ex101newtekconventionall






                                                                    Exhibit 10.1                       NEWTEK CONVENTIONAL LENDING, LLC                    LIMITED LIABILITY COMPANY AGREEMENT    THE  SECURITIES  REPRESENTED  BY  THIS  AGREEMENT  HAVE  NOT  BEEN  REGISTERED  UNDER  THE      SECURITIES  ACT  OF  1933,  AS  AMENDED  (THE  “SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS  OF ANY STATES OR OTHER JURISDICTIONS. THEY ARE BEING OFFERED AND SOLD  IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE  SECURITIES ACT AND THE REGISTRATION AND QUALIFICATION REQUIREMENTS  OF  SUCH  LAWS.  THE  SECURITIES  ARE  SUBJECT        TO  RESTRICTIONS  ON  TRANSFERABILITY  AND    RESALE  AND  MAY  NOT  BE  TRANSFERRED  OR  RESOLD  EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND SUCH LAWS PURSUANT  TO  REGISTRATION,  QUALIFICATION,  OR  EXEMPTION  THEREFROM  AND  IN  ACCORDANCE  WITH  THE    TERMS  OF  THIS  AGREEMENT.  THE  SECURITIES   HAVE  NOT  BEEN  APPROVED  OR   DISAPPROVED  BY  THE   SECURITIES  AND  EXCHANGE  COMMISSION OR BY ANY STATE OR OTHER SECURITIES COMMISSION OR OTHER  REGULATORY  AUTHORITY,  NOR  HAVE  ANY  OF  THE  FOREGOING  AUTHORITIES  PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY  OR  ADEQUACY  OF  THE  OFFERING  MATERIALS,  AND  ANY  REPRESENTATION  TO  THE CONTRARY IS UNLAWFUL.                                                                                                                                    





 






                                                                                                      NEWTEK CONVENTIONAL LENDING, LLC                  LIMITED LIABILITY COMPANY AGREEMENT         This Limited Liability Company Agreement, dated as of November 27, 2018, of Newtek  Conventional Lending, LLC (the “Company”) is entered into by and between Conventional  Lending TCP Holdings LLC and Newtek Commercial Lending, Inc. (each, a “Member” and  collectively, the “Members”).          WHEREAS, the Members desire to form a co-managed limited liability company under  the Act (as defined below) for the purposes and pursuant to the terms set forth herein;          NOW THEREFORE, in consideration of the mutual agreements set forth below, and  intending to be legally bound, the Members hereby agree as follows:                                     ARTICLE I                                                                           DEFINITIONS    Section 1.01 Definitions. For purposes of this Agreement, the following terms shall have the  following meanings:          “1940 Act” means the Investment Company Act of 1940, as amended.          “Acceptance Period” has the meaning set forth in Section 8.01(g)(ii).          “Act” means the Limited Liability Company Act of the State of Delaware, as from time  to time in effect.          “Adjusted Asset Value” with respect to any asset shall be the asset’s adjusted basis for  federal income tax purposes, except as follows:                (i)   The initial Adjusted Asset Value of any asset contributed by a Member to        the Company shall be the gross fair market value of such asset at the time of contribution,        as determined by the contributing Member and the Company.                (ii)  In the discretion of the Administrative Agent, the Adjusted Asset Values        of all Company assets may be adjusted to equal their respective gross fair market values,        as determined by the Board (provided that, the Board shall use the Value of any asset        determined in accordance with Section 10.05), and the resulting unrecognized profit or        loss allocated to the Capital Accounts of the Members pursuant to Article 4, as of the        following times: (A) the grant of an additional interest in the Company to any new or        existing Member; (B) the distribution by the Company to a Member of more than a de        minimis amount of Company assets; (C) the termination of the Company either by        expiration of the Company’s term or the occurrence of an event of early termination; and                                                                                                                                  





 






                                                                                         (D) the liquidation of the Company within the meaning of Treasury Regulation §1.704-       1(b)(2)(ii)(g).                (iii) The Adjusted Asset Values of the Company assets shall be increased (or        decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code        Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are        taken into account in determining Capital Accounts pursuant to Treasury Regulation        Section 1.704-1(b)(2)(iv)(m).          “Adjusted Capital Account”, with respect to any Member, shall mean the Member’s  Capital Account as adjusted by the items described in Sections 1.704-2(g)(1), 1.704-2(i)(5) and  1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations.          “Administrative Agent” means Newtek Business Services Corp. or an Affiliate thereof  retained by the Company with Board Approval to perform administrative services for the  Company.         “Administrative Services Agreement” means the Administrative Services Agreement  between the Company and the Administrative Agent, as amended from time to time with Board  Approval.            “Advancing Member” has the meaning set forth in Section 4.02.          “Affiliate” means, with respect to a Person, any other Person that directly, or indirectly  through one or more intermediaries, controls, is controlled by, or is under common control with,  the other Person.          “Agreement” means this Limited Liability Company Agreement, as it may from time to  time be amended.          “Board” means the Board of Directors of the Company.          “Board Approval” means, as to any matter requiring Board Approval under this  Agreement, the majority approval or subsequent ratification of the Directors present at a meeting  duly held at which a quorum is present, provided that at least one Director elected, designated, or  appointed by each Member approves any such act or decision. Matters requiring Board Approval  are set forth in further detail in Schedule A of this Agreement.  Board Approval may be received  without a meeting, without notice, and without a vote if all Directors entitled to vote with respect  to the subject matter of that action consent to the action in writing (including by e-mail), and the  writing or writings are filed with the minutes of proceedings of the Board.         “Capital Account” means, as to each Member, the capital account maintained on the  books of the Company for the Member in accordance with Section 5.01.                                          2                                                                                        





 






                                                                                         “Capital Commitment” means, as to each Member, the total amount set forth on the  Member List, which is contributed and agreed to be contributed to the Company by the Member  as a Capital Contribution.          “Capital Contribution” means, as to each Member, the aggregate amount of cash actually  contributed to the equity capital of the Company by the Member as set forth in Section 4.01. The  Capital Contribution of a Member that is an assignee of all or a portion of an equity interest in  the Company shall include the Capital Contribution of the assignor (or a pro rata portion of the  assignor’s Capital Contribution in the case of an assignment of less than the Entire Interest of the  assignor).          “Certificate of Formation” means the certificate of formation for the Company filed  under the Act, as amended from time to time.          “Change of Control” means, with respect to any Person, a transaction which causes the  owners of that Person as of the date of this Agreement and their Affiliates to own less than fifty  percent (50%) of that Person immediately after that transaction.          “Code” means the Internal Revenue Code of 1986, as amended from time to time.          “Company” has the meaning set forth in the recitals.          “Control” means the power, directly or indirectly, to direct the management or policies of  a Person, whether by ownership of securities, by contract, or otherwise.          “Daily Interest Amount” means, with respect to an Investment, the amount obtained by  multiplying the outstanding principal amount of an Investment by the Daily Interest Rate  applicable to that Investment.          “Daily Interest Rate” means (i) for an Investment in the form of a loan or debt, the rate  determined by dividing the per annum interest rate applicable to such Investment by 365, and (ii)  for an Investment in the form of preferred, structured or other equity that has an associated  contractual accruing dividend rate, the rate determined by dividing the per annum contractual  accruing dividend rate applicable to such Investment by 365.          “Default Date” has the meaning set forth in Section 4.03(a).          “Defaulting Member” has the meaning set forth in Section 4.03(a).          “Delayed Contribution” has the meaning set forth in Section 4.02.          “Delayed Member” has the meaning set forth in Section 4.02.          “Depreciation” means, for any period, an amount equal to the depreciation or other cost  recovery deduction allowable with respect to an asset for such period, except that (A) with  respect to any asset the Adjusted Asset Value of which differs from its adjusted tax basis for                                         3                                                                                        





 






                                                                                   federal income tax purposes and which difference is being eliminated by use of the “remedial  method” defined by Treasury Regulation § 1.704-3(d), Depreciation for such period shall be the  amount of book basis recovered for such period under the rules prescribed by Treasury  Regulation § 1.704-3(d)(2), and (B) with respect to any other asset the Adjusted Asset Value of  which differs from its adjusted tax basis at the beginning of such period, Depreciation shall be an  amount which bears the same ratio to such beginning Adjusted Asset Value as the federal  income tax depreciation, amortization, or other cost recovery deduction for such period bears to  such beginning adjusted tax basis; provided, however, that if the adjusted tax basis of any asset at  the beginning of such period is zero, Depreciation with respect to such asset shall be determined  with reference to such beginning Adjusted Asset Value using any reasonable method selected by  the Board.          “Director” means each Person elected, designated, or appointed to serve as a member of  the Board.          “Electing Member” has the meaning set forth in Section 9.03(e).          “Election to Purchase” has the meaning set forth in Section 9.03(e).          “Entire Interest” means all of a Member’s interests in the Company, including the  Member’s transferable interest and all management and other rights.          “ERISA” the Employee Retirement Income Security Act of 1974, as from time to time  amended.          “ERISA Plan” a Person that is an “employee benefit plan” within the meaning of, and  subject to the provisions of, ERISA.          “Expenses” means all costs and expenses, of whatever nature, directly or indirectly borne  by the Company, including those borne under the Administrative Services Agreement but  excluding those borne under the Loan Administrative Services Agreement and the Loan  Servicing Agreement. Expenses include, but are not limited to, referral fees up to 1% of funding  of an Investment to be paid to NBSC Alliance Partners, referral partner relationship management  fees to be paid to NBSC RVPs up to 0.5% of the funding of an Investment,  and certain pass  through expenses (such as search fees, flood search, commercial appraisal reports, environment  reports, credit reports, tax transcripts, etc.) to be paid by the borrower without mark up by the  Loan Administrative Agent.         “GAAP” means United States generally accepted accounting principles.          “Investment” has the meaning set forth in Section 2.04(a).          “Investment Committee” means a committee consisting of an equal number of TCPC IC  Representatives and Newtek IC Representatives.          “Investment Period” has the meaning set forth in Section 7.01(g).                                        4                                                                                        





 






                                                                                         “Investor Laws” has the meaning set forth in Section 8.02(b).          “Loan Administrative Agent” means Newtek Business Lending, LLC or an Affiliate  thereof retained by the Company with Board Approval to perform loan origination  services for  the Company.          “Loan Administrative Services Agreement” means the Loan Administrative Services  Agreement between the Company and the Loan Administrative Agent, as amended from time to  time with Board Approval.          “Loan Servicing Agreement” means the Loan Servicing Agreement between the  Company and the Servicing Agent, as amended from time to time with Board Approval.         “Loss” has the meaning set forth in Section 7.12(a).          “Member” and “Members” have the meaning set forth in the recitals and also includes  any Person that becomes a Member of the Company after the date of this Agreement under the  terms of this Agreement.          “Member List” has the meaning set forth in Section 2.07.          “NBSC” means Newtek Business Services Corp.         “Newtek” means Newtek Commercial Lending, Inc., or any Person substituted for  Newtek Commercial Lending, Inc. as a Member pursuant to the terms of this Agreement.          “NBSC Alliance Partners” means a person or entity who, pursuant to a referral promotion  agreement with NBSC, submits business referrals to NBSC in exchange for commissions paid on  closed referred transactions.         “Newtek Change of Control” has the meaning set forth in Section 7.11(b).          “Newtek IC Representative” has the meaning set forth in Section 7.02.          “NBSC RVPs” means an employee or contractor of NBSC who promotes NBSC’s  products and services in exchange for earning fees or commissions on transactions.         “Notice of Intent” has the meaning set forth in Section 8.01(g)(i).          “Organization Costs” means all out-of-pocket costs and expenses reasonably incurred  directly by the Company or for the Company by a Member or its Affiliates in connection with  the formation and capitalization of the Company, the initial offering of Company interests to  TCPC and Newtek, and the preparation by the Company to commence its business operations,  including reasonable and documented (i) fees and disbursements of legal counsel to the  Company or its Affiliates, (ii) accountant fees and other fees for professional services, and (iii)  travel costs and other out-of-pocket expenses.                                          5                                                                                        





 






                                                                                         “Outstanding” means all Shares (or Shares of a class, as applicable) that are issued by the  Company and reflected as Outstanding on the Company’s books and records as of the date of  determination.         “Partnership Representative” has the meaning provided in 0.          “Person” means an individual or a corporation, partnership, association, joint venture,  company, limited liability company, trust, governmental authority, or other entity.          “Portfolio Company” means, with respect to any Investment, any Person that is the issuer  of any equity securities, equity-related securities or obligations, debt instruments or debt-related  securities, or obligations (including senior debt instruments, including investments in senior  loans, senior debt securities, and any notes or other evidences of indebtedness, preferred equity,  warrants, options, subordinated debt, mezzanine securities, or similar securities or instruments)  that are the subject of the Investment. Portfolio Companies do not include Subsidiaries.          “Prior Investment Committee Approval” means, as to any matter requiring Prior  Investment Committee Approval under this Agreement, the prior approval of at least one TCPC  IC Representatives and one Newtek IC Representatives.          “Proceeding” has the meaning set forth in Section 7.12(a).          “Profit” or “Loss” shall be an amount computed for each period as of the last day thereof  that is equal to the Company’s taxable income or loss for such period, determined in accordance  with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction  required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable  income or loss), with the following adjustments:                (i)   Any income of the Company that is exempt from federal income tax and        not otherwise taken into account in computing Profit or Loss pursuant to this paragraph        shall be added to such taxable income or loss;                (ii)  Any expenditures of the Company described in Code Section 705(a)(2)(B)        or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation        Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profit or        Loss pursuant to this paragraph shall be subtracted from such taxable income or loss;                (iii) Gain or loss resulting from any disposition of a Company asset with        respect to which gain or loss is recognized for federal income tax purposes shall be        computed by reference to the Adjusted Asset Value of the asset disposed of rather than its        adjusted tax basis;                (iv)  In lieu of the depreciation, amortization and other cost recovery        deductions taken into account in computing such taxable income or loss, there shall be        taken into account Depreciation for such period;                                          6                                                                                        





 






                                                                                               (v)   Gain or loss resulting from any disposition of any Company asset with        respect to which gain or loss is recognized for federal income tax purposes shall be        computed by reference to the Adjusted Asset Value of such asset; and                (vi)  Notwithstanding any other provision of this definition, any items that are        specially allocated pursuant to Section 5.02(a)(ii) shall not be taken into account in        computing Profit or Loss.          If the Profit or Loss for such Period, as adjusted in the manner provided herein, is a  positive amount, such amount will be the Profit for such Period; and if negative, such amount  shall be the Loss for such Period.          “Proportionate Share” means, as to any Member, the percentage that its Capital  Contributions represents of all Capital Contributions.          “Regulations” means the United States Treasury Regulations promulgated under the  Code, as in effect from time to time.          “Sale Period” has the meaning set forth in Section 8.01(g)(iii).          “SEC” means the U.S. Securities and Exchange Commission.          “Securities Act” has the meaning set forth in the legend on the cover page.         “Series A Preferred Shares” means $20,000 liquidation preference, 10% cumulative  series A preferred shares issued by the Company.           “Servicing Agent” means Small Business Lending, LLC, or an Affiliate thereof, or any  back-up servicer, retained by the Company with Board Approval to service the loans originated  by  the Company.          “Shares” means the limited liability company interests into which the membership  interests of the Company shall be divided from time to time and includes fractions of Shares as  well as whole Shares, including but not limited to Class A Common Shares and Series A  Preferred Shares.           “Subsidiary” as to any Person, means any corporation, partnership, limited liability  company, joint venture, trust, or estate of or in which more than 50% of (a) the issued and  outstanding capital stock having ordinary voting power to elect a majority of the board of  directors of the corporation (irrespective of whether at the time capital stock of any other class of  such corporation may have voting power upon the happening of a contingency), (b) the interest  in the capital or profits of such partnership, limited liability company, or joint venture or (c) the  beneficial interest in the trust or estate is at the time directly or indirectly owned or controlled  through one or more intermediaries, or both, by that Person. Unless otherwise qualified, all  references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or  Subsidiaries of the Company.                                         7                                                                                        





 






                                                                                         “TCPC” means Conventional Lending TCP Holdings LLC, or any Person substituted for  Conventional Lending TCP Holdings LLC, as a Member pursuant to the terms of this  Agreement.          “TCPC Change of Control” has the meaning set forth in Section 7.11(b).          “TCPC IC Representative” has the meaning set forth in Section 7.02.          “Temporary Advance” has the meaning set forth in Section 4.02.          “Temporary Advance Fee” means, with respect to any Temporary Advance made by an  Advancing Member relating to an Investment that closes prior to the time that a Delayed  Member has made its Delayed Contribution, an amount equal to the product of (i) the sum of the  Daily Interest Amounts for each day beginning on the date the Investment is made and ending on  the date prior to which the Delayed makes has made its Delayed Contribution and (ii) the  Delayed Member’s Proportionate Share (after giving effect to the Delayed Contribution).          “Transfer” or “transfer” means, with respect to any Member’s interest in the Company,  the direct or indirect sale, assignment, transfer, withdrawal, mortgage, pledge, hypothecation,  exchange, or other disposition of any part or all of that interest, whether or not for value and  whether such disposition is voluntary, involuntary, by operation of law, or otherwise, and a  “transferee” or “transferor” means a Person that receives or makes a transfer. Notwithstanding  the foregoing, a “Transfer” shall not include any pledge or grant of a security interest in a  Member’s interest in the Company to a lender.          “Treasury Regulations” means all final and temporary federal income tax regulations, as  amended from time to time, issued under the Code by the United States Treasury Department.          “Undistributed Net Investment Income” means the Company’s net investment income,  determined in accordance with generally accepted accounting principles, for the current and all  prior periods, reduced by all amounts previously distributed to the Members.          “Value” means, as of the date of computation with respect to some or all of the assets of  the Company or any assets acquired by the Company, the value of those assets determined in  accordance with Section 10.05.                                              ARTICLE II                                                                      GENERAL PROVISIONS    Section 2.01 Formation of the Limited Liability Company. The Company was formed under  and pursuant to the Act upon the filing of the Certificate of Formation in the office of the  Secretary of State of the State of Delaware, and the Members hereby agree to continue the  Company under and pursuant to the Act. The Members agree that the rights, duties, and                                        8                                                                                        





 






                                                                                   liabilities of the Members shall be as provided in the Act, except as otherwise provided in this  Agreement. Each Person being admitted as a Member as of the date of this Agreement shall be  admitted as a Member at the time the Person has executed this Agreement or a counterpart of this  Agreement. By its signature to this Agreement (or, in the case of substitute Members, the  instrument described in Section 8.01(c) below whereby such transferee becomes a party to this  Agreement), each Member represents to the Company and to the other Members that (1) the  Member is an “accredited investor” as defined in Rule 501 under the Securities Act, and is a  “qualified purchaser” as defined in Section 2(a)(51) under the 1940 Act, and (2) the Member  understands that the securities represented by this Agreement have not been and will not be  registered under the Securities Act or any state securities laws and cannot be sold or otherwise  distributed by the Member unless the securities either are registered or otherwise qualified under  the Securities Act and any applicable state securities laws or are exempt from such registrations  or qualifications. In addition to the foregoing representations, each Member represents to the  Company and to the other Members as follows:          (a)   It is duly organized and validly existing under the laws of the jurisdiction of its              organization;          (b)   It has the power to execute and deliver this Agreement and the documents              referred to in this Agreement and to perform its obligations under this Agreement              and has taken all necessary action to authorize the execution, delivery, and              performance;          (c)   The execution, delivery, and performance do not violate or conflict with any law              applicable to it, any provision of its organizational documents, any order or              judgment of any court or other agency of government applicable to it, or any of its              assets or any contractual restriction binding on or affecting it or any of its assets;          (d)   All governmental and other consents that are required to have been obtained by it              with respect to this Agreement and the documents referred to in this Agreement              have been obtained and are in full force and effect and all conditions of any such              consents have been complied with;          (e)   This Agreement constitutes and, upon execution of the documents referred to in              this Agreement, those documents will constitute, its legal, valid, and binding              obligation, enforceable in accordance with their respective terms (subject to              applicable bankruptcy, reorganization, insolvency, moratorium, or similar laws              affecting creditors’ rights generally and subject, as to enforceability, to equitable              principles of general application regardless of whether enforcement is sought in a              proceeding in equity or at law);          (f)   It is entering into this Agreement for its own account for investment and not with              a view to any distribution of the interests in the Company. It fully understands,              accepts, and is able to bear the economic risks associated with the obligations and              undertakings contained in this Agreement; and                                          9                                                                                        





 






                                                                                         (g)   It has taken or will take all necessary steps to ensure its compliance with all              applicable federal and state securities laws and regulations.    Section 2.02 Company Name. The name of the Company shall be “Newtek Conventional  Lending, LLC,” or such other name as approved by Board Approval.    Section 2.03 Place of Business; Agent for Service of Process.          (a)   The registered office of the Company in the State of Delaware is located at 1209              Orange Street, Wilmington, Delaware 19801, Delaware, or such other place as the              Members may designate. The name of its registered agent for service at that              address is Corporation Trust Center or such other Person as the Members may              designate.          (b)   The initial principal business office of the Company shall be at 1981 Marcus              Avenue, Suite 130, Lake Success, NY 11042.    Section 2.04 Purpose and Powers of the Company.          (a)   The purpose and business of the Company shall be (i) to originate, structure and              invest in first lien loans to and other investments in third-party Portfolio              Companies (“Investments”), and (ii) to engage in any other lawful acts or              activities as the Board deems reasonably necessary or advisable for which limited              liability companies may be organized under the Act.         (b)   Subject to the provisions of this Agreement, the Company shall have the power              and authority to take any and all actions necessary, appropriate, proper, advisable,              convenient, or incidental to, or for the furtherance of, the purposes set forth in              Section 2.04(a).          (c)   The Company may enter into and perform each of the Administrative Services              Agreement, the Loan Administrative Services Agreement and the Loan Servicing              Agreement, without any further act, vote, or approval of any Member              notwithstanding any other provision of this Agreement, the Act or any other              applicable law, rule or regulation.    Section 2.05 Fiscal Year. The fiscal year of the Company shall be the period ending on  December 31 of each year.    Section 2.06 Liability of Members. Except as expressly provided in this Agreement, a Member  shall have such liability for the repayment, satisfaction, and discharge of the debts, liabilities, and  obligations of the Company only as is provided by the Act. A Member that receives a  distribution made in violation of the Act shall be liable to the Company for the amount of that  distribution to the extent, and only to the extent, required by the Act. The Members, in their  capacities as Members, shall not otherwise be liable for the repayment, satisfaction, or discharge  of the Company’s debts, liabilities, and obligations, except that each Member shall be required to                                        10                                                                                        





 






                                                                                   make Capital Contributions in accordance with the terms of this Agreement and shall be required  to repay any distributions which are not made in accordance with this Agreement.    Section 2.07 Member List. The Administrative Agent shall cause to be maintained in the  principal office of the Company a list (the “Member List”) setting forth, with respect to each  Member, the Member’s name, address, Capital Commitment, and such other information as the  Administrative Agent may deem necessary or desirable or as required by the Act. The  Administrative Agent shall from time to time update the Member List as necessary to reflect  accurately the information in the Member List. Any reference in this Agreement to the Member  List shall be deemed to be a reference to the Member List as in effect from time to time. No  action of the Members shall be required to supplement or amend the Member List. Revisions to  the Member List made by the Administrative Agent as a result of changes to the information set  forth in the Member List made in accordance with this Agreement shall not constitute an  amendment of this Agreement. The initial Member List is attached to this Agreement as  Appendix A.                                    ARTICLE III                                                               SHARES OF MEMBERSHIP INTEREST    Section 3.01 Beneficial Interest. The interest of the Members in the Company hereunder shall  be divided into an unlimited number of Shares of membership interest, no par value per Share.   Section 3.02 Classes and Series.  Initially there shall be one class of common shares, Class A  Common Shares, and one series of preferred shares, Series A Preferred Shares.  The Board of  Directors shall have the authority, without the approval of any Members of the Company, to  classify and reclassify issued and unissued Shares into one or more classes and one or more  series of any or all of such classes, each of which classes and series thereof shall have such  designations, powers, preferences, voting, conversion and other rights, limitations, qualifications  and terms and conditions as the Board of Directors shall determine from time to time with  respect to each such class or series.  Unless otherwise expressly stated herein, all common shares  shall vote as a single class on any matter.   Section 3.03 Issuance of Shares.  Subject to the other provisions of this Agreement, the Board  of Directors, in its sole discretion, may from time to time without vote of the Members create  additional classes and series of classes of Shares and issue Shares of any class or any series of  any such class (including preferred interests or other participation interests) to such Person or  Persons and for such amount and type of consideration, including cash, property future services  or any other lawful consideration, at such time or times, and on such terms as the Board of  Directors may determine, and may in such manner acquire other assets (including the acquisition  of assets subject to, and in connection with the assumption of, liabilities) and businesses;  provided that, without the consent of the holders of at least a majority of the Series A Preferred  Shares, the Company shall not create or issue any class or series of shares having priority over  the Series A Preferred Shares with respect to distributions.                                             11                                                                                        





 






                                                                                   Section 3.04 Rights of Members.  The Shares shall be personal property giving only the rights  in this Agreement specifically set forth.  The ownership of the Assets of every description is  vested in the Company.  Except as otherwise set forth in this Agreement, the right to conduct and  supervise the conduct of the business of the Company is vested exclusively in the Board of  Directors (subject to the right of the Board of Directors to delegate all or any part of its authority  to any Person or group of Persons, including, without limitation, any employee of any subsidiary  of the Company), and the Members shall have no interest therein other than the beneficial  interest conferred by their Shares, and they shall have no right to call for any partition or division  of any property, profits, rights or interests of the Company nor can they be called upon to share  or assume any losses of the Company or suffer an assessment of any kind by virtue of their  ownership of Shares.  A Person shall cease to be a Member when it no longer has any Shares.   Section 3.05 Book Entry.  The Shares shall be evidenced only on the books of the Company  and no certificates therefor shall be issued unless otherwise determined by the Board of  Directors.  Any certificate reflecting the number of Shares held by any Person will bear a legend  to the following effect unless otherwise agreed by the Company and the holder thereof:         “The securities represented by this certificate have not been registered under the        Securities Act of 1933 (the “Act”) or applicable state securities laws (the “State        Acts”), and shall not be sold, pledged, hypothecated, donated, or otherwise        Transferred (whether or not for consideration) by the holder except upon the        issuance to the Company of a favorable opinion of its counsel or submission to        the Company of such other evidence as may be satisfactory to counsel for the        Company, to the effect that any such Transfer shall not be in violation of the Act        and the State Acts.  Sale, pledge, Transfer or hypothecation of this membership        interest is restricted by the provisions of certain agreements among certain        Members and the Company, and the limited liability company agreement of the        Company, a copy of each of which may be inspected at the principal office of the        Company, and all the provisions of which are incorporated by reference herein.”                                    ARTICLE IV                                                               COMPANY CAPITAL AND INTERESTS    Section 4.01 Capital Commitments.          (a)   Each Member’s Capital Commitment shall be set forth on the Member List and              shall be payable in cash in U.S. dollars. Within three (3) business days after notice              from the Administrative Agent specifying the amount of a Capital Contribution              then to be paid, or such later date as may be specified in such notice, a Member              shall pay the Capital Contribution; provided that any amount of a Capital              Contribution to be used for a purpose requiring Prior Investment Committee              Approval or Board Approval shall be subject to the Prior Investment Committee              Approval or Board Approval, as applicable. Capital Contributions shall be made              by all Members pro rata based on their respective Capital Commitments.                                          12                                                                                        





 






                                                                                         (b)   Capital Contributions that are not used within ninety (90) days shall be returned to              the Members in the same proportion in which made, in which case such amount              shall be added back to the unfunded Capital Commitments of the Members and              may be recalled by the Company as set forth in this Article IV.    Section 4.02 Temporary Advances. Following a notice from the Loan Administrative Agent  pursuant to Section 4.01 above relating to a Capital Contribution, a Member (the “Advancing  Member”), in its discretion and in addition to its own Capital Contribution relating to that notice,  may make loans (“Temporary Advances”) to temporarily fund the Company or people or entities  in which the Company has already invested until Capital Contributions (“Delayed  Contributions”) are made by the Members (each, a “Delayed Member”) who have not yet made  Capital Contributions relating to the notice as set forth in Section 4.01. Any Temporary  Advances shall be repaid from the Delayed Members’ Capital Contributions under Section 4.01  (including from any Delayed Contributions), with any unreturned Temporary Advances and any  Temporary Advance Fees paid as set forth in Section 6.01.    Section 4.03 Defaulting Members.          (a)   Upon the failure of any Member (a “Defaulting Member”) to pay in full any              portion of the Member’s Capital Commitment within ten (10) days after written              notice from the other Member (the “Default Date”) that the payment is overdue,              the other Member, in its sole discretion, shall have the right to pursue one or more              of the following remedies on behalf of the Company if the failure has not been              cured in full within the ten-day period:                (i)   collect the unpaid portion (and all attorneys’ fees and other costs incident                    to the collection) by exercising or pursuing any legal remedy the Company                    may have; and                (ii)  upon thirty (30) days’ written notice (which period may commence during                    the ten-day notice period provided above), and provided that the overdue                    payment has not been made, dissolve and wind down the Company in                    accordance with Article IX.                Except as set forth in Section 4.03(b), the non-defaulting Member’s election to              pursue any one of those remedies shall not be deemed to preclude the Member              from pursuing any other such remedy, or any other available remedy,              simultaneously or subsequently.          (b)   Notwithstanding any provision of this Agreement to the contrary,                (i)   a Defaulting Member shall remain fully liable to the creditors of the                    Company to the extent provided by law as if the default had not occurred;                (ii)  a Defaulting Member shall not be entitled to distributions made after the                    Default Date until the default is cured and any distributions to which the                                        13                                                                                        





 






                                                                                                     Defaulting Member would otherwise have been entitled if the default had                    not occurred shall be applied to cure any default; and                (iii) the Company shall not make new Investments after the Default Date until                    the default is cured, except for those Investments which the Company was                    committed to make in whole or in part (as evidenced by a commitment                    letter, term sheet, or letter of intent, or definitive legal documents under                    which less than all advances have been made) on or before the Default                    Date.    Section 4.04 Interest or Withdrawals. No Member shall be entitled to receive any interest on  any Capital Contribution to the Company. Except as otherwise specifically provided in this  Agreement, no Member shall be entitled to withdraw any part of its Capital Contributions or  Capital Account balance.    Section 4.05 Admission of Additional Members.          (a)   The Members may, with Board Approval, (i) admit additional Members upon              terms approved by Board Approval, (ii) permit existing Members to subscribe for              additional interests in the Company, and (iii) admit a substitute Member in              accordance with Section 8.01.          (b)   Each additional Member shall execute and deliver a written instrument              satisfactory to the existing Members whereby the additional Member becomes a              party to this Agreement, as well as a subscription agreement and any other              documents reasonably required by the existing Members. Each additional              Member shall thereafter be entitled to all the rights and subject to all the              obligations of Members as set forth in this Agreement. Upon the admission of or              the increase in the interest of any Member as provided in this Section 4.05, the              Administrative Agent is hereby authorized to update the Member List, as              required, to reflect the admission or increase.   Section 4.06 Alternative Investment Vehicle. Based on legal, tax, regulatory, and other  structuring considerations, in connection with particular Investments, the Company may, with  prior Board approval, create one or more partnerships, corporations, or other entities (each, an  “Alternative Investment Vehicle”), through which Members invest directly, through which the  Company invests, or which invests on a side-by-side basis with the Company, for purposes of  making, holding, and disposing of one or more Investments. To the extent that one or more of the  Members are required to provide capital directly to an Alternative Investment Vehicle, the  investment shall be to the same extent, for the same purposes, and on the same terms and  conditions as the Members are required to provide capital to the Company, and the capital shall  reduce the unfunded Capital Commitment to the same extent as if made to the Company. The  terms of any Alternative Investment Vehicle, including the terms with respect to management  and control of the Alternative Investment Vehicle, shall be substantially similar in all material  respects to those of the Company; provided, that, those terms may vary based on the structure of  the relevant transaction, legal, tax, and regulatory considerations. Any Alternative Investment                                        14                                                                                        





 






                                                                                   Vehicle shall be structured in a manner whereby the Members participating in the Alternative  Investment Vehicle shall bear the incremental costs of the alternative arrangement (including  taxes). The governing documents of any Alternative Investment Vehicle shall provide for the  limited liability of the Members to the same extent in all material respects as is provided to the  Members under this Agreement. If a Member fails to provide all or a portion of its required  capital to an Alternative Investment Vehicle on the applicable drawdown date (unless the  Member is excused from providing such capital by the governing documents of the Alternative  Investment Vehicle), the other Member shall be entitled to pursue any and all remedies set forth  in Section 4.03 in addition to any applicable provisions of the governing documents of the  Alternative Investment Vehicle.                                     ARTICLE V                                                                          ALLOCATIONS    Section 5.01 Capital Accounts.          (a)   A Capital Account shall be maintained for each Member in accordance with the              following provisions:                (i)   To each Member’s Capital Account there shall be credited such Member’s                    Capital Contributions, such Member’s distributive share of Profits and any                    items in the nature of income or gain which are specially allocated to such                    Member, and the amount of any Company liabilities assumed by such                    Member or which are secured by any property distributed to such                    Member;                (ii)  To each Member’s Capital Account there shall be debited the amount of                    cash and the Value of any property distributed to such Member pursuant to                    any provision of this Agreement, such Member’s distributive share of                    Losses and any items in the nature of expenses or losses which are                    specially allocated to such Member, and the amount of any liabilities of                    such Member assumed by the Company or which are secured by any                    property contributed by such Member to the Company; and                (iii) In determining the amount of any liability for purposes of Sections                    5.01(a)(i) and 5.01(a)(ii), there shall be taken into account Section 752(c)                    of the Code and any other applicable provisions of the Code and                    Regulations thereunder.          (b)   The foregoing provisions and the other provisions of this Agreement relating to              the maintenance of Capital Accounts are intended to comply with Section 1.704-             1(b) of the Treasury Regulations and shall be interpreted and applied in a manner              consistent with such regulations. The Board shall modify the manner in which the              Capital Accounts, or any debits or credits thereto (including, without limitation,              debits or credits relating to liabilities which are secured by contributed or                                        15                                                                                        





 






                                                                                               distributed property or which are assumed by the Company or the Members) are              computed to the extent any such modifications (a) are necessary or appropriate to              maintain equality between the Capital Accounts of the Members and the amount              of Company capital reflected on the Company’s balance sheet, as computed for              book purposes in accordance with Section 1.704-1(b)(2)(iv)(g) of the Treasury              Regulations, and (b) any such modifications are required to comply with the              Treasury Regulations, whether on account of an unanticipated event or otherwise;              provided that no such modification will be made if such modification is              reasonably likely to have a material adverse effect on any Member.    Section 5.02 Allocations.          (a)   General Allocations.                (i)   Allocations of Profit and Loss. Subject to the special allocations set forth                    in Section 5.02(a)(ii), the Profits or Losses (or items of income, gain, loss,                    or deduction, as may be necessary) for a fiscal year, or other relevant                    period, shall be allocated among the Members in such a manner that, as of                    the end of such period and to the extent possible with respect to each                    Member, such Member’s Adjusted Capital Account shall be equal to the                    amount that would be distributed to such Member under this Agreement if                    the Company were to, (A) liquidate the assets of the Company for an                    amount equal to the Adjusted Asset Value of such property as of the end                    of such fiscal year or other relevant period, (B) all liabilities of the                    Company are satisfied (limited in the case of any nonrecourse loan to an                    amount equal to the Adjusted Asset Value of any property securing loan),                    and (C) distribute the proceeds in liquidation in accordance with Section                    9.03(d)(iv) of this Agreement.                (ii)  Regulatory Allocations. Notwithstanding the allocations set forth in                    Section 5.02(a), Profit and Loss or specific items of income, gain, loss or                    deduction shall be specially allocated to the Members in order to comply                    with certain requirements of Regulations Sections 1.704-1(b) and 1.704-2                    (including the minimum gain chargeback requirement in Regulations                    Section 1.704-2(f), the partner minimum gain chargeback requirement in                    Regulations Section 1.704-2 (i)(4) and the qualified income offset                    requirement of the alternate test for economic effect in Regulations                    Section 1.704-1(b)(2)(ii)(d)). Allocations of Profit and Loss for the fiscal                    years or other relevant period after any period in which this Section                    5.02(a)(ii) applies shall be made in a way that, to the extent possible,                    reverses the effects of any allocations pursuant to this Section 5.02(a)(ii).                    The Administrative Agent shall apply such provisions in its good faith                    discretion based on advice from the Company’s tax advisors.                                           16                                                                                        





 






                                                                                         (b)   Loss Limitation. Losses allocated pursuant to Section 5.02(a) shall not exceed the              maximum amount of Losses that can be allocated without causing any Member to              have a negative Capital Account balance at the end of any fiscal year or other              relevant period (after taking into account the adjustments, allocations and              distributions described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and              (6)). In the event some but not all of the Members would have negative Capital              Account balances as a consequence of an allocation of Losses pursuant to Section              5.02(a), the limitation set forth in this Section 5.02(b) shall be applied on a              Member by Member basis and Losses not allocable to any Member as a result of              such limitation shall be allocated to other Members in accordance with the              positive balances in such Member’s Capital Accounts so as to allocate the              maximum permissible Losses to such Member under Regulations Section 1.704-             1(b)(2)(ii)(d). Allocations of Profit and Loss for the fiscal years or other relevant              period after any period in which this Section 5.02(b) applies shall be made in a              way that, to the extent possible, reverses the effects of any limitations on              allocations of Losses pursuant to this Section 5.01(b).    Section 5.03 Transfers of Membership Interests. All items of Profit and Loss allocable to any  Company interest that may have been transferred or otherwise disposed of shall be allocated  between the transferor and the transferee based on an interim closing of the books, as determined  in good faith with Board Approval; provided, however, that this allocation must be made in  accordance with a method permissible under Section 706 of the Code and the Regulations  thereunder.    Section 5.04 Tax Allocations; Section 704(c) of the Code. For each fiscal year, items of  income, deduction, gain, loss or credit that are recognized for federal income Tax purposes shall  be allocated among the Members pursuant to Section 1.704-1(b) of the Treasury Regulations in  such manner as to reflect equitably amounts credited to or debited from each Member’s Capital  Account for the current and prior fiscal years. Such allocations shall take into account any  variation between the adjusted Tax basis of property of the Company and its Adjusted Asset  Value, in accordance with the principles of Section 704(c) of the Code and the Treasury  Regulations thereunder. Any elections or other decisions relating to such allocations shall be  made by the Board. The Company shall elect for federal tax purposes to amortize any  Organization Costs over 180 months in accordance with Section 709 of the Code. Allocations  pursuant to this Section 5.04 are solely for purposes of federal, state and local Taxes and shall  not affect, or in any way be taken into account in computing, any Member’s share of Profits,  Losses, distributions or other items pursuant to any other provision of this Agreement.    Section 5.05 Classification as a Partnership. The Company shall be classified as a partnership  for U.S. federal income tax purposes and no person shall take any action inconsistent with such  classification.                                           17                                                                                        





 






                                                                                                                    ARTICLE VI                                                                          DISTRIBUTIONS    Section 6.01 General.          (a)   To the extent of available cash and cash equivalents after payment of Expenses,              the Company shall make distributions quarterly in the amounts as determined by              Board Approval, shared among the Members as set forth in Section 6.01(b)              below; provided that the amount of any distribution may be reduced as provided              by Section 6.02 and Section 6.03.          (b)   All distributions under this Section 6.01 shall be shared among the Members as              follows:                (i)   First, to pay the servicing fee pursuant to the Loan Servicing Agreement,                    which shall be 1.0% per annum on the total principal amount of the loans                    serviced by the Servicing Agent, payable on a monthly basis;               (ii)  Second, to pay any outstanding Temporary Advances and Temporary                    Advance Fees; provided, that Temporary Advance Fees relating to an                    Investment only be paid after and to the extent the Company actually                    received interest payments relating to such Investment.                (iii) Third,  to the Members holding Series A Preferred Shares pro rata based                    upon, with respect to any such Member, the relative number of Series A                    Preferred Shares held by such Member compared to the aggregate number                    of Series A Preferred Shares Outstanding, until such Member has received                    a cumulative compounding return of ten percent (10%), annualized, on its                    Capital Contributions;               (iv)  Fourth, to pay the loan administrative fee pursuant to Section 6(B) of the                    Loan Administrative Services Agreement, which shall be .50% per annum                    on any Capital Contribution made by TCPC and which shall be payable as                    follows: 0.125% time the amount of the Capital Contribution made by                    TCPC on the last day of the applicable quarter; and                (v)   Fifth, to the Members holding Class A Common Shares pro rata based                    upon, with respect to any such Member, the relative number of Class A                    Common Shares held by such Member compared to the aggregate number                    of Class A Common Shares Outstanding.    Section 6.02 Withholding. The Company may withhold from any distribution to any Member  any amount which the Company has paid or is obligated to pay in respect of any withholding or  other tax, including any interest, penalties, or additions with respect any withholding or other tax  imposed on any interest or income of or distributions to the Member, and the withheld amount                                        18                                                                                        





 






                                                                                   shall be considered an interest payment or a distribution, as the case may be, to the Member for  purposes of this Agreement. If no payment is then being made to the Member in an amount  sufficient to pay the Company’s withholding obligation, then any amount that the Company is  obligated to pay shall be deemed an interest-free advance from the Company to the Member,  payable by the Member by withholding from subsequent distributions or within ten (10) days  after receiving written request for payment from the Company.    Section 6.03 Certain Limitations. Notwithstanding Sections 6.01 and 6.02:          (a)   In no event shall the Company make a distribution to the extent that it would (i)              render the Company insolvent, or (ii) violate Section 18-607(a) of the Act or other              applicable law.          (b)   Without Board Approval, the Company shall not make in-kind distributions.              Distributions of securities and of other non-cash assets of the Company upon              Board Approval shall only be made pro rata to all Members (in proportion to their              respective Capital Accounts) with respect to each security or other asset              distributed. Securities listed on a national securities exchange that are not              restricted as to transferability and unlisted securities for which an active trading              market exists and that are not restricted as to transferability shall be valued in the              manner contemplated by Section 10.05 as of the close of business on the day              preceding the distribution, and all other securities and non-cash assets shall be              valued as determined in the last valuation made pursuant to Section 10.05.                                    ARTICLE VII                                                                   MANAGEMENT OF COMPANY    Section 7.01 Management Generally.          (a)   The management of the Company and its business and affairs shall be vested in              the Board. The Board shall act as the “manager” of the Company for the purposes              of the Act. The Members shall not manage or control the business and affairs of              the Company, except for situations in which the approval of all or certain              Members is required by this Agreement or by non-waivable provisions of              applicable law. Matters requiring Board Approval are set forth in further detail in              Schedule A of this Agreement.          (b)   Notwithstanding Section 7.01(a), the matters detailed in Schedule B of this              Agreement will require the approval (“Prior Investment Committee Approval”) of              a committee (the “Investment Committee”), rather than Board Approval.           (c)   The Company shall establish a non-conforming credit policy and a non-             conforming pricing matrix to be approved by Board Approval.  Potential              Investments shall be originated in accordance with such Board approved non-             conforming credit policy and a non-conforming pricing matrix.                                        19                                                                                        





 






                                                                                         (d)   The Company is entering into the Loan Administrative Services Agreement with              the Loan Administrative Agent, pursuant to which certain loan origination              services functions are delegated to the Loan Administrative Agent. The Members              agree that, notwithstanding anything to the contrary in this Agreement, the Loan              Administrative Services Agreement shall not require Board Approval and is              hereby approved by the Members; provided, that any amendments to the Loan              Administrative Services Agreement after the date of this Agreement shall require              Board Approval. The function of the Loan Administrative Agent shall be              administrative only.         (e)   The Company is entering into the Administrative Services Agreement with the              Administrative Agent, pursuant to which certain administrative services are              delegated to the Administrative Agent. The Members agree that, notwithstanding              anything to the contrary in this Agreement, the Administrative Services              Agreement shall not require Board Approval and is hereby approved by the              Members; provided, that any amendments to the Administrative Services              Agreement after the date of this Agreement shall require Board Approval. The              function of the Administrative Agent shall be administrative only and              Administrative Agent shall not charge a fee to the Company for providing              services under the Administrative Services Agreement, but shall be entitled to              recover out-of-pocket expenses and costs incurred on behalf of the Company.          (f)   The Company is entering into the Loan Servicing Agreement with the Servicing              Agent, pursuant to which certain loan servicing and administrative functions are              delegated to the Servicing Agent. The Members agree that, notwithstanding              anything to the contrary in this Agreement, the Loan Servicing Agreement shall              not require Board Approval and is hereby approved by the Members; provided,              that any amendments to the Loan Servicing Agreement after the date of this              Agreement shall require Board Approval. The function of the Servicing Agent              shall be administrative only.  The Company shall also arrange for a back-up              servicer to ensure a seamless transition in servicing in the event of a Servicing              Agent default pursuant to the Loan Servicing Agreement.           (g)   Subject to prior Board approval, the Company shall not originate, structure or              invest in any Investment following December 31, 2020 (the “Investment Period”).   Section 7.02 Board of Directors; Investment Committee.          (a)   The Members may determine at any time by mutual agreement the number of              Directors to constitute the Board and the authorized number of Directors may be              increased or decreased by the Members at any time by mutual agreement, upon              notice to all Directors; provided that at all times each Member has an equal              number of Directors on the Board. The initial number of Directors shall be four              (4), and each Member shall elect, designate, or appoint two (2) Directors. The              initial Directors appointed by Newtek are Barry Sloane and Peter Downs and the                                         20                                                                                        





 






                                                                                                initial Directors appointed by TCPC are Rajneesh Vig and Keon Reed. Each        Director elected, designated, or appointed by a Member shall hold office until a        successor is elected and qualified by the Member or until the Director’s earlier        death, resignation, expulsion, or removal. A Director need not be a Member. At        all times, the Board shall have equal representation between TCPC and Newtek.   (b)   The Directors will determine the number of members of the Investment        Committee and the authorized number of committee members may be increased        or decreased by the Directors at any time provided that at all times each Member        has appointed an equal number of members to the Investment Committee. The        initial number of members of the Investment Committee shall be four (4), and        each Member shall elect, designate, or appoint two (2) members of the Investment        Committee. The initial members of the Investment Committee appointed by        Newtek are Peter Downs and Anthony Zara and the initial members of the        Investment Committee appointed by TCPC are Rajneesh Vig and Keon Reed. At        any time and from time to time, (x) TCPC may designate, remove, or designate a        successor to any Person or Persons designated by TCPC to serve on the        Investment Committee (each of those Persons, a “TCPC IC Representative”) by        written notice to Newtek and (y) Newtek may designate, remove, or designate a        successor to any Person or Persons designated by Newtek to serve on the        Investment Committee (each of those Persons, a “Newtek IC Representative”) by        written notice to TCPC.    (c)   Each Director, TCPC IC Representative, and Newtek IC Representative shall        devote substantially all of his or her professional time to the Company, the        Member by whom he or she was appointed, and that Member’s Affiliates. At such        time as any Director, TCPC IC Representative, or Newtek IC Representative shall        cease to devote substantially all of his or her professional time to the Company,        the Member by whom he or she was appointed, and that Member’s Affiliates, the        Director, TCPC IC Representative, or Newtek IC Representative, as applicable,        shall be ineligible to serve in that capacity and must be replaced immediately by        the Member by whom he or she was appointed.    (d)   The Investment Committee shall operate in a manner as set forth in Schedule C of        this Agreement, and any change to such operations shall require Prior Investment        Committee Approval.    (e)   Subject to matters requiring Board Approval and Prior Investment Committee        Approval, the Investment Committee shall have the power to do any and all acts        necessary, convenient, or incidental to or for the furtherance of the purposes        described in this Agreement, including all powers, statutory or otherwise. The        Investment Committee has the authority to bind the Company.                                     21                                                                                                                         





 






                                                                                         (f)   Subject to Board Approval, the Company shall obtain directors and officers              insurance coverage on the Company, the Directors, and the members of the              Investment Committee.    Section 7.03 Meetings of the Board of Directors. The Board may hold meetings, both regular  and special, within or outside the State of Delaware. Meetings of the Board may be called by any  Director on not less than 24 hours’ notice to each Director by telephone, facsimile, mail,  telegram, email, or any other similar means of communication, with the notice stating the place,  date, and hour of the meeting (and the means by which each Director may participate by  telephone conference or similar communications equipment in accordance with Section 7.05 of  this Agreement) and the purpose or purposes for which the meeting is called. Special meetings  may be called by a Director in like manner and with like notice upon the written request of any  one or more of the Directors. Attendance of a Director at any meeting (including any meeting  that occurs less than 24 hours after notice of the meeting) shall constitute a waiver of notice of  the meeting, except where a Director attends a meeting for the express purpose of objecting to  the transaction of any business because the meeting is not lawfully called or convened.    Section 7.04 Quorum; Acts of the Board.          (a)   At all meetings of the Board the presence of two (2) Directors shall constitute a              quorum for the transaction of business, provided that there are at least one              Director is present that was elected, designated, or appointed by each Member. If              a quorum shall not be present at any meeting of the Board, then the Directors              present at the meeting may adjourn the meeting from time to time, without notice              other than announcement at the meeting, until a quorum is present.          (b)   Every act or decision done or made by the Board shall require majority approval              of the Directors present at a meeting duly held at which a quorum is present,              provided that at least one Director elected, designated, or appointed by each              Member approves any such act or decision. The Company shall not have the              authority without Board Approval to approve or undertake any item set forth in              Section 1 of Schedule A of this Agreement (as such schedule may be amended              from time to time with Board Approval). Any action required or permitted to be              taken at any meeting of the Board may be taken without a meeting, without              notice, and without a vote if all Directors entitled to vote with respect to the              subject matter of that action consent to the action in writing (including by e-mail),              and the writing or writings are filed with the minutes of proceedings of the Board.   Section 7.05 Electronic Communications. Members of the Board may participate in meetings  of the Board, or any committee, by means of telephone conference or similar communications  equipment that allows all persons participating in the meeting to hear each other, and such  participation in a meeting shall constitute presence in person at the meeting. If all the participants  are participating by telephone conference or similar communications equipment, then the  meeting shall be deemed to be held at the principal place of business of the Company.                                          22                                                                                        





 






                                                                                   Section 7.06 Compensation of Directors; Expenses. The Directors shall not receive any  compensation. However, the Directors shall be reimbursed for their reasonable out-of-pocket  expenses, if any, of attendance at meetings of the Board. No such payment shall preclude any  Director from serving the Company in any other capacity and receiving compensation for those  services.    Section 7.07 Removal and Resignation of Directors; Vacancies. Without limitation of Section  7.02(c) above, and unless otherwise restricted by law, any Director may be removed or expelled,  with or without cause, at any time solely by the Member that elected, designated, or appointed  the Director. Any Director may resign at any time by giving written notice to the Board. The  resignation shall take effect at the time specified in that notice and, unless tendered to take effect  upon acceptance of resignation, the acceptance of the resignation shall not be necessary to make  it effective. Any vacancy caused by removal or expulsion of a Director or the resignation of a  Director in accordance with this Section 7.07 shall be filled solely by the action of the Member  who previously elected, designated, or appointed the Director in order to fulfill the Board  composition requirements of Section 7.02(a).    Section 7.08 Directors as Agents. Notwithstanding the last sentence of Section 18-402 of the  Act, except as provided in this Agreement or in a resolution of the Board expressly authorizing  such action which resolution is duly adopted by the Board by the affirmative vote required for  such matter pursuant to the terms of this Agreement, a Director may not bind the Company.    Section 7.09 Duties of Board, TCPC IC Representative and Newtek IC Representative. The  Board shall have no fiduciary duties to the Company, the Members or other Persons other than  the contractual duties of good faith and fair dealing contemplated by Section 18-1101(c) of the  Act. Any officers of the Company shall have the same fiduciary duties as the Board. To the  maximum extent permitted by law, the Members, acting in their capacity as such, shall have no  duties, fiduciary or otherwise, to the Company, the Members or other Persons, except to the  extent expressly set forth in this Agreement.  To the extent that, at law or in equity, a Director,  TCPC IC Representative, or Newtek IC Representative has duties and liabilities relating to those  duties to the Company or to any Member, the individual acting in good faith pursuant to the  terms of this Agreement shall not be liable to the Company or to any Member for his or her good  faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the  extent that they restrict the duties and liabilities of the individual otherwise existing at law or in  equity, are agreed by the parties to this Agreement to replace such other duties and liabilities of  the individual.    Section 7.10 Reliance by Third Parties. Notwithstanding any other provision of this  Agreement, any contract, instrument, or act on behalf of the Company by a Member, a Director,  an officer, or any other Person delegated by Board Approval or Prior Investment Committee  Approval, as applicable, shall be conclusive evidence in favor of any third party dealing with the  Company that the Person has the authority, power, and right to execute and deliver the contract  or instrument and to take the act on behalf of the Company. This Section shall not be deemed to  limit the liabilities and obligations of the Person to seek Board Approval or Prior Investment  Committee Approval as set forth in this Agreement.                                          23                                                                                        





 






                                                                                   Section 7.11 Members’ Outside Transactions; TCPC and Newtek Change of Control;  Investment Opportunities.          (a)   Each Member shall devote such time and effort as is reasonably necessary to              diligently administer the activities and affairs of the Company, but shall not be              obligated to spend full time or any specific portion of their time to the activities              and affairs of the Company.          (b)   Newtek must immediately notify TCPC following a transaction or series of              transactions that causes a Change of Control of Newtek (a “Newtek Change of              Control”).          (c)   TCPC must immediately notify Newtek following a transaction or series of              transactions that causes a Change of Control of TCPC (a “TCPC Change of              Control”).          (d)   Subject to the foregoing provisions of this Sections 7.11 and other provisions of              this Agreement, each of the Members, the Administrative Agent, the Loan              Administrative Agent, the Servicing Agent and each of their respective Affiliates              and members may engage in, invest in, participate in, or otherwise enter into other              business ventures of any kind, nature, and description, individually and with              others, including the formation and management of other investment funds with              or without the same or similar purposes as the Company, and the ownership of              and investment in securities, and neither the Company nor any other Member              shall have any right in or to any of those activities or the income or profits derived              from those activities.    Section 7.12 Indemnification.          (a)   Subject to the limitations and conditions as provided in this Section 7.12, each              Person who was or is made a party or is threatened to be made a party to or is              involved in any threatened, pending, or completed action, suit, or proceeding,              whether civil, criminal, administrative, investigative, or arbitrative or in the nature              of an alternative dispute resolution in lieu of any of the foregoing (hereinafter a              “Proceeding”), or any appeal in a Proceeding or any inquiry or investigation that              could lead to a Proceeding, by reason of the fact that the Person, or a Person of              which the Person is the legal representative, is or was a Member, a Director,              TCPC IC Representative, or Newtek IC Representative, or a representative,              officer, director, or employee thereof, shall be indemnified by the Company to the              fullest extent permitted by applicable law, as the same exists or may be amended              (but, in the case of any amendment, only to the extent that the amendment permits              the Company to provide broader indemnification rights than the law permitted the              Company to provide prior to the amendment) against all liabilities and expenses              (including judgments, penalties (including excise and similar taxes and punitive              damages), losses, fines, settlements, and reasonable expenses (including              reasonable attorneys’ and experts’ fees)) actually incurred by the Person in                                        24                                                                                        





 






                                                                                                connection with the Proceeding, appeal, inquiry, or investigation (each a “Loss”),        unless the Loss is primarily the result of gross negligence, fraud, or willful        misconduct by the Person seeking indemnification under this Section 7.12, in        which case the indemnification shall not cover the Loss to the extent resulting        from gross negligence, fraud, or intentional misconduct. Indemnification under        this Section 7.12 shall continue as to a Person who has ceased to serve in the        capacity which initially entitled the Person to indemnity under this Section 7.12.        The rights granted pursuant to this Section 7.12 shall be deemed contract rights,        and no amendment, modification, or repeal of this Section 7.12 shall have the        effect of limiting or denying any rights with respect to actions taken or        Proceedings, appeals, inquiries, or investigations arising prior to any amendment,        modification, or repeal. To the fullest extent permitted by law, no Person entitled        to indemnification under this Section 7.12 shall be liable to the Company or any        Member for any act or omission performed or omitted by or on behalf of the        Company; provided that the act or omission has not been fully adjudicated to        constitute gross negligence, fraud, or willful misconduct. In addition, any Person        entitled to indemnification under this Section 7.12 may consult with legal counsel        selected with reasonable care and shall incur no liability to the Company or any        Member to the extent that the Person acted or refrained from acting in good faith        in reliance upon the opinion or advice of that counsel.    (b)   The right to indemnification conferred in Section 7.12(a) shall include the right to        be paid or reimbursed by the Company for the reasonable expenses incurred by a        Person entitled to be indemnified under Section 7.12(a) who was, is, or is        threatened to be made a named defendant or respondent in a Proceeding in        advance of the final disposition of the Proceeding and without any determination        as to the Person’s ultimate entitlement to indemnification; provided, however, that        the payment of the expenses incurred by a Person in advance of the final        disposition of a Proceeding shall be made only upon delivery to the Company of a        written undertaking by the Person to repay all amounts so advanced if it shall be        finally adjudicated that the indemnified Person is not entitled to be indemnified        under this Section 7.12 or otherwise.    (c)   The Company, with Board Approval, may indemnify and advance expenses to an        employee or agent of the Company to the same extent and subject to the same        conditions under which it may indemnify and advance expenses to a Member        under Sections 7.12(a) and (b).    (d)   The right to indemnification and the advancement and payment of expenses        conferred in this Section 7.12 shall not be exclusive of any other right that a        Member or other Person indemnified pursuant to this Section 7.12 may have or        hereafter acquire under any law (common or statutory) or provision of this        Agreement.                                     25                                                                                                                         





 






                                                                                         (e)   The indemnification rights provided by this Section 7.12 shall inure to the benefit              of the heirs, executors, administrators, successors, and assigns of each Person              indemnified pursuant to this Section 7.12.    Section 7.13 Partnership Representative.  Newtek is hereby designated as the “partnership  representative” within the meaning of as provided in Section 6223 of the Code (and any similar  provisions under any applicable state or local or foreign tax laws) (the “Partnership  Representative”). The provisions of this Section 7.12(a) shall apply to all actions taken on behalf  of the Members by the Partnership Representative in its capacity as the Company’s partnership  representative. The Partnership Representative shall have the right and obligation to take all  actions authorized and required, respectively, by the Code for the partnership representative of  the Company. The Partnership Representative shall have the right to retain professional  assistance in respect of any audit of the Company and all reasonable, documented out-of-pocket  expenses and fees incurred by the Partnership Representative on behalf of the Company as  Partnership Representative shall be reimbursed by the Company. In the event the Partnership  Representative receives notice of a final Company adjustment under Section 6231 of the Code, it  shall either (i) file a court petition for judicial review of that final adjustment within the period  provided under Section 6234(a) of the Code, a copy of which petition shall be mailed to all  Members on the date the petition is filed, or (ii) mail a written notice to all Members within that  period that describes its reasons for determining not to file a petition.  In the event any  adjustment to any item of income, gain, loss, deduction or credit of the Partnership, or any  Partner’s distributive share thereof, for a “reviewed year” (as defined in Code Section  6226(d)(1)) that would result in an imputed underpayment of the Company under Code Section  6225, each of the Company (including the Partnership Representative and each Member of the  Company for the reviewed year) agrees to timely take all actions under Code Section 6225(c)  (and any Treasury Regulations or other IRS guidance issued thereunder) necessary (including  filing amended tax returns) to eliminate such imputed underpayment. For the avoidance of doubt,  the Partnership Representative shall not take any action requiring Board Approval or Prior  Investment Committee Approval prior to Board Approval or Prior Investment Committee  Approval, as applicable, being obtained.                                    ARTICLE VIII                                                      TRANSFERS OF COMPANY INTERESTS; WITHDRAWALS    Section 8.01 Transfers by Members.          (a)   Subject to the requirements of this Article VIII, all or a portion of the Entire              Interest of a Member may be Transferred with Board Approval or all of the Entire              Interest of a Member may be Transferred to an Affiliate of the transferring              Member who remains liable for the transferring Member’s Capital Commitments.              Notwithstanding the foregoing, without Board Approval, (i) any Member may              make a Transfer in accordance with Section 8.01(g) or Section 9.03(e), in each              case if the Transfer is otherwise in accordance with the requirements of this              Article VIII, and (ii) equityholders in each Member may Transfer or redeem their                                         26                                                                                        





 






                                                                                                ownership of such Member, if permitted by such Member, provided, that in the        case of Newtek or TCPC, such Transfer or redemption does not result in a        Newtek Change in Control or TCPC Change of Control, as applicable.    (b)   No Transfer by a Member shall be binding upon the Company until the Company        receives an executed copy of the documentation as reasonably requested by the        other Member to show the Transfer is in accordance with this Article VIII.    (c)   Any Person which acquires an interest in the Company by Transfer in accordance        with the provisions of this Agreement shall be admitted as a substitute Member,        provided the requirements of this Agreement are satisfied. The admission of a        transferee as a substitute Member shall be conditioned upon the transferee’s        written assumption, in form and substance reasonably satisfactory to the other        Member, of all obligations of the transferor in respect of the Transferred interest        and execution of an instrument reasonably satisfactory to the other Member        whereby the transferee becomes a party to this Agreement and makes the        representations set forth in Section 2.01 of this Agreement.    (d)   In the event any Member shall be adjudicated as bankrupt, or in the event of the        winding up or liquidation of a Member, the legal representative of the Member        shall, upon written notice to the other Member of the happening, become a        transferee of the Member’s interest, subject to all of the terms of this Agreement        as then in effect.    (e)   Any transferee of the interest of a Member, irrespective of whether the transferee        has accepted and adopted in writing the terms and provisions of this Agreement,        shall be deemed by the acceptance of the Transfer to have agreed to be subject to        the terms and provisions of this Agreement in the same manner as its transferor.    (f)   As additional conditions to the validity of any Transfer of a Member’s interest,        the assignment shall not:          (i)   violate the registration provisions of the Securities Act or the securities              laws of any applicable jurisdiction;          (ii)  cause the Company to cease to be entitled to the exemption from the              definition of an “investment company” pursuant to Section 3(c)(7) of the              1940 Act and the rules and regulations of the Securities and Exchange              Commission under the 1940 Act;          (iii) result in the termination of the Company under the Code or in the              Company being classified as a “publicly traded partnership” under the              Code;                                     27                                                                                                                         





 






                                                                                                (iv)  unless the other Member waives in writing the application of this clause              (iv) with respect to such assignment (which the other Member may refuse              to do in its absolute discretion), be to a Person which is an ERISA Plan; or          (v)   cause the Company or the other Member to be in violation of, or effect an              assignment to a Person that is in violation of, applicable Investor Laws.    The non-Transferring Member may require reasonable evidence as to the conditions set  forth in clauses (i) through (v), including an opinion of counsel reasonably acceptable to  the non-Transferring Member. Any purported Transfer as to which the conditions set  forth in clauses (i) through (v) are not satisfied shall be void ab initio. A Transferring  Member shall be responsible for all costs and expenses incurred by the Company,  including reasonable legal fees and expenses, in connection with any assignment or  proposed assignment.    (g)   Except for Transfers of all of a Member’s Entire Interest to an Affiliate of the        Member who remains liable for the transferring Member’s Capital Commitments,        each Member hereby unconditionally and irrevocably grants to the other Member        or its designee a right of first offer to purchase or designate a third party to        purchase all, but not less than all, of any interest in the Company that the other        Member may propose to Transfer to another Person at the valuation most recently        approved in accordance with Section 10.05.          (i)   The Member proposing to make a Transfer that would be subject to this              Section 8.01(g) must deliver written notice of its intention to Transfer the              interest (the “Notice of Intent”) to the other Member not later than thirty              (30) days prior to the proposed closing date of the Transfer. The Notice of              Intent shall contain the material terms and conditions of the proposed              Transfer and shall identify the proposed transferee of such interest, if              known.          (ii)  The Member receiving the Notice of Intent shall have the right, for a              period of fifteen (15) business days from the date of receipt of the Notice              of Intent (the “Acceptance Period”), to accept the interest or to designate a              third-party purchaser to accept the interest at the valuation most recently              approved in accordance with Section 10.05 and on the terms stated in the              Notice of Intent. The acceptance shall be made by delivering a written              notice to the selling Member and the Company within the Acceptance              Period stating that it elects to exercise its right of first offer and, if              applicable, providing the identity of any Person that the non-transferring              Member designates as the purchaser.          (iii) Following expiration of the Acceptance Period, the selling Member shall              be free to sell its interest in the Company to a third party in a Transfer              (which third party shall be the party identified in the Notice of Intent, if              known by the selling Member) that otherwise meets the requirements of                                  28                                                                                                                         





 






                                                                                                     this Section 8.01 on terms and conditions it deems acceptable (but at a                    price not less than the price and on terms not more favorable to the third-                   party purchaser than the price and terms stated in the Notice of Intent);                    provided that the sale takes place within sixty (60) days after the                    expiration of the Acceptance Period (the “Sale Period”). To the extent the                    selling Member Transfers its interest in the Company during the Sale                    Period, the selling Member shall promptly notify the Company, and the                    Company shall promptly notify the other Member, as to the terms of the                    Transfer and the name of each of the owners to whom the interest was                    Transferred. If no sale occurs during the Sale Period, then any attempted                    Transfer of the interest shall again be subject to the right of first offer set                    forth in this Section 8.01(g) and the procedures of this Section 8.01(g)                    shall be repeated de novo.    Section 8.02 Withdrawal by Members. Members may withdraw from the Company only as  provided by this Agreement.          (a)   Notwithstanding any provision of this Agreement to the contrary, if a Member              obtains a bona fide opinion of counsel to the effect that, as a result of the other              Member’s ownership of an interest in the Company, the Company would be              required to register as an investment company under the 1940 Act, then the other              Member shall, upon written notice from the first Member, withdraw from or              reduce (in accordance with the provisions of clause (c) below) its interest in the              Company (including its Capital Commitment) to the extent that the first Member              has determined, based upon the opinion of counsel, to be necessary in order for              the Company not to be required to register. Each Member shall, upon written              request from the other Member, promptly furnish to the other Member such              information as the other Member may reasonably request from time to time in              order to make a determination pursuant to this Section 8.02(a), but in no event              later than ten (10) business days after such request.          (b)   Notwithstanding any provision of this Agreement to the contrary, if a Member              breaches the Member’s obligation under the immediately following sentence, or if              the other Member obtains a bona fide opinion of counsel to the effect that any              contribution or payment by a Member to the Company would cause the Company              or the other Member to be in violation of, or to the effect that the Member is in              violation of, any law or regulation to which the Company, a Member, or the              Member’s investment in the Company may be subject from time to time              (collectively, “Investor Laws”) and which violation would reasonably be expected              to have a material adverse effect on the Company, then the Member shall, upon              written notice from the other Member, withdraw from the Company in accordance              with the provisions of Section 8.02(c). Each Member shall, upon written request              from the other Member, promptly furnish to the other Member the information as              the other Member may reasonably request from time to time in order to make a                                         29                                                                                        





 






                                                                                               determination pursuant to this Section 8.02(b), but in no event later than ten (10)              business days after the request.          (c)   If a Member partially withdraws its interest in the Company pursuant to this              Section 8.02, it shall receive, in full payment for the withdrawn interest from cash              and cash equivalents available for distribution pursuant to Article VI, the sum of              the portion of the Capital Account attributable to the withdrawn interest (adjusted              to reflect the Value of the Company as determined as of the date of the last              valuation pursuant to Section 10.05). Notwithstanding the foregoing, the Member              that is partially withdrawing its interest shall receive the portion of the Capital              Account attributable to the withdrawn interest after the distribution of any              amounts pursuant to Section 6.01(b)(i) and (ii) of this Agreement and prior to the              distribution of any amount pursuant to Section 6.01(b)(iv) and (iv). If a Member              withdraws its entire interest in the Company pursuant to this Section 8.02, then              the Company shall terminate as provided by Article IX.                                     ARTICLE IX                                                      TERM, DISSOLUTION, AND LIQUIDATION OF COMPANY    Section 9.01 Term. Except as provided in Section 9.02(b) through 9.02(f), the Company shall  continue without dissolution until all Investments are liquidated by the Company.   Section 9.02 Dissolution. The Company shall be dissolved and its affairs wound up upon the  occurrence of any of the following events:          (a)   the expiration of the term of the Company determined pursuant to Section 9.01;          (b)   distribution of all assets of the Company;          (c)   subject to Section 9.03(e) below, (i) the full withdrawal of a Member of the              Company pursuant to Section 8.02, or (ii) a bankruptcy, insolvency, dissolution,              or liquidation of a Member, or (iii) the making of an assignment for the benefit of              creditors by a Member, or (iv) a default under Section 4.03 by a Member which              remains uncured or unwaived after the expiration of the cure period set forth in              Section 4.03, in each case of clauses (ii) through (iv) above at the election of the              other Member by providing written notice of the election;          (d)   subject to Section 9.03(e) below, a determination by the SEC to subject TCPC’s              or Newtek’s participation in the Company, as applicable, to an accounting or              reporting treatment or other consequence which either of TCPC or Newtek, in its              sole discretion, determines to be materially adverse to it, or a failure by the SEC              to grant its assent to TCPC’s or Newtek’s interest in the Company, as applicable,              or a change by the SEC of any assent it may have granted regarding TCPC’s or              Newtek’s interest in the Company, as applicable, or the terms of the assent or its              conclusions regarding the accounting or reporting treatment or other consequence                                        30                                                                                        





 






                                                                                               which either of TCPC or Newtek, in its sole discretion, determines to be              materially adverse to it, in each case at the election of TCPC or Newtek by              providing written notice of the election to the other Member;          (e)   the entry of a decree of judicial dissolution pursuant to the Act, in which event the              provisions of Section 9.03, as modified by that decree, shall govern the winding              up of the Company’s affairs; or          (f)   a written notice by a Member to the other Member to dissolve the Company,              which notice shall become effective as stated therein but no less than one-hundred              and eighty (180) days after delivery (unless the other Member waives the              notification requirement).    Section 9.03 Wind-down.          (a)   Upon the dissolution of the Company, the Company shall be liquidated in              accordance with this Article and the Act. The liquidation shall be conducted and              supervised by the Board in the same manner provided by Article VII with respect              to the operation of the Company during its term; provided that in the case of a              dissolution and winding up of the Company pursuant to Sections 9.02(c) or              9.02(d), the Member that elects the dissolution and winding up (or in the case of a              full withdrawal of a Member under Section 9.02(c), the non-withdrawing              Member) may elect further, by written notice to the other Member, to exercise as              liquidating agent all of the rights, powers, and authority with respect to the assets              and liabilities of the Company in connection with the liquidation of the Company,              to the same extent as the Board would have during the term of the Company.          (b)   From and after the date on which an event set forth in Section 9.02 becomes              effective (which, for purposes of Section 9.02, shall be deemed to be the date on              which the written notice referenced therein is delivered by one Member to the              other Member), the Company shall cease to make Investments after that date,              except for (i) Investments which the Company was committed to make in whole              or in part (as evidenced by a commitment letter, term sheet, or letter of intent, or              definitive legal documents under which less than all advances have been made) on              or before such effective date, and (ii) at the election of the Board by Board              Approval within three (3) business days after receipt by the Board of written              notice of the availability of the election from any Member, any Investment in a              Portfolio Company in which the Company then has an Investment in which the              Company participates, provided that the election shall not apply to any Investment              in connection with a sale or other Change of Control of the Portfolio Company or              a refinancing of the Company’s prior Investment in the Portfolio Company.              Capital calls against the Capital Commitment of the Members shall cease from              and after the effective date; provided that capital calls against the Capital              Commitment of the Members may continue to fund the allocable share of              Investments in which the Company continues to participate (as set forth in the                                         31                                                                                        





 






                                                                                                immediately preceding sentence), Expenses and all other obligations of the        Company. Subject to the foregoing provisions of this Section 9.03(b), the        Members shall continue to bear an allocable share of Expenses and other        obligations of the Company, in proportion to their respective Capital Accounts,        until all Investments in which the Company participates are repaid or otherwise        disposed of in the normal course of the Company’s activities.    (c)   Distributions to the Members during the winding down of the Company shall be        made no less frequently than quarterly to the extent consisting of a Member’s        allocable share of cash and cash equivalents, after taking into account reasonable        reserves deemed appropriate by Board Approval (or in the event of a dissolution        and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), by a        Member that has elected to act as liquidating agent pursuant to Section 9.03(a)),        to fund Investments in which the Company continues to participate (as set forth in        the immediately preceding paragraph), Expenses and all other obligations        (including contingent obligations) of the Company. Unless waived by Board        Approval, the Company also shall withhold ten percent (10%) of distributions in        any calendar year, which withheld amount shall be distributed within sixty (60)        days after the completion of the annual audit covering that year. A Member shall        remain a member of the Company until all Investments in which the Company        participates are repaid or otherwise disposed of, the Member’s allocable share of        all Expenses and all other obligations (including contingent obligations) of the        Company are paid, and all distributions are made under this Agreement, at which        time the Member shall have no further rights under this Agreement.   (d)   Upon dissolution of the Company, final allocations of all items of Company’s        Profit and Loss shall be made in accordance with Section 5.02. Upon dissolution        of the Company, the assets of the Company shall be applied in the following order        of priority:          (i)   To creditors (other than Members) in satisfaction of liabilities of the              Company (whether by payment or by the making of reasonable provision              for payment of those liabilities), including to establish any reasonable              reserves which the Board may by Board Approval, in its reasonable              judgment, deem necessary or advisable for any contingent, conditional, or              unmatured liability of the Company;          (ii)  To creditors who are Members in satisfaction of liabilities of the Company              (whether by payment or by the making of reasonable provision for              payment of those liabilities), including to establish any reasonable reserves              which the Board may by Board Approval, in its reasonable judgment,              deem necessary or advisable for any contingent, conditional, or unmatured              liability of the Company;                                     32                                                                                                                         





 






                                                                                                (iii) To establish any reserves which the Board may by Board Approval, in its              reasonable judgment, deem necessary or advisable for any contingent,              conditional, or unmatured liability of the Company to Members; and          (iv)  The balance, if any, to the Members in accordance with Section 6.01(b).    (e)   Notwithstanding Sections 9.02(a) through 9.02(d), upon the occurrence of an        event described in Sections 9.02(c) or 9.02(d), the Member that may elect a        dissolution and winding up (or, in the case of a full withdrawal of a Member        under Section 9.02(c)(i), the non-withdrawing Member) (the Member, the        “Electing Member”) may elect alternatively by written notice to the other        Member, for a period of fifteen (15) business days following the occurrence of        that event, to purchase the other Member’s Entire Interest or designate a third        party to effect the purchase (the election, the “Election to Purchase”). The        purchase price for the Entire Interest shall be payable in cash within ninety (90)        days after the Election to Purchase is delivered to the other Member and shall be        equal to the Capital Account of the other Member adjusted to reflect the Value of        the Company as determined as of the date of the last valuation pursuant to Section        10.05. Each Member hereby agrees to sell its Entire Interest to the Electing        Member or the third party designated by the Electing Member at that price if the        Election to Purchase is timely exercised by the Electing Member. If the Electing        Member does not exercise the Election to Purchase within the 15-business day        period set forth in this Section 9.02(e) or if the Electing Member or its third-party        designee does not purchase the other Member’s Entire Interest within ninety (90)        days after the Election to Purchase is delivered to the other Member, then the        Election to Purchase shall terminate, and (i) in the case of a full withdrawal by a        Member under Section 9.02(c)(i), the other Member shall withdraw its Entire        Interest pursuant to Section 8.02, and the Company shall terminate as provided by        Article IX or (ii) in the case of the occurrence of an event described Section        9.02(c)(ii)-(iv) or Section 9.02(d), the Electing Member shall retain the option to        elect the dissolution of the Company pursuant to Section 9.02(c) or (d), as        applicable. After any purchase pursuant to an Election to Purchase, the other        Member shall no longer be a member of the Company, and the Electing Member        or third party designee of the Electing Member that has consummated the        purchase may dissolve or continue the Company as it may determine.    (f)   If an audit or reconciliation relating to the fiscal year in which a Member receives        a distribution under this Section 9.03 reveals that the Member received a        distribution in excess of that to which the Member was entitled, then the other        Member may, in its discretion, seek repayment of the distribution to the extent        that the distribution exceeded what was due to the Member.   (g)   Each Member shall be furnished with a statement prepared by the Company’s        accountant, which shall set forth the assets and liabilities of the Company as at the        date of complete liquidation, and each Member’s share of those assets and                                   33                                                                                                                         





 






                                                                                               liabilities. Upon compliance with the distribution plan set forth in this Section 9.3,              the Members shall cease to be Members, and either Member may execute,              acknowledge, and cause to be filed a certificate of cancellation of the Company.                                     ARTICLE X                                                     ACCOUNTING, REPORTING AND VALUATION PROVISIONS    Section 10.01 Books and Accounts.          (a)   Complete and accurate books and accounts shall be kept and maintained for the              Company at its principal office. The books and accounts shall be kept on the              accrual basis method of accounting and shall include separate Capital Accounts              for each Member. Capital Accounts for financial reporting purposes and for              purposes of this Agreement shall be maintained in accordance with Section 5.01,              and for U.S. federal income tax purposes the Members shall cause the              Administrative Agent to maintain the Members’ Capital Accounts in accordance              with the Code and applicable Treasury Regulations. Each Member or its duly              authorized representative, at its own expense, shall at all reasonable times and              upon reasonable prior written notice to the Administrative Agent have access to,              and may inspect, the books and accounts and any other records of the Company              for any purpose reasonably related to its interest in the Company.          (b)   All funds received by the Company shall be deposited in the name of the              Company in the bank account or accounts or with the custodian, and securities              owned by the Company may be deposited with the custodian, as may be              designated by Board Approval from time to time and withdrawals from those              bank or custodial accounts shall be made upon such signature or signatures on              behalf of the Company as may be designated by Board Approval from time to              time.    Section 10.02 Financial Reports; Tax Return.          (a)   The Company shall engage an independent certified public accountant selected              and approved by Board Approval to act as the accountant for the Company and to              audit the Company’s books and accounts as of the end of each fiscal year. As              soon as practicable, but no later than one-hundred twenty (120) days, after the end              of each fiscal year, the Board shall cause the Administrative Agent to deliver, by              any of the methods described in Section 11.08, to each Member and to each              former Member who withdrew during the fiscal year:                (i)   audited financial statements of the Company as at the end of and for the                    fiscal year, including a balance sheet and statement of income, together                    with the report on those financial statements of the Company’s                    independent certified public accountant, which annual financial statements                    shall be approved by Board Approval;                                         34                                                                                        





 






                                                                                               (ii)  a statement of holdings of securities of the Company, including both the                    cost and the valuation of such securities as determined pursuant to Section                    10.05, and a statement of the Member’s Capital Account;                (iii) to the extent that the requisite information is then available, a Schedule K-                   1 for the Member with respect to the fiscal year, prepared in accordance                    with the Code, together with corresponding forms for state income tax                    purposes, setting forth the Member’s distributive share of Company items                    of Profit or Loss for the fiscal year and the amount of the Member’s                    Capital Account at the end of the fiscal year; and               (iv)  such other financial information and documents respecting the Company                    and its business as the Administrative Agent deems appropriate, or as a                    Member may reasonably require and request, to enable such Member to                    comply with regulatory requirements applicable to it or to prepare its                    federal and state income tax returns.          (b)   The Company shall cause the Administrative Agent to prepare and timely file              after the end of each fiscal year of the Company all federal and state income tax              returns of the Company for the fiscal year.         (c)   As soon as practicable, but in no event later than thirty (30) days, after the end of              each of the first three fiscal quarters of a fiscal year, the Board shall cause the              Administrative Agent to prepare and deliver, by any of the methods described in              Section 11.08, to each Member (i) unaudited financial information with respect to              the Member’s allocable share of Profit or Loss and changes to its Capital Account              as of the end of the fiscal quarter and for the portion of the fiscal year then ended,              (ii) a statement of holdings of securities of the Company as to which the Member              participates, including both the cost and the valuation of the securities as              determined pursuant to Section 10.05, and (iii) such other financial information as              the Administrative Agent deems appropriate, or as a Member may reasonably              require and request, to enable the Member to comply with regulatory              requirements applicable to it.    Section 10.03 Tax Elections. The Company may, by Board Approval, but shall not be required  to, make any election pursuant to the provisions of Sections 754 or 1045 of the Code, or any  other election required or permitted to be made by the Company under the Code.    Section 10.04 Confidentiality.          (a)   Each Member agrees to maintain the confidentiality of the Company’s records,              reports, and affairs, and all information and materials furnished to the Member by              the Company, the other Member, the Loan Administrative Agent, the              Administrative Agent, the Servicing Agent or their Affiliates or the Company’s              auditors, legal counsel or other service providers with respect to their respective              businesses and activities; each Member agrees not to provide to any other Person                                        35                                                                                        





 






                                                                                                copies of any financial statements, tax returns, or other records or reports, or other        information or materials provided or made available to the Member by the        Company, the other Member, the Loan Administrative Agent, the Administrative        Agent, the Servicing Agent or their Affiliates or the Company’s auditors, legal        counsel or other service providers with respect to their respective businesses and        activities; and each Member agrees not to disclose to any other Person any        information contained in those materials (including any information respecting        Portfolio Companies), without the express prior written consent of the disclosing        party; provided that:          (i)   each Member may disclose any such information as may be required by              law in connection with its filings with the SEC, and each Member may              disclose the names of Portfolio Companies and summaries of the loan              transactions in any marketing materials (including tombstone ads) of each              Member and its Affiliates, subject to applicable confidentiality restrictions              that a Member may have with the Portfolio Company; and          (ii)  any Member may provide financial statements, tax returns, and other              information contained in those statements and returns: (1) to the Member’s              accountants, internal and external auditors, legal counsel, financial              advisors, and other fiduciaries and representatives (who may be Affiliates              of the Member) as long as the Member instructs the Persons to maintain              the confidentiality of that information and not to disclose that information              to any other Person; (2) to bona fide potential transferees of the Member’s              Entire Interest that agree in writing, for the benefit of the Company, to              maintain the confidentiality of that information, but only after reasonable              advance notice to the Company; (3) if and to the extent required by law              (including judicial or administrative order); provided that, to the extent              legally permissible, the Company is given prior notice to enable it to seek              a protective order or similar relief; (4) to representatives of any              governmental regulatory agency or authority with jurisdiction over the              Member, or as otherwise may be necessary to comply with regulatory              requirements applicable to the Member; and (5) in order to enforce rights              under this Agreement.    (b)   Notwithstanding Section 10.04(a), the following shall not be considered        confidential information for purposes of this Agreement: (i) information generally        known to the public; (ii) information obtained by a Member from a third party        who is not prohibited from disclosing the information; (iii) information in the        possession of a Member prior to its disclosure by the Company, the other        Member, the Loan Administrative Agent, the Administrative Agent, the Servicing        Agent, or their Affiliates; or (iv) information which a Member can show by        written documentation was developed independently of disclosure by the        Company, the other Member, the Loan Administrative Agent, the Administrative        Agent, the Servicing Agent, or their Affiliates.                                   36                                                                                                                         





 






                                                                                         (c)   Notwithstanding Section 10.04(b), neither Member shall not engage in the              purchase, sale, or other trading of securities or derivatives of securities based              upon confidential information received from the Company, the other Member, the              other Member’s investment adviser, the Loan Administrative Agent, the              Administrative Agent, the Servicing Agent, or their Affiliates.          (d)   To the extent permitted by applicable law, and notwithstanding Sections 10.04(a),              10.04(b), and 10.04(c), each of the Company, each Member, the Loan              Administrative Agent, the Administrative Agent, the Servicing Agent, or any of              their Affiliates may, in its reasonable discretion, keep confidential from any              Member information to the extent the Person reasonably determines that: (i)              disclosure of the information to the Member likely would have a material adverse              effect upon the Company or a Portfolio Company due to an actual or likely              conflict of business interests between the Member and one or more other parties              or an actual or likely imposition of additional statutory or regulatory constraints              upon the Company, each Member, the Loan Administrative Agent, the              Administrative Agent, the Servicing Agent, any of its Affiliates, or a Portfolio              Company; or (ii) the Member cannot or will not adequately protect against the              improper disclosure of confidential information, the disclosure of which likely              would have a material adverse effect upon the Company, either Member, the Loan               Administrative Agent, the Administrative Agent, the Servicing Agent, any of its              Affiliates, or a Portfolio Company. Notwithstanding the foregoing provisions of              this Section 10.04(d), each of the Company, each Member, the Loan              Administrative Agent, the Administrative Agent, the Servicing Agent, or any of              their Affiliates shall promptly provide to each Member all relevant information              and documents related to any notice or request (whether written or oral) received              from any governmental or regulatory agency involving any pending or threatened              Proceeding in connection with the activities or operations of the Company.          (e)   The Members: (i) acknowledge that the Company, each Member, each Member’s              investment adviser, the Loan Administrative Agent, the Administrative Agent, the              Servicing Agent, their respective Affiliates, and their respective direct or indirect              members, managers, officers, directors, and employees are expected to acquire              confidential third-party information that, pursuant to fiduciary, contractual, legal,              or similar obligations, cannot be disclosed to the Company or the Members; and              (ii) agree that none of such Persons shall be in breach of any duty under this              Agreement or the Act as a result of acquiring, holding, or failing to disclose that              information to the Company or the Members.    Section 10.05 Valuation.          (a)   Valuations shall be made (x) as of the end of each fiscal quarter, (y) upon              liquidation of the Company, or (z) if determined by the Board in its sole              discretion, at any other time, in each case in accordance with the following                                         37                                                                                        





 






                                                                                                provisions and the Company’s valuation guidelines then in effect (which shall be        consistent with each of TCPC’s and Newtek’s valuation guidelines then in effect):          (i)   Within thirty-five (35) days after the date as of which a valuation is to be              made, the Administrative Agent shall deliver to the Board a report as to              the recommended valuation as of that date, and provide those Persons with              a reasonable opportunity to request information and to provide comments              with respect to the report.          (ii)  If the recommended valuation as of that date is approved by Board              Approval, then the valuation that has been approved shall be final.          (iii) If there is an objection to the recommended valuation by the Board, then              the Administrative Agent shall cause a valuation of the asset(s) subject to              unresolved objection to be made as of such date by an approved valuation              expert (if not already made) and shall determine a valuation of those              asset(s) consistent with the valuation as of that date by the approved              valuation expert, and the valuation shall be final. For this purpose, a              valuation of an asset as of that date shall be considered consistent with a              valuation of an approved valuation expert if it is equal to the              recommended value or within the recommended range of values              determined by the approved valuation expert as of that date. An approved              valuation expert shall mean an independent valuation consultant that either              has been approved by Board Approval or has been referenced as the              independent valuation consultant of the Company in a previous valuation              report by the Administrative Agent without objection by any Director.          (iv)  Liabilities of the Company shall be taken into account at the amounts at              which they are carried on the books of the Company, and provision shall              be made in accordance with GAAP for contingent or other liabilities not              reflected on those books and, in the case of the liquidation of the              Company, for the Expenses (to be borne by the Company) of the              liquidation and winding up of the Company’s affairs.          (v)   No value shall be assigned to the Company name and goodwill or to the              office records, files, statistical data, or any similar intangible assets of the              Company not normally reflected in the Company’s accounting records.    (b)   All valuations shall be made in accordance with the foregoing shall be final and        binding on all Members, absent actual and apparent error. Valuations of the        Company’s assets by independent valuation consultants shall be at the Company’s        expense.                                     38                                                                                                                         





 






                                                                                                                    ARTICLE XI                         MISCELLANEOUS PROVISIONS    Section 11.01 Governing Law; Jurisdiction; Jury Waiver. This Agreement shall be governed by,  and construed in accordance with, the law of the State of Delaware. Each Member irrevocably  consents and agrees that (i) any action or proceeding seeking injunctive relief or specific  performance in respect of any breach by any Member of its obligations hereunder, (ii) any action  for enforcement of any judgment in respect thereof, (iii) any action brought to compel arbitration  in accordance with the terms of this Agreement, and (iv) any action confirming and entering  judgment upon any arbitration award may be brought in the courts of the State of New York or  the United States federal courts for the Southern District of New York, and, by execution and  delivery of this Agreement, each Member hereby submits to and accepts for itself and in respect  of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid  courts and appellate courts from any appeal thereof.  Each Member further irrevocably consents  to the service of process out of any of the aforementioned courts in any such action or  proceeding by the mailing of copies thereof in the manner set forth in Section 11.06.  Each  Member hereby irrevocably waives any objection which it may now or hereafter have to the  laying of venue of any of the aforesaid actions or proceedings arising out of or in connection  with this Agreement brought in the courts referred to above and hereby further irrevocably  waives and agrees not to plead or claim in any such court that any such action or proceeding  brought in any such court has been brought in an inconvenient forum.  Nothing herein shall  affect the right of any Member or the Membership to serve process in any other manner  permitted by law or to commence legal actions or proceedings or otherwise proceed against any  other Member hereunder in any other jurisdiction.  Nothing in this section shall be deemed to  constitute a submission to jurisdiction, consent or waiver with respect to any matter not  specifically referred to herein.    THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO  TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER  BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO  THIS AGREEMENT OR THE ACTIONS OF THOSE PARTIES IN THE NEGOTIATION,  ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT OF THIS AGREEMENT.    Section 11.02 Certificate of Formation; Other Documents. The Members hereby approve and  ratify the filing of the Certificate of Formation on behalf of the Company. The Members agree to  execute such other instruments and documents as may be required by law or which a Member or  the Board deems necessary or appropriate to carry out the intent of this Agreement.    Section 11.04 Force Majeure. Whenever any act or thing is required of the Company or a  Member under this Agreement to be done within any specified period of time, the Company and  the Member shall be entitled to an additional period of time to do the act or thing as shall equal  any period of delay resulting from causes beyond the reasonable control of the Company or the  Member, including bank holidays and actions of governmental agencies, and excluding  economic hardship; provided that this provision shall not have the effect of relieving the  Company or the Member from the obligation to perform any act or thing.                                          39                                                                                        





 






                                                                                   Section 11.05 Waivers.          (a)   No waiver of the provisions of this Agreement shall be valid unless in writing and              then only to the extent set forth in that writing. Any right or remedy of the              Members under this Agreement may be waived by Board Approval, and any              waiver shall be binding on all Members, other than situations where those rights              or remedies are non-waivable under applicable law. Except as specifically              provided in this Agreement, no failure or delay by any party in exercising any              right or remedy under this Agreement shall operate as a waiver of that right or              remedy, and a waiver of a particular right or remedy on one occasion shall not be              deemed a waiver of any other right or remedy or a waiver on any subsequent              occasion.          (b)   Except as otherwise provided in this Agreement or for situations in which the              approval or consent of all or certain Members is required by non-waivable              provisions of applicable law, any approval or consent of the Members may be              given by Board Approval, and any approval or consent shall be binding on all              Members.   Section 11.06 Notices. All notices, demands, solicitations of consent or approval, and other  communications under this Agreement shall be in writing or by electronic mail (with or without  attached PDFs), and shall be sufficiently given if personally delivered or sent by postage prepaid,  registered or certified mail, return receipt requested, or sent by electronic mail, overnight courier  or facsimile transmission, addressed as follows: if intended for the Company, to the Company’s  principal office determined pursuant to Section 2.03; and if intended for any Member, to the  address of the Member set forth on the Member List, or to such other address as any Member  may designate by written notice. Notices shall be deemed to have been given (i) when personally  delivered, (ii) if sent by registered or certified mail, on the earlier of (A) three days after the date  on which deposited in the mails or (B) the date on which received, or (iii) if sent by electronic  mail, overnight courier, or facsimile transmission, on the date on which received; provided that  notices of a change of address shall not be deemed given until the actual receipt of those notices.  The provisions of this Section shall not prohibit the giving of written notice in any other manner;  any written notice shall be deemed given only when actually received.    Section 11.07 Construction.          (a)   The captions used in this Agreement are intended for convenience of reference              only and shall not modify or affect in any manner the meaning or interpretation of              any of the provisions of this Agreement.          (b)   As used in this Agreement, the singular shall include the plural, the masculine              gender shall include the feminine and neuter, and the neuter gender shall include              the masculine and feminine, unless the context otherwise requires.                                          40                                                                                        





 






                                                                                         (c)   References in this Agreement to Articles, Sections, and Schedules are intended to              refer to Articles, Sections, and Schedules of this Agreement unless otherwise              specifically stated.          (d)   Unless otherwise specified, references in this Agreement to applicable statutes or              other laws are references to the federal laws of the United States.          (e)   Nothing in this Agreement shall be deemed to create any right in or benefit for              any creditor of the Company that is not a party to this Agreement, and this              Agreement shall not be construed in any respect to be for the benefit of any              creditor of the Company that is not a party to this Agreement.          (f)   As used in this Agreement, the verb “include” and word “including” are words of              enlargement; they are not restrictive in their meaning, and each example              following those words is illustrative.    Section 11.08 Amendments. This Agreement may be amended at any time and from time to time  by a written instrument executed by each Member.    Section 11.09 Legal Counsel. Legal Counsel for the Company will be appointed in accordance  with Schedule A hereto.    Section 11.10 Execution. This Agreement may be executed in any number of counterparts, and  all of those counterparts together shall constitute one agreement binding on all Members.    Section 11.11 Binding Effect. This Agreement shall be binding upon and shall inure to the  benefit of the respective heirs, executors, administrators, legal representatives, successors, and  assigns of the parties to this Agreement; provided that this Section 11.111 shall not be construed  to permit any assignment or transfer which is otherwise prohibited by this Agreement.    Section 11.12 Severability. If any one or more of the provisions contained in this Agreement, or  any application of those provisions, is invalid, illegal, or unenforceable in any respect, then the  validity, legality, and enforceability of the remaining provisions contained in this Agreement and  all other applications of those provisions shall not in any way be affected or impaired by that  invalidity, illegality, or unenforceability.    Section 11.13 Computation of Time. In computing any period of time under this Agreement, the  day of the act, event, or default from which the designated period of time begins to run shall not  be included. The last day of the period so computed shall be included, unless it is a Saturday,  Sunday, or legal holiday on which banks in New York are closed, in which event the period shall  run until the end of the next day which is not a Saturday, Sunday, or such a legal holiday. Any  reference to “business day” shall refer to any day which is not a Saturday, Sunday, or such a  legal holiday. Any references to time of day shall refer to New York time.    Section 11.14 Entire Agreement. This Agreement (including the Schedules to this Agreement),  the Administrative Services Agreement, the Loan Administrative Services Agreement and the                                        41                                                                                        





 






                                                                                   Loan Servicing Agreement constitute the entire agreement between the parties and supersede all  prior agreements, understandings, and arrangements with respect to the subject matter of this  Agreement.                             [Signatures appear on next page]                                           42                                                                                        





 






                                                                                    IN WITNESS WHEREOF, the Members have caused this Agreement to be executed and  delivered as of the date first above written.                                              Conventional Lending TCP Holdings LLC                                             By:      /s/ Rajneesh Vig                                                       Name:    Rajneesh Vig                                            Title:   Managing Director                                             Newtek Commercial Lending, Inc.                                             By:      /s/ Barry Sloane                                                       Name:    Barry Sloane                                            Title:   CEO                                         43                        





 






                                                                                                                     Appendix A                          Member List/Capital Contributions                         Initial #                 Date of Initial        Member            of      Initial Capital    Capital      Total Capital      Name/Address      Shares    Contribution    Contribution    Commitment                                                                                          SERIES A PREFERRED SHARES  Conventional Lending  TCP Holdings LLC  2951 28th Street, Suite              $0             N/A         $100,000,000  1000, Santa Monica,  CA 90405  Newtek Commercial  Lending, Inc.  1981 Marcus Avenue,                  $0             N/A         $100,000,000  Suite 130, Lake  Success, NY 11042                                                                                            CLASS A COMMON SHARES  Conventional Lending  TCP Holdings LLC                                                  November 27,  2951 28th Street, Suite 100         $100                            $100                                                      2018  1000, Santa Monica,  CA 90405  Newtek Commercial  Lending, Inc.                                                  November 27,  1981 Marcus Avenue,     100         $100                            $100                                                      2018  Suite 130, Lake  Success, NY 11042                                                                     *List to be maintained by the Company in its books and records.                                                   41231606.1  





 






                                                                                                                      Schedule A                                   Board Approval    1.    Board Approval shall be required in advance for the Company or any Subsidiary to do        any of the following:          i.    Enter into any transaction with a Member or an Affiliate of a Member (except as              expressly permitted by this Agreement);          ii.   Make an Investment in the securities of a Member or an Affiliate of a Member;          iii.  Enter into hedging, swaps, forward contracts or other derivative or commodities              transactions;          iv.   Enter into any credit facility or total return swap, or materially modify or waive              the terms thereof, make a voluntary prepayment (excluding increases and              decreases in borrowings under such facility in the ordinary course that do not              impact the commitment amount) or extend the term thereof;          v.    Organize, acquire an interest in, or transfer or otherwise dispose of an interest in,              any Subsidiary or any other investment or financing vehicle, or materially modify              or waive the terms thereof;          vi.   Replace the Administrative Agent, the Loan Administrative Services Agent or              Servicing Agent for the Company, or materially modify or waive the terms of any              administrative services agreement or servicing agreement, as applicable;          vii.  Approve a Transfer of an interest in the Company where required by Article VIII;          viii. Take any action or decision which pursuant to any provision of this Agreement              requires Board Approval;          ix.   Modify or waive any material provision of this Agreement, including this              Schedule A or modify the Certificate of Formation of the Company in a manner              adverse to the rights of any Member under this Agreement;          x.    Materially change the business of the Company or Subsidiaries from its current              business or enter into any line of business other than existing or related lines of              business;          xi.   Make, change, or rescind any tax election;          xii.  Settle or compromise with respect to any tax audit, claim, deficiency notice, suit,              or other proceeding relating to taxes; make a request for a written ruling to any              tax authority; or enter into a written and legally binding agreement with any tax                                                                                                                                  





 






                                                                                               authority (including any agreement to extend or waive any statute of limitations              with respect to any taxes);          xiii. Invest an amount in any single Portfolio Company which is more than five              percent (5%) of the sum of the total Capital Commitments to the Company plus              the maximum amount of any credit facilities of the Company and its Subsidiaries              (determined at the time of the first investment in such Portfolio Company);          xiv.  Admit additional Members or issue any securities other than the Shares in respect              of Capital Contributions in accordance with the Capital Commitments;          xv.   Make short sales of securities, except to hedge its position in Investments owned              by it or to hedge against fluctuations in non-U.S. currencies which might affect              the value of its Investments;          xvi.  Guarantee or otherwise become liable for, the obligations of other persons,              including portfolio companies;           xvii. All origination fees or original issue discount arising out of an Investment              originated by a Member, net of any third-party fees or expenses directly              attributable to the origination of such Investment, shall accrue for the benefit of              the Company;          xviii. Treat original issue discount as an origination or structuring fee;         xix.  Approve the valuation process in accordance with Section 10.05 to be              implemented by the Administrative Agent including the selection of third-party              service providers;          xx.   Approve the valuations assigned to assets or liabilities as required in accordance              with Section 10.05; and         xxi.  Extend the Investment Period.   2.    Subject to Section 1 of this Schedule A for matters requiring Board Approval in advance,        Board Approval shall be required for the Company or any Subsidiary to do any of the        following, which Board Approval may be obtained by ratification:          i.    Change the name or principal office of the Company or open additional offices of              the Company;          ii.   Retain third-party agents on behalf of the Company, open accounts with third              parties on behalf of the Company and designate signatures upon which              withdrawals from accounts shall be made on behalf of the Company;          iii.  Engage and/or replace an independent certified public accountant to act as the              accountant for the Company and to audit the Company’s books and accounts as of                                                                                                                                 





 






                                                                                               the end of each fiscal year, or materially modify or waive the terms of such              engagement;           iv.   Engage Legal Counsel on behalf of the Company; and         v.    Take any action or decision which pursuant to any provision of this Agreement              requires Board Approval.   For the avoidance of doubt, Board Approval in advance shall be required for all matters set forth  in Section 1 of this Schedule A.                                                                                                                                    





 






                                                                                                                      Schedule B                         Prior Investment Committee Approval    Prior Investment Committee Approval shall be required for the Company or any Subsidiary to do  any of the following:          i.    Take any action or make any decision that results in the acquisition or disposition              of an Investment other than funding of Investments pursuant to commitments              previously approved by Prior Investment Committee Approval;          ii.   Materially modify or waive the terms of any Investment which results in: (1) an              extension of additional capital or commitments; (2) an amendment or waiver of a              financial covenant of a borrower for more than four consecutive quarters; (3)              approval of a material acquisition or disposition; (4) the incurrence of additional              senior debt by the borrower in an amount equal to or greater than 10% of the              existing senior debt commitments or which results in leverage increases by more              than 0.5 times; or (5) an amendment or waiver of any payment term, including              mandatory prepayments;          iii.  Make any Investment that requires derivation from any investment restrictions set              forth in this Agreement; or          iv.   Take any action or make any decision which pursuant to any provision of this              Agreement requires Prior Investment Committee Approval.     Each Member, TCPC IC Representative, and Newtek IC Representative and their respective  designees may, in the name and on behalf of the Company, do all things which he, she, or it  deems necessary, advisable, or appropriate to make investment opportunities available to the  Company, to carry out and implement matters approved by Board Approval or Prior Investment  Committee Approval, as applicable, and to administer the activities of the Company, including:          i.    Execute and deliver all agreements, amendments, and other documents and              exercise and perform of all rights and obligations with respect to any Person in              which the Company holds an interest, including Subsidiaries and other investment              and financing vehicles;          ii.   Execute and deliver other agreements, amendments, and other documents and              exercise and perform all rights and obligations with respect to matters approved              by Board Approval or Prior Investment Committee Approval, as applicable, or              which are necessary, advisable, or appropriate for the administration of the              Company, including with respect to any contracts evidencing indebtedness for              borrowed funds; and          iii.  Take any and all other acts delegated to a Member or Director by this Agreement              or by Board Approval; provided that if the acts require Board Approval or Prior                                                                                                                                  





 






                                                                                    Investment Committee Approval, Board Approval or Prior Investment Committee  Approval, as applicable, has been obtained.                                                                                                                                                   





 






                                                                                                                      Schedule C                       Investment Committee Approval Process   The Investment Committee shall review potential Investments in the below manner, unless  otherwise approved by  Prior Investment Committee Approval.      i. Each proposed Investment shall be submitted to the Investment Committee, or its        designees, for approval.        ii. Any Investment opportunity submitted for consideration shall be documented in a        consistent memo format and made available to the Investment Committee.  Supporting        data and documentation will be made available for review by the Investment Committee        and its designees.       iii. A decision on the potential Investment will be made by the Investment Committee within        one business day of receipt of the Investment memo by the Investment Committee.                                                                                                                50                                                                                    





 






                                                                                                           51