible Collateral
Loan” means, at any time, a loan or other obligation, or any portion thereof, that fails to satisfy any criteria of the definition
of “Eligible Collateral Loan”.
“Insolvency Event”
means, with respect to a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises
in respect of such Person or any substantial part of its property in an involuntary case under the Bankruptcy Code or any other applicable
insolvency Law now or hereafter in effect, or appointing an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person’s
affairs, and such decree or order shall remain unstayed and in effect for a period of sixty (60) consecutive days; or (b) the commencement
by such Person or its equityholders of a voluntary case under the Bankruptcy Code or any other applicable insolvency Law now or hereafter
in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such Law, or the consent
by such Person to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment
for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action
by such Person in furtherance of any of the foregoing.
“Instrument”
has the meaning specified in Section 9-102(a)(47) of the UCC.
“Interest”
means, for each day during an Interest Accrual Period and each Advance outstanding by a Lender on such day, the sum of the products (for
each day during such Interest Accrual Period) of:
where:
IR
= the Interest Rate for such Advance on such day;
P =
the principal amount of such Advance on such day; and
D =
360 days.
30
“Interest Accrual Period”
means, with respect to each Advance (or portion thereof), a period commencing on and including the first (1st) day of each
calendar month and ending on and including the last day of such calendar month; provided that the initial Interest Accrual Period
shall be the period commencing on the Closing Date and ending on and including November 30, 2025; provided further, that the final
Interest Accrual Period hereunder shall end on and include the day of the Payment in Full of the Advances hereunder.
“Interest Collection
Account” has the meaning assigned to such term in Section 8.02(b).
“Interest Coverage Ratio”
means, with respect to any Collection Period, the percentage equivalent of a fraction, calculated as of the Calculation Date for such
Collection Period, (a) the numerator of which is equal to the sum of (i) the aggregate Interest Proceeds for such Collection Period and
the five Collection Periods immediately preceding such Collection Period minus (ii) the aggregate amount payable pursuant to Sections
9.01(a)(i)(A) through (D), as applicable, hereunder on the related Payment Date and the five immediately preceding Payment
Dates and (b) the denominator of which is equal to the aggregate amount payable pursuant to Section 9.01(a)(i)(E) hereunder on
the related Payment Date and the five immediately preceding Payment Dates; provided that the amount determined under clause (i)
above shall not include any collections with respect to assets held by the Borrower prior to the Closing Date, but that do not constitute
Collateral on the Closing Date.
“Interest Coverage Test”
means a test that shall be satisfied on any date of determination if the Interest Coverage Ratio is greater than or equal to 175%.
“Interest Proceeds”
means, with respect to any Collection Period or the related Calculation Date, without duplication, the sum of:
(a) all
payments of interest and other income received by the Borrower during such Collection Period on the Collateral Loans (including interest
and other income received on Ineligible Collateral Loans and the accrued interest received in connection with a sale of any such Collateral
Loan during such Collection Period);
(b) all
principal and interest payments received by the Borrower during such Collection Period on Eligible Investments purchased with Interest
Proceeds;
(c) all
amendment and waiver fees, late payment fees and prepayment fees, and all protection fees and other fees and commissions received by the
Borrower during such Collection Period unless the Collateral Manager has determined in accordance with the Collateral Management Standard
(with notice to the Administrative Agent, the Collateral Administrator and the Collateral Agent) that such payments are to be treated
as Principal Proceeds; and
(d) commitment
fees, facility fees, anniversary fees, ticking fees and other similar fees received by the Borrower during such Collection Period unless
the Collateral Manager has determined in accordance with the Collateral Management Standard (with notice to the Administrative Agent,
the Collateral Administrator and the Collateral Agent) that such payments are to be treated as Principal Proceeds.
“Interest
Rate” means a rate equal to the Benchmark Rate plus the Applicable Margin then applicable; provided, however that
with respect to Obligations that accrue interest at the Default Rate pursuant to Section 2.14, the applicable Interest Rate shall
be the Default Rate.
31
“Investment
Advisor” means Saratoga Investment Advisors, LLC, a Delaware limited liability company.
“Investment Company Act”
means the Investment Company Act of 1940 and the rules and regulations promulgated thereunder.
“IRS” means
the United States Internal Revenue Service.
“Key Person”
means each of the following individuals: Chris Oberbeck, Henri SteenkampChristine
Ramdihal and Mike Grisius.
“Key Person Event”
means the resignation, termination, disability or death of two or more Key Persons, or any failure of two or more Key Persons
to provide active participation in the Collateral Manager’s daily activities, and a reputable, experienced individual reasonably
satisfactory to the Required Lenders has not been appointed to replace such Key Person within 30 days of such event.
“Last-Out Loan”
means a secured loan (i) that is not (and cannot by its terms become) subordinated in right of payment by its terms to Indebtedness of
the Obligor for borrowed money (other than with respect to liquidation, capitalized leases, other similar obligations, Split Lien Transactions,
or by operation of a payment waterfall pursuant to the Related Documents or pursuant to a priority of repayment in an agreement among
lenders) and the Lien of which is not subordinated to any other secured obligation of the Obligor secured by all or a portion of the collateral
securing such secured loan (other than as set forth in clause (ii)(x) below); (ii) is secured by (x) a valid and perfected second priority
Lien on all of the Obligor’s Cash and cash equivalents, inventory, accounts receivable and other “current assets” and
(y) a valid and perfected first priority Lien on all of the Obligor’s other assets constituting Related Property for the Collateral
Loan, in each case subject to any “permitted liens” as defined in the applicable Related Documents for such Collateral Loan
or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary;
and (iii) that is not secured solely or primarily by the common stock or other equity interests of its Obligor or any of its Affiliates.
“Law” means
any action, code, consent decree, constitution, decree, directive, enactment, finding, guideline, law, injunction, interpretation, judgment,
order, ordinance, policy statement, proclamation, promulgation, regulation, requirement, rule, rule of law, treaty, rule of public policy,
settlement agreement, statute, or writ, of any Governmental Authority, or any particular section, part
or provision thereof.
“Lead Arranger”
means Valley.
“Lender” means
each Person listed on Schedule 1 and any other Person that shall have become a party hereto in
accordance with the terms hereof pursuant to an Assignment and Acceptance or other documentation reasonably acceptable to the Administrative
Agent, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Liabilities”
means all liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs
(including costs of enforcement of any Facility Documents), expenses (including reasonable and documented out-of-pocket attorneys’
fees and expenses) and disbursements of any kind or nature whatsoever, whether or not brought by the Borrower, the Collateral Manager,
the Equityholder or any third party.
“Lien” means
any mortgage, pledge, hypothecation, assignment, encumbrance, lien or security interest (statutory or other), or preference, priority
or other security agreement, charge or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing authorized
by the Borrower of any financing statement under the UCC or comparable Law of any jurisdiction).
32
“Limited Guaranty Agreement”
means that certain Limited Guaranty Agreement, dated as of the Closing Date, by and between the Guarantor and the Administrative Agent.
“Liquid Collateral Loan”
means a Collateral Loan that qualifies for Level 1 accounting treatment pursuant to FASB Accounting
Standards Codification 820 (formerly SFAS No. 157) for establishing fair market value of assets.
“LLC Agreement”
means the Limited Liability Company Agreement of the Borrower, dated as of October 4, 2021, as the same
may be amended, modified, waived, supplemented or restated from time to time.
“Loan-to-Value Ratio”
means, with respect to any Collateral Loan at any date of determination, the percentage equivalent of a fraction, (i) the
numerator of which is equal to the commitment amount as provided in the applicable Related Documents for such Collateral Loan plus the
commitment amount of any other senior or pari passu Indebtedness of the related Obligor (including, in the case of Delayed Drawdown
Collateral Loans, without duplication, the maximum availability thereof) and (ii) the denominator of which is equal to the enterprise
value of the Related Property securing such Collateral Loan (as determined by the Collateral Manager in accordance with the Credit Policies
and Procedures and the Collateral Management Standard unless the Administrative Agent in its reasonable discretion disagrees with such
determination, in which case the Administrative Agent shall determine the enterprise value of the Related Property). In the event the
Borrower disagrees with the Administrative Agent’s determination of the enterprise value of the Related Property, the Borrower may
(at its expense) retain any nationally recognized valuation firm reasonably acceptable to the Administrative Agent to value such Related
Property, and if the value determined by such firm is greater than the Administrative Agent’s determination of the enterprise value
of the Related Property, such firm’s valuation shall become the enterprise value of such Related Property; provided that
the enterprise value of such Related Property shall be the value assigned by the Administrative Agent until such firm has determined its
value).
“Margin Stock”
has the meaning assigned to such term in Regulation U.
“Material Adverse Effect”
means a material adverse effect on (a) the business, assets, financial condition or operations of the Borrower, (b) the business, assets,
financial condition or operations of the Collateral Manager or the Equityholder, (c) the validity or enforceability of this Agreement
or any other Facility Document or the validity, enforceability or collectability of the Collateral Loans or the Related Documents generally
or any material portion of the Collateral Loans or the Related Documents, (d) the rights and remedies of the Administrative Agent, the
Lenders and the other Secured Parties with respect to matters arising under this Agreement or any other Facility Document, (e) the
ability of each of the Borrower, the Equityholder or the Collateral Manager to perform its obligations under any Facility Document to
which it is a party or (f) the status, existence, perfection, priority or enforceability of the Collateral Agent’s Lien on the Collateral.
33
“Material Modification”
means any amendment or waiver of, or modification or supplement to, a Related Document governing a Collateral Loan executed or effected
on or after the Acquisition Date for such Collateral Loan (or, in the case of clause (e)(ii), a change to any loan senior to a
Collateral Loan) which:
(a) permanently
reduces or forgives any or all of the principal amount due under such Collateral Loan;
(b) [reserved];
(c) (i)
forgives one or more interest payments or (ii) permits any interest due in cash to be deferred or capitalized and added to the principal
balance of such Collateral Loan ;
(d) in
the case of a Senior Secured Loan, Secured Bond or Unitranche Loan , contractually or structurally subordinates such Collateral Loan by
operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or
the granting of Liens (other than “permitted liens” as defined in the applicable Related Documents for such Collateral Loan
or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary
and other Liens permitted by the definition thereof) on any of the Related Property securing such Collateral Loan; provided however
that if such subordination changes the classification of such Eligible Collateral Loan from a first priority lien type into another classification
of Eligible Collateral Loan, then such subordination shall not trigger a Material Modification but shall instead trigger the re-classification
of such Eligible Collateral Loan into such applicable classification;
(e) in
the case of a Second Lien Loan, Qualifying Last-Out Loan or Unsecured Bond, (i) contractually or structurally subordinates such Collateral
Loan to any obligation (other than to assets which were senior as of the applicable Acquisition Date of such Collateral Loan or were expressly
permitted to be incurred as of the Acquisition Date) by operation of a priority of payments, turnover provisions, the transfer of assets
in order to limit recourse to the related Obligor or the granting of Liens (other than “permitted liens” as defined in the
applicable Related Documents for such Collateral Loan or such comparable definition if “permitted liens” is not defined therein,
so long as such definition is reasonable and customary) on any of the Related Property securing such Collateral Loan or (ii) increases
the commitment amount of any loan senior to such Collateral Loan by an amount greater than the lesser of (X) the senior debt cap set forth
in the applicable documentation as of the Acquisition Date or (Y) twenty-five percent (25%) more than the amount of such senior loan as
of the Acquisition Date;
(f) substitutes,
alters or releases any Related Property securing such Collateral Loan and such action, as determined in Administrative Agent’s sole
reasonable discretion, materially and adversely affects the value of such Collateral Loan; or
(g) amends,
waives, forbears, supplements or otherwise modifies (i) the meaning of “Net Leverage Ratio”, “Interest Coverage Ratio”,
“Recurring Revenue Loan”, “EBITDA” or “Permitted Liens” or any respective comparable definitions in
the Related Documents for such Collateral Loan or (ii) any term or provision of such Related Document referenced or utilized in the calculation
of “Minimum Interest Coverage Ratio”, “Net Leverage Ratio” or “Permitted Liens” or any respective
comparable definitions of such Collateral Loan, in each case, in a manner that in Administrative Agent’s sole reasonable judgement
is materially adverse to the Secured Parties; provided that with respect to a Collateral Loan that is rated “Green”, the Administrative
Agent shall have the right to waive the treatment of any such amendment, waiver, forbearance or supplement as a “Material Modification”.
“Measurement Date”
means (a) the Closing Date, (b) each Borrowing Date, (c) each Determination Date, (d) each Calculation Date, (e) each Payment Date, (f)
the date on which a Collateral Loan is acquired or disposed of by the Borrower, (g) the date that the Assigned Value of any Collateral
Loan is adjusted, (h) any date the Commitments of the Lenders are reduced pursuant to Section 2.06(b), (i) the date of each Notice
of Borrowing, (j) the Commitment Termination Date, and (k) any other dates reasonably requested by the Borrower or the Administrative
Agent.
34
“Mezzanine Loan”
means any Collateral Loan that is of a rank lower than a Senior Secured Loan, Last-Out Loan, Secured Bond, DIP
Loan or Second Lien Loan.
“Minimum Funding Amount”
means, on any date of determination, the greater of (i) $25,000,000 and (ii) 38% of the Facility Amount
in effect on such date of determination.
“Money” has
the meaning specified in Section 1-201(24) of the UCC.
“Monthly Reporting Date”
has the meaning specified in Section 8.06(a).
“Moody’s”
means Moody’s Investors Service, Inc., together with its successors.
“Multiemployer
Plan” means an employee pension benefit plan within the meaning of Section 4001
(a)(3) of ERISA that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group
is obligated to make contributions or has any liability.
“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Excluded Taxes”
means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the
Borrower under any Facility Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Non-Qualifying Last-Out
Loans” means Last-Out Loans that are not Qualifying Last-Out Loans.
“Non-U.S. Lender”
has the meaning assigned to such term in Section 12.03(f)(i)(B).
“Non-USD Notional Amount”
has the meaning assigned to such term in Section 5.01(q).
“Note” means
each promissory note, if any, issued by the Borrower to a Lender in accordance with the provisions of Section 2.03.
“Noteless Loan”
means a Collateral Loan with respect to which (a) the related loan agreement does not require the Obligor to execute and deliver an Underlying
Note to evidence the indebtedness created under such Collateral Loan or only requires the Obligor to execute and deliver such an Underlying
Note upon the request of a Lender and (b) no Underlying Notes issued to the Borrower are outstanding with respect to the portion of the
Collateral Loan transferred to the Borrower.
“Notice of Borrowing”
has the meaning assigned to such term in Section 2.02(a).
“Notice of Prepayment”
has the meaning assigned to such term in Section 2.05(a).
“Obligations”
means all (a) principal of and premium, if any, on the Advances, (b) interest, expenses, fees (including but not limited to Unused Fees
and fees due to the Administrative Agent pursuant to the Administrative Agent Fee Letter), indemnification obligations, reimbursement
obligations, and other amounts payable by Borrower under the Facility Documents, and (c) all other indebtedness of any kind, whether absolute,
fixed or contingent, at any time or from time to time owing by the Borrower to any Secured Party or any Affected Person under or in connection
with this Agreement or any other Facility Document, and all other amounts payable hereunder, in each case, whether now existing or hereafter
arising, whether evidenced by a note or other writing, whether allowed in any proceeding with respect to an Insolvency Event, and whether
direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.
35
“Obligor” means,
in respect of any Collateral Loan, any Person obligated to pay Collections in respect of such Collateral Loan, including any applicable
guarantors.
“Obligor Net Leverage
Ratio” means, with respect to any Collateral Loan for any Relevant Test Period, the meaning of “Senior Net Leverage Ratio”
or any comparable definition in the Related Documents for each such Collateral Loan, and in any case that “Senior Net Leverage Ratio”
or such comparable definition is not defined in such Related Documents, the ratio of (a) senior indebtedness of such Obligor (as determined
by the Collateral Manager in accordance with the Collateral Management Standard) minus unrestricted cash to (b) EBITDA.
“OFAC” means
the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Official Body”
means any nation or government, any state or other political subdivision thereof, or any agency, authority, regulatory body, bureau, central
bank, commission, department or instrumentality of any such government or political subdivision, any court, tribunal, grand jury or arbitrator,
or any other body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government,
in each case whether foreign or domestic.
“Other Connection Taxes”
means, in the case of any Secured Party, any Taxes imposed by any jurisdiction by reason of such Secured Party having any present or former
connection with such jurisdiction (other than a connection arising from such Secured Party having executed, delivered, become a party
to, performed its obligations under, received any payment under, received or perfected a security interest under, engaged in any other
transaction pursuant to or enforced its rights under this Agreement, the Notes or any other Facility Document or sold or assigned an interest
in any Collateral Loan or Facility Document).
“Other Taxes”
has the meaning assigned to such term in Section 12.03(b).
“Overcollateralization
Assets” means all Collateral Loans included in the Collateral (other than Collateral Loans that do
not satisfy the requirements contained in any of clauses (h), (l), (v), (w), (x), (y), (z), (aa), (bb), (ee), or (vv) of the definition
of Eligible Collateral Loan (regardless of whether such Collateral Loans are included in the Borrowing Base)).
“Overcollateralization
Ratio” means, as of any date of determination, (A) the sum, without duplication, of (1) the Aggregate
Adjusted Borrowing Value as of such date (except if the Aggregate Adjusted Borrowing Value of an Eligible
Collateral Loan is zero as a result of the application of clause (c) of the definition of Assigned Value, then such Eligible Collateral
Loan shall instead be valued at its Fair Value for purposes of this clause (1)) plus, (2) the Fair Value of all other Overcollateralization
Assets as of such date divided by (B) the sum of Advances Outstanding plus the Unfunded Exposure Amount as of such date.
“Overcollateralization
Test” means a test that shall be satisfied on any date of determination if the Overcollateralization Ratio is greater than or
equal to 200%.
“Paid in Full”
or “Payment in Full” means, with respect to any Obligations (a) the payment in full in cash of all such Obligations
(other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and (b) the termination
or expiration of all of the Commitments.
36
“Participant”
means any bank or other Person to whom a participation is sold as permitted by Section 12.06(c).
“Participant Register”
has the meaning assigned to such term in Section 12.06(c)(ii).
“Payment Date”
means the first (1st) Business Day of each calendar month, beginning December 1, 2025. The Final Maturity Date shall also
be a Payment Date.
“Payment Recipient”
has the meaning assigned to such term in Section 11.07(a).
“PBGC” means
the Pension Benefit Guaranty Corporation, established pursuant to Section 4002 of ERISA, or any successor agency or entity performing
substantially the same functions.
“Percentage”
of any Lender means, (a) with respect to any Lender party hereto on the date hereof, the percentage set forth opposite such Lender’s
name on Schedule 1 hereto, as such amount is reduced by any Assignment and Acceptance entered into by such Lender with an assignee
or increased by any Assignment and Acceptance entered into by such Lender with an assignor, or (b) with respect to a Lender that has become
a party hereto pursuant to an Assignment and Acceptance or other documentation reasonably acceptable to the Administrative Agent, the
percentage set forth therein as such Lender’s Percentage, as such amount is reduced by an Assignment and Acceptance entered
into between such Lender and an assignee or increased by any Assignment and Acceptance entered into by such Lender with an assignor.
“Permitted Liens”
means any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens created in favor of the Collateral Agent hereunder or under the other Facility Documents for the benefit of the Secured Parties;
(b) Liens for Taxes if such Taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof
in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of
such Person; (c) Liens (other than any Lien securing Indebtedness for borrowed money) arising by operation of law in the ordinary course
of business for sums that are not overdue and are being contested in good faith, (d) with respect to agented Collateral Loans, security
interests, liens and other encumbrances in favor of the lead agent, the collateral agent or the paying agent on behalf of all holders
of indebtedness of the related Obligor under the related facility; and (d) with respect to Related Property securing any Collateral Loan,
security interests, liens and other encumbrances in favor of any unaffiliated lender or agent expressly permitted under the Related Documents;
provided that, in the case of any existing first lien loan obligation with respect to the related Obligor (which may include, for the
avoidance of doubt, any obligation in connection with a Split Lien Transaction), such lender and the Borrower (or the applicable administrative
agent or collateral agent) shall have entered into an intercreditor agreement in form and substance reasonably acceptable to the Administrative
Agent.
“Person” means
an individual or a corporation (including a business trust), partnership, trust, incorporated or unincorporated association, joint stock
company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind.
“PIK Interest”
means interest accrued on a Collateral Loan that is added to the principal amount of such Collateral Loan instead of being paid as interest
as it accrues.
“PIK Loan”
means a Collateral Loan that as of the date of determination, by its terms, permits more than 50% of the payment of a fixed or floating
rate of interest through the issuance of additional debt securities identical to such debt security or through additions to the principal
amount thereof for a specified period of time.
37
“Plan” means
an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) that
is subject to the provisions of Title IV of ERISA or the minimum funding standards under Section 412 of the Code that is sponsored by
the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions
or has any liability.
“Plan Assets Regulation”
means the U.S. Department of Labor regulation at 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA.
“Pre-Funding Account”
has the meaning assigned to such term in Section 8.02(a).
“Predecessor Collateral
Manager Work Product” has the meaning specified in Section 14.08(c).
“Prepayment Fee”
means, in connection with any voluntary termination or reduction of the Facility Amount by the Borrower prior to the first anniversary
of the Closing Date, 1.00% of the aggregate amount by which the Facility Amount is terminated or reduced.
“Priced Collateral Loan”
means any Collateral Loan that has an observable quote from LoanX Mark-It Partners or Loan Pricing Corporation, or from another pricing
service selected by the Administrative Agent in its sole discretion.
“Prime
Rate” means, on any day, a per annum rate equal to the U.S. prime rate as shown in the Wall Street Journal on such day,
or, if such day is not a Business Day, on the immediately preceding Business Day. If The Wall Street Journal for any reason ceases to
publish a U.S. prime rate, then the Prime Rate shall be such prime rate as published from time to time in any other publication or reference
source designated by the Administrative Agent in its discretion. The prime rate is a reference rate and does not necessarily represent
the best or lowest rate charged by any Lender.
“Principal Balance”
means, with respect to any loan, as of any date of determination, the outstanding principal amount of such loan, excluding any capitalized
interest; provided that if such loan is denominated and payable in an Eligible Currency other than Dollars, the outstanding principal
amount of such Collateral Loan shall be the equivalent in Dollars determined by the Collateral Manager using the Applicable Conversion
Rate.
“Principal Collection
Account” has the meaning assigned to such term in Section 8.02(b).
“Principal Proceeds”
means, with respect to any Collection Period or the related Calculation Date, all amounts received by the Borrower during such Collection
Period that do not constitute Interest Proceeds, including unapplied proceeds of the Advances and any amounts received by the Borrower
from the Equityholder and all payment received pursuant to any Hedging Agreement.
“Priority of Payments”
has the meaning specified in Section 9.01(a).
“Private Authorizations”
means all franchises, permits, licenses, approvals, consents and other authorizations of all Persons (other than Governmental Authorities).
“Proceeds”
has, with reference to any asset or property, the meaning assigned to it under Section 9-102(a)(64) of the UCC and, in any event, shall
include, but not be limited to, any and all amounts from time to time paid or payable under or in connection with such asset or property
including interest, principal, insurance proceeds, fees, settlement payments, refinancing amounts, rent, like-kind payments, recoveries
and guaranty payments.
38
“Prohibited Transaction”
means a transaction described in Section 406(a) of ERISA or Section 4975 of the Code, that is not exempted by a statutory or administrative
or individual exemption pursuant to Section 408 of ERISA or a transaction that would violate any law or regulation that is similar to
Section 406 of ERISA or Section 4975 of the Code.
“Proper Instructions”
means instructions received by the Custodian or the Collateral Agent from the Borrower, or the Collateral Manager on behalf of the Borrower,
in any of the following forms acceptable to the Custodian or the Collateral Agent, as applicable: (a) in writing signed by an Authorized
Person (and delivered by hand, by mail, by overnight courier or by telecopier); (b) by electronic mail from an Authorized Person; (c)
in tested communication; (d) in a communication utilizing access codes effected between electro mechanical or electronic devices; or (e)
such other means as may be agreed upon from time to time by the Custodian or the Collateral Agent, as applicable, and the party giving
such instructions.
“QIB” has the
meaning assigned to such term in Section 12.06(g).
“Qualified
Institution” means a depository institution or trust company organized under the laws of the United States of America or any
one of the States thereof or the District of Columbia (or any domestic branch of a foreign bank), (i)(a) that has either (1) a long-term
unsecured debt rating of “A” or better by S&P and “A2” or better by Moody’s or (2) a short-term unsecured
debt rating or certificate of deposit rating of “A-1” or better by S&P or “P-1” or better by Moody’s,
(b) the parent corporation of which has either (1) a long-term unsecured debt rating of “A” or better by S&P and “A2”
or better by Moody’s or (2) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or better by
S&P and “P-1” or better by Moody’s or (c) is otherwise acceptable to the Administrative Agent and (ii) the deposits
of which are insured by the Federal Deposit Insurance Corporation.
“Qualified Purchaser”
has the meaning assigned to such term in Section 12.06(g).
“Qualifying Last-Out
Loan” means any Last-Out Loan which, as of the related Acquisition Date, has a Loan-to-Value Ratio not greater than 65% and
with respect to which the Obligor Net Leverage Ratio is less than 4.50 to 1.00.
“Ratings Deficiency”
means a condition occurring on any day on which the Ratings Test is not satisfied.
“Ratings Event”
means that, on any date of determination, a Ratings Deficiency has occurred and continued without being eliminated pursuant to Section 2.05(d)
for at least ten (10) Business Days.
“Ratings Test”
means a test that will be satisfied at any time if less than 25% of the aggregate Fair Value of all Collateral Loans is derived from Collateral
Loans rated “Yellow” or “Red” in accordance with the Risk Rating System.
“Recurring Revenue Loan”
means a Senior Secured Loan, a Last-Out Loan, or a Unitranche Loan that (i) is to an enterprise software data or technology-enabled company
underwritten to recurring revenue, (ii) has a Loan-to-Value Ratio of less than 50%, and (iii) does not include and would not customarily
be expected to include a financial covenant based on “debt to EBITDA”, “debt to EBIT” or a similar multiple of
debt to operating cash flow; provided, that any such Collateral Loan which includes a financial covenant package that converts
at a future test period to covenants based on “debt to EBITDA”, “debt to EBIT” or a similar multiple of debt to
operating cash flow shall, at the Borrower’s election, cease to constitute a Recurring Revenue Loan and shall convert to a Senior
Secured Loan if it otherwise satisfies the definition thereof. If such Recurring Revenue Loan is subject to a subordinated lien it shall
be treated as a Second Lien Loan for purposes of determining the Advance Rate and eligibility of such Collateral Loan.
39
“Register”
has the meaning assigned to such term in Section 12.06(d).
“Regulation T”,
“Regulation U” and “Regulation X” mean Regulation T, U and X, respectively, of the Board of Governors,
as in effect from time to time.
“Related Documents”
means, with respect to any Collateral Loan, the Underlying Loan Agreement, any Underlying Note, and all other agreements or documents
evidencing, securing, governing or giving rise to such Collateral Loan.
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Related Property”
means, with respect to a Collateral Loan, any property or other assets designated and pledged or mortgaged as collateral to secure repayment
of such Collateral Loan, including, without limitation, all accounts, chattel paper, deposit accounts, financial assets, general intangibles,
instruments, investment property, letter-of-credit rights, other supporting obligations, any pledge of the stock, membership or other
ownership interests in the related Obligor or its subsidiaries, all Warrant Assets with respect to such Collateral Loan and all proceeds
from any sale or other disposition of such property or other assets.
“Related Security”
means, with respect to each Collateral Loan:
(a) all
Warrant Assets and any Related Property securing a Collateral Loan, all payments paid to the Borrower in respect thereof and all monies
due, to become due and paid to the Borrower in respect thereof accruing after the applicable Borrowing Date and all liquidation proceeds
thereof;
(b) all
Liens, guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such indebtedness;
(c) all
Collections with respect to such Collateral Loan and any of the foregoing;
(d) any
guarantees or similar credit enhancement for an Obligor’s obligations under any Collateral Loan, all UCC financing statements or
other filings relating thereto, including all rights and remedies, if any, against any Related Security, including all amounts due and
to become due to the Borrower thereunder and all rights, remedies, powers, privileges and claims of the Borrower thereunder (whether arising
pursuant to the terms of such agreement or otherwise available to the Borrower at law or in equity);
(e) all
records and Related Documents with respect to such Collateral Loan and any of the foregoing; and
(f) all
recoveries and proceeds of the foregoing.
“Relevant
Governmental Body” means the Board of Governors and/or the Federal Reserve Bank of New York, or a committee officially endorsed
or convened by the Board of Governors or the Federal Reserve Bank of New York or any successor thereto.
40
“Relevant Test Period”
means, with respect to any Collateral Loan, the relevant test period for the calculation of Obligor Net Leverage Ratio for such Collateral
Loan in the Related Documents or, if no such period is provided for therein, for Obligors delivering monthly financing statements, each
period of the last 12 consecutive reported calendar months, and for Obligors delivering quarterly financing statements, each period of
the last four consecutive reported fiscal quarters of the principal Obligor on such Collateral Loan; provided that with respect to any
Collateral Loan for which the relevant test period is not provided for in the Related Documents, if an Obligor is a newly-formed entity
as to which 12 consecutive calendar months have not yet elapsed, “Relevant Test Period” shall initially include the period
from the date of formation of such Obligor to the end of the twelfth calendar month or fourth fiscal quarter (as the case may be) from
the date of formation, and shall subsequently include each period of the last 12 consecutive reported calendar months or four consecutive
reported fiscal quarters (as the case may be) of such Obligor.
“Required Lenders”
means, as of any date of determination, (a) any Lender Affiliated with the Administrative Agent and (b) Lenders (including Lenders specified
in clause (a)) whose aggregate principal amount of Advances Outstanding plus unused Commitments equal or exceed 50% of the aggregate amount
of the Commitments (used and unused) or, if the Commitments have expired or been terminated or otherwise reduced to zero, Lenders whose
aggregate principal amount of Advances Outstanding equal or exceed 50% of the aggregate principal amount of all Advances Outstanding;
provided that, for purposes of this clause (b), at any time when two or more unaffiliated Lenders are party to this Agreement, the consent
of not less than two unaffiliated Lenders shall be required to constitute “Required Lenders”. The Commitments and Advances
Outstanding of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
means (a) in the case of (i) a corporation or (ii) a partnership or limited liability company that, in each case, pursuant to its Constituent
Documents, has officers, any chief executive officer, president, executive vice president, treasurer, chief financial officer, secretary,
or vice president, (b) without limitation of clause (a), in the case of a corporation or a limited partnership, a Responsible Officer
of the general partner, acting on behalf of such general partner in its capacity as general partner, (c) without limitation of clause
(a), in the case of a limited liability company that, pursuant to its Constituent Documents, does not have officers, any director
or any manager or any Responsible Officer of the sole member, administrative manager or managing member, acting on behalf of the sole
member, administrative manager or managing member in its capacity as sole member, administrative manager or managing member, (d) in the
case of a trust, the Responsible Officer of the trustee, acting on behalf of such trustee in its capacity as trustee, (e) an “authorized
signatory” or “authorized officer” that has been so authorized pursuant to customary corporate proceedings, limited
partnership proceedings, limited liability company proceedings or trust proceedings, as the case may be, and that has responsibilities
commensurate with the matter for which it is acting as a Responsible Officer, (f) in the case of the Administrative Agent, an officer
of the Administrative Agent, responsible for the administration of this Agreement, (g) in the case of a Lender, an “authorized signatory”
or “authorized officer” of such Lender that has been so authorized pursuant to customary corporate or similar proceedings
and that has responsibilities commensurate with the matter for which such “authorized signatory” or “authorized
officer” is acting as a Responsible Officer on behalf of such Lender, (h) in the case of the Custodian or the Securities Intermediary,
any officer assigned to the Corporate Trust Office, as applicable, authorized to act for and on behalf of the Custodian or the Securities
Intermediary, as applicable, including any vice president of the Custodian or the Securities Intermediary customarily performing functions
similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any matter is referred within
such Corporate Trust Office, because of such person’s knowledge of and familiarity with the particular subject and, in each case,
having direct responsibility for the administration of this Agreement and (i) in the case of the Collateral Administrator, any officer
authorized to act for and on behalf of the Collateral Administrator or to whom any matter is referred within such Person because of such
person’s knowledge of and familiarity with the particular subject and in each case having direct responsibility for the administration
of this Agreement.
41
“Restricted Payment”
means (i) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Borrower now
or hereafter outstanding, except a dividend or distribution paid solely in interests of that class of membership interests or in any junior
class of membership interests of the Borrower; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any class of membership interests of the Borrower now or hereafter outstanding, and (iii) any payment
made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire
membership interests of the Borrower now or hereafter outstanding.
“Revolving Loan”
means any loan or other obligation (other than a Delayed Drawdown Collateral Loan) (including revolving loans, funded and unfunded portions
of revolving credit lines and letter of credit facilities, unfunded commitments under specific facilities and other similar loans and
investments) that by its terms may require one or more future advances to be made to the related Obligor by the Borrower.
“Risk Rating System”
means the internal risk rating system of the Borrower or the Collateral Manager, as applicable, as included in the Credit Policies and
Procedures in effect on the Closing Date or as modified from time to time with the prior written consent of the Administrative Agent.
“S&P” means
Standard & Poor’s Ratings Services, an S&P Global business, and any successor or successors thereto.
“Sacred
Rights” means the Borrower’s right under the Related Documents of any Collateral Loan to approve each of the following:
(i) a reduction in or forgiveness of the principal amount of the loans held by the Borrower; (ii) a reduction in the interest rate applicable
to the loans held by the Borrower (which shall not include amendments to the definition of the default rate, the election as to whether
to waive or implement the default rate, or any financial covenant which may be used in the determination of the applicable interest rate
margin), or the amount of any fees owed to the Borrower, (iii) any extension of the maturity date of any loan held by the Borrower or
the time of any payment (excluding any mandatory prepayment), (iv) any increase in the commitment of the Borrower, (v) any change in the
pro rata sharing provisions (including any associated definitions) or payment waterfall after an event of default, (vi) any amendment
to the definition of “Required Lenders” or similar term, (vii) the release of all or substantially all of the collateral,
and (viii) the release of all or substantially all of the guarantors or Obligors.
“Sale Agreement”
means the Loan Sale and Contribution Agreement, dated as of the Closing Date, between the Equityholder, in its capacity as seller, and
the Borrower, in its capacity as purchaser, as amended, modified, supplemented or restated from time to time.
“Sanctioned
Country” means, at any time, a country or territory which is the subject or target of any
Sanctions.
“Sanctioned
Person” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC,
the U.S. Department of State, the United Kingdom or by the United Nations Security Council, the European Union (including any member state
thereof), Canada, or other relevant sanctions authority with jurisdiction over the parties to the Agreement (ii)
any Person located, operating, organized or resident in a Sanctioned Country or (iii) any Person controlled
by any such Person described in the foregoing clauses (i) or (ii).
42
“Sanctions”
means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions,
and trade embargoes, including but not limited to those imposed, administered or enforced from time to time by: (a) the United States
of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce; (b) the United Nations
Security Council; (c) the European Union (including any member state thereof); (d) the United Kingdom; (e) Canada; or (f) any other relevant
sanctions authority.
“SBIC
Subsidiary” means any direct wholly-owned Subsidiary of the Equityholder licensed as a small business investment company under
the Small Business Investment Act of 1958, as amended.
“Scheduled Distribution”
means, with respect to any Collateral Loan, for each Due Date, the scheduled payment of principal and/or interest and/or fees due on such
Due Date with respect to such Collateral Loan.
“SEC” means
the Securities and Exchange Commission or any other Governmental Authority of the United States of America at the time administrating
the Securities Act, the Investment Company Act or the Exchange Act.
“Second Lien Loan”
means a Collateral Loan (i) that is secured by a valid and perfected second priority security interest on, subject to customary exceptions,
substantially all of the Obligor’s assets constituting Related Property for the Collateral Loan (whether or not there is also a
security interest of a higher or lower priority in additional collateral), subject to any “permitted liens” as defined in
the applicable Related Documents for such Collateral Loan or such comparable definition if “permitted liens” is not defined
therein, so long as such definition is reasonable and customary; (ii) that, with respect to priority of payment obligations, is pari
passu with the indebtedness of the holder with the first priority security interest except after an event of default thereunder; and
(iii) for which, pursuant to an intercreditor agreement between the Borrower (or the applicable administrative agent or collateral agent)
and the holder(s) of such first priority security interest, the amount of the indebtedness covered by such first priority security interest
is limited (in terms of aggregate dollar amount or percent of outstanding principal or both).
“Secured Bond”
means an unsubordinated first priority lien bond obligation that is not secured solely or primarily by the underlying Obligor’s
common stock or other equity interests and has an initial Loan-to-Value Ratio not in excess of 65% in respect of which the underlying
Obligor has a Net Leverage Ratio of 4.5x; provided further that, in the event a bond exceeds the Loan-to-Value Ratio and Net Leverage
Ratio limitations in this definition, but would otherwise constitute a Secured Bond and would otherwise qualify as an Eligible Collateral
Loan, then only the amount of such Secured Bond that exceeds such limitations shall be ineligible.
“Secured Parties”
means the Administrative Agent, the Custodian, the Collateral Administrator, the Collateral Agent, the Account Bank, the Securities Intermediary
and the Lenders.
“Secured Party Representative”
has the meaning assigned to such term in Section 12.09.
“Securities Act”
means the Securities Act of 1933 and the rules and regulations promulgated thereunder, all as from time to time in effect.
“Securities Intermediary”
has the meaning assigned to it in Section 8-102(a)(14) of the UCC. Initially, the Securities Intermediary shall be U.S. Bank.
“Security Entitlement”
has the meaning specified in Section 8-102(a)(17) of the UCC.
43
“Senior Secured Loans”
means a Collateral Loan (i) that is not subordinated in right of payment by its terms (including by operation of a payment waterfall in
the Related Documents) to indebtedness of the Obligor for borrowed money (other than with respect to liquidation, capitalized leases,
other similar obligations, or is a Split Lien Transaction) and the Lien of which is not contractually subordinated to any other secured
obligation of the Obligor secured by all or a portion of the collateral securing such Collateral Loan; (ii) is secured by a valid and
perfected first priority Lien on, subject to customary exceptions, substantially all of the Obligor’s assets constituting Related
Property for the Collateral Loan, subject to any “permitted liens” as defined in the applicable Related Documents for such
Collateral Loan or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable
and customary; (iii) as of the date such Collateral Loan is initially included in the Collateral, has a Loan-to-Value Ratio not greater
than 65% and with respect to which the Obligor Net Leverage Ratio is less than 4.5 to 1.0; and (iv) that is not secured solely or primarily
by the common stock or other equity interests of its Obligor or any of its Affiliates.
“SOFR”
with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as
the administrator of the benchmark (or a successor administrator) on the website of the Federal Reserve
Bank of New York at http://www.newyorkfed.org, or any successor source.
“Solvent” means,
with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent
liabilities) does not exceed the present fair saleable value of such Person’s assets; (b) such Person’s capital is not unreasonably
small in relation to its business as contemplated on the Closing Date and will not be unreasonably small with respect to any transaction
contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred debts beyond its ability to pay such debts
as they become due; and (ii) such Person is “solvent” within the meaning given that term under the Bankruptcy Code, Section
271 of the Debtor and Creditor Law of the State of New York and applicable laws relating to fraudulent transfers under the Bankruptcy
Code and New York State law. For purposes of this definition, the amount of any contingent liability at any time shall be computed as
the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected
to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement
of Financial Accounting Standards No. 5).
“Specified Holders”
means Christian L. Oberbeck, Charles G. Phillips, Michael Grisius and Thomas V. Inglesby.
“Split Lien Transaction”
means, in respect of any Collateral Loan, the Related Documents for such Collateral Loan expressly permit a revolving credit facility
that is secured on a first priority basis solely by accounts receivable and/or inventory and the proceeds thereof (including Cash and
deposit accounts in which such proceeds are held); provided that the ratio of the aggregate commitment of such revolving credit
facility to EBITDA does not exceed 1.00:1.00, unless otherwise agreed to in writing by the Required Lenders.
“Springing Guaranty”
means the guaranty provided by the Guarantor to the Administrative Agent on behalf of the Secured Parties in accordance with the terms
of the Springing Guaranty Agreement.
“Springing Guaranty Agreement”
means that certain Springing Guaranty Agreement, dated as of the Closing Date, by and between the Guarantor and the Administrative Agent.
44
“Standstill Event of
Default” means an Event of Default pursuant to Section 6.01(d), (e) (excluding any violation of Section 5.02(a),
(c), (d) (excluding any judgment Lien solely to the extent no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced with respect thereto), (g), (i), (j), (k), (r) or Section 5.05), (f),
(g), (i) (excluding subclause (i) thereof), (l), (m) (other than a Change of Control described in clause (a)
of the definition of “Change of Control”), (n), (q) or (r).
“Subsidiary”
means any Person with respect to which the Borrower or the Equityholder, as the case may be, owns, directly or indirectly, more than 50%
of the Equity Securities of such Person.
“Successor Collateral
Manager” has the meaning specified in Section 14.08(a).
“Tangible Net Worth”
means, as of any date, (a) total assets minus (b) the sum of (i) total Liabilities and (ii) intangible assets, which, for the avoidance
of doubt, shall include all assets that are considered to be intangible assets under GAAP, and any goodwill, patents, copyrights, trademarks,
customer lists, computer software, trade names, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized
research and development costs.
“Taxes” means
all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term
SOFR Rate” means the rate per annum equal to the greater of (a) the Floor and (b) the forward-looking
term rate based on SOFR as published by the Term SOFR Administrator for a one-month period on the day
that is two (2) Business Days prior to the first day of such one-month period, as such rate is published by the Term SOFR Administrator;
provided, that, if the Administrative Agent determines that any such lookback or other conventions for this rate selected is not administratively,
operationally, or technically feasible for the Administrative Agent, then the Administrative Agent may establish another convention in
its sole discretion, including a SOFR rate based on a different time period.
“Term
SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor
administrator of the Term SOFR Rate reference rate).
“UCC” means
the New York Uniform Commercial Code; provided that if, by reason of any mandatory provisions of Law, the perfection, the effect
of perfection or non-perfection or priority of the security interests granted to the Collateral Agent pursuant to this Agreement are governed
by the Uniform Commercial Code as in effect in a jurisdiction of the United States of America other than the State of New York, then “UCC”
means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of such perfection, effect of
perfection or non-perfection or priority.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted
Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement
Adjustment.
“Uncertificated Security”
has the meaning specified in Section 8-102(a)(18) of the UCC.
45
“Underlying Loan Agreement”
means, with respect to any Collateral Loan, the document or documents evidencing the commercial loan agreement, indenture or facility
pursuant to which such Collateral Loan is made.
“Underlying Note”
means one or more promissory notes, if any, executed by an Obligor evidencing a Collateral Loan.
“Unfunded Exposure Amount”
means on any date of determination, with respect to any Delayed Drawdown Collateral Loans, the aggregate amount (without duplication)
of all unfunded commitments of the Borrower pursuant to such Delayed Drawdown Collateral Loan.
“Unfunded Exposure Haircut
Percentage” means, with respect to any Delayed Drawdown Collateral Loan as of any date of determination, the amount (in percentage
terms) equal to one (1) minus the applicable Advance Rate for such Delayed Drawdown Collateral Loan as of such date.
“Unitranche Loan”
means a secured loan or secured bond (i) that is not subordinated in right of payment by its terms to unsecured indebtedness of the Obligor
for borrowed money (other than with respect to liquidation, capitalized leases, other similar obligations, or Split Lien Transactions)
and the Lien of which is not contractually subordinated to any other secured obligation of the Obligor secured by all or a portion of
the collateral securing such secured loan or secured bond, as applicable; (ii) is secured by a valid and perfected first priority Lien
on, subject to customary exceptions, substantially all of the Obligor’s assets constituting Related Property for the Collateral
Loan, subject to any “permitted liens” as defined in the applicable Related Documents for such Collateral Loan or such comparable
definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary; (iii) has
a Loan-to-Value Ratio equal to or greater than 65% as of the date such Collateral Loan is initially included in the Collateral or with
respect to which the Obligor Net Leverage Ratio is equal to or greater than 4.5 to 1.0; and (iv) that is not secured solely or primarily
by the common stock or other equity interests of its Obligor or any of its Affiliates.
“Unsecured Bond”
means a bond obligation that is not a Secured Bond.
“Unused Amount”
means, for any day, an amount equal to the excess, if any, of (a) the Facility Amount on such day over (b) the Advances Outstanding
on such day.
“Unused Fee”
has the meaning assigned to such term in Section 2.12(a).
“Unused Fee Rate”
means, on any date of determination, (i) if the Unused Amount is greater than 62% of the Facility Amount, 0.75% per annum, or (ii)
otherwise, 0.50% per annum.
“U.S. Bank”
has the meaning assigned to such term in the introduction to this Agreement.
“U.S. Bank Trust Company”
has the meaning assigned to such term in the introduction to this Agreement.
“U.S. Tax Compliance
Certificate” has the meaning specified in Section 12.03.
“USD Notional Amount”
has the meaning assigned to such term in Section 5.01(q).
“Valley” has
the meaning assigned to such term in the introduction to this Agreement.
46
“Value Adjustment Event”
means, with respect to any Collateral Loan, the occurrence of any of one or more of the following events after the related Acquisition
Date (or, in the case of the Closing Date Collateral Loans, the Closing Date):
(i) the Fair Value of such Collateral
Loan has been reduced by the Borrower from the Fair Value of such Collateral Loan originally assigned thereto on the Closing Date (in
the case of Closing Date Collateral Loans) or Acquisition Date (in the case of Collateral Loans originated or acquired after the Closing
Date); provided that if such Collateral Loan is originated or acquired by the Borrower after the Closing Date, no such reduction
to the Fair Value of such Collateral Loan shall be taken into account until the Fair Value has been reduced by more than 10 percentage
points from the Fair Value originally assigned thereto on the Closing Date or Acquisition Date, as the case may be; it being understood
and agreed that each reduction in Fair Value after (or in excess of) the initial 10 percentage point reduction shall be taken into account
and constitute a Value Adjustment Event;
(ii) except in the case of a
Liquid Collateral Loan, if the Fair Value of such Collateral Loan has been increased by the Borrower from the Fair Value of such Collateral
Loan originally assigned thereto on the Closing Date (in the case of Closing Date Collateral Loans) or Acquisition Date (in the case of
Collateral Loans originated or acquired after the Closing Date); provided that such increase in Fair Value shall only be treated as a
Value Adjustment Event with the written consent of the Administrative Agent, which consent may be requested by the Borrower or the Collateral
Manager only one (1) time per Collateral Loan in any six (6) calendar month period;
(iii) if such Collateral Loan
is a Liquid Collateral Loan, the Fair Value of such Collateral Loan has been increased by the Borrower from the Fair Value of such Collateral
Loan originally assigned thereto on the related Acquisition Date;
(iv) an Obligor payment default
under any Collateral Loan (after giving effect to any grace and/or cure period set forth in the Related Documents, but not to exceed 10
days (in the case of a Collateral Loan other than a Secured Bond or Unsecured Bond) or 30 days (in the case of a Collateral Loan consisting
of a Secured Bond or Unsecured Bond));
(v) any other Obligor default
under any Collateral Loan for which the Borrower (or agent or required lenders pursuant to the Related Documents, as applicable) has elected
to accelerate the indebtedness under, or exercise any of its rights and remedies against the collateral pursuant to, the applicable Related
Documents in case of the default thereunder;
(vi) an Insolvency Event with
respect to the related Obligor; or
(vii) the occurrence of a Material
Modification with respect to such Collateral Loan.
“Warrant Asset”
means any equity purchase warrants or similar rights convertible into or exchangeable or exercisable for any equity interests received
by the Borrower as an “equity kicker” from the Obligor in connection with a Collateral Loan; provided such Warrant
Asset was received by the Borrower in lieu of debts previously contracted with respect to such Collateral Loan.
“Weighted Average Life”
means, as of any date of determination with respect to all Eligible Collateral Loans, the number of years following such date obtained
by:
(a) summing
the products of: (i) the Average Life at such time of each Eligible Collateral Loan multiplied by (ii) the Principal Balance of such Eligible
Collateral Loan; and
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(b) dividing
such sum by the Aggregate Principal Balance of all Eligible Collateral Loans as of such date.
For the purposes of the foregoing,
the “Average Life” is, on any date of determination with respect to any Eligible Collateral Loan, the quotient obtained
by dividing (x) the sum of the products of (A) the number of years (rounded to the nearest one hundredth thereof) from such date of determination
to the respective dates of each successive Scheduled Distribution of principal of such Eligible Collateral Loan and (B) the respective
amounts of principal of such Scheduled Distributions by (y) the sum of all successive Scheduled Distributions of principal on such Eligible
Collateral Loan.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion
Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or
any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
Section 1.02. Rules of Construction
For all purposes of this Agreement
and the other Facility Documents, except as otherwise expressly provided or unless the context otherwise requires, (a) singular words
shall connote the plural as well as the singular and vice versa (except as indicated), as may be appropriate, (b) the words “herein,”
“hereof” and “hereunder” and other words of similar import used in any Facility Document refer to such Facility
Document as a whole and not to any particular article, schedule, section, paragraph, clause, exhibit or other subdivision thereof, (c)
the headings, subheadings and table of contents set forth in any Facility Document are solely for convenience of reference and shall not
constitute a part of such Facility Document nor shall they affect the meaning, construction or effect of any provision hereof, (d) references
in any Facility Document to “include” or “including” shall mean include or including, as applicable, without limiting
the generality of any description preceding such term, and for purposes hereof the rule of ejusdem generis shall not be applicable
to limit a general statement, followed by or referable to an enumeration of specific matters, to matters similar to those specifically
mentioned, (e) any definition of or reference to any Facility Document, agreement, instrument or other document shall be construed as
referring to such Facility Document, instrument or other document as from time to time amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein or any other Facility Document),
(f) any reference in any Facility Document, including the introduction and recitals to such Facility Document, to any Person shall be
construed to include such Person’s successors and assigns (subject to any restrictions set forth herein or in any other applicable
agreement), (g) any reference to any Law or regulation herein shall refer to such Law or regulation as amended, modified or supplemented
from time to time, (h) any use of the term “knowledge” shall mean knowledge after due inquiry and (i) an Event of Default
shall be deemed to be continuing until it is waived in accordance with Section 12.01.
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Section 1.03. Computation
of Time Periods
Unless otherwise stated in the
applicable Facility Document, in the computation of a period of time from a specified date to a later specified date, the word “from”
means “from and including”, the word “through” means “to and including” and the words “to”
and “until” both mean “to but excluding”. Periods of days referred to in any Facility Document shall be counted
in calendar days unless Business Days are expressly prescribed. Unless otherwise indicated herein, all references to time of day refer
to Eastern standard time or Eastern daylight saving time, as in effect in New York City on such day.
Section 1.04. Divisions
For all purposes under the Facility
Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s
laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person
comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its
equity interests at such time.
Section 1.05. Collateral
Value Calculation Procedures
Solely in connection with all
calculations required to be made pursuant to this Agreement (i) with respect to Scheduled Distributions on any Collateral Loan, or any
payments on any other assets included in the Collateral, (ii) with respect to the sale of and reinvestment in Collateral Loans, and (iii)
with respect to the income that can be earned on Scheduled Distributions on such Collateral Loans and on any other amounts that may be
received for deposit in the Collection Account, the provisions set forth in this Section 1.05 shall be applied. The provisions
of this Section 1.05 shall be applicable to any determination or calculation that is covered by this Section 1.05, whether
or not reference is specifically made to Section 1.05, unless some other method of calculation or determination is expressly specified
in the particular provision.
(a) All
calculations with respect to Scheduled Distributions on any Collateral Loan shall be made on the basis of information as to the terms
of each such Collateral Loan and upon reports of payments, if any, received on such Collateral Loan that are furnished by or on behalf
of the Obligor of such Collateral Loan and, to the extent they are not manifestly in error, such information or reports may be conclusively
relied upon in making such calculations.
(b) For
purposes of calculating the Borrowing Base Test and the Coverage Tests, such calculations will not include (i) scheduled interest and
principal payments on Ineligible Collateral Loans unless or until such payments are actually made and (ii) ticking fees and other similar
fees in respect of Collateral Loans, unless or until such fees are actually paid.
(c) For
each Collection Period and as of any date of determination, the Scheduled Distribution on any Collateral Loan (other than an Ineligible
Collateral Loan, which, except as otherwise provided herein, shall be assumed to have Scheduled Distributions of zero) shall be deemed
to be the total amount of (i) payments and collections to be received during such Collection Period in respect of such Collateral Loan,
(ii) proceeds of the sale of such Collateral Loan received and, in the case of sales which have not yet settled, to be received during
such Collection Period that are not reinvested in additional Collateral Loans or retained in the Collection Account for subsequent reinvestment
pursuant to Article X, which proceeds, if received as scheduled, will be available in the Collection Account and available
for distribution at the end of such Collection Period and (iii) amounts referred to in clause (i) or (ii) above that were
received in prior Collection Periods but were not disbursed on a previous Payment Date or retained in the Collection Account for subsequent
reinvestment pursuant to Article X.
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(d) Except
as otherwise expressly provided herein, each Scheduled Distribution receivable with respect to a Collateral Loan shall be assumed to be
received on the applicable Due Date.
(e) References
in the Priority of Payments to calculations made on a “pro forma basis” shall mean such calculations after giving effect to
all payments, in accordance with the Priority of Payments, that precede (in priority of payment) or include the clause in which such calculation
is made.
(f) For
purposes of calculating all Excess Concentration Amounts, Ineligible Collateral Loans will be treated as having a Principal Balance equal
to zero.
(g) Except
as otherwise provided herein, Ineligible Collateral Loans will (i) be treated as having an Assigned Value of equal to zero and (ii) be
excluded from the calculation of the Borrowing Base on and after the date such Collateral Loan constitutes an Ineligible Collateral Loan.
(h) References
in this Agreement to the Borrower’s “purchase” or “acquisition” of a Collateral Loan include references
to the Borrower’s acquisition of such Collateral Loan by way of a sale and/or contribution from the Equityholder and the Borrower’s
making or origination of such Collateral Loan. Portions of the same Collateral Loan acquired by the Borrower on different dates (excluding
subsequent draws under Delayed Drawdown Collateral Loans) will, for purposes of determining the purchase price of such Collateral Loan,
be treated as separate purchases on separate dates (and not a weighted average purchase price for any particular Collateral Loan).
(i) For
the purposes of calculating compliance with each of the Excess Concentration Amounts all calculations will be rounded to the nearest 0.01%.
Section 1.06. Calculations
(a) For
purposes of calculating compliance with the Borrowing Base Test, the Coverage Tests, the Ratings Test or any Excess Concentration Amount
under this Agreement in connection with the acquisition or disposition of a Collateral Loan or Eligible Investment, each of the trade
date and the settlement date with respect to any such Collateral Loan or Eligible Investment acquired or disposed of or under consideration
for acquisition or disposition shall be used to determine compliance with the Borrowing Base Test, the Coverage Tests, the Ratings Test
or any Excess Concentration Amount and whether such acquisition or disposition is permitted hereunder; provided that, (i) for purposes
of calculating compliance with the Borrowing Base Test, the Coverage Tests, the Ratings Test or any Excess Concentration Amount, the calculation
thereof shall assume (and give pro forma effect to) (x) the making of an Advance to the Borrower (based on the Advance Rate applicable
thereto) and contributions by the Equityholder and (y) the repayment of any amounts to the Borrower upon settlement of the disposition
of a Collateral Loan (based on the sale price therefor) and (ii) for purposes of calculating the Borrowing Base Test, the Coverage Tests,
the Ratings Test or any Excess Concentration Amount in connection with the making or repayment of any Advance, such calculation shall
be recalculated at the time such Advance is made or repaid after giving effect to the settlement of any Collateral Loan acquired or disposed
of.
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(b) To
the extent of any ambiguity in the interpretation of any definition or term contained in this Agreement or to the extent more than one
methodology can be used to make any of the determinations or calculations set forth herein, the Collateral Administrator shall request
direction from the Administrative Agent or, prior to the occurrence of a Default or an Event of Default, the Collateral Manager as to
the interpretation and/or methodology to be used, and the Collateral Administrator shall follow such direction, and together with the
Custodian and the Securities Intermediary, shall be entitled to conclusively rely thereon without any responsibility or liability therefor;
provided that if the Collateral Manager and the Administrative Agent provide different interpretations or methodologies, the Administrative
Agent’s determination shall control.
ARTICLE
II
ADVANCES
Section 2.01. Revolving
Credit Facility
(a) On
the terms and subject to the conditions hereinafter set forth, including Article III, each Lender severally agrees to make loans
to the Borrower (each, an “Advance”) from time to time on any Business Day during the period from the Closing Date
until the Commitment Termination Date, on a pro rata basis in each case in an aggregate principal amount at any one time outstanding up
to but not exceeding such Lender’s Commitment and, as to all Lenders, in an aggregate principal amount up to but not exceeding the
Available Loan Amount as then computed. Each such borrowing of an Advance on any single day is referred to herein as a “Borrowing”
and each Borrowing shall accrue Interest at the Interest Rate.
(b) Within
such limits and subject to the other terms and conditions of this Agreement, the Borrower may borrow (and re-borrow) Advances under
this Section 2.01 and prepay Advances under Section 2.05.
Section 2.02. Making of
the Advances
(a) Borrowings.
(i) Each
Borrowing shall be made by an irrevocable written request in the form of Exhibit A (each, a “Notice of Borrowing”),
signed by a Responsible Officer delivered to the Administrative Agent, . Such notice must be received by Administrative Agent no later
than 2:00 p.m. (New York time) three (3) Business Days prior to the requested Borrowing Date with respect to each Advance (i) specifying
(A) the amount of such Borrowing, and (B) the requested Borrowing Date, which shall be a Business Day and (ii) including a copy of the
Borrowing Base Certificate which includes a detailed calculation of the Borrowing Base pro forma for such Borrowing as of such requested
Borrowing Date. The disbursement of Advances will be funded (i) in the event the proceeds of such Advance will be applied to the purchase
or origination of an Eligible Collateral Loan on such date, as directed by the Borrower in writing and otherwise in accordance with Section
2.02(b) as if such funds were being withdrawn from the Pre-Funding Account, or (ii) otherwise, directly into the Pre-Funding Account,
subject to withdrawal as expressly permitted hereunder. Submission of a request for an Advance hereunder shall obligate Borrower to pay
interest on such Advance in accordance with this Agreement from the date the proceeds of such Advance are deposited into the Pre-Funding
Account. Each Borrowing shall be in a minimum amount of $500,000 or an integral multiple of $100,000 in excess thereof.
(ii) Notwithstanding
the forgoing or any provision of this Agreement to the contrary, in the event that the Minimum Funding Amount exceeds the aggregate Advances
Outstanding on any date, then the Borrower shall be deemed to have requested an Advance on such date in an amount equal to such excess
such that the Minimum Funding Amount shall be equal to the aggregate Advances Outstanding on such date, and the proceeds of such Advance
shall be immediately deposited in the Pre-Funding Account.
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(iii) No
more than ten Advances in the aggregate may be outstanding hereunder at any one time.
(iv) Following
its receipt of any Notice of Borrowing, the Administrative Agent shall notify each Lender of its receipt of such Notice of Borrowing and
shall advise each applicable Lender of the details thereof and of the amounts of such Lender’s Advance to be made as part of the
requested Borrowing.
(v) Each
Lender shall, not later than 1:00 p.m. on each Borrowing Date in respect of Advances, make its Percentage of the applicable Borrowing
on each Borrowing Date by wire transfer of immediately available funds to the Pre-Funding Account.
(b) Withdrawals
from Pre-Funding Account. On or after a Borrowing Date with respect to any Advance, the Borrower may request a withdrawal from the
Pre-Funding Account by (i) an irrevocable written request (which may be submitted by electronic mail) by a Responsible Officer delivered
to the Administrative Agent (which shall then be delivered to the Collateral Agent), and (ii) providing the Administrative Agent with
(a) if any portion of the proceeds of such Advance will be used to acquire an Eligible Collateral Loan, evidence in form and substance
satisfactory to the Administrative Agent that the Eligible Collateral Loan being acquired with the proceeds of such Advance has closed
or will close simultaneously with the withdrawal of such funds and (b) an updated Borrowing Base Certificate showing that, giving pro
forma effect to such withdrawal and, if applicable, the acquisition of such Eligible Collateral Loan, no Borrowing Base Deficiency shall
be outstanding. Such notice must be received by the Administrative Agent and the Collateral Agent no later than 2:00 p.m. on the
date of such requested withdrawal, which shall be a Business Day, specifying (x) the amount of such withdrawal and (y) the account into
which such withdrawal shall be deposited.
Section 2.03. Evidence of
Indebtedness
(a) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to it and
resulting from the Advances made by such Lender to the Borrower, from time to time, including the amounts of principal and interest thereon
and paid to it, from time to time hereunder; provided that the failure of any Lender to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Advances in accordance with the terms of this Agreement.
(b) Any
Lender may request that its Advances to the Borrower be evidenced by a Note. In such event, the Borrower shall promptly prepare, execute
and deliver to such Lender a Note payable to such Lender and otherwise appropriately completed. Thereafter, the Advances of such Lender
evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 12.06(a)) be
represented by a Note payable to such Lender (or registered assigns pursuant to Section 12.06(a)), except to the extent that
such Lender (or assignee) subsequently returns any such Note for cancellation and requests that such Advances once again be evidenced
as described in clause (a) of this Section 2.03.
(c) If
any Lender elects not to receive a Note, all references herein and the other Facility Documents to such Lender’s Note shall be deemed
to mean the Advances Outstanding with respect to such Lender. The parties hereto acknowledge and agree that the provisions herein and
the other Facility Documents related to the Lenders hereunder shall apply to each Lender regardless of whether such Lender has received
a Note.
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(d) Promptly
after all Obligations (other than unasserted contingent obligations) have been Paid in Full and all Commitments have been terminated,
each Lender whose Advances were evidenced by a Note shall return such Note to the Borrower for cancellation or, with the consent of the
Borrower, destroy any such Note.
Section 2.04. Payment of
Amounts
The Borrower shall pay principal
and Interest on the Advances and fees in accordance with the Priority of Payments to the Lenders pursuant to the Priority of Payments
as follows:
(a) 100%
of the outstanding principal amount of each Advance, together with all accrued and unpaid Interest thereon, and all accrued and unpaid
fees under the Facility Documents shall be payable on the Final Maturity Date.
(b) Interest
shall accrue on the unpaid principal amount of each Advance at the applicable Interest Rate from the date of such Advance until such principal
amount is paid in full. The Administrative Agent shall determine the unpaid Interest payable prior to each Payment Date (using the applicable
Interest Rate for each day during the related Interest Accrual Period) to be paid by the Borrower with respect to each Advance on each
Payment Date for the related Interest Accrual Period.
(c) Accrued
Interest on each Advance shall be payable in arrears (x) on each Payment Date, (y) in connection with any prepayment in full of the Advances
pursuant to Section 2.5(a) and (z) at maturity (whether by acceleration or otherwise); provided that (i) with respect to
any prepayment in full of the Advances outstanding, accrued Interest on such amount to but excluding the date of prepayment may be payable
on such date or as otherwise agreed to between the Lenders and the Borrower and (ii) with respect to any partial prepayment of the Advances
Outstanding, accrued Interest on such amount to but excluding the date of prepayment shall be payable on the date of such prepayment.
(d) The
obligation of the Borrower to pay the Obligations, including the obligation of the Borrower to pay the Lenders the outstanding principal
amount of the Advances and accrued interest thereon, shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance
with the terms hereof (including Section 2.15), under any and all circumstances and irrespective of any setoff, counterclaim
or defense to payment which the Borrower or any other Person may have or have had against any Secured Party or any other Person.
(e) All
Interest and all other fees payable hereunder shall be due and payable, in arrears, on each Payment Date at any time that Advances or
Commitments are outstanding or at any time that any Lender has an obligation to extend credit hereunder. The Borrower hereby authorizes
the Administrative Agent, from time to time without prior notice to the Borrower and solely to the extent the amount on deposit in the
Collection Account is insufficient to make payments pursuant to Section 9.01(a)(i)(A) through (G) in full on any applicable
Payment Date, to charge Interest and fees (when due and payable), all expenses (as and when incurred), and all other payments as and when
due and payable under any Facility Document to the Pre-Funding Account, which amounts thereafter shall constitute Advances hereunder and
shall accrue Interest at the rate then applicable to Advances hereunder.
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Section 2.05. Prepayment
of Advances; Cures
(a) Optional
Prepayments. In addition to the prepayment of the Advances on any Payment Date pursuant to the Priority of Payments, the Borrower
may, from time to time on any Business Day, voluntarily prepay Advances in whole or in part, together with all Interest accrued thereon,
subject to the payment of any applicable Prepayment Fee and Section 2.10; provided that the Borrower shall have delivered to the Collateral
Agent and the Administrative Agent written notice of such prepayment (such notice, a “Notice of Prepayment”) not later than
12:00 p.m. on any Business Day. Each such Notice of Prepayment shall be irrevocable and effective upon receipt and shall be dated the
date such notice is being given, signed by a Responsible Officer of the Borrower and otherwise appropriately completed. Each prepayment
by the Borrower of any Advance pursuant to this Section 2.05(a) (other than any prepayment of the Advances on any Payment Date pursuant
to the Priority of Payments) shall in each case be in a principal amount of at least $500,000 or, if less, the entire outstanding principal
amount of the Advances Outstanding or, in the case of any prepayment of Advances with the proceeds of a prepayment or repayment of principal
of Collateral Loans, such lesser amount as is paid by the applicable Obligor in respect thereof. If a Notice of Prepayment is given by
the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. The Borrower shall make the payment amount specified in such notice by wire transfer of immediately available
funds by 2:00 p.m. (New York time) to the deposit account specified by the Administrative Agent from time to time in writing. The Administrative
Agent promptly will make such payment amount specified in such notice available to each Lender in the amount of each Lender’s Percentage
of the payment amount by wire transfer to such Lender’s account. Any funds for purposes of a voluntary prepayment received by the
Administrative Agent after 2:00 p.m. (New York time) shall be deemed received on the next Business Day. For the avoidance of doubt, the
prepayment of the Advances on any Payment Date pursuant to the Priority of Payments shall not be subject to any notice, minimum amount,
or funding and payment location requirements hereunder.
(b) Mandatory
Prepayments. The Borrower shall prepay the Advances on each Payment Date in the manner and to the extent provided in the Priority
of Payments. The Borrower shall provide, in each Compliance Certificate, notice of the aggregate amounts of Advances that are to
be prepaid on the next succeeding Payment Date in accordance with the Priority of Payments.
(c) Borrowing
Base Deficiency Cure.
(i) If
any Borrowing Base Deficiency has occurred and is continuing, then the Borrower may eliminate such Borrowing Base Deficiency in its entirety
by effecting one or more (or any combination thereof) of the following actions: (A) deposit into or credit to the Collection Account
cash and Eligible Investments, (B) repay Advances (together with all accrued and unpaid costs and expenses of the Agents, Custodian,
Collateral Administrator, Securities Intermediary and the Lenders), (C) sell or substitute Collateral Loans in accordance with Article X,
or (D) pledge additional Collateral Loans as Collateral.
(ii) In
connection with the proposed repayment of Advances or pledge of additional Collateral Loans as Collateral pursuant to Section 2.05(c)(i),
the Borrower (or the Collateral Manager on its behalf) shall deliver in accordance with Section 2.05(a), (x) to the Administrative
Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Custodian), notice of such repayment or pledge and a
duly completed Borrowing Base Certificate, updated to the date such repayment or pledge is being made and giving pro forma effect
to such repayment or pledge, and (y) to the Administrative Agent, if applicable, a description of any Collateral Loans and each Obligor
of such Collateral Loan to be pledged. Upon any such pledge by the Borrower of a Collateral Loan (i) all of the Borrower’s right,
title and interest to such Collateral Loan shall be subject to the Lien granted to the Collateral Agent pursuant to this Agreement and
(ii) such Collateral Loan shall be Delivered to the Custodian on behalf of the Collateral Agent.
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(d) Ratings
Deficiency Cure.
(i) If
any Ratings Deficiency has occurred and is continuing, then the Borrower may eliminate such Ratings Deficiency in its entirety by effecting
one or more (or any combination thereof) of the following actions: (A) substitute Collateral Loans in accordance with Section
10.03 or (B) pledge additional Collateral Loans as Collateral. During any Ratings Event that is then continuing, the Springing
Guaranty shall continue to be in effect in accordance with the Springing Guaranty Agreement and on any day thereafter that the Ratings
Test is satisfied the Springing Guaranty shall cease to be in effect.
(ii) In
connection with the proposed pledge of additional Collateral Loans as Collateral pursuant to Section 2.05(d)(i), the Borrower
(or the Collateral Manager on its behalf) shall deliver (x) to the Administrative Agent (with a copy to the Collateral Agent, the Collateral
Administrator and the Custodian), notice of such pledge and a duly completed Borrowing Base Certificate, updated to the date such pledge
is being made and giving pro forma effect to such pledge, and (y) to the Administrative Agent, if applicable, a description of any Collateral
Loans and each Obligor of such Collateral Loan to be pledged. Upon any such pledge by the Borrower of a Collateral Loan (i) all of the
Borrower’s right, title and interest to such Collateral Loan shall be subject to the Lien granted to the Collateral Agent pursuant
to this Agreement and (ii) such Collateral Loan shall be Delivered to the Custodian on behalf of the Collateral Agent.
(e) Additional
Prepayment Provisions. Each prepayment pursuant to this Section 2.05 shall be subject to Sections 2.04(d) and 2.10
and applied to the Advances in accordance with the Lenders’ respective Percentages.
Section 2.06. Changes of
Commitments
(a) Automatic
Reduction and Termination. The Commitments of all Lenders shall be automatically reduced to zero at 5:00 p.m. on the Commitment Termination
Date.
(b) Optional
Termination or Reductions. Prior to the Final Maturity Date, subject to the payment of any applicable Prepayment Fee, the Borrower
shall have the right to terminate or reduce the unused amount of the Facility Amount at any time or from time to time upon not less than
ten (10) Business Days’ prior notice to the Administrative Agent, the Collateral Agent, the Lenders, the Collateral Administrator
and the Custodian of each such termination or reduction, which notice shall specify the effective date of such termination or reduction
and the amount of any such reduction; provided that any notice received after 2:00 p.m. shall be deemed to be received on the next
Business Day; provided, further, that (i) the amount of any such reduction of the Facility Amount shall be equal to at least
$1,000,000 or an integral multiple of $100,000 in excess thereof or, if less, the remaining unused portion thereof, and (ii) no such reduction
will reduce the Facility Amount below the aggregate principal amount of Advances Outstanding at such time. Such notice of termination
or reduction shall be irrevocable and shall be effective only upon receipt by the Administrative Agent, the Collateral Agent, the Lenders,
the Collateral Administrator and the Custodian, and shall attach, in the case of a reduction of the Commitments, a Borrowing Base Certificate.
Each reduction of Commitments of the Lenders hereunder shall be applied pro rata to reduce the respective Commitments of each Lender.
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(c) Effect
of Termination or Reduction. The Commitments of the Lenders once terminated or reduced may not be reinstated. Each reduction of the
Facility Amount pursuant to this Section 2.06 shall be applied ratably among the Lenders in accordance with their respective Commitments.
Section 2.07. Maximum Lawful
Rate
It is the intention of the parties
hereto that the interest on the Advances shall not exceed the maximum rate permissible under Applicable Law. Accordingly, anything herein
or in any Note to the contrary notwithstanding, in the event any interest is charged to, collected from or received from or on behalf
of the Borrower by the Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then the excess of such payment over
that maximum shall be applied first to the payment of amounts then due and owing by the Borrower to the Secured Parties under this Agreement
(other than in respect of principal of and interest on the Advances) and then to the reduction of the outstanding principal amount of
the Advances Outstanding.
Section 2.08. Several Obligations
The failure of any Lender to make
any Advance to be made by it on the date specified therefor shall not relieve any other Lender of its obligation to make its Advance on
such date. None of the Administrative Agent, the Collateral Agent, the Custodian, the Securities Intermediary or the Collateral Administrator,
shall be responsible for the failure of any Lender to make any Advance, and no Lender shall be responsible for the failure of any other
Lender to make an Advance required to be made by such other Lender.
Section 2.09. Increased
Costs
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, compulsory loan, insurance charge, special deposit or similar requirement against assets of, deposits
with or for account of, or credit extended by, any Affected Person;
(ii) subject
any Secured Party to any Taxes (other than (A) Non-Excluded Taxes, (B) Taxes described in clauses (b) through (d) of the
definition of “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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(iii) impose
on any Affected Person any other condition, cost or expense, affecting this Agreement or Advances made by such Affected Person by reference
to the Term SOFR Rate or any participation therein;
and the result of any of the foregoing shall
be to increase the cost to any Affected Person of making, continuing, converting into or maintaining any Advance (or of maintaining its
obligation to make any Advance) or to increase the cost to, or to reduce the amount of any payment (whether of principal, interest, fees,
compensation or otherwise) or sum received or receivable by, such Affected Person hereunder (whether of principal, interest, fees, compensation
or otherwise), then the Borrower will pay to such Affected Person from time to time after receipt of a written demand by a Responsible
Officer of such Affected Person in Dollars, such additional amount or amounts as will compensate such Affected Person for such additional
costs incurred or reduction suffered within ten (10) days of receipt of such demand. If a Lender requests compensation by the Borrower
under this Section 2.09, the Borrower may, by notice to such Lender, suspend the obligation of such Lender to make or continue
Advances by reference to the Term SOFR Rate, until the event or condition giving rise to such request
ceases to be in effect (in which case (x) all Advances of such Lender shall be made or continued by reference to the Base Rate and (y)
such Lender shall have no obligation to make any Advances by reference to the Term SOFR Rate); provided
that such suspension shall not affect the right of such Lender to receive the compensation so requested.
(b) Capital
Requirements. If any Affected Person determines that any Change in Law regarding capital or liquidity requirements has or would have
(but for the operation of this Section 2.09) the effect of reducing the rate of return on such Affected Person’s capital
or on the capital of such Affected Person’s holding company, if any, as a consequence of this Agreement (or arising in connection
herewith) or the Advances made by such Affected Person to a level below that which such Affected Person or such Affected Person’s
holding company could have achieved but for such Change in Law (taking into consideration such Affected Person’s policies and the
policies of such Affected Person’s holding company with respect to capital adequacy or liquidity coverage) by an amount deemed to
be material by such Affected Person, then from time to time after demand by such Affected Person, the Borrower will pay to such Affected
Person in Dollars, such additional amount or amounts as will compensate such Affected Person or such Affected Person’s holding company
for any such reduction suffered or charge imposed on the next Payment Date following such receipt of such demand.
(c) Lending
Office. Upon the occurrence of any event giving rise to the Borrower’s obligation to pay additional amounts to a Lender pursuant
to clauses (a) or (b) of this Section 2.09, such Lender will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate a different lending office if such designation would reduce or obviate the
obligations of the Borrower to make future payments of such additional amounts; provided that such designation is made on such terms that
such Lender and its lending office suffer no unreimbursed cost or material legal or regulatory disadvantage (as reasonably determined
by such Lender), with the object of avoiding future consequence of the event giving rise to the operation of any such provision.
(d) Ratings.
If the Administrative Agent, after consultation with the Collateral Manager, determines that it is necessary or appropriate to obtain
a credit rating on the Advances, the Borrower shall provide (no later than 60 days following receipt by the Borrower of such reasonable
request) at least one credit rating agency designated by the Administrative Agent with all information and documents reasonably requested
by such rating agency (to the extent such information or documents are in the possession of or reasonably available to the Borrower) and
otherwise reasonably cooperate with such rating agency’s review of the Facility Documents and transactions contemplated hereby;
it being understood that the Borrower shall not be responsible for the cost of obtaining or maintaining any such rating.
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(e) Calculation.
In determining any amount provided for in this Section 2.09, the Affected Person may use any reasonable averaging and attribution
methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 2.09, shall submit to the
Borrower a certificate of a Responsible Officer of the Affected Person setting forth in reasonable detail the basis for and the computations
of such additional or increased costs, which certificate shall be conclusive absent manifest error. The Borrower shall pay such amount
shown as due on any such certificate on the next Payment Date after receipt thereof.
(f) Delay
in Requests. Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section shall not constitute
a waiver of such Affected Person right to demand such compensation; provided that the Borrower shall not be required to compensate
an Affected Person pursuant to this Section for any increased costs or reductions incurred more than six months prior to the date that
such Affected Person notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Affected
Person’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive
effect thereof.
(g) After-Tax
Basis. The payment of amounts under this Section 2.09 shall be on an after Tax basis.
Section 2.10. Compensation;
Breakage Payments; Inability to Determine Rates
(a) The
Borrower agrees to compensate each Affected Person from time to time, on the Payment Dates (or the applicable date of prepayment) following
such Affected Person’s written request (which request shall set forth the basis for requesting such amounts) in accordance with
the Priority of Payments, for all reasonable and documented losses, expenses and liabilities (including any interest paid by such Affected
Person to lenders of funds borrowed to make or carry an Advance bearing interest that was computed by reference to the Term SOFR Rate
and any loss sustained by such Affected Person in connection with the re-employment of such funds but excluding loss of anticipated profits),
which such Affected Person may sustain: (i) if for any reason (including any failure of a condition precedent set forth in Article
III but excluding a default by the applicable Lender) a Borrowing of any Advance bearing interest that was computed by reference to
the Term SOFR Rate by the Borrower does not occur on the Borrowing Date specified therefor in the applicable Notice of Borrowing delivered
by the Borrower, (ii) if any payment, prepayment or conversion of any of the Borrower’s Advances bearing interest that was computed
by reference to the Term SOFR Rate occurs on a date that is not the last day of the relevant Interest Accrual Period, and (iii) if any
payment or prepayment of any Advance bearing interest that was computed by reference to the Term SOFR Rate is not made on a Payment Date
or pursuant to a Notice of Prepayment given by the Borrower. A certificate as to any amounts payable pursuant to this Section
2.10 submitted to the Borrower by any Lender (with a copy to the Agents, and accompanied by a reasonably detailed calculation of such
amounts and a description of the basis for requesting such amounts) shall be conclusive in the absence of manifest error.
(b) Inability
to Determine Rates. With respect to any Advance, if, prior to the first day of any Interest Accrual Period or prior to the date of
any Advance, as applicable, the Administrative Agent determines that for any reason adequate and reasonable means do not exist for determining
the Benchmark Rate for the applicable Advances, the Administrative Agent will promptly so notify the Borrower, the Facility Agent and
each Lender. Subject to Section 2.11, thereafter, the obligation of the Lenders to make or maintain Advances based upon the Benchmark
Rate will be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Furthermore,
if any Advance is outstanding on the date of the Borrower’s receipt of notice from the Administrative Agent with respect to the
Benchmark Rate applicable to such Advance, then on the last day of the Interest Accrual Period applicable to such Advance (or the next
succeeding Business Day if such day is not a Business Day), such Advance shall be converted by the Administrative Agent to, and shall
constitute, an Advance bearing interest at a rate per annum equal to the Base Rate plus the Applicable Margin on such day.
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Section 2.11. Effect of
Benchmark Transition Event
(a) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Facility Document, upon the occurrence of a Benchmark
Transition Event Administrative Agent and Borrower may amend this Agreement to replace the then-current Benchmark Rate with a Benchmark
Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business
Day after Administrative Agent has posted such proposed amendment to all Lenders and Borrower so long as Administrative Agent has not
received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of
a Benchmark Rate with a Benchmark Replacement pursuant to this Section 2.11 will occur prior to the applicable Benchmark Transition
Start Date. No Currency Hedge Agreement shall constitute a Facility Document for purposes of this Section 2.11.
(b) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of the Term SOFR Rate or a
Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and,
notwithstanding anything to the contrary herein or in any other Facility Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Facility
Agreement.
(c) Notices;
Standards for Decisions and Determinations. Administrative Agent will promptly notify Borrower and the Lenders of (1) any occurrence
of a Benchmark Transition Event and its related Benchmark Replacement Date and Benchmark Transition Start Date, (2) the implementation
of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes and (4) the commencement or conclusion
of any Benchmark Unavailability Period. The Administrative Agent will notify the Borrower of the removal or reinstatement of any tenor
of a Benchmark pursuant to Section 2.11(d). Any determination, decision or election that may be made by Administrative Agent and/or
Lenders pursuant to this Section 2.11 including any determination with respect to a tenor, rate or adjustment or of the occurrence
or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and
binding absent demonstrable error and may be made in its or their sole discretion and without consent from any other party hereto or any
other Facility Documents, except, in each case, as expressly required pursuant to this Section 2.11.
(d) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Facility Document, at any time (including in
connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate and either (A) any tenor
for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by
the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided
a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then
the Administrative Agent may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for
any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed
pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark
Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including
a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Accrual Period” (or any similar
or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(e) Benchmark
Unavailability Period. Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, Borrower
may revoke any pending request for an Advance of, conversion to or continuation of an Advance referring to the applicable Benchmark Rate
to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted
any such request into a request for an Advance of or conversion to an Advance referencing the Base Rate and any outstanding affected Advance
will be deemed to have been converted from the applicable Benchmark Rate to the Base Rate at the end of the applicable Interest Accrual
Period. During any Benchmark Unavailability Period, the component of Base Rate based upon the Term SOFR Rate will not be used in any determination
of the Base Rate.
(f) Disclaimer.
The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to (A) the administration,
submission or any other matter related to any rate in the definition of “Term SOFR Rate” or with respect to any alternative
or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implemented hereunder),
(B) the composition or characteristics of any such Benchmark Replacement, including whether it is similar to, or produces the same value
or economic equivalence any Benchmark Rate or have the same volume or liquidity as did any Benchmark Rate, (C) any actions or use of its
discretion or other decisions or determinations made with respect to any matters covered by this Section 2.11(f) including, without
limitation, whether or not a Benchmark Transition Event has occurred, the removal or lack thereof of unavailable or non-representative
tenors, the implementation or lack thereof of any Benchmark Replacement Conforming Changes, the delivery or non-delivery of any notices
required by clause (d) above or otherwise in accordance herewith, and (D) the effect of any of the foregoing provisions of this Section
2.11(f). Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate,
the Term SOFR Rate or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower,
any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential
damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation
of any such rate (or component thereof) provided by any such information source or service.
Section 2.12. Fees
(a) Unused
Fee. On each Payment Date, the Borrower shall pay to the Administrative Agent (for the account of the Lenders on a pro rata basis)
an unused commitment fee (an “Unused Fee”) in an amount equal to the sum, for each day during the related Interest
Accrual Period from and including the Closing Date to and excluding the Commitment Termination Date, of the product of (i) the Unused
Fee Rate, divided by 360 and (ii) the applicable portion of the Unused Amount, in each case for each such day during the related
Interest Accrual Period.
(b) Administrative
Agent Fees. The Borrower agrees to pay to the Administrative Agent such fees as are mutually agreed to in writing from time to time
by the Borrower and the Administrative Agent, including the fees set forth in the Administrative Agent Fee Letter.
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(c) Collateral
Administrator, Custodian and Securities Intermediary Fees. The Borrower agrees to pay to the Collateral Administrator, the Custodian
and the Securities Intermediary such fees as are mutually agreed to in writing from time to time by the Borrower and the Collateral Administrator,
the Custodian and the Securities Intermediary, including the fees set forth in the Custodian Fee Letter. Fees payable pursuant to the
Custodian Fee Letter shall be computed on the basis of a 360-day year and the actual days elapsed for the related Interest Accrual
Period and shall be based on the outstanding principal amount of the Collateral Loans determined as of the first day of the related Collection
Period.
Section 2.13. Rescission
or Return of Payment
The Borrower agrees that, if at
any time (including after the occurrence of the Final Maturity Date) all or any part of any payment theretofore made by it to any Secured
Party or any designee of a Secured Party is or must be rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy
or reorganization of the Borrower or any of its Affiliates), the obligation of the Borrower to make such payment to such Secured Party
shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued
in existence and this Agreement and any other applicable Facility Document shall continue to be effective or be reinstated, as the case
may be, as to such obligations, all as though such payment had not been made.
Section 2.14. Default Interest
During the existence and continuance
of a Borrowing Base Deficiency or an Event of Default, at the election of the Administrative Agent or Required Lenders, all Obligations
(other than principal and interest on the Advances, where the Default Rate is reflected in the Applicable Margin) shall bear interest
at the Default Rate until rescinded by the Administrative Agent or the Required Lenders or the applicable Borrowing Base Deficiency has
been cured or the applicable Event of Default has been waived in accordance with the terms hereof. Interest payable at the Default Rate
shall be payable on each Payment Date in accordance with the Priority of Payments.
Section 2.15. Payments Generally
(a) All
amounts owing and payable to any Secured Party, any Affected Person or any Indemnified Party, in respect of the Advances and other Obligations,
including the principal thereof, interest, fees, indemnities, expenses or other amounts payable under this Agreement or any other Facility
Document, shall be paid on behalf and at the direction of the Borrower (or the Collateral Manager on behalf of the Borrower) by the Administrative
Agent in accordance with the Priority of Payments to the applicable recipient in immediately available funds, on each Payment Date in
accordance with the Priority of Payments, and all without counterclaim, setoff, deduction, defense, abatement, suspension or deferment.
Each Lender shall provide wire instructions to the Borrower and the Administrative Agent. Other than with respect to payments on a Payment
Date, payments must be received by the Administrative Agent on or prior to 2:00 p.m. on a Business Day to be remitted by the Administrative
Agent on such Business Day to the Lenders; provided that payments received by the Administrative Agent after 2:00 p.m. on a Business
Day will be deemed to have been paid on the next following Business Day. At no time will the Administrative Agent have any duty (express
or implied) to fund (or front or advance) any amount owing by the Borrower hereunder.
(b) Except
as otherwise expressly provided herein, all computations of interest, fees and other Obligations shall be made on the basis of a year
of 360 days for the actual number of days elapsed. In computing interest on any Advance, the date of the making of the Advance shall be
included and the date of payment shall be excluded; provided that, if an Advance is repaid on the same day on which it is made,
one day’s Interest shall be paid on such Advance. All computations made by the Collateral Agent or the Administrative Agent
under this Agreement or any other Facility Document shall be conclusive absent manifest error.
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Section 2.16. Right of Setoff
The Borrower agrees that, in addition
to (and without limitation of) any right of set-off that the Administrative Agent or any Lender may otherwise have, upon
the occurrence and during the continuance of an Event of Default, each of the Administrative Agent and the Lenders shall be entitled,
at its option, to offset amounts owing by the Administrative Agent or such Lender, as the case may be, to the Borrower, in USD or in any
other currency (irrespective of the place of payment or booking office of the obligation and regardless of whether such amounts are then
due to the Borrower), against any amount payable by the Borrower to the Administrative Agent or such Lender, as the case may be, under
this Agreement that is not paid when due. For this purpose, any amount owing by the Administrative Agent or any Lender to the Borrower
may be converted by the Administrative Agent or such Lender, as the case may be, into the currency in which the amount payable by the
Borrower to the Administrative Agent or such Lender, as the case may be, under this Agreement is denominated at the rate of exchange at
which the Administrative Agent or such Lender, as the case may be, would be able, acting in a reasonable manner and in good faith, to
purchase the relevant amount of such currency.
Section 2.17. Increase in
Facility Amount
(a) So
long as no Default, Event of Default or Ratings Deficiency has occurred and is continuing and subject to compliance with the terms of
this Section 2.17, from time to time prior to the date that is two (2) years after the Closing Date, the Borrower may request one
or more increases to the Facility Amount (each such increase, a “Facility Increase”).
(b) Each
Facility Increase shall be subject to the following conditions:
(i) the
Facility Increase shall be in an amount not less than $5,000,000;
(ii) the
Facility Amount following such Facility Increase will not exceed $100,000,000135,000,000;
(iii) the
Borrower shall have delivered to the Administrative Agent (with a copy to the Collateral Agent) a written request for such Facility Increase
(which may be by email) not later than the tenth (10th) Business Day prior to the date of such proposed Facility Increase (or
such shorter period acceptable to the Administrative Agent);
(iv) the
Borrower shall have delivered to the Administrative Agent evidence that the Borrower is authorized to agree to such Facility Increase
and all customary opinions and other closing documents as are reasonably requested by the Administrative Agent;
(v) the
Administrative Agent and each applicable Lender shall have consented to such Facility Increase in writing in their respective sole discretion;
(vi) each
of the representations and warranties of the Borrower contained in the Facility Documents shall be true and correct in all material respects
as of the date of such Facility Increase (except to the extent such representations and warranties expressly relate to any earlier date,
in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if made
on such date); and
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(vii) on
or prior to the date of such Facility Increase, the Borrower shall have paid to the Administrative Agent: (A) the applicable upfront fee
set forth in the Administrative Agent Fee Letter, and (B) all other fees due and owing pursuant to the terms hereof or any other Facility
Document.
Section 2.18. Defaulting
Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted
by Applicable Law:
(a) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of Required Lenders.
(b) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of
such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6 or otherwise) or received by the Administrative
Agent from a Defaulting Lender pursuant to Article 2 shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second,
as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third,
if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy
such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement; fourth, to the
payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against
such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so
long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court
of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances in respect of which such Defaulting
Lender has not fully funded its appropriate share, and (y) such Advance were made at a time when the conditions set forth in Section
3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, all Non-Defaulting Lenders on a pro rata
basis prior to being applied to the payment of any Advances of such Defaulting Lender until such time as all Advances are held by the
Lenders pro rata in accordance with the Commitments hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.18(b) shall be deemed paid
to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(c) Certain
Fees. No Defaulting Lender shall be entitled to receive any Unused Fee for any period during which that Lender is a Defaulting Lender
(and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender).
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(d) Defaulting
Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender,
the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to
any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of
the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances to be held
pro rata by the Lenders in accordance with the Commitments hereunder, whereupon such Lender will cease to be a Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.
ARTICLE
III
CONDITIONS PRECEDENT
Section 3.01. Conditions
Precedent to Initial Advances
The effectiveness of the Closing
Date and the obligation of each Lender to make its initial Advance hereunder shall be subject to the following conditions precedent that
the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory
to the Administrative Agent, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such
applicable conditions precedent have been waived by the Administrative Agent):
(a) each
of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true
and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and
Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents;
(c) each
of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents
shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier
date, in which case such representations and warranties shall be true and correct as of such earlier date);
(d) one
or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to
its Constituent Documents, (ii) that each of the representations and warranties are true and correct as of the Closing Date (except to
the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date), (iii) that no Default or Event of Default has occurred and is continuing, and (iv)
as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which
it is a party;
(e) copies
of favorable UCC, tax, and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and, where applicable,
trade names of each of the Borrower, the Collateral Manager and the Equityholder as reasonably requested by the Administrative Agent,
in each case, indicating that there are no prior Liens on any of the Collateral other than Permitted Liens and Liens to be released on
the Closing Date acceptable to the Administrative Agent;
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(f) proper
financing statements, in acceptable form for filing on the Closing Date, under the UCC in any applicable filing office in any applicable
jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral
contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary
or desirable in order to maintain and protect the Collateral Agent’s first-priority perfected security interest in the Collateral;
(g) legal
opinions (addressed to each of the Secured Parties) of counsel (including local counsel in any applicable jurisdiction) to the Borrower,
the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered
Laws and non-contravention with organizational documents and the Investment Company Act, perfection of the Collateral Agent’s security
interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request);
(h) legal
opinions (addressed to each of the Secured Parties) of counsel (including local counsel in any applicable jurisdiction) to the Collateral
Agent, Custodian and Collateral Administrator covering customary corporate matters (including opinions regarding no conflict with covered
Laws and non-contravention with organizational documents and such other matters as the Administrative Agent and its counsel shall reasonably
request);
(i) since
February 28, 2025, there shall have been no Material Adverse Effect;
(j) the
Borrower shall not have any Indebtedness other than the Obligations and any Currency Hedge Transaction expressly required pursuant to
Section 5.01(q);
(k) the
Borrower shall have Availability of not less than $100,000 as of the Closing Date;
(l) all
of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement;
(m) evidence
reasonably satisfactory to it that (i) all fees and expenses due and owing to the Administrative Agent on or prior to the Closing Date
have been received or will be received contemporaneously with the Closing Date; and (ii) the reasonable and documented fees and expenses
of Mayer Brown LLP, counsel to the Administrative Agent, and of counsel to the Custodian, the Securities Intermediary and the Collateral
Administrator in connection with the transactions contemplated hereby, shall have been paid by the Borrower;
(n) a
Borrowing Base Certificate prepared pro forma as of the Closing Date;
(o) a
solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder;
(p) the
Borrower (or the Collateral Manager on behalf of the Borrower) shall have Delivered to the Custodian all of the Collateral Loan Files
for each Collateral Loan owned by the Borrower at the address identified herein;
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(q) the
Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall
be made directly to the applicable Collection Account and all Collections received by the Borrower or its Affiliates with respect to the
Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties;
(r) in
advance of the Closing Date, all documentation and other information requested at least three Business Days prior to the Closing Date
in connection with any applicable “know your customer” and Anti-Money Laundering Laws;
(s) sufficiently
in advance of (but in any event not less than three (3) Business Days prior to) the Closing Date, a Beneficial Ownership Certification
in relation to the Borrower to the extent it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation;
(t) evidence
reasonably acceptable to the Administrative Agent of the full repayment in full of all Indebtedness of the Borrower under that certain
Credit and Security Agreement dated as of October 4, 2021 by and among the Borrower, the Collateral Manager, the Equityholder, Encina
Lender Finance, LLC and the other parties thereto, and the release of any liens in connection therewith;
(u) such
other approvals, documents, opinions, certificates, searches and reports as the Administrative Agent may reasonably request.
Section 3.02. Conditions
Precedent to Advances
The obligation of each Lender
to make each Advance to be made by it on each Borrowing Date shall be subject to the fulfillment (or waiver by the Required Lenders) of
the following conditions:
(a) the
Lenders and the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Borrowing Base
Certificate attached thereto, all duly completed) delivered in accordance with Section 2.02 (other than in respect of any Advance
pursuant to Section 2.02(a)(ii));
(b) immediately
after the making of such Advance on the applicable Borrowing Date, each of the Borrowing Base Test, the Ratings Test and the Coverage
Tests shall be satisfied (in each case, as demonstrated on the Borrowing Base Certificate attached to such Notice of Borrowing and certified
by a Responsible Officer of the Borrower (or the Collateral Manager on behalf of the Borrower));
(c) each
of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents
shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties
expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material
respects as of such earlier date as if made on such date);
(d) no
Default or Event of Default shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making
of such Advance;
(e) the
Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Custodian all of the Collateral Loan Files
for each Collateral Loan owned by the Borrower at any time during the term of this Agreement at the address identified herein; and
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(f) unless
there has been no material change to the Beneficial Ownership Certification previously provided by the Borrower, such Borrower, to the
extent it then qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, shall have delivered to Administrative
Agent an updated Beneficial Ownership Certification at least three (3) Business Days prior to any Advance.
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations
and Warranties of the Borrower
The Borrower represents and warrants
to each of the Secured Parties on and as of the Closing Date and each Measurement Date, as follows:
(a) Due
Organization; Power and Authority. The Borrower is a limited liability company formed under the Laws of the State of Delaware, with
full power and authority to own and operate its assets and properties (and has duly authorized such grant by all necessary action and
the execution, delivery and performance of this Agreement and the other Facility Documents to which it is a party have been duly authorized
by it by all necessary action) and to conduct the business in which it is now engaged and to execute and deliver and perform its obligations
under this Agreement and the other Facility Documents to which it is a party.
(b) Due
Qualification and Good Standing. The Borrower is validly existing and in good standing under the Laws of its jurisdiction of organization.
The Borrower is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which
the nature of its business, assets and properties, including the performance of its obligations under this Agreement, the other Facility
Documents to which it is a party and its Constituent Documents, requires such qualification, except where the failure to be so qualified
or in good standing would not reasonably be expected to have a Material Adverse Effect.
(c) Due
Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. The execution and delivery by the Borrower of, and
the performance of its obligations under the Facility Documents to which it is a party and the other instruments, certificates and agreements
contemplated thereby are within its powers and have been duly authorized by all requisite action by it and have been duly executed and
delivered by it and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting
creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) Non-Contravention.
None of the execution and delivery by the Borrower of this Agreement or the other Facility Documents to which it is a party, the Borrowings
or the pledge of the Collateral hereunder, the consummation of the transactions herein or therein contemplated, or compliance by it with
the terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or violation of, or constitute a
default under its Constituent Documents, (ii) conflict with or contravene (A) any Applicable Law, (B) any material indenture, agreement
or other contractual restriction binding on or affecting it or any of its assets, including any Related Document, or (C) any order, writ,
judgment, award, injunction or decree binding on or affecting it or any of its assets or properties or (iii) result in a breach or violation
of, constitute a default under, or permit the acceleration of any obligation or liability in, any material contractual obligation or any
material agreement or document to which it is a party or by which it or any of its assets are bound (or to which any such obligation,
agreement or document relates).
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(e) Governmental
Authorizations; Private Authorizations; Governmental Filings. The Borrower has obtained, maintained and kept in full force and effect
all Governmental Authorizations and Private Authorizations which are necessary for it to properly carry out its business, and has made
all material Governmental Filings necessary for the execution and delivery by it of the Facility Documents to which it is a party, the
Borrowings by the Borrower under this Agreement, the pledge of the Collateral by the Borrower under this Agreement and the performance
by the Borrower of its obligations under this Agreement and the other Facility Documents to which it is a party, and no material Governmental
Authorization, Private Authorization or Governmental Filing which has not been obtained or made is required to be obtained or made by
it in connection with the execution and delivery by it of any Facility Document to which it is a party, the Borrowings by the Borrower
under this Agreement, the pledge of the Collateral by the Borrower under this Agreement or the performance of its obligations under this
Agreement and the other Facility Documents to which it is a party.
(f) Compliance
with Agreements, Laws, Etc. The Borrower has duly observed and complied with all Applicable Laws relating to the conduct of its business
and its assets. The Borrower has preserved and kept in full force and effect its legal existence. The Borrower has preserved and kept
in full force and effect its rights, privileges, qualifications and franchises necessary for the proper operation of its business.
(g) Sanctions;
Anti-Corruption Laws; and Anti-Money Laundering Laws. Neither the Borrower nor any of its Subsidiaries or any of their respective
Related Parties is a Sanctioned Person or is aware that it is under investigation for an alleged breach of Sanctions, Anti-Money Laundering
Laws, or Anti-Corruption Laws by a Governmental Authority that enforces Sanctions, Anti-Money Laundering Laws, or Anti-Corruption Laws.
The Borrower, its Subsidiaries, and any of their respective Related Parties are in compliance with Sanctions, Anti-Corruption Laws, and
Anti-Money Laundering Laws. The Borrower will notify the Lenders and Administrative Agent in writing not more than two (2) Business Days
after becoming aware of any breach of this Section 4.01(g). The Borrower and its Subsidiaries have instituted and maintain policies
and procedures designed to ensure continued compliance with applicable Sanctions, applicable Anti-Money Laundering Laws, and applicable
Anti-Corruption Laws.
(h) Location.
The Borrower’s office in which the Borrower maintains its corporate books and records is located at the address for notices to the
Borrower as set forth on Schedule 3 (as such location may change from time to time as notified to the Administrative Agent in accordance
with Section 12.02). The Borrower’s jurisdiction of registration and organization is the jurisdiction referred to in Section 4.01(a).
(i) Investment
Company Act. Neither the Borrower nor the pool of Collateral is required to register as an “investment company” under
the Investment Company Act.
(j) Taxes
and Tax Status.
(i) The
Borrower has filed all U.S. federal, state and local income Tax returns and all other material Tax returns which are required to be filed
by it, if any, and has paid all U.S. federal, state and local income Taxes and all other material Taxes shown to be due and payable on
such returns, if any, or pursuant to any assessment received by any such Person other than any such taxes, assessments or charges that
are being contested in good faith by appropriate proceedings and for which appropriate reserves in accordance with GAAP have been established.
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(ii)
The Borrower is (x) either a “disregarded entity” within the meaning of U.S. Treasury Regulation Section 301.7701-3 that is
disregarded as separate from a “United States person” within the meaning of Section 7701(a)(30) of the Code or a partnership
for U.S. federal income tax purposes all of the beneficial owners of which are “United States persons” within the meaning
of Section 7701(a)(30) of the Code and (y) is not an association (or publicly traded partnership) taxable as a corporation for U.S. federal
income tax purposes.
(k) ERISA.
Neither (i) the Borrower nor (ii) any member of its ERISA Group has, or during the past six (6) years had, any liability or obligation
with respect to any Plan or Multiemployer Plan.
(l) Plan
Assets. None of the assets of the Borrower, the Equityholder or the Collateral Manager are deemed to be “plan assets”
within the meaning of the Plan Assets Regulation and the Collateral is not deemed to be “plan assets” within the meaning of
the Plan Assets Regulation. The execution, delivery, and performance of this Agreement and the other Facility Documents by the Borrower
and the borrowing and repayment of amounts under this Agreement do not and will not constitute a Prohibited Transaction.
(m) Solvency.
After giving effect to each Advance hereunder, and the disbursement of the proceeds of such Advance, the Borrower is and will be Solvent.
(n) Material
Adverse Effect. Since the later of February 28, 2025 or the date of the last audited consolidated financial statements delivered pursuant
to Section 5.01(d)(i), no event or condition has occurred with respect to the Borrower that constitutes or would reasonably be
expected to constitute a Material Adverse Effect.
(o) Compliance.
The Borrower is in compliance in all respects with its Constituent Documents and the activities described in Section 5.05 hereof.
(p) Exchange
Act Compliance; Regulations T, U and X; Margin Regulations. None of the transactions contemplated herein or in the other Facility
Documents (including, without limitation, the use of the proceeds from the transfer of the Collateral) will violate or result in a violation
of Regulations T, U and X of the Board of Governors. The Borrower does not own or intend to carry or purchase, and no proceeds from the
Advances will be used to carry or purchase, any “margin stock” within the meaning of Regulation U or to extend “purpose
credit” within the meaning of Regulation U.
(q) No
Proceedings. There are no proceedings or investigations pending or, to the best knowledge of any Responsible Officer of the Borrower,
threatened against it, before any Official Body having jurisdiction over it or its properties (i) asserting the invalidity of any of the
Facility Documents, (ii) seeking to prevent the making of the Advances or the consummation of any of the transactions contemplated by
the Facility Documents or (iii) seeking any determination or ruling that would reasonably be expected to have a Material Adverse Effect.
(r) Bulk
Sales. The grant of the security interest in the Collateral by the Borrower to the Collateral Agent, for the benefit of the Secured
Parties, pursuant to this Agreement, and the execution, delivery and performance of this Agreement and the other Facility Documents, is
in the ordinary course of business for the Borrower and is not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
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(s) Collateral.
Except as otherwise expressly permitted or required by the terms of this Agreement, no item of Collateral has been sold, transferred,
assigned or pledged by the Borrower to any Person.
(t) Indebtedness.
The Borrower has no Indebtedness, other than (a) Indebtedness incurred under the terms of the Facility Documents, (b) Indebtedness incurred
under in connection with any Currency Hedge Transaction expressly required pursuant to Section 5.01(q) and (c) Indebtedness incurred
pursuant to certain ordinary business expenses arising pursuant to the transactions contemplated by this Agreement and the other Facility
Documents.
(u) Collections.
The Borrower acknowledges that (a) all Obligors (or applicable agents) have been directed to make all payments directly to the Collection
Account and (b) all Collections received by it or its Affiliates with respect to the Collateral pledged hereunder are held and shall be
held in trust for the benefit of the Collateral Agent, on behalf of the Secured Parties until deposited into the appropriate Collection
Account in accordance with this Agreement.
(v) No
Fraud. To the knowledge of any Responsible Officer of the Borrower, each Collateral Loan was originated without any fraud or misrepresentation
on the part of any party thereto.
(w) Broker/Dealer.
The Borrower is not a broker/dealer or subject to the Securities Investor Protection Act of 1970, as amended.
(x) Ordinary
Course. Each repayment of principal or interest in respect of the Advances under this Agreement shall be (x) in payment of a debt
incurred by the Borrower in the ordinary course of business or financial affairs of the Borrower and (y) made in the ordinary course of
business or financial affairs between the Borrower and the Lenders.
(y) Subsidiaries;
Capitalization. The Borrower has no Subsidiaries. The Borrower has issued no membership or other equity interests other than
the Capital Stock.
(z) Beneficial
Ownership Certification. The information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
Section 4.02. Additional
Representations and Warranties of the Borrower
The Borrower represents and warrants
to each of the Secured Parties on and as of the Closing Date and each Measurement Date, as follows:
(a) Information.
Each Notice of Borrowing, each Compliance Certificate, each Borrowing Base Certificate and (x) all other written information, reports,
certificates and statements furnished by or on behalf of the Borrower to any Secured Party for purposes of or in connection with this
Agreement, the other Facility Documents or the transactions contemplated hereby or thereby and (y) all information provided by the Borrower
or the Collateral Manager to the Administrative Agent in writing with respect to any Collateral Loan, in each case, is true, complete
and correct in all material respects (or, with respect to information received from an Obligor or other third party, is true and correct
in all material respects to the knowledge of the Borrower or the Collateral Manager) as of the date such information is stated or certified.
All Collateral Loans included as Eligible Collateral Loans in the most recent calculation of the Borrowing
Base Test, the Ratings Test and the Coverage Tests required to be determined hereunder were Eligible
Collateral Loans as of the date of such calculation and any other information contained in each Notice of Borrowing is an accurate and
complete listing of all the Collateral Loans contained in the Collateral as of the related date such Collateral Loan was included in the
Collateral and the information contained therein with respect to the identity of such item of Collateral and the amounts owing thereunder
is true and correct as of the related date such Collateral Loan was included in the Collateral.
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(b) Representations
Relating to the Collateral.
(i) The
Borrower owns and has legal, marketable and beneficial title to all Collateral Loans and other Collateral free and clear of any Lien or
claim of any Person, other than Permitted Liens;
(ii) the
Borrower has acquired its ownership in the Collateral Loans and other Collateral in good faith without notice of any adverse claim, other
than Permitted Liens;
(iii) [reserved];
(iv) the
Borrower has full right to grant a security interest in and assign and pledge the Collateral to the Collateral Agent for the benefit of
the Secured Parties (and has duly authorized such grant by all necessary action and the execution, delivery and performance of this Agreement
and the other Facility Documents to which it is a party have been duly authorized by it by all necessary action);
(v) other
than the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement, the Borrower
has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral; the Borrower has not authorized
the filing of and is not aware of any financing statements or any equivalent filing in any applicable jurisdiction against the Borrower
that include a description of collateral covering the Collateral other than any financing statement or any equivalent filing in any applicable
jurisdiction relating to the security interest granted to the Collateral Agent hereunder; and the Borrower is not aware of any judgment,
PBGC liens or Tax lien filings against the Borrower or any of its assets;
(vi) the
Collateral constitutes Money, Cash, accounts (as defined in Section 9-102(a)(2) of the UCC), Instruments, general intangibles (as defined
in Section 9-102(a)(42) of the UCC), Uncertificated Securities, Certificated Securities or security entitlements to financial assets resulting
from the crediting of financial assets to a “securities account” (as defined in Section 8-501(a) of the UCC) or supporting
obligations;
(vii) all
Covered Accounts constitute “securities accounts” under Section 8-501(a) of the UCC or “deposit accounts” as defined
in Section 9-102 of the UCC;
(viii) this
Agreement creates a valid, continuing and, upon Delivery of Collateral, execution of the Account Control Agreement, filing of the financing
statements referenced in clause (xi) below, perfected security interest (as defined in Section 1-201(35) of the UCC) in the Collateral
in favor of the Collateral Agent, for the benefit and security of the Secured Parties, which security interest is prior to all other Liens
and claims (other than Permitted Liens) and is enforceable as such against creditors of and purchasers from the Borrower, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights
generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law;
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(ix) the
Borrower has received all consents and approvals required by the terms of the Related Documents in respect of such Collateral to the pledge
hereunder to the Collateral Agent of its interest and rights in such Collateral;
(x) with
respect to the Collateral that constitutes Security Entitlements:
(A) all such
Collateral has been and will have been credited to the applicable Covered Account;
(B) the
Securities Intermediary for each Covered Account has agreed to treat all assets credited to the Covered Accounts as Financial Assets;
and
(C) either
(x) the Borrower has caused or will have caused, on or prior to the Closing Date, the filing of all appropriate financing statements in
the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in the Collateral
granted to the Collateral Agent, for the benefit and security of the Secured Parties, hereunder (which the Borrower hereby agrees may
be an “all asset” filing) or (y)(A) the Borrower has delivered to the Collateral Agent a fully executed Account Control Agreement
pursuant to which the Securities Intermediary has agreed to comply with all instructions originated by the Collateral Agent relating to
the Covered Accounts without further consent of the Borrower or (B) the Borrower has taken all steps necessary to cause the Securities
Intermediary to identify in its records the Collateral Agent as the Person having a Security Entitlement against the Securities Intermediary
in each of the Covered Accounts; and
(xi) with
respect to Collateral that constitutes accounts or general intangibles, the Borrower has caused or will have caused, on or prior to or
promptly after the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions
under Applicable Law in order to perfect the security interest in the Collateral granted to the Collateral Agent, for the benefit and
security of the Secured Parties, hereunder (which the Borrower hereby agrees may be an “all asset” filing).
(c) Value
Given. The Borrower has acquired each Collateral Loan in the ordinary course of its business and has given fair consideration and
reasonably equivalent value to the seller of each Collateral Loan in exchange for the purchase or contribution of each such Collateral
Loan. No such transfer has been made for or on account of an antecedent debt owed by the Borrower to such seller and no such transfer
is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.
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Section 4.03. Representations
and Warranties of the Equityholder and the Collateral Manager
The Collateral Manager and the
Equityholder, as applicable, each represents and warrants to each of the Secured Parties on and as of the Closing Date and each Borrowing
Date, as follows:
(a) Due
Organization. It is duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation, with full
power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver
and perform its obligations under this Agreement and the other Facility Documents to which it is a party.
(b) Due
Qualification and Good Standing. It is duly qualified to do business and, to the extent applicable, is in good standing in each other
jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement,
the other Facility Documents to which it is a party and its Constituent Documents, requires such qualification, except where the failure
to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.
(c) Due
Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. The execution and delivery by it, and the performance
of its obligations under the Facility Documents to which it is a party and the other instruments, certificates and agreements contemplated
thereby, are within its powers and have been duly authorized by all requisite action by it and have been duly executed and delivered by
it and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’
rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) Non-Contravention.
None of the execution and delivery by it of this Agreement or the other Facility Documents to which it is a party, the consummation of
the transactions herein or therein contemplated, or compliance by it with the terms, conditions and provisions hereof or thereof, will
(i) conflict with, or result in a breach or violation of, or constitute a default under its Constituent Documents, (ii) conflict with
or contravene (A) any Applicable Law in any material respect, (B) any material indenture, agreement or other contractual restriction binding
on or affecting it or any of its assets, including any Related Document, or (C) any material order, writ, judgment, award, injunction
or decree binding on or affecting it or any of its assets or properties, or (iii) result in a breach or violation of, or constitute a
default under, or permit the acceleration of any obligation or liability in any material contractual obligation or any material agreement
or document to which it is a party or by which it or any of its assets are bound (or to which any such obligation, agreement or document
relates).
(e) Governmental
Authorizations; Private Authorizations; Governmental Filings. It has obtained, maintained and kept in full force and effect all Governmental
Authorizations and Private Authorizations which are necessary for it to properly carry out its business, and made all material Governmental
Filings necessary for the execution and delivery by it of the Facility Documents to which it is a party, and the performance by it of
its obligations under this Agreement and the other Facility Documents to which it is a party, and no material Governmental Authorization,
Private Authorization or Governmental Filing which has not been obtained or made is required to be obtained or made by it in connection
with the execution and delivery by it of any Facility Document to which it is a party or the performance of its obligations under this
Agreement and the other Facility Documents to which it is a party.
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(f) Compliance
with Agreements, Laws, Etc. It has duly observed and complied with all Applicable Laws relating to the conduct of its business and
its assets except as would not reasonably be expected to have a Material Adverse Effect. It has preserved and kept in full force and effect
its legal existence. It has preserved and kept in full force and effect its rights, privileges, qualifications and franchises necessary
for the proper operation of its business.
(g) Sanctions;
Anti-Corruption Laws; and Anti-Money Laundering Laws. Neither it nor any of its Affiliates is a Sanctioned Person or is under investigation
for an alleged breach of Sanctions, Anti-Money Laundering Laws, or Anti-Corruption Laws by a Governmental Authority that enforces Sanctions,
Anti-Money Laundering Laws, or Anti-Corruption Laws. It, its Subsidiaries, and their respective Related Parties are in compliance with
Sanctions, Anti-Corruption Laws, and Anti-Money Laundering Laws. It and its Subsidiaries have instituted and maintain policies and procedures
designed to ensure continued compliance with applicable Sanctions, applicable Anti-Money Laundering Laws, and applicable Anti-Corruption
Laws.
(h) Eligibility.
Each Collateral Loan included in a Borrowing Base Certificate required to be delivered by it under this Agreement as an Eligible Collateral
Loan was, in fact, an Eligible Collateral Loan at such time.
(i) Status
of BDC. It is (and shall have all times maintained its status as) a “business development company” under the Investment
Company Act.
Section 4.04. Representations
and Warranties of the Custodian and Collateral Administrator.
Each of the Custodian and the
Collateral Administrator represents and warrants in its individual capacity and as Custodian or Collateral Administrator, as applicable,
as follows (and any successor Custodian or Collateral Administrator appointed in accordance with this Agreement represents and warrants
as follows in its individual capacity and as Custodian or Collateral Administrator, as applicable):
(a) Organization
and Corporate Power. (i) It is a duly organized and validly existing national banking association in good standing under the laws
of the United States. It has full power, authority and legal right to execute, deliver and perform its obligations as Custodian or Collateral
Administrator, as applicable, under this Agreement.
(b) Due
Authorization. The execution and delivery of this Agreement and the consummation of the transactions provided for herein have been
duly authorized by all necessary association action, on its part, either in its individual capacity or as Custodian or Collateral Administrator,
as the case may be.
(c) No
Conflict. The execution and delivery of this Agreement, the performance of the transactions contemplated hereby and the fulfillment
of the terms hereof will not conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument
to which it is a party or by which it or any of its property is bound.
(d) No
Violation. Its execution and delivery of this Agreement, its performance of the transactions contemplated hereby and the fulfillment
of the terms hereof will not conflict with or violate, in any material respect, any Applicable Law.
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(e) All
Consents Required. All approvals, authorizations, consents, orders or other actions of any Person or Governmental Authority applicable
to the Custodian or the Collateral Administrator required in connection with the execution and delivery of this Agreement, the performance
by the Custodian or the Collateral Administrator, as applicable, of the transactions contemplated hereby and the fulfillment by the Custodian
or the Collateral Administrator, as applicable, of the terms hereof have been obtained.
(f) Validity,
etc. This Agreement constitutes the legal, valid and binding obligation of the Custodian or the Collateral Administrator, as applicable,
enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable insolvency, bankruptcy,
reorganization, moratorium, or other similar Laws or general principles of equity (whether considered in a suit at law or in equity).
ARTICLE
V
COVENANTS
Section 5.01. Affirmative
Covenants of the Borrower
The Borrower covenants and agrees
that, until the Final Maturity Date (and thereafter until the date that all Obligations, other than contingent indemnification and reimbursement
obligations for which no claim has been asserted, have been Paid in Full):
(a) Compliance
with Agreements, Laws, Etc. It shall (i) duly observe and comply in all material respects with all Applicable Laws relative to the
conduct of its business or to its assets, (ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep
in full force and effect its rights, privileges, qualifications and franchises, in each case to the extent necessary or appropriate to
the operation of its business, (iv) comply with the terms and conditions of each Facility Document to which it is a party, its Constituent
Documents and, except where the failure to do so would reasonably be expected to have a Material Adverse Effect, each Related Document
to which it is a party and (v) obtain, maintain and keep in full force and effect all Governmental Authorizations, Private Authorizations
and Governmental Filings which are necessary or appropriate to properly carry out its business and the transactions contemplated to be
performed by it under the Facility Documents to which it is a party, its Constituent Documents and the Related Documents to which it is
a party.
(b) Enforcement.
(i) It
shall not take any action that would release any Obligor from any of such Obligor’s covenants or obligations under any instrument
or agreement included in the Collateral, except in the case of (A) repayment of Collateral Loans, (B) subject to the terms of this Agreement
(including Section 5.02(s) hereof), (1) amendments, consents, waivers and other modifications of Collateral Loans in accordance
with the Collateral Management Standard and (2) actions taken in connection with the work out or restructuring of any Collateral Loan
in accordance with the provisions hereof, and (C) other actions by the Collateral Manager required hereby or otherwise to the extent not
prohibited by, or in conflict with, this Agreement.
(ii) It
will not, without the prior written consent of the Administrative Agent and the Required Lenders, contract with other Persons (other than
the Collateral Manager and the Collateral Administrator) for the performance of actions and obligations to be performed by the Borrower
or the Collateral Manager hereunder. Notwithstanding any such arrangement, the Borrower shall remain primarily liable with respect thereto.
The Borrower will promptly perform, and use commercially reasonable efforts to cause the Collateral Manager to perform, all of their obligations
and agreements contained in this Agreement or any other Facility Document to which such Person is a party.
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(c) Further
Assurances. It shall promptly upon the reasonable request of the Required Lenders (through the Administrative Agent), at the Borrower’s
expense, execute and deliver such further instruments and take such further action in order to maintain and protect the Collateral Agent’s
first-priority perfected security interest in the Collateral pledged by the Borrower for the benefit of the Secured Parties free and clear
of any Liens (other than Permitted Liens). At the reasonable request of the Administrative Agent or the Required Lenders, the Borrower
shall promptly take, at the Borrower’s expense, such further action in order to establish and protect the rights, interests and
remedies created or intended to be created under this Agreement in favor of the Secured Parties in the Collateral, including all actions
which are necessary to (x) enable the Secured Parties to enforce their rights and remedies under this Agreement and the other Facility
Documents, and (y) effectuate the intent and purpose of, and to carry out the terms of, the Facility Documents.
(d) Financial
Statements; Other Information. It shall provide to the Administrative Agent (who shall then deliver to the Lenders):
(i) within
120 days after the end of each fiscal year of the Equityholder (commencing with the fiscal year ending February 28, 2026), an annual report
of the Equityholder containing (x) an audited consolidated statement of assets and liabilities as of the end of such fiscal year, and
audited consolidated statements of operations, changes in net assets and cash flows, for the year then ended, prepared in accordance with
GAAP, each reported on by independent public accountants of recognized national standing (without a “going concern” or like
qualification or exception and without any qualification or exception as to the scope of such audit (other than relating to the impending
maturity date of the Facility within 12 months)), to the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Equityholder and its consolidated Subsidiaries on a consolidated basis
and (y) an unaudited consolidating statement of assets and liabilities of the Borrower as of the end of such fiscal year, and unaudited
consolidating statements of operations, changes in net assets and cash flows, in each case, for the year then ended, prepared in accordance
with GAAP; provided that (a) appropriate notation shall be made within the consolidated financial statements of the Equityholder
to indicate the separateness of the Borrower from the Equityholder and to indicate that the Borrower’s assets and credit are not
available to satisfy the debts and other obligations of the Equityholder or any other Person and (b) such assets shall also be listed
on the Borrower’s own separate income statement, balance sheet and statement of cash flows; provided, that any financial
statements required to be delivered pursuant to this clause (i) which are made available via EDGAR, or any successor system of the SEC,
in the Equityholder’s annual report on Form 10-K, shall be deemed delivered to the Administrative Agent on the date such documents
are made so available;
(ii) within
45 days after the end of each of fiscal quarter of each fiscal year of the Equityholder, an unaudited financial report of the Equityholder
containing a consolidated statement of assets and liabilities, consolidated statements of operations, changes in net assets, and cash
flows, and a schedule of the Borrower’s investments, in each case for the period then ended, all certified by one of its senior
financial officers as presenting fairly in all material respects the financial condition and results of operations of the Equityholder
and its consolidated Subsidiaries (including the Borrower) on a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes; provided, that the financial statements required to be delivered
pursuant to this clause (ii) which are made available via EDGAR, or any successor system of the SEC, in the Equityholder’s quarterly
report on Form 10-Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available;
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(iii) within
45 days after the end of each fiscal quarter of the Borrower, an unaudited financial report of the Borrower, in a form reasonably acceptable
to the Administrative Agent, containing a statement of assets and liabilities, statements of operations and cash flows, in each case for
the period then ended, all certified by one of its senior financial officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower in accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes;
(iv) within
120 days after the end of each fiscal year of the Borrower, an annual operating plan of the Equityholder, including the budget for the
next fiscal year, in form reasonably acceptable to the Administrative Agent;
(v) on
or prior to each Monthly Reporting Date, a compliance certificate, in substantially the form attached hereto as Exhibit B (a “Compliance
Certificate”), which shall include, among other things, a calculation of the Interest Coverage Ratio and the Overcollateralization
Ratio as of the immediately preceding Determination Date;
(vi) on
or prior to each Monthly Reporting Date, and on each other date expressly required hereunder (including, for the avoidance of doubt, pro
forma for any date on which any Advance is to be made or any Restricted Payment is to be made pursuant to Section 5.02(r)), an
updated Borrowing Base Certificate;
(vii) within
five (5) Business Days after a Responsible Officer of the Borrower obtains knowledge of the occurrence and continuance of any (A) Default,
(B) Event of Default, (c) Ratings Deficiency or (D) modification to the Credit Policies and Procedures, a certificate of a Responsible
Officer of the Borrower setting forth the details thereof and, in respect of clauses (A), (B), or (C), the action which the Borrower or
the Collateral Manager is taking or proposes to take with respect thereto;
(viii) within
five (5) Business Days after a Responsible Officer of the Borrower, the Equityholder, or the Collateral Manager obtains knowledge thereof,
notice of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim with respect to (x) the Borrower,
the Equityholder, or the Collateral Manager or (y) any Collateral that (A) is asserted by an Obligor with respect to such Obligor’s
obligations under any Related Document with respect to any Collateral (or portion thereof) or (B) could reasonably be expected to have
a Material Adverse Effect;
(ix) within
five (5) Business Days after a Responsible Officer of the Borrower, the Equityholder, or the Collateral Manager obtains knowledge thereof,
notice of the occurrence of any ERISA Event and copies of any communications with all Governmental Authorities or any Multiemployer Plan
with respect to such ERISA Event; and
(x) from
time to time such additional information regarding the Borrower’s financial position or business and the Collateral (including reasonably
detailed calculations of the Borrowing Base, each Coverage Test or any Excess Concentration Amount) as the Administrative Agent or the
Required Lenders (through the Administrative Agent) may reasonably request.
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(e) Access
to Records and Documents. It shall permit the Administrative Agent (or any Person designated by the Administrative Agent subject
to delivery of standard confidentiality agreements) to, upon reasonable advance notice and during normal business hours, visit and inspect
and make copies thereof at reasonable intervals (i) its books, records and accounts relating to its business, financial condition, operations,
assets and its performance under the Facility Documents and the Related Documents and to discuss the foregoing with its and such Person’s
officers, partners, employees and accountants, and (ii) all of its Related Documents, in each case as often as the Administrative Agent
(in its own discretion or at the direction of the Required Lenders) may reasonably request, subject to the limitations set forth in Section
12.04(a). Any Lender may accompany the Administrative Agent at such Lenders’ expense.
(f) Use
of Proceeds. It shall use the proceeds of each Advance made hereunder solely:
(i) to
fund the repayment in full of all Indebtedness of the Borrower under that certain Credit and Security Agreement dated as of October 4,
2021 by and among the Borrower, the Collateral Manager, the Equityholder, Encina Lender Finance, LLC and the other parties thereto;
(ii) to
fund or pay the purchase price (in a manner that shall constitute valid and true sales for consideration (and not merely a pledge of such
assets for security purposes)) of Eligible Collateral Loans or Eligible Investments owned or acquired by the Borrower in accordance with
the terms and conditions set forth herein;
(iii) to
fund additional extensions of credit under Delayed Drawdown Collateral Loans held by the Borrower, in each case in accordance with the
terms of this Agreement;
(iv) to
fund the Pre-Funding Account to the extent the Pre-Funding Account is required to be funded pursuant to Section 2.02(a)(ii);
(v) to
pay fees, costs and expenses payable to the Secured Parties pursuant to the Facility Documents in accordance with the terms thereof;
(vi) to
pay any Interest due hereunder pursuant to Section 2.04(d); or
(vii) solely
to the extent expressly permitted pursuant to Section 5.02(r), to make a distribution to the Equityholder.
Without limiting the foregoing,
it shall use the proceeds of each Advance in a manner that does not, directly or indirectly, violate any provision of its Constituent
Documents or any Applicable Law, including Regulation T, Regulation U and Regulation X. Further, the Borrower shall not use the proceeds
of any Advance in a manner that would cause such credit extension to become a “covered transaction” as defined in Section
23A of the Federal Reserve Act (12 U.S.C. § 371c) and Regulation W (12 C.F.R. Part 223), including any transaction where the proceeds
of any Advance are used for the benefit of, or transferred to, an “affiliate” (as defined in Regulation) of a Lender.
(g) Information
and Reports. Each Notice of Borrowing, each Compliance Certificate, each Borrowing Base Certificate and all other written information,
reports, certificates and statements furnished by or on behalf of the Borrower to any Secured Party for purposes of or in connection with
this Agreement, the other Facility Documents or the transactions contemplated hereby or thereby shall be true, complete and correct in
all material respects as of the date such information is stated or certified and the delivery by or on behalf of the Borrower of any such
Notice of Borrowing, Compliance Certificate, Borrowing Base Certificate or other written information, reports, certificates and statements
shall be deemed to be a representation and warranty by the Borrower that such information is true, complete and correct in all material
respects as of the date such information is stated or certified (or, with respect to information received from an Obligor, is true and
correct to the knowledge of the Borrower).
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(h) No
Other Business. The Borrower shall not engage in any business or activity other than (i) borrowing Advances pursuant to this Agreement,
funding, acquiring, owning, holding, administering, selling, enforcing, lending, exchanging, redeeming, pledging, contracting for the
management of and otherwise dealing with Collateral Loans, Eligible Investments and the Collateral in connection therewith and entering
into the Facility Documents, any applicable Related Documents and any other agreement contemplated by this Agreement and (ii) other activities
that are incidental to the activities specified in clause (i).
(i) Tax
Matters.
(i) The
Borrower shall (and each Lender hereby agrees to) treat the Advances and any Notes as debt for U.S. federal income tax purposes and will
take no contrary position, unless otherwise required pursuant to a closing agreement with the U.S. Internal Revenue Service or a
non-appealable judgment of a court of competent jurisdiction.
(ii) For
U.S. federal income tax purposes, the Borrower shall (A) treat itself as a disregarded entity that is wholly owned by a "United State
person" under Section 7701(a)(30) of the Code for U.S. federal income tax purposes and (B) shall not make an election or permit any
other action that would cause itself to be treated as a corporation for U.S. federal income tax purposes.
(iii) The
Borrower shall pay and discharge when due all taxes, assessments, and governmental charges or levies imposed on it or on its income or
profits or any of its property, except for any such tax, assessment, charge, or levy the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being maintained or to the extent the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Notwithstanding any contrary agreement or
understanding, the Equityholder, the Borrower, the Agents, the Collateral Administrator, the Custodian, the Securities Intermediary and
the Lenders (and each of their respective employees, representatives or other agents) may disclose to any and all Persons, without limitation
of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to them relating to such tax treatment and tax structure. The foregoing provision
shall apply from the beginning of discussions between the parties. For this purpose, the tax treatment of a transaction is the purported
or claimed U.S. tax treatment of the transaction under applicable U.S. federal, state or local Law, and the tax structure of a transaction
is any fact that may be relevant to understanding the purported or claimed U.S. tax treatment of the transaction under applicable U.S.
federal, state or local Law.
(j) Collections.
(i) The Borrower (or the Collateral Manager on its behalf) shall direct any agent or administrative agent for any Collateral Loan to remit
all payments and collections with respect to such Collateral Loan and, if applicable, to direct the Obligor with respect to such Collateral
Loan to remit all such payments and collections with respect to such Collateral Loan directly to the Collection Account and (ii) the Borrower
shall transfer, or cause to be transferred, all Collections to the Collection Account by the close of business on the Business Day following
the date such Collections are received by the Borrower, the Equityholder, the Collateral Manager or any of their respective Affiliates.
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(k) Priority
of Payments. The Borrower shall instruct in writing (or cause the Collateral Manager to instruct in writing) the Administrative Agent
to apply all Interest Proceeds and Principal Proceeds solely in accordance with the Priority of Payments and the other provisions of this
Agreement.
(l) Sanctions;
Anti-Corruption Laws; and Anti-Money Laundering Laws. The Borrower shall comply with Sanctions, Anti-Corruption Laws and Anti-Money
Laundering Laws and shall maintain policies and procedures reasonably designed to ensure compliance therewith. The Borrower shall ensure
that it does not use, directly or indirectly, the proceeds of or fund the repayment of any Advance (i) to fund any activities or business
of or with any Sanctioned Person or in any country or territory, that, at the time of such funding, is a Sanctioned Country, or (ii) in
any other manner that would result in violation of Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws by any Person (including
any Person participating in the Advance, whether as Administrative Agent, Lender, advisor, investor, or otherwise).
(m) Further
Assurances. The Borrower shall deliver all such further instruments and take all such further actions that the Administrative Agent
deems reasonably necessary or desirable in order to maintain and protect the Collateral Agent’s first-priority perfected security
interest in the Collateral.
(n) [Reserved].
(o) Delivery
of Collateral Loan Files. The Borrower (or the Collateral Manager on behalf of the Borrower) shall provide each item referenced in
the definition of “Collateral Loan File” and shall Deliver to the Custodian all original promissory notes; provided
that, other than as set forth above with respect to any original assignment of any Collateral Loan or any original executed promissory
note with respect to any Collateral Loan (each of which shall be delivered to the Custodian in sealed envelopes labeled appropriately),
the requirements set forth in this Section 5.01(o) shall be satisfied by providing electronic copies of each Collateral Loan Document
and the related Collateral Loan File Checklist to the Collateral Administrator and the Custodian; provided, further, that
any filed stamped document included in any Collateral Loan File shall be delivered as soon as they are reasonably available (but in no
event later than 60 Business Days after the related Borrowing Date). Neither the Custodian nor the Collateral Administrator shall have
any obligation to review any of the documents delivered to it hereunder.
(p) Beneficial
Ownership Regulation. Promptly following any request therefor, the Borrower shall deliver to the Administrative Agent information
and documentation requested by the Administrative Agent or any Lender for purposes of compliance with the Beneficial Ownership Regulation,
including any Beneficial Ownership Certification in relation to the Borrower. The Borrower shall also provide any change in the information
provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein in
such certification.
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(q) Currency
Hedge Transactions. The Borrower shall, with regard to any Collateral Loan denominated in an Eligible Currency other than Dollars,
enter into a Currency Hedge Transaction, provided that each such Currency Hedge Transaction shall:
(i) be
entered into with a Hedge Counterparty, governed by a Hedging Agreement and approved by the Administrative Agent;
(ii) have
a schedule of periodic quarterly calculation periods which settle on a Payment Date, the first of which commences on the applicable Acquisition
Date associated with such purchase, and the last of which ends on the date of the last Scheduled Distribution due to occur under the Collateral
Loan to which it relates;
(iii) have
(A) a notional amount denominated in the applicable Eligible Currency of the related Collateral Loan (the “Non-USD Notional Amount”),
(B) a notional amount denominated in Dollars (the “USD Notional Amount”), (C) a floating payment relating to the index
applicable to such Collateral Loan payable by the Borrower, (D) a floating payment relating to the Term SOFR Rate payable by the Hedge
Counterparty, and (E) a scheduled termination date equal to the date which the Collateral Manager reasonably expects to be the scheduled
final payment date of such Collateral Loan or, at the option of the Manager, the date on which the average life or duration for the Collateral
Loan being hedged expires;
(iv) provide
that (A)(x) the Borrower shall pay to the Hedge Counterparty, in the applicable Eligible Currency in which the related Collateral Loan
is denominated, a floating rate coupon on the Non-USD Notional Amount of such Currency Hedge Transaction and (y) in exchange, the Hedge
Counterparty shall pay to the Borrower, in Dollars, a floating rate coupon on the USD Notional Amount of such Currency Hedge Transaction;
(B)(x) the Borrower shall pay to the Hedge Counterparty, in the applicable Eligible Currency in which the related Collateral Loan is denominated,
a specified portion of the Non-USD Notional Amount as a final principal exchange amount and (y) in exchange, the Hedge Counterparty shall
pay to the Borrower, in Dollars, a specified portion of the USD Notional Amount as a final principal exchange amount; and
(v) have
a Non-USD Notional Amount equal to outstanding Principal Balance of the Collateral Loan being hedged.
Section 5.02. Negative Covenants
of the Borrower
The Borrower covenants and agrees
that, until the Final Maturity Date (and thereafter until the date that all Obligations, other than contingent indemnification and reimbursement
obligations for which no claim has been asserted, have been Paid in Full):
(a) Restrictive
Agreements. It shall not enter into or suffer to exist or permit to become effective any agreement that prohibits, limits or imposes
any condition upon its ability to create, incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property
or revenues constituting Collateral, whether now owned or hereafter acquired, to secure its obligations under the Facility Documents other
than this Agreement and the other Facility Documents or to perform its obligations under the Facility Documents to which it is a party.
(b) Liquidation;
Merger; Division; Sale of Collateral. It shall not consummate any plan of liquidation, dissolution, partial liquidation, merger, consolidation
or division (or suffer any liquidation, dissolution, partial liquidation or division) nor sell, transfer, exchange or otherwise dispose
of any of its assets (other than dispositions permitted under this Agreement), or enter into an agreement or commitment to do so or enter
into or engage in any business with respect to any part of its assets, except as expressly permitted by this Agreement and the other Facility
Documents (including in connection with the Payment in Full of the Obligations).
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(c) Amendments
to Constituent Documents, Etc. The Borrower shall not (i) amend, modify or take any action inconsistent with its Constituent Documents
or (ii) amend, modify or waive any term or provision in any Facility Document without the prior written consent of the Administrative
Agent.
(d) Liens.
It shall not create, assume or suffer to exist any Lien on any of its assets now owned or hereafter acquired by it at any time, except
for Permitted Liens.
(e) Margin
Requirements; Covered Transactions. It shall not (i) extend credit to others for the purpose of buying or carrying any Margin Stock
in such a manner as to violate Regulation T or Regulation U or (ii) use all or any part of the proceeds of any Advance, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that violates the provisions of Regulation U or Regulation
X.
(f) Changes
to Filing Information. It shall not change its name or its jurisdiction of organization from that referred to in Section 4.01(a),
unless it gives prompt (but not less than ten (10) days’) prior written notice to the Administrative Agent and takes all actions
that the Administrative Agent or the Required Lenders (through the Administrative Agent) reasonably request and determine to be necessary
to protect and perfect the Collateral Agent’s perfected security interest in the Collateral.
(g) Transactions
with Affiliates. It shall not sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire
any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, unless such transaction is
upon terms no less favorable to the Borrower than it would obtain in a comparable arm’s-length transaction with a Person that is
not an Affiliate (it being agreed that any purchase or sale for cash and at Fair Value shall be deemed to comply with this provision).
(h) Sanctions;
Anti-Corruption Laws; and Anti-Money Laundering Laws. It shall not use the proceeds of any Advance directly or indirectly to fund
any activities or business of or with any Sanctioned Person or in any country or territory, that, at the time of such funding, is a Sanctioned
Country, or (ii) in any other manner that would result in the violation of Sanctions by any Person (including any Person participating
in the Advance, whether as Administrative Agent, Lender, advisor, investor, or otherwise). It shall not (nor shall it permit any other
Person to) use the proceeds of any Advance directly or indirectly, in any way that would be in violation of any Anti-Corruption Laws or
Anti-Money Laundering Laws. The Borrower shall not fund the repayment of any Advance with proceeds derived from any transaction that would
be prohibited by Sanctions or would be in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.
(i) No
Claims Against Advances. Subject to Applicable Law, it shall not claim any credit on, make any deduction from, or dispute the enforceability
of payment of the principal or interest payable (or any other amount) in respect of the Advances or assert any claim against any present
or future Lender, by reason of the payment of any Taxes levied or assessed upon any part of the Collateral.
(j) Indebtedness;
Guarantees; Securities; Other Assets. It shall not incur or assume or guarantee any Indebtedness, obligations (including contingent
obligations) or other liabilities, or issue any additional securities, whether debt or equity, in each case other than the Obligations
pursuant to or as expressly permitted by this Agreement and the other Facility Documents and any obligations under any Currency Hedge
Transaction required pursuant to Section 5.01(q). The Borrower shall not acquire any Collateral Loan or other property other than
as expressly permitted hereunder.
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(k) Validity
of this Agreement. It shall not (i) permit the validity or effectiveness of this Agreement or any grant of Collateral hereunder to
be impaired, or permit the Lien of this Agreement to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenant or obligation with respect to this Agreement and (ii) except as permitted by this Agreement, take
any action that would permit the Lien of this Agreement not to constitute a valid first-priority perfected security interest (subject
to Permitted Liens) in the Collateral.
(l) Subsidiaries.
It shall not have or permit the formation of any Subsidiaries.
(m) Name.
It shall not conduct business under any name other than its own.
(n) Employees.
It shall not have any employees (other than any Responsible Officers and other officers and directors to the extent they are employees).
(o) ERISA;
Plan Assets. Neither (i) it nor (ii) any member of its ERISA Group, shall have any liability or obligation with respect to any Plan
or Multiemployer Plan, except as would not constitute a Material Adverse Effect. None of its assets, the assets of the Equityholder, the
assets of the Collateral Manager its assets nor the Collateral shall be treated as “plan assets” within the meaning of the
Plan Assets Regulation. It shall not take any action (or omit to take any action) which would give rise to a Prohibited Transaction with
respect to the transactions contemplated by this Agreement or the other Facility Documents (including the borrowing and repayment of amounts
under this Agreement).
(p) Non-Petition.
The Borrower shall not be party to any agreements under which it has any material obligation or liability (direct or contingent) without
such agreements including customary “non-petition” and “limited recourse” provisions therein (and shall not amend
or eliminate such provisions in any agreement to which it is party), except for loan agreements, related loan documents, bond indentures
and related bond documents, any agreements related to the purchase and sale of any Collateral Loan which contain customary purchase
or sale terms or which are documented using customary loan trading documentation.
(q) Certificated
Securities. The Borrower shall not acquire or hold any Certificated Securities in bearer form (other than securities not required
to be in registered form under Section 163(f)(2)(A) of the Code) in a manner that does not satisfy the requirements of United States Treasury
Regulations section 1.165-12(c) (as determined by the Collateral Manager).
(r) Restricted
Payments. The Borrower shall not make any Restricted Payments other than (a) distributions of Excess Cash and (b) distributions with
respect to proceeds of any Advance; provided that, any such Restricted Payments shall be limited to no more than four (4) times
during any Collection Period; and provided further that, prior to making any such Restricted Payment under this Section 5.02(r),
Borrower has delivered to the Administrative Agent an updated Borrowing Base Certificate and Compliance Certificate as of such date demonstrating
that, immediately prior to giving effect to such payment and immediately after giving effect to such payment on a pro forma basis,
no Default, Event of Default, Ratings Deficiency, Borrowing Base Deficiency or Coverage Test Deficiency shall exist or would occur.
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(s) Amendments
to Collateral Loans. The Borrower (and the Collateral Manager on its behalf) shall not consent to any amendment or other modification
of any Collateral Loan or any Related Document for any Collateral Loan (i) that would result in a Default, an Event of Default or a Borrowing
Base Deficiency, or (ii) after the occurrence and continuance of an Event of Default.
(t) Obligor
Payment Instructions. The Borrower shall not make any change, or permit the Collateral Manager to make any change, in its instructions
to Obligors, agent banks or administrative agents on the Collateral Loans regarding payments to be made with respect to the Collateral
Loans to the Collection Account, unless the Administrative Agent has consented to such change. The Borrower acknowledges that the power
of attorney granted in Section 6.03 to the Administrative Agent is exercisable only after the occurrence and during the continuance
of an Event of Default and permits the Administrative Agent to give notice to the Obligors and related agents of the Collateral Agent’s
interest in the Collateral and the obligation to make payments as directed by the Administrative Agent. The Borrower further agrees that
it shall (or it shall cause the Collateral Manager to) provide prompt notice to the Administrative Agent of any misdirected or errant
payments made by any Obligor with respect to any Collateral Loan and direct such Obligor to make payments as required hereunder to the
extent a Responsible Officer of the Borrower or the Collateral Manager, as applicable, has knowledge of such misdirected or errant payments.
(u) Amendments
to Credit Policies and Procedures. The Borrower (and the Collateral Manager on its behalf) shall not consent to any amendment or other
modification of the Credit Policies and Procedures in a manner adverse to the interests of the Secured Parties without the prior written
consent of the Required Lenders; provided that the Borrower (or the Collateral Manager on its behalf) shall consult with the Required
Lenders prior to any such amendments or other modifications to the Credit Policies and Procedures in order for the Required Lenders to
determine whether such amendments or other modifications are adverse to the interests of the Secured Parties.
(v) [Reserved].
(w) Unfunded
Exposure Amount. The Borrower shall not permit the Unfunded Exposure Amount to exceed $9,000,000 at any time.
Section 5.03. Affirmative
Covenants of the Equityholder and the Collateral Manager
Each of the Equityholder and the
Collateral Manager covenants and agrees that, until the Final Maturity Date (and thereafter until the date that all Obligations have been
Paid in Full):
(a) Compliance
with Agreements, Laws, Etc. It shall (i) duly observe and comply with all Applicable Laws relative to the conduct of its business
or to its assets, (ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full force and effect
its rights, privileges, qualifications and franchises, (iv) comply with the terms and conditions of each Facility Document to which it
is a party, its Constituent Documents and (v) obtain, maintain and keep in full force and effect all Governmental Authorizations, Private
Authorizations and Governmental Filings which are necessary or appropriate to properly carry out (A) its business and (B) the transactions
contemplated to be performed by it under the Facility Documents to which it is a party, its Constituent Documents and the Related Documents
to which it is a party except, in the case of clause (i), (iii) and (v)(A), where the failure to do so would not reasonably be expected
to cause a Material Adverse Effect.
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(b) Information.
Each Notice of Borrowing, each Compliance Certificate, each Borrowing Base Certificate and all other written information, reports, certificates
and statements furnished by the Collateral Manager to any Secured Party for purposes of or in connection with this Agreement, the other
Facility Documents or the transactions contemplated hereby or thereby shall be true, complete and correct in all material respects as
of the date such information is stated or certified (or, with respect to information received from an Obligor, is true and correct to
the knowledge of the Collateral Manager).
(c) Collateral
Loan Reporting. The Collateral Manager shall provide to the Administrative Agent or cause to be provided to the Administrative Agent
the following information with respect to each Collateral Loan:
(i) within
two (2) Business Days following the Collateral Manager obtaining knowledge of any Collateral Loan becoming an Ineligible Collateral Loan
and , written notice to the Administrative Agent and the Collateral Agent that such Collateral Loan has become an Ineligible Collateral
Loan and an updated pro forma Borrowing Base Certificate showing that no Borrowing Base Deficiency shall be outstanding after giving
effect to any withdrawals or applications of cash on such date; and
(ii) to
the extent available to the Collateral Manager (on behalf of the Borrower) pursuant to the Related Documents, the annual audited financial
statements with respect to each Obligor and the financial reporting packages and compliance certificates delivered by such Obligor pursuant
to the applicable Related Documents, which delivery shall be made within thirty (30) calendar days after receipt by a Responsible Officer
of the Borrower or the Collateral Manager (on behalf of the Borrower) as specified in the Related Documents;
(iii) to
the extent available to the Collateral Manager (on behalf of the Borrower) pursuant to the Related Documents, copies of any amendment,
restatement, supplement, waiver or other modification to the Related Documents of any Collateral Loan within ten (10) Business Days following
the effectiveness of such amendment, restatement, supplement, waiver or other modification;
(iv) copies
of the underwriting and credit memos prepared by the Collateral Manager with respect to each Collateral Loan, on or prior to the date
the Borrower acquires a Collateral Loan, and copies of any updates or amendments thereto within ten (10) Business Days after such updates
or amendments become available;
(v) within
three (3) Business Days of approval by the board of directors of the Collateral Manager, a final valuation with respect to such Collateral
Loan prepared by an independent third party valuation firm (including any such quarterly valuation report);
(vi) to
the extent available to the Collateral Manager (on behalf of the Borrower) pursuant to the Related Documents, such other information as
the Administrative Agent or the Required Lenders may reasonably request relating to the Collateral Loans or the transactions contemplated
hereby; and
(vii) within
two (2) Business Days following the Collateral Manager obtaining knowledge of any change to the risk rating of any Collateral Loan in
accordance with the Risk Rating System.
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(d) Notices.
Within five (5) Business Days (or, with respect to any Event of Default, two (2) Business Days) after a Responsible Officer of the Collateral
Manager or the Equityholder obtains knowledge of the occurrence and continuance of any (A) Default, (B) Event of Default, (C) Ratings
Deficiency or (D) modifications to the Credit Policies and Procedures, the Collateral Manager shall deliver to the Administrative
Agent a certificate of a Responsible Officer of the Collateral Manager setting forth the details thereof and, in respect of clauses (A),
(B) and (C) the action which the Collateral Manager is taking or proposes to take with respect thereto; provided that the Collateral
Manager shall not be obligated to deliver such certificate to the extent that a Responsible Officer of the Borrower delivers a certificate
with respect to such Default, Event of Default, Ratings Deficiency or modification pursuant to Section 5.01(d)(iii).
(e) Access
to Records and Documents. It shall permit the Administrative Agent (or any Person designated by the Administrative Agent, subject
to delivery of standard confidentiality agreements) to, upon reasonable advance notice and during normal business hours, visit and inspect
and make copies thereof at reasonable intervals (i) its books, records and accounts relating to its business, financial condition, operations,
assets and its performance under the Facility Documents and the Related Documents and to discuss the foregoing with its and such Person’s
officers, partners, employees and accountants, and (ii) all of its Related Documents, in each case as often as the Administrative Agent
(in its own discretion or at the direction of the Required Lenders) may reasonably request, subject to the limitations set forth in Section
12.04(a). Any Lender may accompany the Administrative Agent at such Lender’s expense.
(f) Collections.
The Collateral Manager shall direct any agent or administrative agent for any Collateral Loan to remit all payments and collections with
respect to such Collateral Loan and, if applicable, to direct the Obligor with respect to such Collateral Loan to remit all such payments
and collections with respect to such Collateral Loan directly to the Collection Account. The Collateral Manager shall promptly identify
any collections received as being on account of Interest Proceeds or Principal Proceeds and shall transfer, or cause to be transferred,
all such Collections to the Collection Account within ten (10) Business Days after such Collections are received.
(g) Sanctions;
Anti-Corruption Laws; and Anti-Money Laundering Laws. It shall comply with Sanctions, Anti-Corruption Laws and Anti-Money Laundering
Laws and shall maintain policies and procedures reasonably designed to ensure compliance therewith. It shall ensure that it does cause
the Borrower or any of its Related Parties to use directly or indirectly, the proceeds of or fund the repayment of any Advance (i) to
fund any activities or business of or with any Sanctioned Person or in any country or territory, that, at the time of such funding, is
a Sanctioned Country, or (ii) in any other manner that would result in violation of Sanctions, Anti-Corruption Laws or Anti-Money Laundering
Laws by any Person (including any Person participating in the Advance, whether as Administrative Agent, Lender, advisor, investor, or
otherwise).
Section 5.04. Negative Covenants
of the Equityholder and the Collateral Manager
The Equityholder and the Collateral
Manager each covenants and agrees that, until the Final Maturity Date (and thereafter until the date that all Obligations have been Paid
in Full):
(a) Restrictive
Agreements. It shall not enter into or suffer to exist or permit to become effective any agreement that prohibits, limits or imposes
any material condition upon its ability to perform its obligations under the Facility Documents to which it is a party.
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(b) Cooperation.
In the event that the Administrative Agent exercises secured creditor remedies with respect to any Collateral Loan hereunder and/or causes
an assignment of any Collateral Loan to any Person, including any Affiliate of Valley (such Collateral Loan, a “Foreclosed Loan”),
the Equityholder, unless expressly prohibited under the terms of the Related Documents for the applicable Foreclosed Loan or by applicable
Law, shall not, and shall not permit any of its Subsidiaries to, (A) fail to promptly provide any necessary consent to such foreclosure
or assignment in its capacity as administrative agent, or (B) vote in favor of, otherwise consent to or fail to object to the subordination
of, the liens on or payment priority of such Foreclosed Loan, in a manner that would treat any lender on such Foreclosed Loan (including
the Administrative Agent or any transferee thereof) differently from the loans of the same tranche held by the Equityholder or any of
its Affiliates.
Section 5.05. Certain Undertakings
Relating to Separateness
Without limiting any, and subject
to all, other covenants of the Borrower contained in this Agreement:
(a) The
Borrower shall maintain its bank accounts, books, accounting and other records separate from those of any other Person.
(b) The
Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person, and it shall hold all
of its assets in its own name, except as otherwise permitted or required under the Facility Documents.
(c) The
Borrower shall pay its own debts, liabilities and expenses only out of its own assets as the same shall become due; provided that
the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the
Borrower and such other Person.
(d) The
Borrower has observed, and shall observe, in all material respects all (A) limited liability company formalities and (B) other
organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence.
(e) The
Borrower shall have at least one (1) Independent Manager at all times.
(f) The
Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy,
the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of
any other Person, except, in each case, as expressly permitted by or pursuant to the Facility Documents.
(g) The
Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate from any other Person, shall not identify
itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity.
(h) Any
transaction between the Borrower and its Affiliates shall be on arm’s-length terms.
(i) Except
as expressly provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the
benefit of any other Person.
(j) Except
as expressly provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Equityholder,
its Affiliates or any other Person (except for equity interests in Obligors in connection with the exercise of any remedies with respect
to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan).
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(k) The
Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility
Documents.
(l) The
Borrower shall make no transfer of its Collateral Loans, except as expressly permitted by or pursuant to the Facility Documents.
(m) The
Borrower shall file its own Tax returns, if any, as may be required under Applicable Law, to the
extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded
entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3
and pay any Taxes so required to be paid under Applicable Law.
(n) The
Constituent Documents of the Borrower shall not fail to provide that the unanimous consent of all managers (including the consent of the
Borrower’s Independent Manager) required for the Borrower to (a) institute proceedings to be adjudicated bankrupt or insolvent,
(b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent
to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Borrower, (e) make any
assignment for the benefit of the Borrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become
due, or (g) take any action in furtherance of any of the foregoing.
(o) The
Borrower shall maintain adequate capital in light of its contemplated business operations.
(p) The
Borrower shall at all times be organized as a special purpose entity and it shall not, nor shall it permit any Affiliate or any other
Person to, amend, modify or otherwise change its Constituent Documents in a manner that would adversely affect the existence of the Borrower
as a bankruptcy-remote special purpose entity.
ARTICLE
VI
EVENTS OF DEFAULT
Section 6.01. Events of
Default
“Event of Default”,
wherever used herein, means the occurrence of any one of the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of Law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(a) a
default in the payment, when due and payable, of (i) any principal of any Advance or (ii) any other amount payable by the Borrower, the
Collateral Manager or the Equityholder, including any Interest, Unused Fee or other Obligations not specified in clause (c) below and,
in the case of payments under clause (ii), such default has not been cured within three (3) Business Days;
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(b) the
failure on any Payment Date to disburse amounts in the Collection Account in accordance with the Priority of Payments set forth herein
and such failure has not been remedied within two (2) Business Days;
(c) the
Borrower fails to repay the Obligations in full (other than contingent indemnification and reimbursement obligations for which no claim
has been asserted) on the Final Maturity Date;
(d) the
Borrower or the pool of Collateral becomes, or becomes subject to regulation as, an “investment company” under Section 8 of
the Investment Company Act;
(e) a
default in any respect in the performance, or breach in any respect, of any covenant or agreement of the Borrower, the Equityholder or
the Collateral Manager under Sections 5.01(a)(ii), 5.01(c), 5.01(d), 5.01(e), 5.01(f), 5.01(h),
5.01(j), 5.01(k), 5.01(l), 5.01(p), 5.02, 5.03(c), 5.03(d), 5.03(e), 5.03(f),
5.03(g), 5.04 or 5.05, or under the Springing Guaranty Agreement, the Limited Guaranty Agreement or the Equity Pledge
Agreement;
(f) except
as otherwise provided in this Section 6.01, a default in any material respect in the performance, or breach in any material respect,
of any covenant or agreement of the Borrower or the Equityholder under this Agreement or the other Facility Documents to which it is a
party, or the failure of any representation or warranty of the Borrower or the Equityholder made in this Agreement or in any other Facility
Document to be correct, in each case, in all material respects when the same shall have been made, in each case, which failure, if capable
of being cured (it being understood that no negative covenant shall be deemed capable of being cured) continues unremedied for more than
the lesser of (i) any applicable grace period expressly pertaining thereto and (ii) a period of thirty (30) days after the earlier of
(x) written notice to the Borrower, the Collateral Manager and the Equityholder by the Administrative Agent, and (y) knowledge of
a Responsible Officer of the Borrower, the Equityholder or the Collateral Manager, as applicable; provided that, for the avoidance
of doubt, the existence of a Borrowing Base Deficiency shall be subject to clause (h) below and the existence of a Coverage Test
Deficiency shall be subject to clause (q) below;
(g) (i)
the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of
money in excess individually or in the aggregate of $100,000 with respect to the Borrower, or $1,000,000 with respect to the Equityholder
(exclusive of judgment amounts fully covered by insurance for which the applicable insurer has not denied coverage), and the Borrower
or the Equityholder, as applicable, shall not have made a timely appeal of such judgment, decree or order and caused the execution of
same to be stayed during the pendency of the appeal, in each case, within thirty (30) Business Days from the date of entry thereof;
(h) a
Borrowing Base Deficiency shall have occurred and be continuing (subject to Section 6.02(d)(i);
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(i) (i)
the failure of the Borrower to make any payment when due (after giving effect to any related grace period) under any agreement for borrowed
money to which it is a party and the indebtedness for borrowed money thereunder is in an amount in excess of $100,000, individually or
in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such indebtedness or that that
permits such acceleration; or (ii) the failure of the Equityholder to make any payment when due (after giving effect to the longer of
any related grace period and thirty (30) days from the initial due date for such payment) under any agreement for borrowed money to which
it is a party and the indebtedness for borrowed money thereunder is in an amount in excess of $10,000,000, individually or in the aggregate,
or the occurrence of any event or condition that has resulted in the acceleration of such indebtedness; or (iii) the occurrence of any
event or condition that has resulted in the acceleration of indebtedness for borrowed money of any SBIC Subsidiary in excess of $10,000,000,
individually or in the aggregate; or (iv) the failure of any Subsidiary of the Equityholder (other than the Borrower or any SBIC Subsidiary)
to make any payment when due (after giving effect to the longer of any related grace period and thirty (30) days from the initial due
date for such payment) under any agreement for borrowed money to which it is a party and the indebtedness for borrowed money thereunder
is in an amount in excess of $10,00,00010,000,000,
individually or in the aggregate, the occurrence of any event or condition that has resulted in the acceleration of such indebtedness,
or the occurrence of any material default that permits such acceleration;
(j) an
Insolvency Event relating to the Borrower or the Equityholder occurs;
(k) (i)
any material provision of any Facility Document shall (except in accordance with its terms) terminate, cease to be effective or cease
to be legally valid, binding and enforceable, (ii) the Borrower, the Equityholder, the Collateral Manager or any Governmental Authority
shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Facility Document
or any Lien purported to be created thereunder, or (iii) any Lien securing any obligation under any Facility Document shall, in whole
or in part, cease to be a first-priority perfected security interest of the Collateral Agent, except as otherwise expressly permitted
in accordance with the applicable Facility Document;
(l) (i)
the Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any asset of the Borrower
in an amount in excess of $100,000 or the Equityholder in an amount in excess of $1,000,000 and such Lien shall not have been released
within five Business Days or (ii) the PBGC shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any asset of the
Borrower in excess of $100,000 or the Equityholder in an amount in excess of $1,000,000 and such Lien shall not have been released within
five (5) Business Days;
(m) a
Change of Control occurs with respect to the Borrower or the Equityholder;
(n) a
Collateral Manager Default occurs;
(o) the
Investment Advisor ceases to be the investment advisor of the Equityholder; or
(p) (i)
failure of the Borrower to maintain at least one (1) Independent Manager, (ii) the removal of any Independent Manager of the Borrower
without giving prior written notice to the Administrative Agent, or (iii) the Borrower appoints an independent manager that is not listed
in the definition of “Independent Manager” without the consent of the Administrative Agent;
(q) a
Coverage Test Deficiency shall exist; or
(r) a
Key Person Event shall have occurred.
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Section 6.02. Remedies.
(a) Upon
the occurrence and during the continuance of any Event of Default, in addition to all rights and remedies specified in this Agreement
and the other Facility Documents, including (and subject to) Article VII, and the rights and remedies of a secured party under
Applicable Law, including the UCC, the Administrative Agent shall, at the request of, or may with the consent of, the Required Lenders,
do any one or more of the following: (1) declare (by notice to the Borrower and the Collateral Manager (with a copy to the Collateral
Agent)), the Commitments to be terminated forthwith, whereupon the Commitments shall forthwith terminate, and (2) declare (by notice to
the Borrower and the Collateral Manager (with a copy to the Collateral Agent)) the principal of and the accrued interest on the Advances
and all other amounts whatsoever payable by the Borrower hereunder to be forthwith due and payable, whereupon such amounts shall be immediately
due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived by the Borrower;
provided that, upon the occurrence of any Event of Default, the Commitment Termination Date shall occur upon notice by the Administrative
Agent to the Borrower (with a copy to the Collateral Agent and the Collateral Administrator); provided, further, that upon
the occurrence of any Event of Default described in clause (j) of Section 6.01 with respect to the Borrower, the Commitments
shall automatically terminate and the Advances and all such other amounts shall automatically become due and payable, without any further
action by any party.
(b) Upon
the occurrence and during the continuance of an Event of Default the Administrative Agent may, or shall upon the direction of the Required
Lenders, exercise (or direct the Collateral Agent, as applicable, to exercise) any and all rights with respect to the Collateral including:
(u) the exercise of the Collateral Manager’s rights and obligations under the Facility Documents (including the right to direct
the Collateral Manager to exercise such rights), including its unilateral power to (A) consent to modifications to Collateral Loans, (B)
take any discretionary action with respect to Collateral Loans and (C) direct the acquisition, sales and other dispositions of Collateral
Loans; (v) the termination of the Collateral Manager’s rights to exercise any rights or take any action with respect to the Collateral;
(w) the transfer of the Collateral Manager’s rights and obligations under the Facility Documents to a successor Collateral Manager;
(x) require the Collateral Manager to obtain the consent of the Administrative Agent before agreeing to any modification of any Collateral
Loan, taking any discretionary action with respect to any Collateral Loan or causing the Borrower to sell or otherwise dispose of any
Collateral Loan; (y) require the Collateral Manager to cause the Borrower to sell or otherwise dispose of any Collateral Loan as directed
by the Administrative Agent pursuant to Section 7.03, and (z) with respect to any specific Collateral Loan, to require the Collateral
Manager to take such discretionary action with respect to such Collateral Loan as directed by the Administrative Agent.
(c) Upon
the occurrence and during the continuance of any Event of Default, each of the following actions shall require the prior written approval
by the Required Lenders, whether or not approved by the Borrower’s board of directors or other persons performing similar functions:
(i) issuance of any commitment to make, and the acquisition or origination (other than pursuant to commitments then in effect) of, any
Collateral Loan or other loan or security constituting any Collateral or any interest therein, (ii) any amendment, modification, or waiver
of, or any consent to departure from, any term or provision of any Collateral Loan or other loan or security constituting any Collateral,
(iii) any release of any collateral for, or of any guarantor of or other credit support provider for, any Collateral Loan or other loan
or security constituting any Collateral, except upon payment in full of such Collateral Loan or other loan or security, or any subordination
or limitation of recourse with respect thereto, (iv) any sale, purchase, assignment or participation in respect of any Collateral Loan
or other loan or security constituting any Collateral (other than pursuant to commitments then in effect or in the case of a sale or assignment
upon payment in full of such Collateral Loan or other loan or security), and (v) any determination to exercise, or not to exercise, remedies
in respect of a Collateral Loan or other loan or security constituting any Collateral following a default or event of default thereunder.
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(d) Notwithstanding
any provision contained herein or in any other Facility Document:
(i) If
an Event of Default has occurred and is continuing pursuant to Section 6.01(h), then, so long as no other Event of Default has
occurred or is continuing (other than a Standstill Event of Default (which shall be subject to Section 6.02(d)(ii)), the Borrower
shall have an opportunity to cure such Event of Default by taking one or more of the actions described in Section 2.05(c) within
ten (10) Business Days after the initial occurrence of such Event of Default, and the Administrative Agent shall forbear from accelerating
the Obligations or exercising secured creditor remedies hereunder or under any other Facility Document (but shall be permitted to charge
interest at the Default Rate) during such period of ten (10) Business Days;
(ii) If
any Standstill Event of Default has occurred and is continuing then, so long as no other Event of Default (other than (A) an Event of
Default pursuant to Section 6.01(h), which shall be subject to Section 6.02(d)(i), or (B) another Standstill Event of Default,
which shall be subject to this Section 6.02(d)(ii) but without extending any of the time periods hereunder, which shall be measured
from the date of occurrence of the initial Standstill Event of Default), the Borrower shall have an opportunity to cause the Available
Loan Amount to exceed $5,000,000 by taking one or more of the actions described in Section 2.05(c) within ten (10) Business Days
after the initial occurrence of such Event of Default, and the Administrative Agent shall forbear from accelerating the Obligations or
exercising secured creditor remedies hereunder or under any other Facility Document (but shall be permitted to charge interest at the
Default Rate) during such period of ten (10) Business Days. If the Available Loan Amount exceeds $5,000,000 at the end of such ten (10)
Business Day period, then the Administrative Agent shall continue to forbear from accelerating the Obligations or exercising secured creditor
remedies (but shall be permitted to charge interest at the Default Rate) until the earliest of (i) 60 days after the occurrence of such
Event of Default, (ii) the occurrence of any Event of Default (other than a Standstill Event of Default); provided that the occurrence
of any Event of Default under Section 6.01(h) shall be subject to Section 6.02(d)(i), (iii) the date of any failure to maintain
an Available Loan Amount in excess of $5,000,000, and (iv) the occurrence of any event or condition that results in the acceleration of
any indebtedness described in Section 6.01(i), it being understood and agreed that in the event that the Borrower cures the applicable
Event of Default during such period, such Event of Default shall cease to permit the Administrative Agent to exercise remedies under the
Facility Documents.
Section 6.03. Power of Attorney.
(a) The
Borrower hereby irrevocably appoints the Administrative Agent as its true and lawful attorney (with full power of substitution) in its
name, place and stead and at its expense, in connection with the enforcement of the rights and remedies provided for (and subject to the
terms and conditions set forth) in this Agreement including without limitation the following powers: (i) to give any necessary receipts
or acquittance for amounts collected or received hereunder, (ii) to make all necessary transfers of the Collateral in connection with
any such sale or other disposition made pursuant hereto, (iii) to execute and deliver for value all necessary or appropriate bills of
sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower hereby ratifying and confirming
all that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto, (iv) to sign any agreements, orders or other
documents in connection with or pursuant to any Facility Document, including for the avoidance of doubt, Section 14.08 and (v)
to exercise directly the Collateral Manager’s rights and obligations under this Agreement, including the exercise of rights set
forth in Section 6.02(b). Nevertheless, if so requested by the Administrative Agent, the Borrower shall ratify and confirm any
such sale or other disposition by executing and delivering to the Administrative Agent all proper bills of sale, assignments, releases
and other instruments as may be designated in any such request.
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(b) No
person to whom this power of attorney is presented as authority for the Administrative Agent to take any action or actions contemplated
by clause (a) shall inquire into or seek confirmation from the Borrower as to the authority of the Administrative Agent to take any action
described below, or as to the existence of or fulfillment of any condition to the power of attorney described in clause (a), which
is intended to grant to the Administrative Agent unconditionally the authority to take and perform the actions contemplated herein, and
to the extent permitted by Applicable Law, the Borrower irrevocably waives any right to commence any suit or action, in law or equity,
against any person or entity that acts in reliance upon or acknowledges the authority granted under this power of attorney. The power
of attorney granted in clause (a) is coupled with an interest and may not be revoked or canceled by the Borrower until all obligations
of the Borrower under the Facility Documents have been Paid in Full and the Administrative Agent has provided its written consent thereto.
(c) Notwithstanding
anything to the contrary herein, the power of attorney granted pursuant to this Section 6.03 shall only be exercisable after the
occurrence and during the continuance of an Event of Default.
Section 6.04. Sales.
(a) Each
of the Borrower, the Collateral Manager, and the Equityholder recognizes that an Agent may be unable to effect a public sale of any or
all of the Collateral and may be compelled to resort to one or more private sales thereof. Each of the Borrower, the Collateral Manager
and the Equityholder acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such
sale were a public sale and, notwithstanding such circumstances, agree that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of being a private sale.
(b) Each
of the Borrower, the Collateral Manager and the Equityholder further agrees that a breach of any of their covenants contained in this
Section 6.04 will cause irreparable injury to the Agents, that the Agents have no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in this Section 6.04 shall be specifically enforceable against the
Borrower, the Collateral Manager, and the Equityholder, and each of the Borrower, the Collateral Manager and the Equityholder hereby waives
and agrees not to assert any defenses against an action for specific performance of such covenants.
(c) Pursuant
to the UCC, each of the Borrower, the Collateral Manager and the Equityholder hereby specifically agrees (x) that it shall not raise
any objection to a Secured Party’s purchase of the Collateral (through bidding on the obligations or otherwise) and (y) that
a foreclosure sale conducted in conformity with the principles set forth in various no action letters promulgated by the SEC staff (1) shall
be considered to be a “public” sale for purposes of the UCC and (2) shall be considered to be commercially reasonable
notwithstanding that a Secured Party purchases the Collateral at such a sale.
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(d) Each
of the Borrower, the Collateral Manager and the Equityholder agrees that the Collateral Agent shall not have any general duty or obligation
to make any effort to obtain or pay any particular price for any Collateral sold by the Collateral Agent pursuant to this Agreement. The
Collateral Agent may, in its sole discretion, among other things, accept the first bid received, or decide to approach or not approach
any potential purchasers. Each of the Borrower, the Collateral Manager and the Equityholder hereby agrees that the Collateral Agent shall
have the right to conduct, and shall not incur any liability as a result of, the sale of any Collateral, or any part thereof, at any sale
conducted in a commercially reasonable manner and in accordance with Applicable Law, it being agreed by the parties hereto that some or
all of the Collateral is or may be of one or more types that threaten to decline speedily in value. The Borrower, the Collateral Manager
and the Equityholder hereby waive any claims against the Secured Parties arising by reason of the fact that the price at which any of
the Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale or was less
than the aggregate amount of the Borrower’s obligations under the Agreement, even if the Collateral Agent accepts the first bid
received and does not offer any Collateral to more than one bidder; provided that such sale was made in accordance with Applicable
Law. Without in any way limiting the Collateral Agent’s right to conduct a foreclosure sale in any manner which is considered commercially
reasonable, each of the Borrower, the Collateral Manager and the Equityholder hereby agrees that any foreclosure sale conducted in accordance
with the following provisions shall be considered a commercially reasonable sale, and each of the Borrower, the Collateral Manager and
the Equityholder hereby irrevocably waives any right to contest any such sale conducted in accordance with the following provisions:
(i) the
Collateral Agent (or any broker-dealer on its behalf) conducts such foreclosure sale in the State of New York;
(ii) such
foreclosure sale is conducted in accordance with the Laws of the State of New York; and
(iii) not
more than thirty days before, and not less than two Business Days in advance of such foreclosure sale, the Collateral Agent notifies the
Borrower, the Collateral Manager and the Equityholder at the address set forth herein of the time and place of such foreclosure sale.
ARTICLE
VII
PLEDGE OF COLLATERAL;
RIGHTS OF THE COLLATERAL AGENT
Section 7.01. Grant of Security
(a) The
Borrower hereby grants, pledges and collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, as collateral
security for all Obligations, a continuing security interest in, and a Lien upon, all of the Borrower’s right, title and interest
in, to and under, the following property, in each case whether tangible or intangible, wheresoever located, and whether now owned by the
Borrower or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 7.01(a),
together with the Hedge Collateral, being collectively referred to herein as the “Collateral”):
(i) all
Collateral Loans and Related Documents, both now and hereafter owned, including all Collections and other Proceeds thereon or with respect
thereto;
(ii) each
Covered Account and all Money and all investment property (including all securities, all security entitlements with respect to such Covered
Account and all financial assets carried in such Covered Account) from time to time on deposit in or credited to each Covered Account;
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(iii) all
interest, dividends, stock dividends, stock splits, distributions and other Money or property of any kind distributed in respect of the
Collateral Loans of the Borrower, which the Borrower is entitled to receive, including all Collections in respect of all Collateral Loans;
(iv) each
Facility Document and all rights, remedies, powers, privileges and claims under or in respect thereto (whether arising pursuant to the
terms thereof or otherwise available to the Borrower at law or equity), including the right to enforce each such document and to give
or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect thereto, to the
same extent as the Borrower could but for the assignment and security interest granted to the Collateral Agent under this Agreement;
(v) all
Cash or Money;
(vi) all
accounts, chattel paper, deposit accounts, financial assets, general intangibles, instruments, investment property, letter-of-credit rights
and other supporting obligations relating to the foregoing (in each case as defined in the UCC);
(vii) all
securities, loans and investments, and all other property (other than leased real property) of any type or nature in which the Borrower
has an interest (including the equity interests of each Subsidiary of the Borrower), and all property of the Borrower which is delivered
to the Custodian by or on behalf of the Borrower (whether or not constituting Collateral Loans or Eligible Investments);
(viii) all
Liens, Related Security, property, guaranties, supporting obligations, insurance and other agreements or arrangements of whatever character
from time to time supporting or securing payment of the assets, investments and properties described above; and
(ix) all
Proceeds of any and all of the foregoing.
(b) All
terms used in this Section 7.01 but not defined in Section 1.01 shall have the respective meanings assigned to such terms
in the UCC as applicable.
(c) The
Borrower hereby collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, all of the Borrower’s right
and title to and interest in, to and under (but not any liabilities, duties or obligations under) the Sale Agreement, Related Documents
for each Collateral Loan, all other agreements, documents and instruments evidencing, securing or guarantying any Collateral Loan and
all other agreements, documents and instruments related to any of the foregoing but excluding any Excluded Taxes (the “Assigned
Documents”). The parties hereto agree that such collateral assignment to the Collateral Agent, for the benefit of the Secured
Parties, shall terminate upon the Payment in Full of all outstanding Obligations.
(d) As
additional security hereunder, the Borrower hereby pledges to the Collateral Agent, for the benefit of the Secured Parties, all right,
title and interest of the Borrower in, but none of the obligations of the Borrower under, any and all Hedging Agreements, any and all
Currency Hedge Transactions, and any and all present and future amounts payable by a Hedge Counterparty to the Borrower under or in connection
with its respective Hedging Agreement and Currency Hedge Transaction(s) (collectively, the “Hedge Collateral”), and
grants a security interest to the Collateral Agent, for the benefit of the Secured Parties, in the Hedge Collateral. Nothing herein shall
have the effect of releasing the Borrower from any of its obligations under any Hedging Agreement or any Currency Hedge Transaction, nor
be construed as requiring the consent of the Custodian, the Administrative Agent or any Secured Party for the performance by the Borrower
of any such obligations.
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Section 7.02. Release of
Security Interest
If and only if all Obligations
have been Paid in Full, (a) the Administrative Agent shall provide notice of the same to the Collateral Agent, (b) the Collateral Agent’s
Lien over the Collateral on behalf of the Secured Parties shall be automatically terminated and (c) the Collateral Agent, on behalf of
the Secured Parties, shall promptly execute, deliver and file or authorize for filing such instruments as the Borrower shall prepare and
reasonably request in order to reassign, release or terminate the Secured Parties’ security interest in the Collateral. The Secured
Parties acknowledge and agree that upon the sale or disposition of any Collateral by the Borrower in compliance with the terms and conditions
of this Agreement, the Collateral Agent shall, on behalf of the Secured Parties and at the expense of the Borrower, execute, deliver
and file or authorize for filing such instruments as the Borrower shall prepare and reasonably request to reflect or evidence the termination
of the security interest of the Secured Parties in such Collateral. Any and all actions under this Article VII in respect of the
Collateral shall be without any recourse to, or representation or warranty by any Secured Party and shall be at the sole cost and expense
of the Borrower.
Section 7.03. Rights and
Remedies
(a) The
Collateral Agent (for itself and on behalf of the other Secured Parties) shall have all of the rights and remedies of a secured party
under the UCC and other Applicable Law. Solely upon the occurrence and during the continuance of an Event of Default, the Collateral
Agent or its designees shall, acting solely at the written direction of the Administrative Agent or the Required Lenders acting through
the Administrative Agent, (i) instruct the Borrower to deliver any or all of the Collateral, the Related Documents and any other document
relating to the Collateral to the Collateral Agent or its designees and otherwise give all instructions for the Borrower regarding the
Collateral; (ii) sell or otherwise dispose of the Collateral, all without judicial process or proceedings; (iii) take control of the Proceeds
of any such Collateral; (iv) subject to the provisions of the applicable Related Documents, exercise any consensual or voting rights in
respect of the Collateral; (v) release, make extensions, discharges, exchanges or substitutions for, or surrender all or any part of the
Collateral; (vi) enforce the Borrower’s rights and remedies with respect to the Collateral; (vii) institute and prosecute legal
and equitable proceedings to enforce collection of, or realize upon, any of the Collateral; (viii) require that the Borrower immediately
take all actions necessary to cause the liquidation of the Collateral in order to pay all amounts due and payable in respect of the Obligations,
in accordance with the terms of the Related Documents; (ix) redeem or withdraw or cause the Borrower to redeem or withdraw any asset
of the Borrower to pay amounts due and payable in respect of the Obligations; (x) make copies of all books, records and documents relating
to the Collateral; and (xi) endorse the name of the Borrower upon any items of payment relating to the Collateral or upon any proof of
claim in bankruptcy against an account debtor. In the absence of written direction of the Administrative Agent or the Required Lenders
(acting through the Administrative Agent), the Collateral Agent shall take no action. The Collateral Agent shall not be liable to the
Administrative Agent, the Required Lenders or any other party for any action taken or omitted to be taken at the direction of the Administrative
Agent or the Required Lenders (acting through the Administrative Agent) or any inaction in the absence thereof.
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(b) The
Borrower hereby agrees that, upon the occurrence and during the continuance of an Event of Default, at the request of the Administrative
Agent or the Required Lenders (acting through the Administrative Agent), it shall execute all documents and agreements which are necessary
or appropriate to have the Collateral assigned to the Collateral Agent or its designee. For purposes of taking the actions described
in clauses (a) and (b) of this Section 7.03 the Borrower hereby irrevocably appoints the Collateral Agent as
its attorney-in-fact after the occurrence and during the continuance of an Event of Default (which appointment being coupled with an interest
and is irrevocable while any of the Obligations remain unpaid (other than unasserted contingent obligations)), with power of substitution,
in the name of the Collateral Agent or in the name of the Borrower or otherwise, for the use and benefit of the Collateral Agent for the
benefit of the Secured Parties, but at the cost and expense of the Borrower and, except as expressly required by Applicable Law, without
notice to the Borrower. Such appointment shall in no way impose upon the Collateral Agent any obligation to take any such action unless
specifically directed to do so and subject to the receipt of an indemnity from the Lenders reasonably satisfactory to it.
Section 7.04. Remedies Cumulative
Each right, power, and remedy
of the Agents and the other Secured Parties, or any of them, as provided for in this Agreement or in the other Facility Documents or now
or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power, or remedy provided for in this Agreement or in the other Facility Documents or now or hereafter existing at law or
in equity or by statute or otherwise, and the exercise or beginning of the exercise by the Agents or any other Secured Party of any one
or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such Persons of any or all such other
rights, powers, or remedies.
Section 7.05. Related Documents
(a) Each
of the Borrower and the Collateral Manager hereby agrees that, after the occurrence and during the continuance of an Event of Default,
it shall (i) promptly forward to the Administrative Agent all material information and notices which it receives under or in connection
with the Related Documents relating to the Collateral, and (ii) act and refrain from acting in respect of any request, act, decision or
vote under or in connection with the Related Documents relating to the Collateral only in accordance with the direction of the Administrative
Agent (in its reasonable discretion).
(b) The
Borrower agrees that, to the extent the same shall be in the Borrower’s possession, it will hold all Related Documents relating
to the Collateral in trust for the Collateral Agent on behalf of the Secured Parties, and upon request of the Administrative Agent following
the occurrence and during the continuance of an Event of Default or as otherwise provided herein, promptly deliver the same to the Collateral
Agent or its designee. In addition, in accordance with this Agreement, promptly (and in any event within five (5) Business Days) of receipt
of the same following its acquisition of any Collateral Loan, the Borrower shall Deliver to the Custodian the Collateral Loan Documents.
Section 7.06. Borrower Remains
Liable
(a) Notwithstanding
anything herein to the contrary, (i) the Borrower shall remain liable under the contracts and agreements included in and relating to the
Collateral (including the Related Documents) to the extent set forth therein, and shall perform all of its duties and obligations under
such contracts and agreements to the same extent as if this Agreement had not been executed, and (ii) the exercise by any Secured Party
of any of its rights hereunder shall not release the Borrower from any of its duties or obligations under any such contracts or agreements
included in the Collateral.
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(b) No
obligation or liability of the Borrower is intended to be assumed by the Administrative Agent or any other Secured Party under or as a
result of this Agreement or the other Facility Documents, or the transactions contemplated hereby or thereby, including under any Related
Document or any other agreement or document that relates to Collateral and, to the maximum extent permitted under provisions of Law, the
Administrative Agent and the other Secured Parties expressly disclaim any such assumption.
Section 7.07. Protection
of Collateral
The Borrower shall from time to
time execute and deliver all such supplements and amendments hereto and file or authorize the filing of all such UCC-1 financing statements
and continuation statements, registrations, instruments of further assurance and other instruments, and shall take such other action as
may be necessary to secure the rights and remedies of the Secured Parties hereunder and to:
(a) grant
security more effectively on all or any portion of the Collateral;
(b) maintain,
preserve and perfect any grant of security made or to be made by this Agreement including the first-priority nature of the Lien (subject
to Permitted Liens) or carry out more effectively the purposes hereof;
(c) perfect
or protect the validity of any grant made or to be made by this Agreement (including any and all actions necessary or desirable as a result
of changes in Applicable Law);
(d) enforce
any of the Collateral or other instruments or property included in the Collateral;
(e) preserve
and defend title to the Collateral and the rights therein of the Collateral Agent and the Secured Parties in the Collateral against the
claims of all third parties; and
(f) pay
or cause to be paid any and all Taxes levied or assessed upon all or any part of the Collateral.
If the Borrower fails to prepare
and file any instrument or to take any action required pursuant to this Section 7.07 within five (5) Business Days after the Administrative
Agent’s request and written instruction therefor, the Borrower hereby designates the Collateral Agent as its agent to prepare and
file such instrument and take such action required pursuant to this Section 7.07. The Borrower further authorizes the Collateral
Agent to file UCC-1 financing statements and continuation statements therefor, that name the Borrower as debtor and the Collateral
Agent as secured party and that describes “all assets in which the debtor now or hereafter has rights” (or words of similar
effect) as the Collateral in which the Collateral Agent has a grant of security hereunder. Such designation shall not impose upon
the Collateral Agent or the Administrative Agent or any other Secured Party, or release or diminish, the Borrower’s obligations
under this Section 7.07.
Notwithstanding the generality
of the foregoing, the Borrower shall, within six (6) months prior to the fifth (5th) anniversary of the date of filing of any financing
statement filed pursuant to this Agreement authorize, deliver and file or cause to be filed an appropriate continuation statement with
respect to each such financing statement.
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ARTICLE
VIII
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 8.01. Collection
of Money
Except as otherwise expressly
provided herein, the Administrative Agent may and the Collateral Agent shall at the direction of the Administrative Agent demand payment
or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary,
all Money and other property payable to or receivable by the Collateral Agent pursuant to this Agreement, including all payments due on
the Collateral, in accordance with the terms and conditions of such Collateral. The Collateral Agent shall segregate and hold all such
Money and property received by it in trust for the Secured Parties and shall apply it as provided in this Agreement. Each Covered Account
shall be established and maintained under the Account Control Agreement with a Qualified Institution. Any Covered Account may contain
any number of subaccounts for the convenience of the Collateral Agent or as required by the Collateral Manager for convenience in administering
the Covered Accounts or the Collateral.
Section 8.02. Collateral
Accounts
(a) Pre-Funding
Account.
(i) In
accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date, establish at the
Account Bank one (1) segregated securities account, which shall be designated as the “Pre-Funding Account”, which shall
be maintained by the Borrower with the Account Bank in accordance with the Account Control Agreement and which shall be subject to the
Lien of the Collateral Agent. The only permitted deposits to or withdrawals from the Pre-Funding Account shall be in accordance with
the provisions of this Agreement.
(ii) The
Borrower may withdraw funds on deposit in the Pre-Funding Account and reinvest such funds in additional Collateral Loans, in each case
in accordance with the requirements of Section 2.02(b) and Section 10 or, solely to the extent expressly permitted pursuant
to Section 5.02(r), make a distribution to the Equityholder.
(b) Collection
Account. In accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date,
establish at the Account Bank two (2) segregated securities accounts, one of which shall be designated as the “Interest Collection
Account”, and one of which shall be designated as the “Principal Collection Account” (collectively, the “Collection
Account”), each of which shall be maintained by the Borrower with the Account Bank in accordance with the Account Control Agreement
and which shall be subject to the Lien of the Collateral Agent. The Borrower shall from time to time deposit into the Interest Collection
Account promptly upon receipt thereof all Interest Proceeds received and identified as such by the Collateral Manager. The Borrower shall
from time to time deposit into the Principal Collection Account promptly upon receipt thereof all Principal Proceeds received by the Borrower
and identified as such by the Collateral Manager. All funds deposited from time to time in the Collection Account pursuant to this Agreement
shall be held on behalf of the Collateral Agent as part of the Collateral and shall be applied to the purposes herein provided. All disbursements
from the Collection Account shall be made in accordance with the Priority of Payments or to make a Restricted Payment to the extent expressly
permitted in accordance with Section 5.02(r).
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(c) Custodian
Account. In accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date,
establish at the Account Bank one (1) segregated securities account, which shall be designated as the “Custodian Account”,
which shall be maintained by the Borrower with the Account Bank in accordance with the Account Control Agreement and which shall be subject
to the Lien of the Collateral Agent. All promissory notes shall be credited to the Custodian Account.
Section 8.03. Account Control
Agreement
The provisions of Section 8.02
are subject to the terms of the Account Control Agreement.
Section 8.04. Funds in Covered
Accounts
(a) By
delivery of a certificate of a Responsible Officer (which may be in the form of standing instructions), the Borrower (or the Collateral
Manager on behalf of the Borrower) shall at all times direct the Account Bank to, and, upon receipt of such certificate, the Account Bank
shall, invest all funds on deposit in the Collection Account in Eligible Investments having stated maturities no later than the Business
Day preceding the next Payment Date (or such shorter maturities expressly provided herein). If, prior to the occurrence of an Event of
Default, the Borrower shall not have given any such investment directions, the Account Bank shall seek instructions from the Collateral
Manager within three (3) Business Days after transfer of any funds to such accounts and shall invest in Eligible Investments based on
written instructions from the Collateral Manager. After the occurrence and during the continuance of an Event of Default, the Account
Bank shall invest and reinvest such funds as fully as practicable in Eligible Investments as directed by the Administrative Agent maturing
not later than the earlier of (i) thirty (30) days after the date of such investment (unless putable at par to the issuer thereof) or
(ii) the Business Day immediately preceding the next Payment Date (or such shorter maturities expressly provided herein). Except to the
extent expressly provided otherwise herein, all interest, gain, loss and other income from such investments shall be deposited, credited
or charged (as applicable) in and to the Collection Account. Absent its timely receipt of such instruction from the Collateral Manager
or Administrative Agent, as applicable, in accordance with the foregoing, the Account Bank shall not be under an obligation to invest
(or pay interest on) funds held hereunder. The Account Bank shall in no way be liable for any insufficiency in a Covered Account resulting
from any loss relating to any such investment.
(b) The
Account Bank agrees to give the Borrower prompt notice if any Covered Account or any funds on deposit in any Covered Account, or otherwise
to the credit of a Covered Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.
All Covered Accounts shall remain at all times with the Account Bank.
Section 8.05. Reports
by Collateral Administrator
The Collateral Administrator shall
supply, in a timely fashion, to the Borrower and the Collateral Manager any information regularly maintained by the Collateral Administrator
that the Borrower or the Collateral Manager may from time to time reasonably request with respect to the Collateral Loans, the Covered
Accounts and the other Collateral and provide any other requested information in the possession of the Collateral Administrator and required
to be provided by Section 8.06(b) or to permit the Collateral Manager to perform its obligations hereunder or the Borrower’s
obligations hereunder that have been delegated to the Collateral Manager. The Collateral Administrator shall promptly forward to the Collateral
Manager copies of notices, periodic financial reports and other writings received by it from the Obligor of any Collateral Loan or from
any Clearing Agency with respect to any Collateral Loan.
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Section 8.06. Accountings
(a) Monthly
Borrowing Base Certificate. On the first Business Day following each Determination Date (the “Monthly Reporting Date”),
commencing with the first Determination Date to occur after the Closing Date, the Borrower shall compile and provide (or cause to be compiled
and provided) to the Administrative Agent and the Collateral Administrator a Borrowing Base Certificate prepared on a pro forma
basis as of such Monthly Reporting Date.
(b) Collateral
Administrator. For the avoidance of doubt, the Borrower has engaged the Collateral Administrator pursuant to Article XV hereof
to compile and provide daily Cash and collateral balances in the accounts maintained at U.S. Bank with respect to the calculation of the
Borrowing Base; provided, however, that the Collateral Administrator’s obligation to compile and provide such information
is subject to the receipt of the information necessary to do so from the Collateral Manager.
Section 8.07. Release of
Collateral
(a) If
no Event of Default has occurred and is continuing, the Borrower may, by delivery (which may be by e-mail or other electronic communication
of a signed document) of a certificate of a Responsible Officer of the Collateral Manager delivered to the Collateral Agent and the Custodian
at least one (1) Business Day prior to the settlement date (or, with the consent of the Administrative Agent, on the settlement date)
for any sale of any item of Collateral certifying that the sale of such Collateral is being made in accordance with Section 10.01
and such sale complies with all applicable requirements of Section 10.01, direct the Collateral Agent (or the Custodian on its
behalf) to release or cause to be released such item from the Lien of this Agreement and, upon receipt of such certificate, the Collateral
Agent (or Custodian, as applicable) shall deliver any such item, if in physical form, duly endorsed to the broker or purchaser designated
in such certificate or, if such item is a Clearing Corporation Security, cause an appropriate transfer thereof to be made, in each case
against receipt of the sales price therefor as specified by the Collateral Manager in such certificate; provided that the Collateral
Agent (or the Custodian on its behalf) may deliver any such item in physical form for examination in accordance with street delivery custom;
provided, further, that neither the Collateral Agent nor the Custodian will be deemed to have notice of an Event of Default
unless it has received notice thereof.
(b) Subject
to the terms of the Facility Documents, the Collateral Agent (or Custodian, as applicable) shall, upon the receipt of a certificate
of the Borrower, by delivery of a certificate of a Responsible Officer of the Collateral Manager, deliver any Collateral in accordance
with such certificate, and execute such documents or instruments as are delivered by or on behalf of the Borrower and reasonably necessary
to release or cause to be released such security from the Lien of this Agreement, which is set for any mandatory call or redemption or
payment in full to the appropriate paying agent on or before the date set for such call, redemption or payment, in each case against
receipt of the call or redemption price or payment in full thereof.
(c) As
provided in Section 8.02(b), any proceeds received by the Borrower from the disposition of a Collateral Loan shall be deposited
in the Collection Account as instructed by the Collateral Manager, unless simultaneously applied to the purchase of additional Collateral
Loans as permitted under and in accordance with the requirements of this Article VIII and Article X.
(d) The
Collateral Agent shall, upon receipt of a certificate of a Responsible Officer of the Borrower certifying that no Commitments remain outstanding
and all Obligations of the Borrower hereunder and under the other Facility Documents have been Paid in Full (other than unasserted contingent
obligations), execute such documents or instruments as are delivered by or on behalf of the Borrower and reasonably necessary to release
any remaining Collateral from the Lien of this Agreement.
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(e) Any
security, Collateral Loan or amounts that are released pursuant to Section 8.04(a) or (b) shall be automatically released
from the Lien of this Agreement.
Any direction received
by the Collateral Agent or the Custodian, as applicable, on or prior to 2:00 p.m. on any Business Day shall be effective on such Business
Day and any direction received by the Collateral Agent or the Custodian, as applicable, after 2:00 p.m. on any Business Day, or at any
time on any day that is not a Business Day, shall be effective in each case on the next succeeding Business Day.
Section 8.08. Reports
by Independent Accountants
(a)
The Collateral Manager will appoint a firm of independent certified public accountants, independent auditors or independent consultants
specializing in securitization transactions (together with its successors, the “Independent Accountants”),
in each case reasonably acceptable to the Administrative Agent, for purposes of reviewing and delivering the reports of such accountants
required by this Agreement, which may be the firm of independent certified public accountants, independent auditors or independent consultants
that performs accounting services for the Collateral Manager. Upon any resignation by such firm, the Collateral Manager shall promptly
appoint a successor thereto that shall also be a firm of independent certified public accountants, independent auditors or independent
consultants of recognized standing, which may be a firm of independent certified public accountants, independent auditors or independent
consultants that performs accounting services for the Collateral Manager. The fees of such Independent Accountants and any successor shall
be payable by the Borrower.
(b)
The Collateral Manager will cause the Independent Accountants to furnish to the Administrative Agent within 120 days of the end of each
fiscal year of the Borrower (starting with the fiscal year ending February 28, 2026), to the effect that such firm has applied certain
agreed-upon procedures approved by the Administrative Agent (as such agreed-upon procedures may be updated from time to time in response
to reasonable requests of the Administrative Agent) with respect to a selection of Borrowing Base Certificates from the related fiscal
year, as applicable, and, with respect to the Collateral Manager’s performance hereunder, to assist the Administrative Agent in
determining that the Borrowing Base Certificates for the related fiscal year were prepared in compliance with this Agreement, except for
such exceptions as it believes to be immaterial and such other exceptions as will be set forth in such firm’s report (including,
with respect to any such exceptions, an explanation of how each such exception arose and reflecting the input/explanation of the Collateral
Manager thereto). Such reports pursuant to this clause (b) shall be at the expense of the
Borrower.
(c)
In the event the Independent Accountants appointed pursuant to clause (b) above require the Borrower
or the Collateral Manager, as applicable, to agree to the procedures performed by such Independent Accountants with respect to any of
the reports, statements of such Independent Accountants, or sign any agreement in connection therewith, the Collateral Administrator shall,
upon direction from the Borrower (or the Collateral Manager on behalf of the Borrower), so agree to the terms and conditions requested
by such Independent Accountants as a condition to receiving documentation required by this Agreement; it being understood and agreed
that the Collateral Administrator shall deliver such agreement in conclusive reliance on such direction and shall make no inquiry or investigation
as to, and shall have no obligation or responsibility in respect of, the terms of the engagement of such Independent Accountants by the
Borrower or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. The Collateral Administrator
may require the delivery of a written direction to the execution of any such agreement required for the delivery of any report or statement
of such Independent Accountants to the Collateral Administrator under this Agreement. Upon direction from the Borrower (or the Collateral
Manager on behalf of the Borrower), the Collateral Administrator shall be authorized, without liability on its part, to execute and deliver
any such agreement with such Independent Accountants, which agreement, to the extent so directed by the Borrower (or the Collateral Manager
on behalf of the Borrower), may include, amongst other things, (i) an acknowledgement that the Borrower has agreed that the procedures
by such Independent Accountants are sufficient for the relevant purposes, (ii) releases by the Collateral Administrator of any claims,
liabilities and expenses arising out of or relating to such Independent Accountant’s engagement, agreed-upon procedures or any report
or statement issued by such Independent Accountants under any such engagement and acknowledgement of other limitations of liability in
favor of such Independent Accountants and (iii) restrictions or prohibitions on the disclosure of any such reports, statements or other
information or documents provided to it by such Independent Accountants.
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ARTICLE
IX
APPLICATION OF FUNDS
Section 9.01. Disbursements
of Funds from Collection Account
(a) Notwithstanding
any other provision in this Agreement, but subject to the other subsections of this Section 9.01, all amounts on deposit in the
Collection Account pursuant to Section 8.02 shall be applied by the Account Bank at the written direction of the Administrative
Agent in accordance with the following priorities, as calculated by the Administrative Agent as of the immediately preceding Calculation
Date (the “Priority of Payments”) (it being understood that such amounts shall first be applied from the Interest Collection
Account and subsequently shall be applied from the Principal Collection Account):
(i) On
each Payment Date, so long as no Event of Default has occurred and is continuing or would result therefrom, amounts on deposit in the
Collection Account, to the extent received on or before the related Calculation Date, will be applied in the following order of priority:
(A) first,
to the Custodian, the Collateral Administrator, the Account Bank, and the Securities Intermediary, pro rata, to pay any accrued
and unpaid amounts due and owing on such date pursuant to this Agreement, and the other Facility Documents;1
(B) to
the Collateral Manager to pay accrued and unpaid Collateral Management Fees, except to the extent that the Collateral Manager elects to
permanently waive such Collateral Management Fee for such Interest Accrual Period;
(C) to
the Borrower in an amount equal to costs or fees incurred in the ordinary course of business relating to the administration of Borrower
during such month, including those related to financial audits, state filing fees, insurance costs, legal fees relating to perfection
of underlying collateral, and other related costs or fees; provided that the aggregate amount of such costs subject to reimbursement
hereto shall not exceed $200,000 per annum;
(D) to
the Administrative Agent, to pay accrued and unpaid fees pursuant to the Administrative Agent Fee Letter, if any, and any other accrued
and unpaid fees and expenses payable to the Administrative Agent pursuant to the Facility Documents, until paid in full;
(E) to
each Lender, to pay accrued and unpaid Interest on the Advances, Unused Fees, any other fees or expenses payable pursuant to the Facility
Documents, if any, due to each such Person and amounts payable to each such Person under Section 2.10;
(F) if
a Borrowing Base Deficiency or Coverage Test Deficiency has occurred and is continuing, to each Lender to repay the outstanding principal
of the Advances of each Lender (pro rata based on each Lender’s Percentage) until no such Borrowing Base Deficiency or Coverage
Test Deficiency, as applicable, is continuing;
(G) to
the Borrower, in an amount equal to costs or fees incurred in the ordinary course of business relating to the administration of Borrower
during such month, including those related to financial audits, state filing fees, insurance costs, legal fees relating to perfection
of underlying collateral, and other related costs or fees in excess of the $200,000 per annum cap pursuant to item (C) above; and
1 NTD: The Successor Collateral Manager is covered
under clause (B) below since “Collateral Manager” is defined to cover any successor.
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(H) thereafter,
to, or as directed by, the Borrower; provided that the making of any Restricted Payment with respect thereto shall be subject to
Section 5.02(r).
(ii) On
each Payment Date after the occurrence and during the continuance of an Event of Default, or if an Event of Default would result from
the application of Collections pursuant to the preceding clause (i), all Collections on deposit in the Collection Account, to the
extent received on or before the related Calculation Date will be applied by the Account Bank at the written direction of the Administrative
Agent in the following order of priority (it being understood that such amounts shall first be applied from the Interest Collection Account
and subsequently shall be applied from the Principal Collection Account):
(A) first,
to the Custodian, the Collateral Administrator, the Account Bank, and the Securities Intermediary, pro rata, and, second,
to the Successor Collateral Manager, if any, to pay any accrued and unpaid amounts due and owing on such date pursuant to this Agreement,
and the other Facility Documents;
(B) to
the Administrative Agent, to pay accrued and unpaid fees pursuant to the Administrative Agent Fee Letter, if any, and any other accrued
and unpaid fees and expenses payable to the Administrative Agent pursuant to the Facility Documents, until paid in full;
(C) to
the Administrative Agent, to pay any fees, expenses, indemnities and other amounts payable to the Administrative Agent pursuant the Administrative
Agent Fee Letter and any other Facility Documents;
(D) to
each Lender, to pay accrued and unpaid Interest on the Advances, Unused Fees, any other fees or expenses payable pursuant to the Facility
Documents, if any, due to each such Person and amounts payable to each such Person under Section 2.10;
(E) to
pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until paid in full;
(F) to
pay all other Obligations then due and owing (other than Advances Outstanding), including accrued and unpaid amounts owing to Affected
Persons (if any) under Sections 2.09 and 12.03;
(G) to
the Borrower in an amount equal to costs or fees incurred in the ordinary course of business relating to the administration of Borrower
during such month, including those related to financial audits, state filing fees, insurance costs, legal fees relating to perfection
of underlying collateral, and other related costs or fees;
(H) thereafter,
to, or as directed by, the Borrower; provided that the making of any Restricted Payment with respect thereto shall be subject to
Section 5.02(r).
(b) If
on any Payment Date the amount available in the Collection Account is insufficient to make the full amount of the disbursements required
pursuant to Section 9.01(a), the Account Bank shall make the disbursements called for in the order and according to the priority
set forth under Section 9.01(a) to the extent funds are available therefor.
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ARTICLE
X
SALE OF COLLATERAL LOANS;
PURCHASE OF ADDITIONAL COLLATERAL LOANS
Section 10.01. Sales of
Collateral Loans
(a) Sales
of Collateral Loans. Subject to the satisfaction (or waiver, by the Administrative Agent) of the conditions specified in this Section
10.01 and Section 10.04, the Borrower may sell any Collateral Loan if such sale meets each of the requirements set forth below
(provided that prior to such discretionary sale, the Borrower shall demonstrate that the requirements set forth below are met by
submitting to the Lenders completed forms of Borrowing Base Certificate (including all attachments thereto) and Compliance Certificate
(including all attachments thereto) as of the date of such discretionary sale after giving effect thereto):
(i) no
Default or Event of Default exists and is continuing or would result upon giving effect thereto (unless, in the case of such a Default,
such Default will be cured upon giving effect to such sale and the application of the proceeds thereof);
(ii) upon
giving effect thereto and to the application of the proceeds thereof, the Borrowing Base Test, the Ratings Test and each of the Coverage
Tests shall be satisfied;
(iii) reserved;
and
(iv) without
the prior written consent of the Required Lenders, the purchase price for such Collateral Loan is not less than the Advance Rate times
the Adjusted Borrowing Value of such Collateral Loan; provided, notwithstanding the foregoing, some or all of the purchase price
for a sale to an Affiliate of the Borrower that holds an equity interest therein may be in the form a capital contribution or deemed dividend
as reflected on the books and records of such parties;
(v) [reserved];
and
(vi) no
adverse selection procedures have been employed by the Borrower (or the Collateral Manager on behalf of the Borrower) in selecting the
Collateral Loans for sale.
(b) Sales
of Equity Securities. The Borrower may sell any Equity Security at any time without restriction, and shall use its commercially reasonable
efforts to effect the sale of any Equity Security, regardless of price, within forty-five (45) days of receipt if such Equity Security
constitutes Margin Stock, unless such sale is prohibited by Applicable Law or contract, in which case such Equity Security should be sold
as soon as such sale is permitted by Applicable Law or contract.
(c) [Reserved.]
(d) Application
of Proceeds of Sales. The Collateral Manager on behalf of the Borrower shall deposit the proceeds of any sale effected pursuant to
this Section 10.01 into the Collection Account for disbursement in accordance with Section 9.01 or reinvestment in additional
Collateral Loans in accordance with Section 10.02.
(e) Delayed
Drawdown Collateral Loans. At any time after any Delayed Drawdown Collateral Loan has become an Ineligible Collateral Loan, the Borrower
shall promptly (and in any event within two (2) Business Days) following the Administrative Agent or the Required Lenders’ direction,
either (i) divest in full the Unfunded Exposure Amount thereof or (ii) cash collateralize in full the Unfunded Exposure Amount thereof
by depositing such cash into a segregated sub-account with the Account Bank subject to the Account Control Agreement, subject to withdrawal
at the direction of the Borrower solely to fund such Unfunded Exposure Amount (provided that, for the avoidance of doubt, no such
cash collateral amount with respect to any Ineligible Collateral Loan shall be included in the Borrowing Base), it being understood that
the decision as to whether to divest or cash collateralize shall be made by the Borrower in its sole discretion.
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Section 10.02. Purchase
of Additional Collateral Loans
On any date prior to the Commitment
Termination Date, the Collateral Manager on behalf of the Borrower may, if the conditions specified in this Section 10.02 and Section
10.04 are met (or waived by the Administrative Agent), invest Principal Proceeds (and accrued interest received with respect to any
Collateral Loan to the extent used to pay for accrued interest on additional Collateral Loans) in additional Collateral Loans; provided
that no Collateral Loan may be purchased unless each of the following conditions is satisfied as of the date such Collateral Loan is added
to the Collateral, subject to Section 1.05(h) (provided that prior to any such purchase, the
Borrower shall demonstrate that the requirements set forth below are met by submitting to the Lenders completed forms of Borrowing Base
Certificate (including all attachments thereto) and Compliance Certificate (including all attachments thereto) as of the date of such
purchase after giving effect thereto):
(i) no
Default or Event of Default exists and is continuing or would result upon giving effect thereto (unless, in the case of such a Default,
such Default will be cured upon giving effect to such acquisition);
(ii) such
obligation is an Eligible Collateral Loan;
(iii) upon
giving effect thereto, the Borrowing Base Test, the Ratings Test and each of the Coverage Tests shall be satisfied;
(iv) such
purchase is from (A) the Equityholder in accordance with the Sale Agreement or (B) a Person that is not an Affiliate of the Collateral
Manager, the Borrower or the Equityholder; and
(v) such
Principal Proceeds shall be denominated in Dollars (or converted to Dollars by the Borrower at the Applicable Conversion Rate).
Section 10.03. Substitution
of Collateral Loans
(a) Substitutions.
The Borrower may replace any Collateral Loan with another Collateral Loan (a “Substitute Loan”), subject to the satisfaction
(or waiver, by the Administrative Agent) of the conditions set forth in clause (b) below and in Section 10.04
(provided that prior to any such substitution, the Borrower shall demonstrate that the requirements set forth in clause (b)
below are met by submitting to the Lenders completed forms of Borrowing Base Certificate (including all attachments thereto) and Compliance
Certificate (including all attachments thereto) as of the date of such purchase after giving effect thereto).
(b) Conditions
to Substitution. No substitution of a Collateral Loan with a Substitute Loan shall occur unless each of the following conditions is
satisfied (or waived by the Administrative Agent) as of the date of such substitution:
(i) no
Default or Event of Default exists and is continuing or would result upon giving effect thereto (unless, in the case of such a Default,
such Default will be cured upon giving effect to such substitution);
(ii) such
Substitute Loan is an Eligible Collateral Loan;
(iii) upon
giving effect thereto, the Borrowing Base Test, the Ratings Test and each of the Coverage Tests shall be satisfied;
(iv) such
Substitute Loan is acquired from (A) the Equityholder in accordance with the Sale Agreement or (B) a Person that is not an Affiliate of
the Collateral Manager, the Borrower or the Equityholder;
(v) 100%
of the proceeds from the sale of the Collateral Loan(s) to be replaced in connection with such substitution are either applied by the
Borrower to acquire the Substitute Loan(s) or deposited in the Collection Account; provided, for the avoidance of doubt, proceeds
in connection with a substitution between an Affiliate of the Borrower that holds an equity interest therein and the Borrower may be in
the form a capital contribution or deemed dividend as reflected on the books and records of such parties;
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(vi) there
is no adverse selection, impacting the interest of the Secured Parties, by the Borrower or Collateral Manager with regard to such Collateral
Loans to be substituted or the Substitute Loans; and
(vii) the
sale of any such Collateral Loan in connection with such substitution otherwise complies with the provisions of Section 10.01.
Section 10.04. Conditions
Applicable to All Sale and Purchase Transactions
(a) Any
transaction effected under this Article X or in connection with the acquisition of additional Collateral Loans shall be (i) negotiated
at arms’ length, (ii) for fair market value and (iii) effected in accordance with all Applicable Laws.
(b) Upon
each acquisition by the Borrower of a Collateral Loan (i) all of the Borrower’s right, title and interest to such Collateral Loan
shall be subject to the Lien granted to the Collateral Agent pursuant to this Agreement and (ii) such Collateral Loan shall be Delivered
to the Custodian on behalf of the Collateral Agent.
ARTICLE
XI
THE AGENTS
Section 11.01. Authorization
and Action
(a) Each
Lender (and each Hedge Counterparty by execution of this Agreement, if applicable) hereby irrevocably appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and, to the
extent applicable, the other Facility Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto, subject to the terms hereof. No Agent shall have any duties or responsibilities, except those expressly
set forth herein or in the other Facility Documents to which it is a party or any fiduciary relationship with any Secured Party and no
implied covenants, functions, responsibilities, duties or obligations or liabilities on the part of such Agent shall be read into this
Agreement or any other Facility Document to which such Agent is a party (if any) as duties on its part to be performed or observed. No
Agent shall have or be construed to have any other duties or responsibilities in respect of this Agreement or any other Facility Document
and the transactions contemplated hereby or thereby. As to any matters not expressly provided for by this Agreement or the other Facility
Documents, no Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or, with
respect to the Collateral Agent, the Administrative Agent); provided that such Agent shall not be required to take any action which
exposes such Agent, in its judgment, to personal liability, cost or expense or which is contrary to this Agreement, the other Facility
Documents or Applicable Law, or would be, in its judgment, contrary to its duties hereunder, under any other Facility Document or under
Applicable Law. Each Lender agrees that in any instance in which the Facility Documents provide that the Administrative Agent’s
consent may not be unreasonably withheld, provide for the exercise of the Administrative Agent’s reasonable discretion, or provide
to a similar effect, it shall not in its instructions (or by refusing to provide instruction) to the Administrative Agent withhold its
consent or exercise its discretion in an unreasonable manner.
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(b) If
the Administrative Agent or the Collateral Agent has been requested or directed by the Required Lenders to take any action pursuant to
any provision of this Agreement or any other Facility Document, the Administrative Agent or the Collateral Agent, as applicable, shall
not be under any obligation to exercise any of the rights or powers vested in it by this Agreement or such Facility Document in the manner
so requested unless it shall have been provided indemnity reasonably satisfactory to it against the costs, expenses and liabilities which
may be incurred by it in compliance with or in performing such request or direction. No provision of this Agreement or any Facility Document
shall otherwise be construed to require the Administrative Agent or the Collateral Agent to expend or risk its own funds or to take any
action that could in its judgment cause it to incur any cost, expense or liability, unless it is provided indemnity acceptable to it against
any such expenditure, risk, cost, expense or liability. For the avoidance of doubt, neither the Administrative Agent nor the Collateral
Agent shall have any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to
it under this Agreement or any Facility Document or Collateral Loan Document unless and until directed by the Required Lenders.
(c) Neither
the Collateral Agent nor any officer, agent or representative thereof shall be personally liable for any action taken by any such Person
in accordance with any notice given by the Administrative Agent or the Required Lenders pursuant to the terms of this Agreement or any
other Facility Document even if, at the time such action is taken by any such Person, the Administrative Agent or the Required Lenders
or Persons purporting to be the Administrative Agent or the Required Lenders are not entitled to give such notice. If any dispute or disagreement
shall arise as to the allocation of any sum of money received by the Collateral Agent hereunder or under any Facility Document, the Collateral
Agent shall have the right to deliver such sum to a court of competent jurisdiction and therein commence an action for interpleader.
(d) If
in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, it may
request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not
receive such instructions within five (5) Business Days after it has requested them, the Collateral Agent may, but shall be under no duty
to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after
such five (5) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent
with such instructions.
(e) Instructions
to Collateral Agent.
(i) The
Collateral Agent shall be entitled to refrain from taking any action unless it has such instruction (in the form of Proper Instructions)
from the Borrower (or the Collateral Manager on the Borrower’s behalf), the Required Lenders or the Administrative Agent, as applicable,
as it reasonably deems necessary. In the absence of gross negligence, fraud or willful misconduct by the Collateral Agent, the Collateral
Agent shall have no liability for any action (or forbearance from action) taken pursuant to any Proper Instruction of the Borrower, the
Collateral Manager, the Required Lenders or the Administrative Agent, as applicable.
(ii) Whenever
the Collateral Agent is entitled or required to receive or obtain any communications or information pursuant to or as contemplated by
this Agreement, it shall be entitled to receive the same in writing, in form, content and medium reasonably acceptable to it and otherwise
in accordance with any applicable term of this Agreement; and whenever any report or other information is required to be produced or distributed
by the Collateral Agent it shall be in form, content and medium reasonably acceptable to it and the Borrower, and otherwise in accordance
with any applicable term of this Agreement.
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(iii) In
case any reasonable question arises as to its duties hereunder, the Collateral Agent may, so long as no Event of Default has occurred
and is continuing, request instructions from the Collateral Manager and may, after the occurrence and during the continuance of an Event
of Default, request instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking any action unless
it has received instructions from the Collateral Manager or the Administrative Agent, as applicable. The Collateral Agent shall, in the
absence of gross negligence, fraud or willful misconduct by the Collateral Agent, have no liability, risk or cost for any action taken
pursuant to and in compliance with the instruction of the Administrative Agent (or the Collateral Manager if permitted under the Facility
Documents).
(f) General
Standards of Care for the Collateral Agent. Notwithstanding any terms herein contained to the contrary, the acceptance by the Collateral
Agent of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and
provisions of this Agreement (whether or not so stated therein):
(i) The
Collateral Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by a Responsible
Officer of the Collateral Agent or unless (and then only to the extent) received in writing by the Collateral Agent and specifically referencing
this Agreement. The Collateral Agent shall not be charged with knowledge of any notices, documents, instruments or reports delivered or
prepared by the Collateral Administrator. It is hereby acknowledged that the Collateral Agent shall have no responsibility for filing
or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted by any Person under any Facility Document or Related Document.
(ii) No
provision of this Agreement shall require the Collateral Agent to expend or risk its own funds, or to take any action (or forbear from
action) hereunder which might in its judgment involve any expense or any financial or other liability unless it shall be furnished with
acceptable indemnification. Nothing herein shall obligate the Collateral Agent to commence, prosecute or defend legal proceedings in any
instance, whether on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or relating
to this Agreement or the services contemplated hereby.
(iii) The
permissive right of the Collateral Agent to take any action hereunder shall not be construed as a duty.
(iv) The
Collateral Agent may act or exercise its duties or powers hereunder through agents or attorneys-in-fact, and the Collateral Agent shall
not be liable or responsible for the actions or omissions of any such agent or attorney-in-fact appointed and maintained with reasonable
due care.
(v) The
Collateral Agent shall have no obligation to determine the Interest Rate or whether an asset is an Eligible Collateral Loan or otherwise
satisfies any eligibility requirements hereunder.
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Section 11.02. Delegation
of Duties
(a) Each
Agent may execute any of its duties under this Agreement and each other Facility Document by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
(b) Without
limiting the generality of Section 11.02(a), the Administrative Agent may at any time or from time to time designate one or more
of its Affiliates to execute any of its duties under this Agreement and each other Facility Document.
Section 11.03. Agents’
Reliance, Etc.
(a) Neither
Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any of the other Facility Documents, except for its or their own gross negligence,
fraud or willful misconduct. Without limiting the generality of the foregoing, each Agent: (i) may consult with legal counsel (including
counsel for the Borrower or the Collateral Manager or any of their Affiliates) and independent public accountants and other experts selected
by it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by such Agent in good faith in accordance with such opinion and shall not be liable for any action taken,
suffered or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes
no warranty or representation to any Secured Party or any other Person and shall not be responsible to any Secured Party or any Person
for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or the other
Facility Documents; (iii) shall not have any duty to monitor, ascertain, or investigate as to the performance or observance of any of
the terms, covenants or conditions of this Agreement, the other Facility Documents, any Related Document or any notice, consent, certificate,
instruction or waiver, report, statement, opinion, direction or other instrument or writing on the part of the Borrower, the Collateral
Manager or any other Person or to inspect the property (including the books and records) of the Borrower or the Collateral Manager; (iv) shall
not be responsible to any Secured Party or any other Person for the due execution, legality, validity, enforceability, perfection, genuineness,
sufficiency or value of any Collateral (or the validity, perfection, priority or enforceability of the Liens on the Collateral), this
Agreement, the other Facility Documents, any Related Document or any other instrument or document furnished pursuant hereto or thereto;
(v) shall incur no liability under or in respect of this Agreement or any other Facility Document by relying on, acting upon (or by refraining
from action in reliance on) any notice, consent, certificate (including, for the avoidance of doubt, the Borrowing Base Certificate),
instruction or waiver, report, statement, opinion, direction or other instrument or writing (which may be delivered by telecopier, email,
cable or telex, if acceptable to it) reasonably believed by it to be genuine and believed by it to be signed or sent by the proper party
or parties; (vi) shall not be responsible to any Person for any recitals, statements, information, representations or warranties regarding
the Borrower or the Collateral or in any document, certificate or other writing delivered in connection herewith or therewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of thereof or any
such other document or the financial condition of any Person or be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions related to any Person or the existence or possible existence of any Default or Event of
Default; and (vii) shall not have any obligation whatsoever to any Person to assure that any collateral exists or is owned by any Person
or is cared for, protected or insured or that any liens have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers granted or available with respect thereto. No Agent shall have
any liability to the Borrower, any Lender or any other Person for the Borrower’s, the Collateral Manager’s, any Lender’s,
or any other Person’s, as the case may be, performance of, or failure to perform, any of their respective obligations and duties
under this Agreement or any other Facility Document.
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(b) No
Agent shall be liable for the actions or omissions of any other Agent (including concerning the application of funds), or under any duty
to monitor or investigate compliance on the part of any other Agent with the terms or requirements of this Agreement, any Facility Document
or any Related Document, or their duties hereunder or thereunder. Each Agent shall be entitled to assume the due authority of any
signatory and genuineness of any signature appearing on any instrument or document it may receive (including each Notice of Borrowing
received hereunder). No Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers
conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason
of the lack of direction or instruction required hereby for such action (including for refusing to exercise discretion or for withholding
its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of the Required Lenders to provide,
written instruction to exercise such discretion or grant such consent from the Required Lenders, as applicable). No Agent shall be
liable for any error of judgment made in good faith unless it is proven by a non-appealable court of competent jurisdiction that such
Agent was grossly negligent in ascertaining the relevant facts or engaged in willful misconduct. Nothing herein or in any Facility Document
or Related Document shall obligate any Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment
may cause it to incur any expense or financial or other liability for which it is not adequately indemnified. No Agent shall be liable
for any indirect, special, punitive or consequential damages (including lost profits) whatsoever, even if it has been informed of the
likelihood thereof and regardless of the form of action. No Agent shall be charged with knowledge or notice of any matter unless actually
known to a Responsible Officer of such Agent, or unless and to the extent written notice of such matter is received by such Agent at its
address in accordance with Section 12.02. Any permissive grant of power to an Agent hereunder shall not be construed to be a duty
to act. Neither Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. Neither Agent shall be
liable for any error of judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or Law,
or for anything that it may do or refrain from doing in connection herewith, except in the case of its willful misconduct or grossly negligent
performance or omission of its duties.
(c) No
Agent shall be responsible or liable for delays or failures in performance resulting from acts beyond its control; provided that
such Agent takes commercially reasonable efforts to resume performance after the cessation of such acts. Such acts shall include acts
of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes or other disasters.
(d) The
delivery of reports and other documents and information to the Collateral Agent hereunder or under any other Facility Document is for
informational purposes only and the Collateral Agent’s, receipt of such documents and information shall not constitute constructive
notice of any information contained therein or determinable from information contained therein. The Collateral Agent is hereby authorized
and directed to execute and deliver the other Facility Documents to which it is a party. Whether or not expressly stated in such Facility
Documents, in performing (or refraining from acting) thereunder, the Collateral Agent shall have all of the rights, benefits, protections
and indemnities which are afforded to it in this Agreement.
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(e) Each
Lender acknowledges that, except as expressly set forth in this Agreement, neither Agent has made any representation or warranty to it,
and that no act by either Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by such Agent to any Secured Party as to any matter. Each Lender
represents to each Agent that it has, independently and without reliance upon such Agent and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into, the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the Collateral Manager, and made its own decision to enter into this Agreement
and the other Facility Documents to which it is a party. Each Lender also represents that it will, independently and without reliance
upon either Agent or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement and the Facility Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of the Borrower and the Collateral Manager. Neither Agent shall have any duty or responsibility to provide any Secured Party with any
credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness
of the Borrower or Collateral Manager which may come into the possession of such Agent.
Section 11.04. Indemnification;
Rights
(a) Each
of the Lenders agrees to indemnify and hold the Administrative Agent and the Collateral Agent harmless (to the extent not reimbursed by
or on behalf of the Borrower pursuant to Section 12.04 or otherwise) from and against any and all Liabilities which may be imposed
on, incurred by, or asserted against the Administrative Agent or the Collateral Agent in any way relating to or arising out of this Agreement
or any other Facility Document or any Related Document or any action taken or omitted by the Administrative Agent or the Collateral Agent
under this Agreement or any other Facility Document or any Related Document; provided that no Lender shall be liable to the Administrative
Agent or the Collateral Agent, as applicable, for any portion of such Liabilities resulting from the Administrative Agent’s or the
Collateral Agent’s respective gross negligence or willful misconduct. The rights of the Agents and obligations of the Lenders under
or pursuant to this Section 11.04 shall survive the termination of this Agreement, and the earlier removal or resignation of the
any Agent hereunder.
Section 11.05. Successor
Agents
(a) Subject
to the terms of this Section 11.05, each Agent may, upon thirty (30) days’ notice to the Lenders and the Borrower, resign
as Administrative Agent or the Collateral Agent, as applicable. If an Agent shall resign, then the Required Lenders shall appoint
a successor agent. If for any reason a successor agent is not so appointed and does not accept such appointment
within thirty (30) days of notice of resignation, such Agent may appoint a successor agent.
(b) The appointment
of any successor Agent shall be subject to the prior written consent of the Borrower (which consent shall not be unreasonably withheld
or delayed); provided that the consent of the Borrower to any such appointment shall not be required if an Event of Default shall
have occurred and is continuing. Any resignation or removal of an Agent shall be effective upon the appointment of a successor agent
pursuant to this Section 11.05. After the effectiveness of any retiring or removed Agent’s resignation or removal hereunder
as Agent, the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Facility Documents
and the provisions of this Article XI shall continue in effect for its benefit with respect to any actions taken or omitted to
be taken by it while it was Agent under this Agreement and under the other Facility Documents.
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Section 11.06. Merger,
Conversion, Consolidation or Succession to Business of Agents
Any organization or entity into
which any Agent may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which such Agent shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of such Agent, shall be the successor of such Agent hereunder, without the execution or filing of any
document or any further act on the part of any of the parties hereto.
Section 11.07. Erroneous
Payments
(a) If
the Administrative Agent (x) notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient
(and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined
in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously
or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such
Lender) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees or otherwise;
individually and collectively, an “Erroneous Payment”) and (y) demands the return of such Erroneous Payment (or a portion
thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as
contemplated below in this Section 11.07 and held in trust for the benefit of the Administrative Agent, and the applicable Payment
Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any
such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together
with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such
Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to
time in effect. A notice of the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without
limiting the immediately preceding clause (a) each Lender or any Person who has received funds on behalf of a Lender (and each of their
respective successors and assigns) hereby agrees that if it receives an Erroneous Payment from the Administrative Agent (or any of its
Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment
sent by the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”),
(y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted,
or received, in error or by mistake (in whole or in part), then in each such case:
(i) It
acknowledges and agrees that (A) in the case of the immediately preceding clauses (x) or (y) an error and mistake shall be presumed to
have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in
the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment,
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(ii) such
Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within
one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in the immediately preceding clauses (x),
(y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable
detail) and that it is so notifying the Administrative Agent pursuant to this Section 11.07(b).
For the avoidance of doubt, the failure
to deliver a notice to the Administrative Agent pursuant to this Section 11.07(b) shall not have any effect on a Payment Recipient’s
obligations pursuant to Section 11.07(a) or on whether or not an Erroneous Payment has been made.
(c) Each
Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender otherwise
payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent
under the immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) The
parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous
Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof)
for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case
of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or
Secured Party, as the case may be) under the Facility Documents with respect to such amount (the “Erroneous Payment Subrogation
Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the
Borrower or any guarantor, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such
Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any guarantor for the purpose
of making such Erroneous Payment. This Section 11.07 shall not be deemed to increase (or accelerate the due date for) or have the
effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment)
of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further,
that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is,
and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from,
or on behalf of (including through the exercise of remedies under any Facility Document), the Borrower for the purpose of making a payment
on the Obligations.
(e) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to the Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based
on “discharge for value” or any similar doctrine.
(f) Each
party’s obligations, agreements and waivers under this Section 11.07 shall survive the resignation or replacement of the
Administrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion
thereof) under any Facility Document.
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ARTICLE
XII
MISCELLANEOUS
Section 12.01. No Waiver;
Modifications in Writing
(a) No
failure or delay on the part of any Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. Any waiver of any provision of this Agreement or any other Facility Document, and any consent to
any departure by any party to this Agreement or any other Facility Document from the terms of any provision of this Agreement or such
other Facility Document, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or
demand on the Borrower, the Collateral Manager or the Equityholder in any case shall entitle the Borrower, the Collateral Manager or the
Equityholder to any other or further notice or demand in similar or other circumstances.
(b) Any
request for any amendment, modification, supplement or waiver to this Agreement shall be provided by the Collateral Manager to the Administrative
Agent. No amendment, modification, supplement or waiver of this Agreement shall be effective unless signed by the Borrowers, the Equityholders,
the Collateral Manager, the Administrative Agent and the Required Lenders; provided that:
(i) any
amendment contemplated by Section 2.11 in connection with the use or administration of the Term SOFR Rate or a Benchmark Transition
Event, as applicable, shall be effective as contemplated by such Section 2.11;
(ii) any
Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(iii) no
such amendment, modification, supplement or waiver shall amend, modify or otherwise affect the rights or duties of any Agent, the Collateral
Manager or the Collateral Administrator hereunder without the prior written consent of such Person.
(c) Notwithstanding
anything to the contrary herein, (i) in connection with the increase of the Commitment hereunder, only the consent of the Lender increasing
Commitment (or providing a new Commitment) shall be required for any amendment that effects such increase in Commitment and (ii) the Administrative
Agent and the Borrower shall be permitted to amend any provision of the Facility Documents (and such amendment shall become effective
without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall
have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder
(and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with
the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may
not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent
of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender.
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Section 12.02. Notices,
Etc.
(a) Except
where telephonic instructions are authorized herein to be given, all notices, demands, instructions and other communications required
or permitted to be given to or made upon any party hereto shall be in writing, unless otherwise expressly specified herein, and shall
be (i) personally delivered or sent by registered, certified or express mail, postage prepaid, or by facsimile transmission, or by prepaid
courier service, or by electronic mail (of a .pdf or similar file and if the recipient has provided an email address) to the address,
facsimile number or email address, as applicable, set forth with respect to such party on Schedule 3 (or, if not provided on Schedule
3 with respect to any party, such address, facsimile number or email address provided by such party in writing to the Administrative
Agent), or (ii) in the case of notices, demands, instructions and other communications to be delivered by the Borrower, Collateral Manager
or Equityholder to the Administrative Agent or Collateral Agent, posted to any electronic system approved by or set up by or at the direction
of the Administrative Agent, and shall in each case be deemed to be given for purposes of this Agreement on the day that such writing
is received by the intended recipient thereof or posted in accordance with the provisions of this Section 12.02. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing provisions of this Section 12.02, notices, demands, instructions
and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses (or to
their respective facsimile numbers or email addresses) indicated in Schedule 3 (or, if not provided on Schedule 3 with respect
to any party, such address, facsimile number or email address provided in writing by such party to the Administrative Agent), and, in
the case of telephonic instructions or notices, by calling the telephone number or numbers indicated for such party in Schedule 3
(or, if not provided on Schedule 3 with respect to any party, such telephone number or numbers provided in writing by such party
to the Administrative Agent). Each party shall notify the Administrative Agent in writing of any changes in the address, facsimile number,
telephone number or email address to which notices to such Person should be directed, and of such other administrative information as
the Administrative Agent shall reasonably request.
(b) Each
of the Custodian and the Collateral Administrator shall be entitled to accept and act upon instructions or directions pursuant to this
Agreement sent by unsecured e-mail (or .pdf files of executed documents), facsimile transmission or other similar unsecured electronic
methods; provided that any person providing such instructions or directions shall provide to any of the Custodian or the Collateral
Administrator, as applicable, an incumbency certificate listing such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the listing. If any party hereto elects to give any of the Custodian or
the Collateral Administrator, as applicable, e-mail (or .pdf files of executed documents) or facsimile instructions (or instructions by
a similar electronic method), the Custodian’s or the Collateral Administrator’s understanding of such instructions actually
received by any of the Custodian or the Collateral Administrator, as applicable, shall be deemed controlling in the event that such instructions
are ambiguous; provided that prior to acting in response to any such instructions that it deems to be ambiguous, the Custodian
or Collateral Administrator shall use commercially reasonable efforts to contact the instructing party and obtain from such instructing
party any necessary clarifications with respect to such instructions. Each of the other parties hereto understands and agrees that none
of the Custodian or the Collateral Administrator can determine the identity of the actual sender of such instructions and that the Custodian
or the Collateral Administrator shall conclusively presume that directions that purport to have been sent by an officer listed on the
incumbency certificate provided to it have been sent by such officer. The other parties hereto shall be responsible for ensuring that
only authorized officers transmit such instructions to the Custodian or the Collateral Administrator and that each such party is solely
responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys
upon receipt by it. None of the Custodian or the Collateral Administrator shall be liable for any losses, costs or expenses arising directly
or indirectly from the Custodian’s or the Collateral Administrator’s, as applicable, reasonable, good faith reliance upon
and compliance with such instructions, notwithstanding that such directions conflict with or are inconsistent with a subsequent written
instruction, subject to the duty of care applicable to such Person acting in such capacity. Each of the other parties hereto agrees (i)
to assume all risks arising out of its respective use of such electronic methods to submit instructions and directions to any of the Custodian
or the Collateral Administrator, as applicable, including without limitation the risk of any of the Custodian or the Collateral Administrator,
as applicable, acting on unauthorized instructions, and the risk of interception and misuse by third parties, (ii) that it is fully informed
of the protections and risks associated with the various methods of transmitting instructions to the Custodian or the Collateral Administrator
and that there may be more secure methods of transmitting instructions than the method(s) selected by it, (iii) that the security procedures
(if any) to be followed in connection with its transmission of instructions provide to it a commercially reasonable degree of protection
in light of its particular needs and circumstances and (iv) to notify the Custodian or the Collateral Administrator immediately upon learning
of any compromise or unauthorized use of the security procedures.
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Section 12.03. Taxes
(a) Any
and all payments by, or on account of any obligation of, the Borrower under any Facility Document shall be made without deduction or withholding
for any Taxes, except as required by Applicable Law. If any Applicable Law requires the deduction or withholding of any Tax from any such
payment by the Borrower, the Collateral Agent or the Administrative Agent, then the Borrower, the Collateral Agent or the Administrative
Agent (as applicable) shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld
to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is a Non-Excluded Tax, then the sum payable
by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this Section) the applicable Secured Party receives an amount equal to the sum
it would have received had no such deduction or withholding been made. In no event shall the Collateral Agent be responsible for the calculation
or withholding of any taxes.
(b) In
addition, the Borrower agrees to timely pay (or at the option of the Administrative Agent, timely reimburse it for the payment of) any
present or future stamp, court or documentary, intangible, recording or filing taxes or any other excise or property taxes, charges or
similar Taxes or levies that arise from any payment made hereunder, under the Notes or under any other Facility Document, or from the
execution, delivery, performance enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise
with respect to, this Agreement, the Notes or under any other Facility Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (collectively, the “Other Taxes”).
(c) The
Borrower agrees to indemnify, within ten (10) days after demand therefor each of the Secured Parties for (i) the full amount of Non-Excluded
Taxes or Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 12.03) paid or payable by any Secured Party (or required to be withheld or deducted from payments to a Secured Party)
and (ii) any reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Non-Excluded Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or other Secured Party, shall be conclusive absent manifest error.
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(d) Promptly
after the date of any payment of Taxes pursuant to this Section 12.03, the Borrower will furnish to each Agent the original or
a certified copy of a receipt issued by the relevant Governmental Authority evidencing payment thereof (or other evidence of payment as
may be reasonably satisfactory to such Agent).
(e) If
any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 12.03 (including by the payment of additional amounts pursuant to this Section 12.03),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause
(e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified
party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e),
in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment
of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if
the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified
party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying
party or any other Person.
(f) For
purposes of this Section 12.03, “Lender” shall include each Secured Party. Each Lender that is entitled to an exemption
from or reduction of withholding Tax with respect to payments made under this Agreement or any Facility Document shall deliver to the
Borrower and each Agent, at the time or times reasonably requested by the Borrower or such Agent, such properly completed and executed
documentation reasonably requested by the Borrower or such Agent as will permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, each Lender, if reasonably requested by the Borrower or any Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or such Agent as will enable the Borrower or such Agent to determine
whether or not such Lender is subject to backup withholding or information reporting requirements, and as will permit the Borrower and
such Agent to comply with FATCA. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in sub-clauses (A), (B), and (D) of Section 12.03(f)(i))
shall not be required if, in the Lender’s reasonable judgment, such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(i) Without
limiting the generality of the foregoing.
(A) any
Lender that is a “United States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender
is exempt from U.S. federal backup withholding tax;
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(B) any
Lender that is not a “United States person” under Section 7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(i) in
the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Facility Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Facility Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;
(ii) executed
copies of IRS Form W-8ECI;
(iii) in
the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit D-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C)
of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS
Form W-8BEN-E, as applicable; or
(iv) to
the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS
Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender
is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such
Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct
and indirect partner;
(C) any
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other
form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made;
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(D) if
a payment made to a Lender under any Facility Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after
the date of this Agreement; and
(E) on
or before the date on which the Administrative Agent (including any successor or replacement Administrative Agent) becomes the Administrative
Agent hereunder, it shall deliver to the Borrower one executed copies of either (a) IRS Form W-9 or (b) with respect to amounts received
on its own account, IRS Form W-8ECI (or other applicable IRS Form W-8 evidencing an exemption of United States federal withholding Tax)
and with respect to amounts received on account of any Lender, IRS Form W-8IMY certifying that it is a U.S. branch that has agreed to
be treated as a U.S. Person for U.S. federal tax purposes or a qualified intermediary that has agreed to assume primary withholding obligations
for Chapter 3 and Chapter 4 of the Code with respect to payments received by it from the Borrower in its capacity as Administrative Agent,
as applicable.
Each Lender agrees that
if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect it shall update such form
or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Nothing
in this Section 12.03 shall be construed to require any Secured Party to make available its Tax returns (or any other information
relating to its Taxes that it deems confidential) to the Borrower or any other Person.
(h) Each
Lender shall severally indemnify each Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes and Other Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified such Agent for such Non-Excluded Taxes
or Other Taxes, as applicable, and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s
failure to comply with the provisions of Section 12.06(c) relating to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by such Agent in connection with any Facility Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the applicable
Agent shall be conclusive absent manifest error. Each Lender hereby authorizes each Agent to set off and apply any and all amounts at
any time owing to such Lender under any Facility Document or otherwise payable by such Agent to the Lender from any other source against
any amount due to such Agent under this paragraph (h).
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Section 12.04. Costs and
Expenses; Indemnification
(a) The
Borrower agrees to promptly pay on demand all reasonable and documented out-of-pocket costs and expenses of, without duplication, the
Agents, the Custodian, the Collateral Administrator, the other Secured Parties and the Collateral Manager in connection with the preparation,
review, negotiation, reproduction, execution and delivery of this Agreement and the other Facility Documents, including the reasonable
and documented fees and disbursements of one counsel for the Administrative Agent, and counsel for the Collateral Agent, the Custodian,
the Securities Intermediary and the Collateral Administrator, actual out-of-pocket costs and expenses of creating, perfecting, releasing
or enforcing the Collateral Agent’s security interests in the Collateral, including filing and recording fees, expenses, Taxes (including
any stamp or documentary taxes), search fees, UCC filing fees, and the equivalent thereof in any foreign jurisdiction, and all other related
fees and expenses in connection therewith, and in connection with the administration and any modification or amendment of this Agreement,
the Notes or any other Facility Document and advising the Agents, the Custodian, the Collateral Administrator, the Account Bank, and the
Securities Intermediary as to their respective rights, remedies and responsibilities. The Borrower agrees to promptly pay on demand all
reasonable and documented costs and expenses of each of the Secured Parties in connection with the enforcement of this Agreement, the
Notes or any other Facility Document, including all documented costs and expenses incurred by the Collateral Agent or the Custodian in
connection with the preservation, collection, foreclosure or enforcement of the Collateral subject to the Facility Documents or any interest,
right, power or remedy of the Collateral Agent or in connection with the collection or enforcement of any of the Obligations or the proof,
protection, administration or resolution of any claim based upon the Obligations in any insolvency proceeding, including all reasonable
and documented fees and disbursements of attorneys, accountants, auditors, consultants, appraisers and other professionals engaged by
the Collateral Agent and the Collateral Administrator; provided that with respect to any expenses of the Agents directly related
to or arising from any financial audit conducted by or at the direction of either Agent in accordance with the terms of this Agreement,
(i) the fees applicable to any such audit conducted by employees of the Agents shall be equal to $1,200 per day, per analyst, plus
the Agents’ actual documented out-of-pocket expenses, and (ii) unless an Event of Default has occurred and is continuing, (x)
the Borrower shall only be required to reimburse such audit-related expenses in an aggregate amount not to exceed $15,000 for the first
such audit and in an aggregate amount not to exceed $10,000 per each subsequent audit and (y) within the first year after the Closing
Date, the Borrower shall only be required to reimburse such expenses for two such collateral exams, and in any year thereafter, for one
such collateral exam.Without prejudice to its rights hereunder, the expenses and the compensation for the services of the Secured Parties
are intended to constitute expenses of administration under any applicable insolvency Law.
(b) The
Borrower agrees to indemnify and hold harmless each Secured Party and each of their Affiliates and the respective officers, directors,
employees, agents, managers of, and any Person controlling any of, the foregoing (each, an “Indemnified Party”) from
and against any and all Liabilities that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of the execution, delivery, enforcement, performance, administration of or otherwise arising
out of or incurred in connection with this Agreement, any other Facility Document, any Related Document or any transaction contemplated
hereby or thereby or the use of proceeds of any Advance (and regardless of whether or not any such transactions are consummated), IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED
PARTY, in each case, except to the extent any such Liability is found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party. In the case of an investigation, litigation
or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower, the Equityholder or the Borrower’s creditors, an Indemnified Party or any other Person,
whether or not an Indemnified Party is otherwise a party hereto. The Borrower shall not, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such settlement (i) does not include a statement as to or admission
of, fault, culpability or a failure to act by or on behalf of any such Indemnified Party, and (ii) includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter of such proceeding. This Section 12.04(b) shall
not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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Section 12.05. Execution
in Counterparts
This Agreement (including any
amendments or modifications) may be executed by electronic transmission (including .jpeg file or any electronic signature complying with
the U.S. federal ESIGN Act of 2000, including Orbit, Adobe Sign, DocuSign, or any other similar platform identified by the Borrower and
reasonably available at no undue burden or expense to the Collateral Administrator or Custodian) in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e.,
"pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Agreement. Any electronically
signed document delivered via email from a person purporting to be a Responsible Officer shall be considered signed or executed by such
Responsible Officer on behalf of the applicable Person. Neither the Collateral Administrator nor the Custodian shall have a duty to inquire
into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any
such electronic signature without any liability with respect thereto.
Section 12.06. Assignability
(a) Subject
to the conditions set forth in this Section 12.06, each Lender may, with the consent of the Borrower (such consent not to be unreasonably
withheld, delayed or conditioned) and the Administrative Agent, assign to any Person all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Advances Outstanding or interests therein owned by it, together with ratable portions
of its Commitment); provided that such consent shall be deemed to have been granted by the Borrower if the Borrower shall not have
objected in writing within five (5) Business Days of receipt of any such request for consent; provided, further, that:
(i) the
Borrower’s consent to any such assignment shall not be required if the assignee is (1) a Lender or any of its Affiliates or (2)
managed by a Lender or any of its Affiliates;
(ii) the
Borrower’s consent to any such assignment pursuant to this Section 12.06(a) shall not be required if an Event of Default
shall have occurred and be continuing; and
(iii) except
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment, the amount of the Commitment of
the assigning Lender subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless the Administrative Agent consents otherwise.
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The parties to each such assignment
shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable
tax forms required by Sections 12.03(f), together with administrative details for the applicable assignee (if such assignee is
not a current Lender or an Affiliate of Valley) and a processing and recordation fee of $4,200 payable by such assigning Lender to the
Administrative Agent; provided, no such fee shall be required for assignments to current Lenders or Affiliates of current Lenders. Notwithstanding
any other provision of this Section 12.06, (x) no assignment may be made to the Borrower or any of its Affiliates, and (y) no assignment
shall be made to a natural person or to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute a Defaulting Lender or a Subsidiary thereof.
(b) The
Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative
Agent and the Lenders.
(c) In
connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of
the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon),
and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Percentage. Notwithstanding the
foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under
Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.
(d) (i) Any Lender
may sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided
that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, the Collateral Administrator, the Custodian
and the Securities Intermediary and the other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section
12.06(c), Section 12.06(e), Section 12.09 and Section 12.16. Any agreement pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement. The Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.09, 2.10, and 12.03 (subject to the requirements and limitations therein, including the requirements under Section
12.03(f) (it being understood that the documentation required under Section 12.03(f) shall be delivered to the participating
Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment under clause (a) of this Section;
provided that such Participant (A) agrees to be subject to the provisions of Section 2.16 as if it were an assignee under
paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.09 or Section 12.03,
with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement
to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
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(ii) In
the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Lender as nonfiduciary agent
for the Borrower shall maintain a register on which it enters the name of all participants in the Advances held by it and the principal
amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant
Register”) and the right to principal of, and stated interest on, such participation may be transferred only through being reflected
in such Participant Register. An Advance may be participated in whole or in part only by registration of such participation on the Participant
Register (and each Note, if any, shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any rights
and obligations hereunder) to any Person except to the extent necessary to establish that such rights and obligations are in registered
form under Section 5f.103-1 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in
its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) The
Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its
address specified in Section 12.02 or such other address as the Administrative Agent shall designate in writing to the Lenders,
a copy of this Agreement, each signature page hereto, each Assignment and Acceptance delivered to and accepted by it, and a register (the
“Register”) for the recordation of the names, addresses and wiring instructions of the Lenders and the aggregate outstanding
principal amount of the Advances Outstanding maintained by each Lender under this Agreement (and any stated interest thereon) and the
right to principal of, and stated interest on, the Advances of a Lender (other than as provided for participations in Advances in Section
12.06(c)(ii)) may be transferred only through being reflected in such Register. The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents, the Collateral Administrator, the Custodian, the Securities
Intermediary and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, the Collateral Agent or any Lender at any reasonable time
and from time to time upon reasonable prior notice. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole
or in part only by registration of such assignment or sale on the Register (and each Note with respect to the Advances, if any, shall
expressly so provide) and compliance with this Section 12.06. The provisions of this Section 12.06(d) are intended to satisfy
the requirements of Treasury regulation section 5f.103-1(c) and shall be interpreted and applied consistent with this intent.
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(f) Notwithstanding
any other provision of this Section 12.06, any Lender may at any time pledge or grant a security interest in all or any portion
of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including
any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative
Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or grantee for such Lender as a party hereto.
(g) Notwithstanding
anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all
times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and
a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender
represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by
entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified
Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Commitments
to any Person unless such Person is a Qualified Purchaser and a QIB.
Section 12.07. Governing
Law
THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT (EXCEPT, AS TO ANY OTHER FACILITY DOCUMENT, AS EXPRESSLY
SET FORTH THEREIN) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 12.08. Severability
of Provisions
Any provision of this Agreement
or any other Facility Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.09. Confidentiality
Each Secured Party, subject to
the permitted disclosure of the tax treatment and tax structure provided in Section 5.01(i), agrees to keep confidential all information
provided to it by the Borrower, the Collateral Manager or the Equityholder with respect to the Borrower, its Affiliates, the Collateral,
the Related Documents, the Obligors, the Collateral Manager, the Equityholder and its Affiliates or any other information furnished to
such Secured Party under or in connection with this Agreement (collectively, the “Borrower Information”); provided
that nothing herein shall prevent any Secured Party from disclosing any Borrower Information (a) as reasonably required to comply with
the provisions of this Agreement and the other Facility Documents (i) to any Secured Party or any Affiliate of a Secured Party or (ii) any
of their respective Affiliates, employees, officers, directors, auditors, agents, attorneys, accountants, other professional advisors
and any Affiliates of any such party (collectively, the “Secured Party Representatives”), it being understood that
the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed to
keep such Borrower Information confidential, (b) subject to an agreement to comply with the provisions of this Section, to any actual
or bona fide prospective permitted assignees and Participants in any of the Secured Parties’ interests under or in connection with
this Agreement (including in connection with any pledge or grant a security interest permitted pursuant to Section 12.06(f)) or
any actual or prospective party (or its Secured Party Representatives) to any swap, derivative or other transaction under which payments
are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (c) to any Governmental Authority
with jurisdiction over any Secured Party or any of its Affiliates or any Secured Party Representative, (d) in response to any order of
any court or other Governmental Authority or as may otherwise be required to be disclosed pursuant to any Applicable Law (provided that
such Secured Party will, to the extent permitted, endeavor to promptly notify the Borrower and the Collateral Manager in advance of such
pending disclosure), (e) that is a matter of general public knowledge or that has heretofore been made available to the public by any
Person other than any Secured Party or any Secured Party Representative in violation of this Agreement, (f) in connection with the performance
of the terms of this Agreement and the exercise of any remedy hereunder or under any other Facility Document or any action or proceeding
relating to this Agreement or any other Facility Document or the enforcement of rights hereunder or thereunder, (g) to the extent required
or requested by any regulatory authority purporting to have jurisdiction over such Person or its Secured Party Representatives (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (h) on a confidential basis to (i) any rating
agency in connection with rating the Borrower or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar
agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities
provided hereunder (i) solely with respect to each Agent or any Lender, to (i) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights and obligations under this Agreement; provided that (x) such assignee or participant
(or prospective assignee or participant) would be permitted to be an assignee or participant pursuant to the terms hereof and (y) such
assignee or participant (or prospective assignee or participant) has agreed to maintain confidentiality pursuant to this Section 12.09
or another non-disclosure agreement substantially similar hereto, or (ii) any actual or prospective party (or its Related Parties)
to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this
Agreement or payments hereunder that has agreed to maintain confidentiality pursuant to this Section 12.09 or another non-disclosure
agreement substantially similar hereto or (i) with the consent of the Borrower.
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Section 12.10. Merger
This Agreement and the other Facility
Documents executed by the Administrative Agent or the Lenders taken as a whole incorporate the entire agreement between the parties hereto
and thereto concerning the subject matter hereof and thereof and this Agreement and such other Facility Documents supersede any prior
agreements among the parties relating to the subject matter thereof.
Section 12.11. Survival
All representations and warranties
made hereunder, in the other Facility Documents and in any certificate delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery of this Agreement and the making of the Advances hereunder. The agreements in Sections 2.09,
2.10, 2.12, 12.03, 12.04, 12.09, 12.16, 12.17, 14.06(b)
and this Section 12.11 shall survive the termination of this Agreement in whole or in part, the Payment in Full of the principal
of and interest on the Advances, any foreclosure under, or modification, release or discharge of, any or all of the Related Documents
and the resignation or replacement of any Agent.
Section 12.12. Submission
to Jurisdiction; Waivers; Etc.
Each party hereto hereby irrevocably
and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement or the other Facility Documents to which it is
a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York in the Borough of Manhattan, the courts of the United States of America for the Southern District of New York,
and the appellate courts of any of them;
(b) consents
that any such action or proceeding may be brought in any court described in Section 12.12(a) and waives to the fullest extent permitted
by Applicable Law any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such party at its address set forth in Section 12.02 or at such other
address as may be permitted thereunder;
(d) agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by Law; and
(e) waives,
to the maximum extent not prohibited by Law, any right it may have to claim or recover in any legal action or proceeding against any Secured
Party arising out of or relating to this Agreement or any other Facility Document any special, exemplary, punitive or consequential damages.
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Section 12.13. IMPORTANT
WAIVERS
(a) TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT OR FOR
ANY COUNTERCLAIM HEREIN OR THEREIN OR RELATING HERETO OR THERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF THE COLLATERAL MANAGER, THE BORROWER, THE EQUITYHOLDER, THE AGENTS, THE COLLATERAL ADMINISTRATOR, THE CUSTODIAN,
THE SECURITIES INTERMEDIARY OR ANY OTHER AFFECTED PERSON. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER FACILITY DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR ITS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER FACILITY DOCUMENT.
(b) TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO CLAIM OR RECOVER IN ANY LITIGATION WHATSOEVER INVOLVING ANY INDEMNIFIED PARTY,
ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES, WHETHER SUCH WAIVED DAMAGES ARE BASED ON STATUTE, CONTRACT, TORT, COMMON LAW OR ANY OTHER LEGAL
THEORY, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN AND REGARDLESS OF THE FORM OF THE CLAIM OF ACTION; PROVIDED THAT THE FOREGOING
SHALL NOT LIMIT THE INDEMNIFICATION OBLIGATIONS OF THE BORROWER OR THE COLLATERAL MANAGER PURSUANT TO THE FACILITY DOCUMENTS. NO PARTY
OR INDEMNIFIED PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS
DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH ANY FACILITY DOCUMENT
OR THE TRANSACTIONS.
(c) EACH PARTY CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY OR AN INDEMNIFIED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY OR AN INDEMNIFIED PARTY WOULD NOT SEEK TO ENFORCE ANY OF THE WAIVERS IN THIS SECTION 12.13 IN THE EVENT OF LITIGATION
OR OTHER CIRCUMSTANCES. THE SCOPE OF SUCH WAIVERS IS INTENDED TO BE ALL–ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE FACILITY DOCUMENTS, REGARDLESS OF THEIR LEGAL THEORY.
(d) EACH PARTY ACKNOWLEDGES
THAT THE WAIVERS IN THIS SECTION 12.13 ARE A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SUCH PARTY HAS ALREADY
RELIED ON SUCH WAIVERS IN ENTERING INTO THE FACILITY DOCUMENTS, AND THAT SUCH PARTY WILL CONTINUE TO RELY ON SUCH WAIVERS IN THEIR RELATED
FUTURE DEALINGS UNDER THE FACILITY DOCUMENTS. EACH PARTY FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED SUCH WAIVERS WITH ITS LEGAL
COUNSEL AND THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, IT KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A JURY TRIAL AND OTHER RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
(e) THE
WAIVERS IN THIS SECTION 12.13 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY
TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO ANY OF THE FACILITY DOCUMENTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(f) THE PROVISIONS OF THIS SECTION 12.13 SHALL SURVIVE TERMINATION OF THE FACILITY DOCUMENTS AND THE INDEFEASIBLE PAYMENT IN FULL OF
THE OBLIGATIONS.
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Section 12.14. Customer
Identification Notice
Each Agent, the Collateral Administrator,
the Custodian, the Securities Intermediary and each Lender hereby notifies the Borrower that, pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56) (“PATRIOT Act”), it is required to obtain, verify and record information that identifies
the Borrower (including, if applicable, any beneficial owner thereof), which information includes the name and address of the Borrower
(and any beneficial owners) and other information that will allow such Agent, the Collateral Administrator, the Custodian, the Securities
Intermediary or such Lender to identify the Borrower (and any beneficial owners) in accordance with the PATRIOT Act. The Borrower shall
provide such information and take such actions as are requested by any Lender, the Collateral Administrator, the Custodian, the Securities
Intermediary or any Agent in order to assist such Lender, the Collateral Administrator, the Custodian, the Securities Intermediary or
such Agent, as applicable, in maintaining compliance with applicable “know your customer” and Anti-Money Laundering Laws,
including the PATRIOT Act.
Section 12.15. Legal Holidays
In the event that the date of
prepayment of Advances or the Final Maturity Date shall not be a Business Day, then notwithstanding any other provision of this Agreement
or any other Facility Document, payment need not be made on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the nominal date of any such date of prepayment or Final Maturity Date, as the case may be, and interest
shall accrue on such payment for the period from and after any such nominal date to but excluding such next succeeding Business Day.
Section 12.16. Non-Petition
(a) Each
Secured Party hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the
Borrower any bankruptcy, winding-up, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other
proceeding under insolvency Laws until at least one year and one day, or, if longer, the applicable preference period then in effect plus
one day, after the Payment in Full of all outstanding Obligations and the termination of all Commitments; provided that nothing
in this Section 12.16 shall preclude, or be deemed to prevent, any Secured Party (a) from taking any action prior to the expiration
of the aforementioned one year and one day period, or, if longer, the applicable preference period then in effect, in (i) any case or
proceeding voluntarily filed or commenced by the Borrower or (ii) any involuntary insolvency proceeding filed or commenced against
the Borrower by a Person other than any such Secured Party, or (b) from commencing against the Borrower or any properties of the Borrower
any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding
or other proceeding under insolvency Laws.
(b) Each
party hereto further agrees that (i) a breach of any of its respective covenants contained in this Section 12.16 will cause irreparable
injury to the Administrative Agent and the Lenders, (ii) the Administrative Agent and the Lenders have no adequate remedy at law in respect
of such breach, and (iii) each and every covenant contained in this Section 12.16 shall be specifically enforceable against each
party hereto, and each party hereto hereby waives and agrees not to object, or assert any defenses to an action for specific performance,
or injunction in respect of any breach of such covenants.
Section 12.17. Waiver of
Setoff
To the extent permitted by Applicable
Law, each of the Borrower, the Collateral Manager and the Equityholder hereby waives any right of setoff it may have or to which it may
be entitled under this Agreement or any Applicable Law from time to time against the Administrative Agent, any Lender or its respective
assets.
Section 12.18. Sharing of
Payment by Lenders
If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Advances or
other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Advances and accrued
interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (x) notify the Administrative Agent of such fact, and (y) purchase (for cash at face value) participations
in the Advances and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest
on their respective Loans and other amounts owing them; provided that:
(a) if
any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery, without interest; and
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(b) the
provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances to any assignee
or participant.
The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
Section 12.19. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the
contrary in any Facility Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any Affected Financial Institution arising under any Facility Document, to the extent such liability is unsecured,
may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges
and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder that
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-in Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability; and
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Facility
Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution
Authority.
Section 12.20. Acknowledgement
Regarding Any Supported QFCs. To the extent that the Facility Documents provide support,
through a guarantee or otherwise, for Currency Hedge Agreement or any other agreement or instrument that is a QFC (such support, “QFC
Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with
respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of
the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S.
Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Facility Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New
York or of the United States or any other state of the United States):
(a) In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such
QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed
by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Facility Documents that might otherwise
apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to
no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Facility
Documents were governed by the laws of the United States or a state of the United States.
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(b) As
used in this Section 12.20, the following terms have the following meanings:
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Covered Entity”
means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“QFC” has the
meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
ARTICLE
XIII
CUSTODIAN
Section 13.01. Appointment
of Custodian
(a) Appointment
and Acceptance. The Borrower and the Administrative Agent each hereby appoints the Custodian as document custodian of any Collateral
Loan Files delivered to it for all Collateral Loans owned by the Borrower at any time during the term of this Agreement, on the terms
and conditions set forth in this Agreement (which shall include any addendum hereto which is hereby incorporated herein and made a part
of this Agreement), and the Custodian hereby accepts such appointment and agrees to perform the services and duties set forth in this
Agreement with respect to it, subject to and in accordance with the provisions hereof.
(b) Instructions.
The Borrower agrees that it shall from time to time provide, or cause to be provided, to the Custodian all necessary instructions and
information, and shall respond promptly to all inquiries and requests of the Custodian as may reasonably be necessary to enable the Custodian
to perform its duties hereunder.
(c) Custodian.
The Custodian shall take and retain custody of the Collateral Loan Files, unless otherwise agreed upon between the Borrower and Custodian,
in electronic form (except that only any related original promissory note shall be physically delivered to and held by the Custodian)
delivered by the Borrower hereunder in accordance with the terms and conditions of this Agreement in electronic form (except that only
any related original promissory note shall be physically delivered to and held by the Custodian), all for the benefit of the Collateral
Agent and the other Secured Parties, in order to perfect under the UCC the Collateral Agent’s security interest therein for the
benefit of the Secured Parties. In taking and retaining custody of the Collateral Loan Files, the Custodian shall be deemed to be acting
as the agent of Collateral Agent for the benefit of the Secured Parties; provided that the Custodian makes (a) no warranty or representation
and shall have no responsibility for the enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability
of the Collateral Loans and (b) no representation as to the existence, perfection or priority of any lien on the Collateral Loans or the
Collateral Loan Documents. It is expressly agreed and acknowledged that the Custodian is not guaranteeing performance of or assuming any
liability for the obligations of the other parties hereto or any parties to the Collateral Loans.
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Section 13.02. Duties of
Custodian
(a) Segregation.
All Collateral Loan Files held by the Custodian for the account of the Borrower hereunder shall be (a) subject to the lien of the Collateral
Agent on behalf of the Secured Parties, (b) physically segregated from other loans and non-cash property in the possession of the Custodian
and (c) identified by the Custodian as subject to this Agreement.
(b) Register.
The Custodian shall maintain a register (in book-entry form or in such other form as it shall deem necessary or desirable) of the Collateral
Loans for which it holds Collateral Loan Files under this Agreement containing such information as the Borrower and the Custodian may
reasonably agree; provided that, with respect to such Collateral Loans, all Collateral Loan Files shall be held in safekeeping
by the Custodian, individually segregated from the securities and investments of any other Person and marked so as to clearly identify
such Collateral Loan Files as the property of the Borrower as set forth in this Agreement.
Section 13.03. Delivery
of Collateral Loans to Custodian.
(a) The
Collateral Manager (on behalf of the Borrower) shall deliver, or cause to be delivered (which may be via email, except for the original
promissory note, if any) promptly (and in any event within ten (10) Business Days of receipt) to the Custodian all of the Collateral Loan
Files for each Collateral Loan owned by the Borrower at any time during the term of this Agreement at the address identified herein; provided,
however, that all documents shall be transmitted in electronic format to the Collateral Administrator and the original promissory
note, if any, shall be delivered to the Custodian. Neither the Collateral Administrator nor the Custodian shall be responsible for any
Collateral Loan or related Collateral Loan File until actually received by it. In connection with each delivery of a Collateral Loan File
to the Collateral Administrator and the Custodian, as applicable, the Borrower shall represent and warrant that the Collateral Loan Files
delivered are complete in all material respects.
(b) Notwithstanding
anything herein to the contrary, delivery of the Collateral Loans acquired by the Borrower which constitute Noteless Loans or which are
otherwise not evidenced by a “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of
the UCC, respectively, shall be made by delivery to the Collateral Administrator of a copy of the loan register with respect to such Noteless
Loan evidencing registration of such Collateral Loan on the books and records of the applicable Obligor or bank agent to the name of the
Borrower (or its nominee) or a copy (which may be a facsimile copy) of an assignment agreement in favor of the Borrower as assignee. Any
duty on the part of the Collateral Administrator and the Custodian with respect to the custody of such Collateral Loans shall be limited
to the exercise of reasonable care by the Collateral Administrator and the Custodian, as applicable, of the physical custody of the related
Collateral Loan Files delivered to it.
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(c) In
the absence of gross negligence, fraud or willful misconduct of the Custodian and Collateral Administrator, as applicable, the Custodian
and Collateral Administrator, as applicable, may assume the genuineness of any document in a Collateral Loan File it may receive and the
genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each document it may receive is
what it purports to be on its face. If an original “security” or “instrument” as defined in Section 8-102 and
Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral Loan to be held by the
Custodian and Collateral Administrator, as applicable, under this Agreement, it shall be the sole responsibility of the Borrower to make
or cause delivery thereof to the Custodian and Collateral Administrator, as applicable, and neither the Custodian nor the Collateral Administrator
shall be under any obligation at any time to determine whether any such original “security” or “instrument” has
been or is required to be issued or made available in respect of any Collateral Loan or to compel or cause delivery thereof to the Custodian
or the Collateral Administrator.
(d) With
respect to any Collateral Loan, within five (5) Business Days of its receipt of the Collateral Loan Documents and Collateral Loan File
Checklist (or such other period of time as the Custodian, the Administrative Agent and the Borrower shall agree to), the Custodian shall
deliver to the Borrower, with a copy to the Administrative Agent, a Custodial Trust Receipt and a Collateral Loan Schedule and Exception
Report attached thereto in respect of such Collateral Loan, in substantially the form attached hereto as Exhibit F (the “Custodial
Trust Receipt”); provided, however, that if additional documents are subsequently delivered to the Custodian pursuant
hereto, the Custodian shall deliver to the Borrower, with a copy to the Administrative Agent, an updated Custodial Trust Receipt.
(e) On
each Monthly Reporting Date, the Custodian shall deliver to the Administrative Agent and the Borrower a Collateral Loan Schedule and Exception
Report attached thereto for each Collateral Loan and setting forth the Exceptions for all of the Collateral Loans for which the Custodian
holds a Collateral Loan File pursuant to the Custodial Agreement.
Section 13.04. Release
of Documents/Control By Agents.
(a) The
Custodian and Collateral Administrator, as applicable, shall release and ship for delivery, or direct its agents or sub-custodians to
release and ship for delivery, as the case may be, Collateral Loan Files of the Borrower held by the Custodian, the Collateral Administrator
or their respective agents or its sub-custodians from time to time upon receipt of Proper Instructions (specifying, among other things,
the Collateral Loans and Collateral Loan Files to be released and delivery instructions and other information as may be necessary to enable
the Custodian or the Collateral Administrator, as applicable, to release and ship such Collateral Loan Files), which may be standing instructions
(in a form acceptable to the Custodian or the Collateral Administrator, as applicable) in accordance with this Agreement.
(b) Upon
receipt by the Custodian or the Collateral Administrator, as applicable, from the Administrative Agent or the Collateral Agent (acting
at the direction of the Administrative Agent), of written notice of the occurrence of an Event of Default indicating the Administrative
Agent’s intent to prohibit the Custodian and the Collateral Administrator from accepting instructions from or on behalf of the Borrower
(each such notice, a “Block Notice”), the Custodian and the Collateral Administrator shall no longer accept or act
upon Proper Instructions or other instructions from the Borrower (or the Collateral Manager on its behalf) hereunder with respect to the
Collateral Loans or the Collateral Loan Files. From and after its receipt of a Block Notice, the Custodian and the Collateral Administrator
shall only comply with Proper Instructions from the Collateral Agent (acting at the direction of the Administrative Agent) or Administrative
Agent.
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Section 13.05. Records.
The Custodian and the Collateral
Administrator shall create and maintain complete and accurate records relating to its activities under this Agreement with respect to
the Collateral Loans or other property of the Borrower held for the benefit of the Collateral Agent and the other Secured Parties under
this Agreement. All such records shall be the property of the Borrower and, upon reasonable advance notice, shall at all times during
the regular business hours of the Custodian or the Collateral Administrator, as applicable, be open for inspection by duly authorized
officers, employees or agents of the Borrower, the Collateral Agent and the Administrative Agent.
Section 13.06. Reporting
(a) If
requested by the Borrower, the Collateral Agent or the Administrative Agent, the Custodian or the Collateral Administrator shall render
an itemized report of the Collateral Loan Files held pursuant to this Agreement as of the end of each month and such other matters as
the parties may agree from time to time in form and substance reasonably satisfactory to the Borrower, the Collateral Agent and the Administrative
Agent.
(b) Neither
the Custodian nor the Collateral Administrator shall have any duty or obligation to undertake any market valuation of the Collateral Loans
under any circumstance.
Section 13.07. Certain
General Terms
(a) No
Duty to Examine Related Documents. Nothing herein shall obligate the Custodian or the Collateral Administrator to review or examine
the terms of any underlying instrument, certificate, credit agreement, indenture, loan agreement, promissory note or any other document
contained in the Collateral Loan Files evidencing or governing any Collateral Loan to determine the validity, sufficiency, marketability
or enforceability of any Collateral Loan (and shall have no responsibility for the genuineness or completeness thereof) or otherwise.
(b) Resolution
of Discrepancies. In the event of any discrepancy between the information set forth in any report provided by the Custodian or the
Collateral Administrator, as applicable, to the Borrower and any information contained in the books or records of the Borrower, the Borrower
(or the Collateral Manager, on behalf of the Borrower) shall promptly notify the Custodian or the Collateral Administrator, as applicable,
thereof and the parties shall cooperate to diligently resolve the discrepancy.
(c) Improper
Instructions. Notwithstanding anything herein to the contrary, neither the Custodian nor the Collateral Administrator shall be obligated
to take any action (or forebear from taking any action), which it reasonably determines to be contrary to the terms of this Agreement
or Applicable Law. In no instance shall the Custodian or the Collateral Administrator be obligated to provide services on any day that
is not a Business Day.
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(d) Proper
Instructions.
(i) Each
of the Administrative Agent, the Collateral Manager and the Borrower will give a notice to the Custodian and the Collateral Administrator,
in a form acceptable to the Custodian and the Collateral Administrator, specifying the names and specimen signatures of Persons authorized
to give Proper Instructions (collectively, “Authorized Persons” and each, an “Authorized Person”)
which notice shall be signed by an Authorized Person set forth on Schedule 4 or otherwise previously certified to the Custodian
and the Collateral Administrator. The Custodian and the Collateral Administrator shall be entitled to rely upon the identity and authority
of such Persons until it receives written notice from an Authorized Person of the Borrower, the Administrative Agent or the Collateral
Manager, as applicable, to the contrary. The initial Authorized Persons are set forth on Schedule 4 attached hereto and made a
part hereof (as such Schedule 4 may be modified from time to time by written notice from the Borrower, the Administrative Agent
and the Collateral Manager as applicable, to the Custodian and the Collateral Administrator).
(ii) Neither
the Custodian nor the Collateral Administrator shall have any responsibility or liability to the Borrower (or any other Person) and shall
be indemnified and held harmless by the Borrower in the event that a subsequent written confirmation of an oral instruction fails to conform
to the oral instructions received by the Custodian or the Collateral Administrator. Neither the Custodian nor the Collateral Administrator
shall have an obligation to act in accordance with purported instructions to the extent that they conflict with Applicable Law or regulations.
Neither the Custodian nor the Collateral Administrator shall be liable for any loss resulting from a delay while it obtains clarification
of any Proper Instruction.
(e) Evidence
of Authority. The Custodian and the Collateral Administrator shall be protected in acting upon any instruction, notice, request, consent,
certificate instrument or paper reasonably believed by it to be genuine and to have been properly executed or otherwise given by or on
behalf of the Borrower, the Collateral Manager or Administrative Agent, as applicable, by an Authorized Person thereof. The Custodian
and the Collateral Administrator may receive and accept a certificate signed by any Authorized Person as conclusive evidence of:
(i) the
authority of any Person to act in accordance with such certificate; or
(ii) any
determination or any action by such Person as described in such certificate,
and such certificate may be considered as in full force and effect
until receipt by the Custodian and the Collateral Administrator of written notice to the contrary from an Authorized Person of the Borrower,
the Collateral Manager or Administrative Agent, as applicable.
(f) Receipt
of Communications. Any communication received by the Custodian or the Collateral Administrator, as applicable, on a day which is not
a Business Day or after 3:30 p.m. (or such other time as is agreed by the Borrower and the Custodian from time to time) on a Business
Day will be deemed to have been received on the next Business Day; provided that in the case of communications so received after
3:30 p.m. on a Business Day the Custodian or the Collateral Administrator, as applicable, will use its commercially reasonable efforts
to process such communications as soon as possible after receipt.
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(g) In
the event that (i) the Borrower, the Administrative Agent, the Collateral Manager, the Custodian, the Collateral Administrator or the
Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral
Loan File or a document included within a Collateral Loan File or (ii) a third party shall institute any court proceeding by which any
Collateral Loan File or a document included within a Collateral Loan File shall be required to be delivered other than in accordance with
the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties
to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning
such proceedings. The Custodian or the Collateral Administrator, as applicable, shall, to the extent permitted by Law, continue to hold
and maintain all the Collateral Loan Files that are the subject of such proceedings pending a final, nonappealable order of a court of
competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Custodian or the Collateral
Administrator, as applicable, shall dispose of such Collateral Loan File or a document included within such Collateral Loan File as directed
by the Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Custodian and the Collateral
Administrator incurred as a result of such proceedings shall be borne by the Borrower.
Section 13.08. Compensation
and Reimbursement of Custodian
(a) Fees.
The Custodian shall be entitled to compensation for its services in accordance with the terms of the Custodian Fee Letter.
(b) Expenses.
The Borrower agrees to pay or reimburse to the Custodian upon its request from time to time all reasonable and documented costs, disbursements,
advances, and expenses (including reasonable fees and expenses of one legal counsel, plus, if necessary, one additional local counsel)
incurred in connection with the preparation or execution of this Agreement, or in connection with the transactions contemplated hereby
or the administration of this Agreement or performance by the Custodian of its duties and services under this Agreement (including costs
and expenses of any action deemed necessary by the Custodian to collect any amounts owing to it under this Agreement).
(c) Priority
of Payments. Amounts owing to the Custodian hereunder shall be payable in accordance with the Priority of Payments.
Section 13.09. Responsibility
of Custodian
(a) General
Duties. The Custodian shall have no duties, obligations or responsibilities under this Agreement or with respect to the Collateral
Loans, except for such duties as are expressly and specifically set forth in this Agreement, and the duties and obligations of the Custodian
shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read
into this Agreement against, or on the part of, the Custodian.
(b) Instructions.
(i) The
Custodian shall be entitled to refrain from taking any action unless it has such instruction (in the form of Proper Instructions) from
the Borrower (or the Collateral Manager on the Borrower’s behalf), the Administrative Agent or the Collateral Agent, as applicable,
as it reasonably deems necessary, and shall be entitled to require, upon notice to the Borrower, the Administrative Agent or the Collateral
Agent, as applicable, that Proper Instructions to it be in writing. In the absence of gross negligence, fraud or willful misconduct of
the Custodian, the Custodian shall have no liability for any action (or forbearance from action) taken pursuant to any Proper Instruction
of the Borrower, the Collateral Manager, the Administrative Agent or the Collateral Agent, as applicable.
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(ii) Whenever
the Custodian is entitled or required to receive or obtain any communications or information pursuant to or as contemplated by this Agreement,
it shall be entitled to receive the same in writing, in form, content and medium reasonably acceptable to it and otherwise in accordance
with any applicable term of this Agreement; and whenever any report or other information is required to be produced or distributed by
the Custodian it shall be in form, content and medium reasonably acceptable to it and the Borrower, and otherwise in accordance with any
applicable term of this Agreement.
(iii) In
case any reasonable question arises as to its duties hereunder, the Custodian may, so long as no Event of Default has occurred and is
continuing, request instructions from the Collateral Manager and may, after the occurrence and during the continuance of an Event of Default,
request instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking any action unless it has
received instructions from the Collateral Manager or the Administrative Agent, as applicable. The Custodian shall in all events have no
liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent.
(c) General
Standards of Care. Notwithstanding any terms herein contained to the contrary, the acceptance by the Custodian of its appointment
hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Agreement
(whether or not so stated therein):
(i) The
Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate,
request, waiver, consent, opinion, report, receipt or other paper or document furnished to it (including any of the foregoing provided
to it by electronic means), not only as to its due execution and validity, but also as to the truth and accuracy of any information therein
contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction
from or on behalf of the Borrower shall be an Authorized Person); and the Custodian shall be entitled to presume the genuineness and due
authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or
matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper
or document; provided that if the form thereof is specifically prescribed by the terms of this Agreement, the Custodian shall examine
the same to determine whether it substantially conforms on its face to such requirements hereof.
(ii) Neither
the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done
or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or Law, or for
anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence, fraud or willful
misconduct on its part and in breach of the terms of this Agreement. The Custodian shall not be liable for any action taken by it in good
faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction by
which it is governed hereunder, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such
action.
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(iii) In
no event shall the Custodian be liable for any indirect, special, punitive or consequential damages (including lost profits) whether or
not it has been advised of the likelihood of such damages.
(iv) The
Custodian may consult with, and obtain advice from, legal counsel selected in good faith with respect to any question as to any of the
provisions hereof or its duties hereunder, or any matter relating hereto, and the written opinion or advice of such counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or omitted by the Custodian in good faith in accordance
with the opinion and directions of such counsel; the reasonable cost of such services shall be reimbursed pursuant to Section 13.08(b)
and (c) above.
(v) The
Custodian shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged
with responsibility for administering this Agreement or unless (and then only to the extent) received in writing by the Custodian and
specifically referencing this Agreement.
(vi) No
provision of this Agreement shall require the Custodian to expend or risk its own funds, or to take any action (or forbear from action)
hereunder which might in its judgment involve any expense or any financial or other liability unless it shall be furnished with acceptable
indemnification. Nothing herein shall obligate the Custodian to commence, prosecute or defend legal proceedings in any instance, whether
on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or relating to this Agreement
or the services contemplated hereby.
(vii) The
permissive right of the Custodian to take any action hereunder shall not be construed as a duty.
(viii) The
Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible
for the actions, omissions, negligence or misconduct of any such agent or attorney appointed with reasonable due care.
(ix) The
Custodian shall not be responsible or liable for delays or failures in performance resulting from acts beyond its control, provided that
the Custodian takes commercially reasonable efforts to resume performance after the cessation of such acts. Such acts shall include acts
of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes or other disasters.
(x) All
indemnifications contained in this Agreement in favor of the Custodian shall survive the termination of this Agreement.
(xi) Each
of the protections, reliances, indemnities and immunities offered to the Collateral Agent in Article XI and to the Collateral Administrator
in Article XV shall be afforded to the Custodian.
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(xii) The
Custodian shall not be responsible for the accuracy or content of any certificate, statement, direction or opinion furnished to it in
connection with this Agreement or any other Facility Document or Related Document. The Custodian shall not be bound to make any investigation
into the facts stated in any resolution, certificate, statement, instrument, opinion, report, consent, order, approval, bond or other
document or have any responsibility for filing or recording any financing or continuation statement in any public office at any time or
to otherwise perfect or maintain the perfection of any security interest or lien granted by any Person under any Facility Document or
Related Document. The Custodian shall not be responsible to any Person for any recitals, statements, information, representations or warranties
regarding the Borrower or the Collateral or in any document, certificate or other writing delivered in connection herewith or therewith
or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of thereof
or any such other document or the financial condition of any Person or be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions related to any Person or the existence or possible existence of any Default
or Event of Default. The Custodian shall not have any obligation whatsoever to any Person to assure that any collateral exists or is owned
by any Person or is cared for, protected or insured or that any liens have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or
under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available with respect thereto.
(d) Collateral
Agent’s Lien. Each of the Borrower, the Collateral Agent and the Custodian hereby agrees that the Collateral Loan Files in respect
of the Collateral Loans are being held by the Custodian hereunder to perfect the lien of the Collateral Agent, on behalf of the Secured
Parties, in the Collateral Loans in accordance with this Agreement to the extent perfection by possession is applicable thereto.
Section 13.10. Resignation
and Removal; Appointment of Successor
(a) Notwithstanding
anything to the contrary contained in this Agreement (including clauses (b) and (c) below), no resignation or removal of the Custodian
and no appointment of a successor Custodian pursuant to this Article XIII shall become effective until the acceptance of such appointment
by the successor Custodian under Section 13.11 and the assumption by such successor Custodian of the duties and obligations of
the Custodian hereunder.
(b) The
Custodian may, at any time, resign under this Agreement by giving not less than thirty (30) days advance written notice thereof to the
Borrower, the Collateral Manager, the Collateral Agent and the Administrative Agent.
(c) The
Custodian may be removed at any time by the Administrative Agent (i) upon ten (10) Business Days’ notice (with the prior written
consent of the Collateral Manager) or (ii) at any time if (A) a Default or an Event of Default shall have occurred and be continuing,
or (B) the Custodian shall become incapable of acting or shall become the subject of an Insolvency Event. Notice of any such removal
shall be sent by the Administrative Agent to the Custodian, the Borrower, the Lenders and the Collateral Manager.
(d) If
the Custodian shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Custodian for any
reason (other than resignation with no replacement within 90 days), the Borrower shall, promptly after becoming aware of such resignation,
removal, incapacity or vacancy, appoint a successor collateral custodian by written instrument, executed by a Responsible Officer of the
Borrower, one copy of which shall be delivered to the retiring Custodian and one copy to the successor Custodian, together with a copy
to the Administrative Agent and the Lenders; provided that such successor Custodian shall be appointed only upon the prior written
consent of the Administrative Agent and, prior to the occurrence of a Default or an Event of Default, the Collateral Manager (in each
case which consent shall not be unreasonably withheld, conditioned or delayed). In the case of a resignation by the Custodian, if no successor
Custodian shall have been appointed and an instrument of acceptance by a successor Custodian shall not have been delivered to the resigning
Custodian and the Administrative Agent within 90 days after the giving of such notice of resignation, the Administrative Agent may appoint
a successor Custodian or the resigning Custodian may petition any court of competent jurisdiction at the expense of the Borrower to appoint
a successor Custodian.
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(e) Upon
termination of this Agreement or resignation of the Custodian, the Borrower shall pay to the Custodian such compensation, and shall likewise
reimburse the Custodian for its reasonable and documented costs, expenses and disbursements, as may be due as of the date of such termination
or resignation (or removal, as the case may be) all in accordance with the Priority of Payments. All indemnifications in favor of the
Custodian under this Agreement shall survive the termination of this Agreement, or any resignation or removal of the Custodian.
(f) In
the event of any resignation or removal of the Custodian, the Custodian shall provide to the Borrower a complete final report or data
file transfer of any confidential information as of the date of such resignation or removal.
Section 13.11. Acceptance
and Appointment by Successor
Each successor Custodian appointed
hereunder shall execute, acknowledge and deliver to the Borrower, the Collateral Manager, the Administrative Agent, the Lenders and the
retiring Custodian an instrument accepting such appointment. Upon delivery of the required instruments, the resignation or removal of
the retiring Custodian shall become effective and such successor Custodian, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts, duties and obligations of the retiring Custodian; but, on request of the Borrower, the Collateral
Manager, the Administrative Agent or the successor Custodian, such retiring Custodian shall (i) execute and deliver an instrument transferring
to such successor Custodian all the rights, powers and trusts of the retiring Custodian and (ii) execute and deliver such further documents
and instruments and take such further action as may be reasonably requested in order to effect the transfer of the rights, powers, duties
and obligations of the Custodian hereunder. Upon request of any such successor Custodian, the Borrower shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Custodian all such rights, powers and trusts.
Section 13.12. Merger, Conversion,
Consolidation or Succession to Business of Custodian
Any organization or entity into
which the Custodian may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any
merger, conversion or consolidation to which the Custodian shall be a party, or any organization or entity succeeding to all or substantially
all of the corporate trust business of the Custodian, shall be the successor of the Custodian hereunder and under any other Facility Document
to which the Custodian is a party, without the execution or filing of any document or any further act on the part of any of the parties
hereto.
ARTICLE
XIV
COLLATERAL MANAGEMENT
Section 14.01. Designation
of the Collateral Manager
(a) Initial
Collateral Manager. The servicing, administering and collection of the Collateral shall be conducted by the Collateral Manager. Saratoga
Investment Corp. is hereby appointed as, and hereby accepts such appointment and agrees to perform the duties and responsibilities, of
Collateral Manager pursuant to the terms hereof.
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(b) Subcontracts.
The Collateral Manager may, with the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or
delayed, it being understood that it shall not be deemed unreasonable for the Administrative Agent to withhold consent with respect to
any such arrangement that involves a change in personnel responsible for making investment decisions with respect to the Collateral),
subcontract with any other Person for servicing, administering or collecting the Collateral; provided that (i) the Collateral Manager
shall be solely responsible for the fees and expenses payable to such Person, (ii) the Collateral Manager shall not be relieved of, and
shall remain liable for, the performance of the duties and obligations of the Collateral Manager pursuant to the terms hereof without
regard to any subcontracting arrangement and (iii) any such subcontract shall be subject to the provisions hereof.
Section 14.02. Duties of
the Collateral Manager
(a) Duties.
The Collateral Manager shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect
on the Collateral from time to time, all in accordance with the Facility Documents, Applicable Law and the Collateral Management Standard.
Without limiting the foregoing, the duties of the Collateral Manager shall include the following:
(i) directing
the acquisition or sale of Collateral in accordance with Article X;
(ii) supervising
the Collateral, including (A) communicating with Obligors; (B) subject to the provisos to this subclause (B), executing amendments
or other modifications, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral; provided
that the Collateral Manager shall not consent to any amendment or other modification of any Collateral Loan or any Related Document for
any Collateral Loan that would violate the provisions of Section 5.02(s); and (C) otherwise managing the Collateral on behalf of
the Borrower;
(iii) preparing
and submitting claims to Obligors on each Collateral Loan;
(iv) maintaining
appropriate books of account and servicing records with respect to the Collateral (including copies of the Related Documents) reasonably
necessary or advisable for the services to be performed hereunder;
(v) promptly
delivering to the Administrative Agent or the Collateral Agent, from time to time, such information and servicing records (including information
relating to its performance under this Agreement) as the Administrative Agent or the Collateral Agent may from time to time reasonably
request;
(vi) notifying
the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (A) that is or
is threatened to be asserted by an Obligor with respect to any Collateral Loan (or portion thereof) of which it has knowledge or has received
notice; or (B) that could reasonably be expected to have a Material Adverse Effect;
(vii) using
commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties,
in the Collateral;
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(viii) instructing
the Obligors or, if applicable, the administrative agents on the Collateral Loans to make payments directly into the Collection Account;
(ix) complying
with such other duties and responsibilities and taking such other actions as required of the Collateral Manager by this Agreement;
(x) on
a monthly basis (and more frequently as set forth herein), the Collateral Manager will provide to the Borrower, each Lender, the Administrative
Agent and the Collateral Agent a Compliance Certificate and a Borrowing Base Certificate; and
(xi) directing
the Account Bank to convert amounts denominated in any Eligible Currency to Dollars for any permitted purpose hereunder.
It is acknowledged and agreed
that the Borrower possesses only such rights with respect to the enforcement of rights and remedies with respect to the Collateral Loans
and the underlying assets securing such Collateral Loans under the Related Documents as have been transferred to the Borrower with respect
to the related Collateral Loan, and therefore, for all purposes under this Agreement, the Collateral Manager shall perform its administrative
and management duties hereunder only to the extent that, as a lender or agent under the Related Documents, the Borrower has the right
to do so.
(b) The
Administrative Agent, each Lender, the Collateral Agent and the other Secured Parties shall not have any obligation or liability with
respect to any Collateral, nor shall any of them be obligated to perform any of the obligations of the Collateral Manager hereunder.
(c) The
Collateral Manager shall not be responsible or liable for delays or failures in performance resulting from acts of God, strikes, lockouts,
riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, computer viruses, power
failures, earthquakes or other disasters; provided that the Collateral Manager takes commercially reasonable efforts to resume
performance after the cessation of such acts and nothing herein shall prevent the occurrence of a Default, an Event of Default or a Collateral
Manager Default.
Section 14.03. Authorization
of the Collateral Manager
The Borrower hereby authorizes
the Collateral Manager to take any and all reasonable steps in its name and on its behalf necessary or desirable in the determination
of the Collateral Manager and not inconsistent with the pledge of the Collateral by the Borrower to the Collateral Agent, on behalf of
the Secured Parties hereunder, to collect all amounts due under any and all Collateral, including endorsing its name on checks and other
instruments representing Collections, executing and delivering any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect to the Collateral and, after the delinquency of any Collateral
and to the extent permitted under and in compliance with Applicable Law, to commence proceedings with respect to enforcing payment thereof,
to the same extent as the Collateral Manager could have done if it owned such Collateral. The Borrower shall furnish the Collateral
Manager (and any successors thereto) with any powers of attorney and other documents necessary or appropriate to enable the Collateral
Manager to carry out its collateral management duties hereunder, and shall cooperate with the Collateral Manager to the fullest extent
in order to ensure the collectability of the Collateral. In no event shall the Collateral Manager be entitled to make the Collateral Agent,
the Administrative Agent, any Lender or any other Secured Party a party to any litigation without such party’s express prior written
consent, or to make the Borrower a party to any litigation (other than any foreclosure or similar collection procedure) without the Administrative
Agent’s consent. Following the occurrence of an Event of Default (unless otherwise waived by the Lenders in accordance with Section
12.01), the Administrative Agent (acting in its sole discretion or at the direction of the Required Lenders) may provide notice to
the Collateral Manager (with a copy to the Collateral Agent) that the Secured Parties are exercising their control rights with respect
to the Collateral in accordance with Section 6.02(b). Notwithstanding the foregoing, the Collateral Manager shall act solely on
behalf of the Borrower as an independent contractor for the sole purpose of providing the services described herein.
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Section
14.04. Separateness Provisions of the Borrower.
The
Collateral Manager shall not in any way interfere with or frustrate the
Borrower’s compliance with the provisions of Section 5.05 of this Agreement.
Section 14.05. Compensation.
(a) As
compensation for its administrative and management activities hereunder, the Collateral Manager or its designee shall be entitled to receive
the Collateral Management Fee pursuant to the Priority of Payments.
(b) The
Collateral Manager may, in its sole discretion, elect to irrevocably waive payment of any or all of any Collateral Management Fee otherwise
due on any Payment Date by notice to the Borrower, the Collateral Administrator and the Collateral Agent no later than the Calculation
Date immediately prior to such Payment Date. Any such Collateral Management Fee, once waived, shall not thereafter become due and payable
and any claim of the Collateral Manager therein shall be extinguished.
Section 14.06. Expenses;
Indemnification.
(a) The
Collateral Manager shall be responsible for its expenses incurred by it in the performance of its obligations under this Agreement.
(b) The
Collateral Manager agrees to indemnify and hold harmless each Indemnified Party from and against any and all Liabilities that may be incurred
by or asserted or awarded against any Indemnified Party, in each case (1) arising out of or in connection with any acts or omissions of
the Collateral Manager constituting bad faith, willful misconduct or gross negligence in the performance of the duties of the Collateral
Manager or (2) arising out of a breach of its obligations or duties or any representations or warranties in connection with this Agreement,
any other Facility Document, any Related Document or any transaction contemplated hereby or thereby (and regardless of whether or not
any such transactions are consummated); except to the extent any such Liability is found in a final, non-appealable judgment by
a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party, any
of its Affiliates or the respective officers, directors, employees, agents, managers of, and any Person controlling any of, the foregoing.
In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the Collateral Manager, any of the Collateral Manager’s
equityholders or creditors, an Indemnified Party or any other Person, whether or not an Indemnified Party is otherwise a party hereto.
The Collateral Manager shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is a party (or, in the case of a threatened
proceeding, could reasonably have been expected to be a party if such proceeding had been brought) and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement (i) does not include a statement as to or admission of, fault, culpability
or a failure to act by or on behalf of any such Indemnified Party, and (ii) includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such proceeding. In no case shall the Collateral Manager be responsible
for any Indemnified Party’s lost revenues or lost profits. This Section 14.06(b) shall not apply with respect to Taxes other
than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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(c) The
parties hereto agree that the provisions of this Section 14.06 shall not be interpreted to provide recourse to the Collateral Manager
against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, a related Obligor on, any Collateral
Loan, except to the extent such Liabilities directly result from the Collateral Manager’s breach of its obligations hereunder.
Section 14.07. The Collateral
Manager Not to Resign; Assignment
(a) The
Collateral Manager shall not resign from the obligations and duties hereby imposed on it unless such resignation is required by law as
evidenced by a legal opinion of reputable counsel of national standing delivered to the Administrative Agent. For the avoidance of doubt,
any such resignation shall constitute a Collateral Manager Default.
(b) The
Collateral Manager may not assign its rights or obligations hereunder or any interest herein.
Section 14.08. Appointment
of Successor Collateral Manager
(a) Upon
the occurrence of a Collateral Manager Default, notwithstanding anything herein to the contrary, the Administrative Agent, with notice
to the Borrower, the Equityholder, and the Lenders, may terminate all of the rights and obligations of the Collateral Manager as “Collateral
Manager” under this Agreement. The Administrative Agent, with notice to the Equityholder, the Lenders, and the Borrower shall appoint
a successor Collateral Manager (the “Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative
Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to
the Administrative Agent in its sole discretion. Until a successor Collateral Manager is appointed as set forth above, the Collateral
Manager shall (i) unless otherwise notified by the Administrative Agent, continue to act in such capacity in accordance with Section
14.02 and (ii) as requested by the Administrative Agent in its sole discretion (A) terminate some or all of its activities as Collateral
Manager hereunder by the Administrative Agent in its sole discretion as necessary or desirable, (B) provide such information as may be
requested by the Administrative Agent to facilitate the transition of the performance of such activities to the Administrative Agent or
any agent thereof and (C) take all other actions requested by the Administrative Agent, in each case to facilitate the transition of the
performance of such activities to the Administrative Agent or any agent thereof.
(b) Upon
its appointment, the Successor Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral
management functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed
on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be
deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall have (i) no liability
with respect to any action performed by the terminated Collateral Manager prior to the date that the Successor Collateral Manager becomes
the successor to the Collateral Manager or any claim of a third party based on any alleged action or inaction of the terminated Collateral
Manager, (ii) no obligation to pay any taxes required to be paid by the Collateral Manager; provided that the Successor Collateral
Manager shall pay any income taxes for which it is liable, (iii) no obligation to pay any of the fees and expenses of any other party
to the transactions contemplated hereby, and (iv) no liability or obligation with respect to any Collateral Manager indemnification obligations
of any prior Collateral Manager, including the original Collateral Manager.
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(c) Notwithstanding
anything contained in this Agreement to the contrary, a Successor Collateral Manager is authorized to accept and rely on all of the accounting,
records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor
Collateral Manager Work Product”) without any audit or other examination thereof, and such Successor Collateral Manager shall
have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager. If any error, inaccuracy,
omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral
Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor
Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager
shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral
Manager agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes
aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its best efforts to reconstruct
and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors.
ARTICLE
XV
THE COLLATERAL ADMINISTRATOR
Section 15.01. Designation
of Collateral Administrator
(a) Initial
Collateral Administrator. Until a successor Collateral Administrator is appointed in accordance with this Article XV, U.S.
Bank Trust Company is hereby appointed as, and hereby accepts such appointment and agrees to perform the duties and obligations of, Collateral
Administrator pursuant to the terms hereof and of the other Facility Documents to which the Collateral Administrator is a party.
(b) Successor
Collateral Administrator. Upon the Collateral Administrator’s receipt of written notice from the Administrative Agent of the
designation of a successor Collateral Administrator pursuant to the provisions of Section 15.05, the Collateral Administrator agrees
that it will terminate its activities as Collateral Administrator hereunder. Notwithstanding such termination, the Collateral Administrator
shall be entitled to receive all accrued and unpaid fees due and owing to it pursuant to the Custodian Fee Letter at the time of such
termination.
Section 15.02. Certain Duties
and Powers
(a) The
Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining
a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and,
where applicable, the Borrower’s independent public accountants) certain calculations in accordance
with the terms of this Agreement (in each case, such reports, schedules and calculations shall be prepared in such form and content, and
in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as
may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required
to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations
can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority
to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The
Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or
any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify,
amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant
to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the
following functions:
(i) create
a database with respect to the Collateral credited to the Covered Accounts within five (5) Business Days of the Closing Date;
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(ii) permit
access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) [reserved];
(iv) track
the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates
provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable,
report the balances of the Collection Account to the Administrative Agent no later than 12:00 noon on each Business Day as of the close
of business on the preceding Business Day;
(v) [reserved];
(vi) [reserved];
(vii) provide
the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within
the possession of the Collateral Administrator; and
(viii) track
the receipt of copies (or in the case of any original assignment of any Collateral Loan or any original executed promissory note with
respect to any Collateral Loan, the receipt thereof by the Custodian) of the Collateral Loan Documents received by it with respect to
each of the Collateral Loans owned by the Borrower.
(b) A
reasonably sufficient time prior to the date on which any Borrowing Base Certificate is required to be provided pursuant to the terms
of this Agreement, the Collateral Administrator shall provide, using the information contained in the Collateral database created by the
Collateral Administrator pursuant to Section 15.02(a) above and any other Collateral information normally maintained by the Collateral
Administrator, daily Cash and collateral balances in the accounts maintained at U.S. Bank.
(c) No
provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action,
its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this
subsection shall not be construed to limit the effect of subsection (a) of this Section 15.02;
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(ii) the
Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator,
unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud
or willful misconduct;
(iii) no
provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial
or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder,
if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability
is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services
under this Agreement; and
(iv) in
no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and
regardless of the form of such action.
(d) The
Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein,
as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the
correct characterization or categorization of any item of Collateral under this Agreement (it being understood that any such characterization
or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the
Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports. To the extent any of the information
in such reports conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall
notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to assist the Collateral Administrator
in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral
Manager’s review of the contents of the aforesaid reports and will use commercially reasonable efforts to provide such items to
the Collateral Manager within a reasonably sufficient time (as agreed between the Collateral Manager and the Collateral Administrator)
prior to any applicable due date to enable such review. The Collateral Administrator shall have no obligation to determine the Borrowing
Base or whether any Borrowing Base Deficiency has occurred.
(e) The
Collateral Administrator shall have no obligation to determine the Assigned Value or the price of any Collateral in connection with any
actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging
in other businesses or from rendering services of any kind to any Person.
(f) The
Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the
Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person, and shall have
no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete
information or data received by it from the Borrower, the Collateral Manager, the Custodian (but only if not the same Person as the Collateral
Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s
own willful misconduct or gross negligence. The Collateral Administrator shall not be liable for failing to perform or any delay in performing
its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Collateral Manager,
the Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person in furnishing
necessary, timely and accurate information to the Collateral Administrator.
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(g) It
is expressly acknowledged by the Borrower and the Collateral Manager that application and performance by the Collateral Administrator
of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based
upon, and in reliance upon, data and information provided to it by the Collateral Manager (and/or the Borrower) with respect to the Collateral,
and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such
Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate
or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is
in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral
Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports
and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled
to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall
have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(h) Nothing
herein shall obligate the Collateral Administrator to determine independently (a) if the conditions specified in the definition of “Deliver”
have been complied with, or (b) any characteristic of a Collateral Loan, or to evaluate or verify the Collateral Manager’s characterization
of any Collateral Loan, including whether any item of Collateral is a Senior Secured Loan, Secured Bond, Hybrid Secured Bond, Unitranche
Loan, Recurring Revenue Loan, Delayed Drawdown Collateral Loan, Defaulted Loan, DIP Loan, Noteless Loan, PIK Loan, Eligible Collateral
Loan, Ineligible Collateral Loan, Equity Security, Second Lien Loan, Certificated Security, Uncertificated Security, Mezzanine Loan, Last-Out
Loan or Unsecured Bond, or the domicile or any other classification of any Obligor, any such determination being based exclusively upon
notification the Collateral Administrator receives from the Collateral Manager or based upon notices received from the obligor, trustee
or agent bank under an underlying governing document, or similar source and nothing herein shall obligate the Collateral Administrator
to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order
to verify, confirm, audit or otherwise determine any characteristic thereof. The Collateral Manager shall notify the Collateral Administrator
of any amendment or modification of a Collateral Loan. In addition, nothing herein shall obligate the Collateral Administrator to determine
the Assigned Value (including the Advance Date Assigned Value) of a Collateral Loan. The Collateral Manager shall provide the Collateral
Administrator with any waivers of any eligibility requirements (as set forth in the definition of Eligible Collateral Loan) by the Administrative
Agent.
Section 15.03. Certain Rights
of Collateral Administrator
Notwithstanding any terms herein
contained to the contrary, the acceptance by the Collateral Administrator of its appointment hereunder is expressly subject to the following
terms, which shall govern and apply to each of the terms and provisions of this Agreement (whether or not so stated therein):
(a) The
Collateral Administrator may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper party or parties.
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(b) If,
in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action,
the Collateral Administrator may request written instructions from (x) so long as no Event of Default has occurred and is continuing,
the Collateral Manager acting on behalf of the Borrower or (y) after the occurrence and during the continuance of an Event of Default,
the Administrative Agent, as to the appropriate course of action desired by it. If the Collateral Administrator does not receive such
instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to,
take or refrain from taking any such courses of action; provided that the Collateral Administrator shall, as soon as practicable
thereafter, notify the Collateral Manager or the Administrative Agent, as applicable, of which course of action, if any, it has decided
to take. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to
the extent it has already taken, or committed itself to take, action inconsistent with such instructions.
(c) Neither
the Collateral Administrator nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for
any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or
Law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence, fraud
or willful misconduct on its part and in breach of the terms of this Agreement. The Collateral Administrator shall not be liable for any
action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction
or instruction by which it is governed hereunder, or omitted to be taken by it by reason of the lack of direction or instruction required
hereby for such action.
(d) In
no event shall the Collateral Administrator be liable for any indirect, special, punitive or consequential damages (including lost profits),
whether or not it has been advised of the likelihood of such damages.
(e) The
Collateral Administrator may consult with, and obtain advice from, legal counsel selected in good faith with respect to any question as
to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the written opinion or advice of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Collateral Administrator
in good faith in accordance with the opinion and directions of such counsel; the reasonable cost of such services shall be reimbursed
pursuant to Section 15.04 below.
(f) The
Collateral Administrator shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by
a Responsible Officer of the Collateral Administrator or unless (and then only to the extent) received in writing by the Collateral Administrator
and specifically referencing this Agreement.
(g) No
provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds, or to take any action (or forbear
from action) hereunder which might in its judgment involve any expense or any financial or other liability unless it shall be furnished
with acceptable indemnification. Nothing herein shall obligate the Collateral Administrator to commence, prosecute or defend legal proceedings
in any instance, whether on behalf of the Borrower or on its own behalf or otherwise, with respect to any matter arising hereunder, or
relating to this Agreement or the services contemplated hereby.
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(h) The
permissive right of the Collateral Administrator to take any action hereunder shall not be construed as a duty.
(i) The
Collateral Administrator may act or exercise its duties or powers hereunder through agents or attorneys, and the Collateral Administrator
shall not be liable or responsible for the actions, omissions, negligence or misconduct of any such agent or attorney appointed with reasonable
due care.
(j) The
Collateral Administrator shall not be responsible or liable for delays or failures in performance resulting from acts beyond its control;
provided that the Collateral Administrator takes commercially reasonable efforts to resume performance after the cessation of such
acts. Such acts shall include acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the
fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(k) All
indemnifications contained in this Agreement in favor of the Collateral Administrator shall survive the termination of this Agreement.
(l) Each
of the protections, reliances, indemnities and immunities offered to the Collateral Agent in Article XI and the Custodian in Article
XIII shall be afforded to the Collateral Administrator.
(m) The
Collateral Administrator shall not be responsible for the accuracy or content of any certificate, statement, direction or opinion furnished
to it in connection with this Agreement or any other Facility Document or Related Document. The Collateral Administrator shall not be
bound to make any investigation into the facts stated in any resolution, certificate, statement, instrument, opinion, report, consent,
order, approval, bond or other document or have any responsibility for filing or recording any financing or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted by any Person
under any Facility Document or Related Document. The Collateral Administrator shall not be responsible to any Person for any recitals,
statements, information, representations or warranties regarding the Borrower or the Collateral or in any document, certificate or other
writing delivered in connection herewith or therewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectability, priority or sufficiency of thereof or any such other document or the financial condition of any Person or be required
to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions related to any Person
or the existence or possible existence of any Default or Event of Default. The Collateral Administrator shall not have any obligation
whatsoever to any Person to assure that any collateral exists or is owned by any Person or is cared for, protected or insured or that
any liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority,
or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available with respect thereto.
(n) The
Collateral Administrator shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of the
Term SOFR Rate (or other applicable floating rate), or whether or when there has occurred, or to give notice to any other transaction
party of the occurrence of, any Benchmark Transition Event or Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark
Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been
satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor
index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection
with any of the foregoing. The Collateral Administrator shall not be liable for any inability, failure or delay on its part to perform
any of its duties set forth in this Agreement as a result of the unavailability of the Term SOFR Rate (or other applicable floating rate)
and absence of a designated replacement floating rate, including as a result of any inability, delay, error or inaccuracy on the part
of any other transaction party, in providing any direction, instruction, notice or information required or contemplated by the terms of
this Agreement and reasonably required for the performance of such duties.
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Section 15.04. Compensation
and Reimbursement of Collateral Administrator
(a) The
Borrower agrees to pay, and the Collateral Administrator shall be entitled to receive, as compensation for the Collateral Administrator’s
performance of the duties called for herein, the amounts set forth in the Custodian Fee Letter.
(b) The
Borrower agrees to pay or reimburse to the Collateral Administrator upon its request from time to time all reasonable and documented costs,
disbursements, advances, and expenses (including reasonable fees and expenses of legal counsel) incurred in connection with the preparation
or execution of this Agreement, or in connection with the transactions contemplated hereby or the administration of this Agreement or
performance by the Collateral Administrator of its duties and services under this Agreement (including costs and expenses of any action
deemed necessary by the Collateral Administrator to collect any amounts owing to it under this Agreement).
(c) All
payments hereunder, including, but not limited to indemnities, shall be paid in accordance with Section 9.01.
Section 15.05. Resignation
and Removal; Appointment of Successor
(a) Notwithstanding
anything to the contrary contained in this Agreement (including clauses (b) and (c) below), no resignation or removal of the Collateral
Administrator and no appointment of a successor Collateral Administrator pursuant to this Article XV shall become effective
until the acceptance of such appointment by the successor Collateral Administrator under Section 15.06 and the assumption
by such successor Collateral Administrator of the duties and obligations of the Collateral Administrator hereunder.
(b) The
Collateral Administrator may resign at any time by giving written notice thereof to the Borrower, the Administrative Agent, the Collateral
Manager and the Lenders not less than 90 days prior to such resignation.
(c) The
Collateral Administrator may be removed at any time by the Administrative Agent (i) upon ten (10) Business Days’ notice (with the
prior written consent of the Collateral Manager) or (ii) at any time if (A) an Event of Default shall have occurred and be continuing,
or (B) the Collateral Administrator shall become incapable of acting or shall become the subject of an Insolvency Event. Notice of
any such removal shall be sent by the Administrative Agent to the Collateral Administrator, the Borrower, the Lenders and the Collateral
Manager.
(d) The
Collateral Administrator may be removed at any time by the Collateral Manager upon ten (10) Business Days’ notice (with the prior
written consent of the Administrative Agent).
150
(e) If
the Collateral Administrator shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the
Collateral Administrator for any reason (other than resignation), the Borrower shall, promptly after becoming aware of such resignation,
removal, incapacity or vacancy, appoint a successor collateral administrator by written instrument, executed by a Responsible Officer
of the Borrower, one copy of which shall be delivered to the retiring Collateral Administrator and one copy to the successor Collateral
Administrator, together with a copy to the Administrative Agent and the Lenders; provided that such successor Collateral Administrator
shall be appointed only upon the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed)
and, so long as no Collateral Manager Default shall have occurred and be continuing, the Collateral Manager (in each case which consent
shall not be unreasonably withheld, conditioned or delayed). In the case of a resignation by the Collateral Administrator, if no successor
Collateral Administrator shall have been appointed and an instrument of acceptance by a successor Collateral Administrator shall not have
been delivered to the resigning Collateral Administrator and the Administrative Agent within 90 days after the giving of such notice of
resignation, the Administrative Agent may appoint a successor Collateral Administrator or the resigning Collateral Administrator may petition
any court of competent jurisdiction at the expense of the Borrower to appoint a successor Collateral Administrator.
Section 15.06. Acceptance
and Appointment by Successor
Each successor Collateral Administrator
appointed hereunder shall execute, acknowledge and deliver to the Borrower, the Collateral Manager, the Administrative Agent, the Lenders
and the retiring Collateral Administrator an instrument accepting such appointment. Upon delivery of the required instruments, the resignation
or removal of the retiring Collateral Administrator shall become effective and such successor Collateral Administrator, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations of the retiring Collateral Administrator;
but, on request of the Borrower, the Collateral Manager, the Administrative Agent or the successor Collateral Administrator, such retiring
Collateral Administrator shall (i) execute and deliver an instrument transferring to such successor Collateral Administrator all the rights,
powers and trusts of the retiring Collateral Administrator and (ii) execute and deliver such further documents and instruments and take
such further action as may be reasonably requested in order to effect the transfer of the rights, powers, duties and obligations of the
Collateral Administrator hereunder. Upon request of any such successor Collateral Administrator, the Borrower shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Collateral Administrator all such rights, powers
and trusts.
Section 15.07. Merger, Conversion,
Consolidation or Succession to Business of Collateral Administrator
Any organization or entity into
which the Collateral Administrator may be merged or converted or with which it may be consolidated, or any organization or entity resulting
from any merger, conversion or consolidation to which the Collateral Administrator shall be a party, or any organization or entity succeeding
to all or substantially all of the corporate trust business of the Collateral Administrator, shall be the successor of the Collateral
Administrator hereunder, without the execution or filing of any document or any further act on the part of any of the parties hereto.
Section 15.08. Certain Duties
of Collateral Administrator Related to Delayed Payment of Proceeds
In the event that in any month
the Collateral Administrator shall not have received any payment (or is unable to identify whether any payment consists of Principal Proceeds
or Interest Proceeds) with respect to any Collateral Loan pursuant to the applicable Related Documents, (a) the Collateral Administrator
shall promptly notify the Administrative Agent, the Borrower, and the Collateral Manager and (b) unless within three (3) Business Days
(or the end of the applicable grace period for such payment, if longer) after such notice such payment shall have been received by the
Custodian (or such Collections shall have been identified), the Collateral Manager shall request the applicable Obligor or designated
paying agent, as applicable, to make such payment (or identify such Collections) as soon as practicable after such request but in no event
later than three (3) Business Days after the date of such request. In the event that such payment is not made (or such Collections are
not identified) within such time period, the Collateral Administrator, subject to the provisions of this Article XV, shall take
such reasonable action at the Borrower’s expense as the Collateral Manager shall direct. Any such action shall be without prejudice
to any right to claim a Default or Event of Default under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
151
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first
above written.
SARATOGA INVESTMENT FUNDING II LLC,
as Borrower
By:
Name:
Henri J. Steenkamp
Title:
Chief Financial Officer
saratoga investment corp., as Collateral Manager
By:
Name:
Henri J. Steenkamp
Title:
Chief Financial Officer
SARATOGA INVESTMENT CORP., as the Equityholder
By:
Name:
Henri J. Steenkamp
Title:
Chief Financial Officer
[Signature Page to Credit and Security Agreement]
VALLEY NATIONAL BANK, as Administrative Agent, Lead Arranger, Bookrunner and a Lender
By:
Name:
Title:
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
BANK OZK, as Documentation Agent and a Lender
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
POPULAR BANK, as a Lender
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
OceanFirst Bank, N.A., as a Lender
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
u.s. bank national association, as Custodian
By:
Name:
Title:
u.s. bank Trust Company, national association, as Collateral Administrator
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
u.s. bank Trust Company, national association, as Collateral Agent
By:
Name:
Title:
[Signature Page to Credit and Security Agreement]
SCHEDULE 1
Initial Commitments and Percentages
Lender
Commitment
Valley National Bank
$30,000,00040,000,000
Bank OZK
$25,000,00032,500,000
OceanFirst Bank, N.A.
$20,000,00027,500,000
[Popular Bank Entity]
$10,000,000
Total
$85,000,000110,000,000
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