FS ENERGY AND POWER FUND 8-K


Exhibit
10.4


 


CONTROL
AGREEMENT


 


This
Control Agreement (this “Agreement”), dated November 6, 2015 is by and among Foxfields Funding LLC (the “Borrower”),
Fortress Credit Co LLC, as administrative agent for the Lenders (as defined below) and certain other secured parties (in such
capacity, including any successor in such capacity, the “Agent”), and State Street Bank and Trust Company,
a Massachusetts trust company (“Custodian”).


 


WHEREAS,
Borrower, certain affiliates of Borrower and the Custodian are parties to that certain Custodian Agreement, dated as of December
10, 2013 (as amended, restated, modified, or supplemented from time to time, the “Custodian Agreement”);


 


WHEREAS,
pursuant to Section 19.14 of the Custodian Agreement, FS Energy and Power Fund, a Delaware statutory trust and direct parent of
the Borrower, has notified Custodian in writing of its desire for Custodian to perform services under the Custodian Agreement
with respect to the Borrower and Custodian has consented to treat the Borrower as a “Company” as defined in the Custodian
Agreement, including to act as custodian for the Borrower’s securities and other assets;


 


WHEREAS,
the Borrower has entered into the Term Loan and Security Agreement, dated as of the date hereof, among the Borrower, any other
Loan Parties (as defined therein) who become party thereto from time to time, the lenders from time to time party thereto (the
“Lenders”) and the Agent (the “Loan Agreement”) pursuant to which (i) such Lenders have
agreed, subject to the terms and conditions therein specified, to extend credit to the Borrower and (ii) the Borrower, among other
things, has agreed to pledge and grant a security interest in all right, title and interest of the Borrower in, to and under certain
of its property, including the Collateral Account (as defined below) and any cash, securities or other assets therein or otherwise
held by the Custodian on behalf of or for the benefit of the Borrower (collectively, the “Collateral”), in
favor of the Agent for the benefit of the Lenders as collateral security for the obligations of the Borrower under the Loan Agreement;
and


 


WHEREAS,
in connection with the Loan Agreement, the Borrower intends to grant control (as defined in the Uniform Commercial Code, as in
effect from time to time in The State of New York (the “UCC”)) over the Collateral Account and possession of
other Collateral to the Agent and the Agent, the Borrower and the Custodian are entering into this Agreement to perfect the security
interest of the Agent in the Collateral Account and provide for the control of the Collateral Account and possession of other
Collateral.


 


NOW
THEREFORE, for valuable consideration, the parties hereto agree as follows:


 


1.           Establishment
of Collateral Account. The Custodian has established and will maintain on its books and records the Borrower’s custodial
accounts, Account Nos. [10671162 and 10683027], which accounts and the assets credited thereto are pledged in favor of the Agent
(individually and collectively, the “Collateral Account”). The Custodian will credit to the Collateral Account
any assets delivered to it by the Borrower pursuant to the Custodian Agreement except that Loan Documents and Identified Securities
(as each such term is defined below) delivered to the Custodian shall be held by the Custodian upon the terms of Section 5. The
Custodian shall have no responsibility for determining the adequacy of any Collateral required hereunder or under the Loan Agreement,
nor will it assume responsibility for any calculations related to any Collateral requirements under the Loan Agreement.


 






    	 



    	 



    

 


2           Account
Control.


 


2.1        Agent
Security Interest. This Agreement is intended by the Borrower and the Agent to grant “control” of the Collateral
Account and possession of other Collateral to the Agent for purposes of perfection of the Agent’s security interest in the
Collateral Account and other Collateral pursuant to Article 8 and Article 9 of the UCC and the Custodian hereby acknowledges that
it has been advised of the Borrower’s grant to Agent of a security interest in the Collateral and Collateral Account. Notwithstanding
the foregoing, the Custodian makes no representation or warranty with respect to the creation, attachment, perfection, priority
or enforceability of any security interest in the Collateral or Collateral Account.


 


2.2        Borrower
Control. Unless and until the Custodian receives written notice from the Agent pursuant to Section 2.3(ii) below instructing
the Custodian that the Agent is exercising its right to exclusive control over the Collateral Account, which notice is substantially
in the form attached hereto as Exhibit A (a “Notice of Exclusive Control”) and the Custodian has a reasonable
time to act thereon in accordance with Section 2.3(ii), or if all previous Notices of Exclusive Control have been revoked or rescinded
in writing by the Agent: (i) the Borrower shall be entitled to exercise all rights with respect to, and to direct the Custodian
with respect to, the Collateral Account, provided that the Borrower may not terminate the Collateral Account without the prior
written consent of the Agent, and (ii) the Custodian shall have no responsibility or liability to the Agent or any Lender for
settling trades of financial assets and cash carried in the Collateral Account at the direction of and in accordance with the
instructions of the Borrower given in accordance with the Custodian Agreement, or for complying with entitlement orders from the
Borrower concerning the Collateral Account.


 


2.3       Control
by Agent.


 


(i)        The
Borrower irrevocably authorizes and directs the Custodian, and the Custodian agrees, to comply with any entitlement order or instructions
(within the meaning of Sections 8-102, 8-106, 9-104 and 9-106 of the UCC) received from the Agent with respect to the Collateral
Account, without further consent of the Borrower.


 


(ii)       Upon
receipt by the Custodian of a Notice of Exclusive Control and the Custodian having a reasonable time (not to exceed two (2) banking
days) to act thereon, the Custodian shall thereafter follow only the instruction of the Agent with respect to the Collateral Account,
and shall comply only with any entitlement order or instructions received from the Agent, without further consent of the Borrower,
and shall be entitled to deal with the Agent as though the Agent were the sole and absolute owner of the Collateral Account. Without
limiting the Custodian’s obligations under Section 2.3(i) and (ii), Agent agrees that it shall deliver a Notice of Exclusive
Control prior to or simultaneously with any entitlement order or instruction. For the avoidance of doubt, from and after delivery
of a Notice of Exclusive Control and the Custodian having a reasonable time (not to exceed two (2) banking days) to act thereon,
the Borrower (whether directly or through its investment manager) shall have no right or ability to access or receive or withdraw
or transfer financial assets from, or to give other instructions concerning the Collateral Account until such time as the Agent
shall have notified the Custodian in writing of the withdrawal of the Notice of Exclusive Control and instructed the Custodian
to resume honoring instructions which the Borrower is entitled to give under the Custodian Agreement.


 


(iii)      As
between the Borrower and the Agent, the Agent agrees with the Borrower that it shall not issue a Notice of Exclusive Control or
any entitlement order or instructions with respect to the Collateral Account pursuant to Section 2.3(i) or (ii) unless an Event
of Default (as defined in the Loan Agreement) shall have occurred and be continuing.


 






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(iv)      The
Custodian shall have no responsibility or liability to the Borrower for complying with a Notice of Exclusive Control or complying
with entitlement orders or other instructions originated by the Agent concerning any Collateral or the Collateral Account. The
Custodian shall have no duty to investigate or make any determination as to whether an event of default or other like event exists
under the Loan Agreement, and the Custodian shall be fully protected in complying with a Notice of Exclusive Control whether or
not the Borrower may allege that no such event of default or other like event exists. Delivery of a Notice of Exclusive Control
by the Agent to the Custodian shall be effective whether or not a copy of the same is delivered to the Borrower.


 


(v)       As
between the Agent and the Custodian, notwithstanding any provision contained herein or in any other document or instrument to
the contrary, the Custodian shall not be liable for any action taken or omitted to be taken at the instruction of the Agent, or
any action taken or omitted to be taken under or in connection with this Agreement, except for the Custodian’s own bad faith,
gross negligence or willful misconduct in carrying out such instructions.


 


3.          Distributions.
The Custodian shall, without further action by Borrower or Agent, credit to the Collateral Account all interest, dividends
and other income received by the Custodian on the Collateral, unless and until the Custodian has received a Notice
of Exclusive Control and has been directed otherwise by the Agent, in which event all such receipts shall be credited to
such account as directed by the Agent.


 


4.          Duties
and Services of Custodian.


 


(i)        Custodian
agrees that it is acting as a “securities intermediary,” as defined in Section 8-102 of the UCC with respect to the
Collateral Account. The parties hereto further agree that the securities intermediary’s jurisdiction, within the meaning
of Section 8-110(e) of the UCC, is the State of New York and agree that none of them has or will enter into any agreement to the
contrary except that the parties acknowledge that the Custodian Agreement is otherwise governed by Massachusetts law.


 


(ii)       The
Custodian shall have no duties, obligations, responsibilities or liabilities with respect to the Collateral or the Collateral
Account except as and to the extent expressly set forth in this Agreement and the Custodian Agreement, and no implied duties of
any kind shall be read into this Agreement against the Custodian including, without limitation, the duty to preserve, exercise
or enforce rights in the Collateral and Collateral Account. The Custodian shall not be liable or responsible for anything done
or omitted to be done by it in the absence of bad faith, gross negligence or willful misconduct and may rely and shall be protected
in acting upon any notice, instruction or other communication which it reasonably believes to be genuine and authorized.


 


(iii)      As
between the Borrower and the Custodian, except for the rights of control and possession in favor of the Agent agreed to herein,
nothing herein shall be deemed to modify, limit, restrict, amend or supercede the terms of the Custodian Agreement, and the Custodian
shall be and remain entitled to all of the rights, indemnities, powers, and protections in its favor under the Custodian Agreement,
which shall apply fully to the Custodian’s actions and omissions hereunder. If a provision of this Agreement in favor of
the Agent conflicts with a provision of the Custodian Agreement, this Agreement shall control. Instructions under this Agreement
from a Borrower’s authorized representative given in accordance with the terms of the Custodian Agreement shall also constitute
Proper Instructions (as defined in the Custodian Agreement) under the Custodian Agreement.


 






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(iv)      The
Agent agrees to provide to Custodian, in the form of Exhibit B attached hereto, the names and signatures of authorized
parties who may give written notices, instructions or entitlement orders concerning the Collateral or the Collateral Account.
Other means of notice or instruction may be used, provided that the Agent and Custodian agree to appropriate security procedures.
As between the Custodian and Agent, the Agent shall indemnify and hold the Custodian harmless with regard to any losses or liabilities
of the Custodian (including reasonable attorneys’ fees) imposed on or incurred by the Custodian arising out of any action
or omission of the Custodian in accordance with any notice or any entitlement order or other instruction of Agent under this Agreement.


 


(v)       The
parties hereto acknowledge that no “security entitlement” under the UCC shall exist with respect to (A) cash (which
shall be credited to the Collateral Account), (B) any Loan Document (as defined below), or the Borrower’s interest in a
direct or participation or subparticipation interest in or by assignment or novation of a loan or other extension of credit evidenced,
governed or represented by the Loan Document, or (C) any other asset (including, without limitation, any certificated security)
which is registered in the name of the Borrower, payable to the order of the Borrower or specially indorsed to the Borrower or
any third party (each such other asset an “Identified Security”), except to the extent such Identified Security
has been specially indorsed by the Borrower to the Custodian or in blank.


 


(vi)      For
avoidance of doubt, the Agent hereby acknowledges that any Collateral issued outside the United States (“Foreign Security
System Assets”) which may be held by the Custodian, a sub-custodian within the Custodian’s network of sub-custodians
(each a “Sub-Custodian”) or a depository or book-entry system for the central handling of securities and other
financial assets in which the Custodian or the Sub-Custodian are participants may not permit the Borrower to have a security entitlement
under the UCC with respect to such Foreign Security System Assets (and such property shall be deemed for purposes of this Agreement
not to be a financial asset held within the Collateral Account). The parties hereby further acknowledge that the Custodian gives
no assurance that a security entitlement is created under the UCC with respect to Borrower’s assets held in Euroclear or
Clearstream or their successors. Solely as between the Borrower and Agent, the Borrower hereby acknowledges that the foregoing
shall not be deemed a waiver by the Agent of any of the obligations of the Obligors to Deliver such Collateral or any other obligations
of the Obligors under the Loan Documents (as defined in the Loan Agreement).


 


5.          Bailment
of Loan Documents and Identified Securities; Loan Document Inspection Rights.


 


(i)        If
the Borrower delivers or causes a third party to deliver to the Custodian an instrument, document, certificate or other agreement
evidencing, governing or representing the Borrower’s ownership in or the Borrower’s interest in a direct or participation
or subparticipation interest in or by assignment or novation of a loan or other extension of credit (including any Financing Document
(as defined in the Custodian Agreement)) that is not a “security” as defined in Section 8-102 of the UCC (a “Loan
Document”) or an Identified Security, the Custodian agrees to hold the Loan Document or Identified Security as bailee
for the Agent (and not, for the avoidance of doubt, as “securities intermediary”).


 






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(ii)       Until
the Custodian receives a Notice of Exclusive Control or if all previous Notices of Exclusive Control have been revoked in writing
by the Agent, the Custodian shall comply with the instructions of the Borrower in respect of any Loan Document or Identified Security.
The Custodian agrees that following its receipt from the Agent of a Notice of Exclusive Control and the Custodian having a reasonable
time (not to exceed two (2) banking days) to act thereon, the Custodian shall thereafter follow only the instruction of the Agent
with respect to all Loan Documents and Identified Securities, without the further consent of the Borrower and shall be entitled
to deal with the Agent as though the Agent were the sole and absolute owner of such Collateral. For the avoidance of doubt, from
and after delivery of a Notice of Exclusive Control and the Custodian having a reasonable time (not to exceed two (2) banking
days) to act thereon, the Borrower (whether directly or through its investment manager) shall have no right or ability to give
any instructions concerning such Collateral until such time as the Agent shall have notified the Custodian in writing of the withdrawal
of the Notice of Exclusive Control and instructed the Custodian to resume honoring instructions which the Borrower is entitled
to give under the Custodian Agreement.


  


(iii)      Upon
the Agent’s reasonable request (which shall include reasonable advance written notice), copies of the Loan Documents and
Identified Securities shall be subject to the Agent’s inspection. The Custodian reserves the right to impose reasonable
restrictions on the number, frequency, timing and scope of any such inspection so as to prevent or minimize any potential impairment
or disruption of its operations, distraction of its personnel or breaches of security or confidentiality. In addition, the Custodian
shall be entitled to impose a commercially reasonable per person hourly charge for the cooperation and assistance of its personnel
reasonably requested by the Agent in connection with any such inspection (the “Custodian Inspection Expenses”).
Nothing contained in this section shall obligate the Custodian to provide access to or otherwise disclose any documents or information
that the Custodian is obligated to maintain in confidence as a matter of law or regulation (and, to the extent that any such obligation
is waivable by the Borrower, the Borrower hereby waives such obligation to the extent necessary to permit the Agent to have reasonable
access to such documents or information).


 


(iv)      The
Custodian shall have no responsibilities or duties whatsoever with respect to a Loan Document or Identified Security, except for
such responsibilities as are expressly set forth herein or the Custodian Agreement. The Custodian shall be entitled to all exculpations,
indemnities and other benefits under this Agreement when acting as bailee for the Agent.


 


(v)      
 For the avoidance of doubt, as between the Borrower and the Agent, the Borrower agrees that the fees and expenses of
representatives retained by the Agent in connection with any inspection requested by the Agent pursuant to Section 5(iii)
(each, an “Agent Inspection”) will be covered by Section 6.09 of the Loan Agreement subject to the
limitations set forth in such Section 6.09.


 


(vi)      The
Borrower agrees to bear the cost of the Custodian Inspection Expenses for (a) the first two Agent Inspections requested in
each calendar year and (b) any Agent Inspection conducted while an Event of Default has occurred and is continuing. The Agent
agrees to bear the cost of any Custodian Inspection Expenses that are not required to be borne by the Borrower in accordance with
the preceding sentence.


 


6.          Force Majeure; Special Damages. The Custodian shall not be liable for delays, errors or losses occurring by reason
of circumstances beyond its control, including, without limitation, acts of God, market disorder, terrorism, insurrection, war,
riots, failure of transportation or equipment, or failure of vendors, communication or power supply. In no event shall any party
hereto be liable to any person or entity for consequential or special damages, even if such party has been advised of the possibility
or likelihood of such damages.


 






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7.          Compliance
with Legal Process and Judicial Orders. The Custodian shall have no responsibility or liability to the Borrower or to the
Agent or to any other person or entity for acting in accordance with any judicial or arbitral process, order, writ, judgment,
decree or claim of lien relating to the Collateral or Collateral Account subject to this Agreement notwithstanding that such order
or process is subsequently modified, vacated or otherwise determined to have been without legal force or effect.


 


8.         Custodian
Representations.


 


8.1        The
Custodian agrees and confirms, as of the date hereof, and at all times until the termination of this Agreement that it has not
entered into, and until the termination of this Agreement will not enter into, any agreement (other than the Custodian Agreement)
with any other person or entity relating to the Collateral or the Collateral Account under which it has agreed to comply with
entitlement orders (as defined in Section 8-102 of the UCC) or other instructions of such other person or entity.


 


8.2        The
Collateral Account will be maintained in the manner set forth in the Custodian Agreement subject to the provisions hereof until
termination of this Agreement, and the Custodian will not change the name or account number of the Collateral Account without
prior written notice to the Agent.


 


8.3        The
Custodian has no knowledge of any claim to or interest in the Collateral Account, other than the interests therein of the Custodian,
the Agent and the Borrower. If the Custodian is notified by any person or entity that such person or entity asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process)
against the Collateral Account, the Custodian will notify the Agent and the Borrower promptly thereof.


 


9.          Access
To Reports. Upon any pledge, release or substitution of Collateral in the Collateral Account, and upon any release of
other Collateral otherwise in the possession of the Custodian, Custodian shall notify Agent within one business day of such
change. The Custodian will provide to the Agent a copy of a statement of the Collateral Account and other Collateral in the
possession of the Custodian within twenty (20) business days of the end of the calendar month (or more frequently as the
Agent may reasonably request); provided, however, that the Custodian’s failure to forward a copy of such
statement to the Agent shall not give rise to any liability hereunder. Upon the Agent’s request, the Borrower hereby
authorizes the Custodian to, and based on such authorization the Custodian hereby agrees to use commercially reasonable
efforts to, provide to the Agent such other information concerning the Collateral Account and/or the Collateral as the Agent
may reasonably request, provided that nothing contained herein shall obligate the Custodian to provide the Agent such
information if it is not obligated to provide such information to the Borrower under the Custodian Agreement, and provided,
further, that the Custodian’s failure to forward such information to the Agent shall not give rise to any liability
hereunder


 


10.       Fees
and Expenses, Etc. of Custodian.


 


10.1      Reimbursement
For Costs; Indemnity. In addition to the terms of the Custodian Agreement, the Borrower hereby agrees (a) to pay and reimburse
the Custodian for any advances, costs, expenses (including, without limitation, reasonable attorney’s fees and costs) and
disbursements that may be paid or incurred by the Custodian in connection with this Agreement or the arrangement contemplated
hereby, including any that may be incurred in performing its duties or responsibilities pursuant to the terms of this Agreement
and (b) to indemnify and hold the Custodian harmless from and against any other loss, cost or expense sustained or incurred by
the Custodian in connection with this Agreement or the arrangement contemplated hereby, including any that may be incurred in
performing its duties or responsibilities pursuant to the terms of this Agreement.


 






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10.2      Liens.
Any fees, expenses or other amounts that may be owing to the Custodian from time to time pursuant to the terms hereof or of the
Custodian Agreement shall be secured by any lien, encumbrance and other rights that the Custodian may have under the Custodian
Agreement or applicable law; and (subject to Section 10.4) the Custodian shall be entitled to exercise such rights and interests
against the Collateral and Collateral Account in accordance with the terms of the Custodian Agreement.


 


10.3     Advances.
It is hereby expressly acknowledged and agreed by the parties that the Custodian (including its affiliates, subsidiaries and agents)
shall not be obligated to advance cash or investments to, for or on behalf of the Borrower in the Collateral Account; provided,
however, that if the Custodian does advance cash or investments to the Collateral Account for any purpose (including but
not limited to securities settlements, foreign exchange contracts, assumed settlement or account overdraft) for the benefit of
the Borrower, any property at any time held pursuant to this Agreement and the Custodian Agreement shall be security therefor
and, should the Borrower fail to repay the Custodian promptly, the Custodian shall (subject to Section 10.4) be entitled to utilize
available cash and to dispose of Collateral to the extent necessary to obtain reimbursement.


 


10.4     Subordination.
The Custodian subordinates any security interest or right of recoupment or setoff that it may have in or against the Collateral
or the Collateral Account to the security interest in favor of the Agent. However, the subordination will not apply to the extent
that the Custodian’s security interest or right of recoupment or setoff secures or may reduce obligations of the Borrower
to pay, reimburse or indemnify the Custodian for (i) the Custodian’s fees, costs or expenses incurred under Section 10.1(a)
of this Agreement (other than any advances or investments except to the extent provided in clause (iv) of this Section 10.4),
(ii) returned or charged-back items related to the Collateral or the Collateral Account, (iii) reversals or cancellations
of payment orders and other electronic fund transfers related to the Collateral or the Collateral Account or (iv) payments owed
to the Custodian for advances or investments made by the Custodian for the purposes of clearing and settling purchases and sales
of securities or other financial assets credited to the Collateral Account, provided that the Custodian’s rights with respect
to this clause (iv) arising from any security or financial asset shall be limited to such security or financial asset.


 


11.         Notices.
Any notice, instruction or other instrument required to be given hereunder, or any requests and demands to or upon the respective
parties hereto shall be in writing and may be sent by hand, or by facsimile transmission, telex, or overnight delivery by any
recognized delivery service, prepaid or, for termination of this Agreement only, by certified or registered mail, and addressed
as follows, or to such other address as any party may hereafter notify the other respective parties hereto in writing:


 






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	 	(a)	If to the Custodian,	 	 
	 	 	then:	 	State Street Bank and Trust Company
	 	 	 	 	John Hancock Tower
	 	 	 	 	200 Clarendon Street
	 	 	 	 	Boston, Massachusetts 02116
	 	 	 	 	Attention: Paul Woods, Senior Vice President
	 	 	 	 	Telephone: 617-662-9289
	 	 	 	 	Telecopy: 617-
	 	 	 	 	 
	 	(b)	If to the Agent,	 	 
	 	 	then:	 	Fortress Credit Co LLC
	 	 	 	 	1345 Avenue of the Americas, 46th Floor
	 	 	 	 	New York, New York 10105
	 	 	 	 	Attention: Constantine M. Dakolias
	 	 	 	 	Telephone Number: [PHONE NUMBER]
	 	 	 	 	Telecopy: 212-798-6090
	 	 	 	 	 
	 	(c)	If to the Borrower,	 	 
	 	 	then:	 	Foxfields Funding LLC
	 	 	 	 	201 Rouse Boulevard
	 	 	 	 	Philadelphia, PA 19112
	 	 	 	 	Attention: Gerald F. Stahlecker
	 	 	 	 	Telephone: (215) 222-4649
	 	 	 	 	Telecopy: (215) 495-1169





 


12.       Amendment.
No amendment or modification of this Agreement will be effective unless it is in writing and signed by each of the parties hereto.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but such counterparts
together shall constitute one and the same instrument.


 


13.       Termination.
This Agreement shall continue in effect until the Agent has notified the Custodian in writing that this Agreement is to be terminated.
Upon receipt of such notice, the Agent shall have no further right to originate instructions with respect to the Collateral or
Collateral Account. This Agreement may not be terminated by the Borrower without the prior written consent of the Agent (which
consent shall be given to the extent required by Section 11.11 of the Loan Agreement). This Agreement may be terminated by the
Custodian, and shall terminate in the event of termination of the Custodian Agreement, in each case following not less than thirty
(30) days’ prior written notice to each of the other parties hereto. Upon termination of this Agreement by any party, any
Collateral that has not been released by the Agent at or prior to the time of termination shall be transferred to a successor
custodian or bank designated by the Borrower and reasonably acceptable to the Agent (or, from and after receipt by the Custodian
of a Notice of Exclusive Control, designated by the Agent). In the event no successor is agreed upon, the Custodian shall be entitled
to petition a court of competent jurisdiction to appoint a successor custodian and shall be indemnified by the Borrower for any
costs and expenses (including, without limitation, attorney’s fees) relating thereto.


 


14.       Severability.
In the event any provision of this Agreement is held illegal, void or unenforceable, the remainder of this Agreement shall remain
in effect


 


15.       Successors;
Assignment. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. No party
may assign or transfer any of its rights or obligations hereunder without the prior written consent of the other parties hereto;
provided that this agreement shall be binding on any successor Agent under the Loan Agreement so long as such successor Agent
agrees in writing to be bound as “Agent” in accordance with the terms hereof.


 


16.       Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of The State of New York, without giving
effect to the conflict of law provisions thereof.


 


17.       Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but such counterparts
together shall constitute one and the same instrument.


 






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18.       Headings.
Any headings appearing on this Agreement are for convenience only and shall not affect the interpretation of any of the terms
of this Agreement.


 


19.       Confidentiality.
Each of the Custodian, the Borrower and the Agent agrees that it shall use commercially reasonable efforts to maintain, and to
cause its agents, attorneys and accountants to maintain, the confidentiality of the specific terms of this Agreement, and to not
discuss or disclose, nor authorize such agents, attorneys or accountants to discuss or disclose, such terms, directly or indirectly,
to any person, other than: (1) to such agents, attorneys or accountants, subject to the terms hereof; (2) as may be legally required
by applicable law or regulation or by any subpoena or similar legal process, or as may be requested by a regulator having jurisdiction
over such party; (3) in connection with litigation to which such party is a party; (4) to the extent such terms become publicly
available other than as a result of a breach of this Agreement; or (5) in the case of the Agent any other person to whom the Agent
is permitted to disclose confidential information of the Borrower in accordance with Section 12.08 of the Loan Agreement.


 


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IN
WITNESS WHEREOF, the undersigned have executed this Agreement under their respective seals as of the date first written above.


 





	 	STATE STREET BANK AND TRUST COMPANY
	 	 	 
	 	By:	/s/ George Sullivan
	 	Name:	George Sullivan
	 	Title:	Executive Vice President
	 	 	 
	 	FORTRESS CREDIT CO LLC, as Administrative Agent
	 	 	 
	 	By:	/s/ Constantine M. Dakolias
	 	Name:	Constantine M. Dakolias
	 	Title:	President
	 	 	 
	 	FOXFIELDS FUNDING LLC
	 	 	 
	 	By:	/s/ Stephen S. Sypherd
	 	Name:	Stephen S. Sypherd
	 	Title:	Vice President, Treasurer and Secretary