FINAL FORM

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_____________________________________________________________________________________

LOAN AGREEMENT 

By and Among

THE BORROWER IDENTIFIED ON THE SIGNATURE PAGES HEREOF

as Borrower,

THE BANK OF NEW YORK MELLON

as Administrative Agent and Collateral Agent,

and

THE UNITED STATES DEPARTMENT OF THE TREASURY

as Lender

Dated as of the date set forth on Schedule A

_____________________________________________________________________________________
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TABLE OF CONTENTS 

Page

SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS........................................................... 1

1.01 Certain Defined Terms................................................................................................... 1

1.02 Interpretation, Etc......................................................................................................... 18

1.03 Accounting Terms and Determinations......................................................................... 19

SECTION 2. LOANS, NOTE AND PAYMENTS ............................................................................... 19

2.01 Loans........................................................................................................................... 19

2.02 The Note ...................................................................................................................... 19

2.03 Procedure for Borrowing.............................................................................................. 20

2.04 Limitation on Types of Loans; Illegality....................................................................... 20

2.05 Repayment of the Loans; Interest ................................................................................. 21

2.06 Prepayments................................................................................................................. 21

2.07 Application of Payments and Reinvestment.................................................................. 22

SECTION 3. PAYMENTS; COMPUTATIONS .................................................................................. 25

3.01 Payments...................................................................................................................... 25

3.02 Computations............................................................................................................... 25

SECTION 4. CONDITIONS PRECEDENT ........................................................................................ 25

4.01 Effective Date Conditions............................................................................................. 25

4.02 Conditions to Initial and Subsequent Loans .................................................................. 28

SECTION 5. REPRESENTATIONS AND WARRANTIES ................................................................ 29

5.01 Existence...................................................................................................................... 29

5.02 Financial Condition...................................................................................................... 29

5.03 Litigation ..................................................................................................................... 29

5.04 No Breach.................................................................................................................... 30

5.05 Action, Binding Obligations......................................................................................... 30

5.06 Approvals .................................................................................................................... 30

5.07 Taxes ........................................................................................................................... 30

5.08 Investment Company Act ............................................................................................. 30

5.09 No Default ................................................................................................................... 31

5.10 True and Complete Disclosure...................................................................................... 31

5.11 Activities...................................................................................................................... 31

5.12 ERISA ......................................................................................................................... 31

5.13 Subsidiaries; Equity Interests........................................................................................ 31

5.14 Capitalization............................................................................................................... 31

5.15 Ownership of Property; Liens....................................................................................... 32

5.16 USA PATRIOT Act ..................................................................................................... 32

5.17 Embargoed Person ....................................................................................................... 32

5.18 Borrowing for Own Benefit; Margin Rules................................................................... 33

5.19 Indebtedness ................................................................................................................ 33

5.20 Investment Guidelines.................................................................................................. 33

5.21 Compliance Rules. ....................................................................................................... 33

SECTION 6. AFFIRMATIVE COVENANTS..................................................................................... 33

6.01 Financial Statements .................................................................................................... 33
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6.02 Notices of Material Events ........................................................................................... 37

6.03 Existence; Conduct of Business.................................................................................... 38

6.04 Payment of and Compliance with Obligations .............................................................. 38

6.05 Maintenance of Properties............................................................................................ 39

6.06 Books and Records; Inspection..................................................................................... 39

6.07 Compliance with Laws................................................................................................. 40

6.08 Certain Obligations Respecting Subsidiaries; Further Assurances ................................. 40

6.09 Use of Proceeds............................................................................................................ 41

6.10 Investment Guidelines.................................................................................................. 41

6.11 OFAC .......................................................................................................................... 41

6.12 Financing Subsidiaries ................................................................................................. 41

6.13 Information; Reports.................................................................................................... 41

6.14 USA PATRIOT Act ..................................................................................................... 41

6.15 Compliance Rules. ....................................................................................................... 42

SECTION 7. NEGATIVE COVENANTS ........................................................................................... 42

7.01 Indebtedness ................................................................................................................ 42

7.02 Liens............................................................................................................................ 42

7.03 Fundamental Changes .................................................................................................. 42

7.04 Investments.................................................................................................................. 42

7.05 Restricted Payments..................................................................................................... 42

7.06 Certain Restrictions on Subsidiaries.............................................................................. 42

7.07 Transactions with Affiliates.......................................................................................... 43

7.08 Lines of Business ......................................................................................................... 43

7.09 No Further Negative Pledge ......................................................................................... 43

7.10 Modifications of Certain Agreements ........................................................................... 43

7.11 Hedge Agreements....................................................................................................... 43

7.12 Subsidiary Capitalization.............................................................................................. 43

7.13 Accounts...................................................................................................................... 43

7.14 Payments...................................................................................................................... 44

7.15 Embargoed Person ....................................................................................................... 44

SECTION 8. EVENTS OF DEFAULT................................................................................................ 44

8.01 Events of Default ......................................................................................................... 44

8.02 Remedies ..................................................................................................................... 46

SECTION 9. AGENCY PROVISIONS ............................................................................................... 46

9.01 Appointment ................................................................................................................ 46

9.02 Delegation of Duties..................................................................................................... 47

9.03 Exculpatory Provisions................................................................................................. 47

9.04 Reliance by Administrative Agent ................................................................................ 47

9.05 Notice of Default.......................................................................................................... 47

9.06 Non-Reliance on Administrative Agent ........................................................................ 48

9.07 Resignation and Removal of Administrative Agent....................................................... 48

9.08 Status of Successor Administrative Agent..................................................................... 49

9.09 Merger of the Administrative Agent ............................................................................. 49

9.10 Other Business Relationships ....................................................................................... 49

9.11 Register........................................................................................................................ 50

9.12 Certain Matters Affecting the Administrative Agent ..................................................... 50
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SECTION 10. MISCELLANEOUS ....................................................................................................... 50

10.01 Amendments and Waivers............................................................................................ 50

10.02 Notices......................................................................................................................... 51

10.03 No Waiver; Cumulative Remedies................................................................................ 52

10.04 Survival ....................................................................................................................... 52

10.05 Payment of Expenses, Taxes and Indemnification......................................................... 52

10.06 Successors and Assigns................................................................................................ 53

10.07 Captions....................................................................................................................... 53

10.08 Counterparts and Facsimile .......................................................................................... 53

10.09 Set-Off......................................................................................................................... 54

10.10 Severability.................................................................................................................. 54

10.11 Integration.................................................................................................................... 54

10.12 GOVERNING LAW.................................................................................................... 54

10.13 SUBMISSION TO JURISDICTION; WAIVERS......................................................... 54

10.14 WAIVER OF JURY TRIAL......................................................................................... 55

10.15 Limited Recourse ......................................................................................................... 55

10.16 Acknowledgments........................................................................................................ 55

10.17 Confidentiality ............................................................................................................. 55

10.18 Schedule A................................................................................................................... 56

10.19 Lender in Capacity as an Investor................................................................................. 56

10.20 Limitation of Liability .................................................................................................. 57

10.21 Termination ................................................................................................................. 57
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SCHEDULES

SCHEDULE A Supplement to Loan Agreement 

SCHEDULE B Valuation Process

SCHEDULE 5.13 Subsidiaries

SCHEDULE 5.14 Ownership of Subsidiaries

EXHIBITS

EXHIBIT A Form of Note

EXHIBIT B Form of Notice of Borrowing

EXHIBIT C Form of Financial Statement Certificate

EXHIBIT D Form of Calculation Certificate

EXHIBIT E Form of Guarantee and Security Agreement

EXHIBIT F Form of Custodial Agreement

EXHIBIT G Form of Valuation Administration Agreement

EXHIBIT H Form of Collateral Administration Agreement

EXHIBIT I Form of Secretary’s Certificate
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LOAN AGREEMENT

LOAN AGREEMENT, dated as of the date set forth on Schedule A, by and among the 

BORROWER IDENTIFIED ON THE SIGNATURE PAGES HEREOF (the “Borrower”), THE BANK 

OF NEW YORK MELLON, a New York state chartered bank, as administrative agent (in such capacity, 

together with its successors in such capacity, the “Administrative Agent”) and as collateral agent (in such 

capacity, together with its successors in such capacity, the “Collateral Agent”), and THE UNITED 

STATES DEPARTMENT OF THE TREASURY, as lender (in such capacity, the “Lender”).

RECITALS

The Borrower has requested that the Lender make Loans to it during the Commitment 

Period in an aggregate principal amount not to exceed the Maximum UST Debt Amount at any one time 

outstanding. The Lender is prepared to make such Loans to the Borrower upon the terms and subject to 

the conditions hereof, and, for good and valuable consideration, the receipt and sufficiency of which are 

hereby acknowledged, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.

1.01 Certain Defined Terms. As used herein (including in the preamble and recitals 

hereto), the following terms shall have meanings specified below:

“Accrual Period” shall mean, (a) initially, the period from and including the Effective 

Date to but excluding the first Loan Payment Date and (b) thereafter, each subsequent period from and 

including a Loan Payment Date to but excluding the next Loan Payment Date.

“Administrative Agent” shall have the meaning set forth in the preamble.

“Affiliate” shall have the meaning set forth in the Partnership Agreement.

“Agents” shall mean, together, the Administrative Agent and the Collateral Agent and 

“Agent” shall mean each of them.

“Applicable Margin” shall have the meaning set forth in Schedule A.

“Asset Coverage Ratio” shall have the meaning set forth in Schedule A.

“Asset Coverage Ratio Requirement” shall have the meaning set forth in Schedule A.

“Asset Coverage Test” shall have the meaning set forth in Schedule A.

“Available Amount” shall mean, on any date of determination, an amount equal to the 

lesser of (a) the Capital Commitment Percentage of the aggregate drawn Capital Commitments (excluding 

the amount of drawn Capital Commitments held on such date in the Working Capital Reserve until such 

time as (i) such amounts have been transferred into the Custodial Account or (ii) the Borrower has 

notified the Agents and the Lender that such amounts are to be allocated (and are actually used) to 

purchase Portfolio Investments, in each case as of such date) of all Partners as of such date and (b) the 

Maximum UST Debt Amount as of such date. 

“Bankruptcy Exceptions” shall mean limitations on, or exceptions to, the enforceability 

of an agreement against a Person due to applicable bankruptcy, insolvency, reorganization, moratorium or 
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similar laws affecting the enforcement of creditors’ rights generally or the application of general equitable 

principles, regardless of whether such enforceability is considered in a proceeding at law or in equity.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United 

States.

“Borrower” shall have the meaning set forth in the preamble.

“Borrower Administrative Expenses” shall mean, collectively, for any Collection Period, 

the fees, expenses, liabilities and indemnity obligations (including reasonable fees and expenses of the 

Borrower’s counsel) and other amounts accrued during such Collection Period and due and payable, 

including the fees, expenses and other amounts payable (a) pursuant to the Loan Documents to or in 

respect of (i) the Administrative Agent and Affiliates, employees, directors, officers, advisors, 

administrators, agents and counsel of the Administrative Agent, (ii) the Collateral Agent and Affiliates, 

employees, directors, officers, advisors, administrators, agents and counsel of the Collateral Agent, (iii) 

the Collateral Administrator and Affiliates, employees, directors, officers, advisors, administrators, agents 

and counsel of the Collateral Administrator, (iv) the Custodian and Affiliates, employees, directors, 

officers, advisors, administrators, agents and counsel of the Custodian, (v) the Valuation Agent and 

Affiliates, employees, directors, officers, advisors, administrators, agents and counsel of the Valuation 

Agent and (vi) the Lender and Affiliates, employees, directors, officers, advisors, administrators, agents 

and counsel of the Lender, (b) as UST Management Fees, (c) as Private Vehicle Management Fees and 

(d) without duplication of the foregoing, as Partnership Expenses pursuant to Section 6.3(a)(i) through 

(iv) and clauses (vi) through (ix) of the Partnership Agreement.

“Borrower Documents” shall have the meaning set forth in Section 6.06.

“Broker” shall have the meaning set forth in Schedule B and shall include any successor 

appointed in such capacity in accordance with Section 10.01.

“Business Day” shall mean a day which is not a Saturday, Sunday or other day on which 

banks are authorized or required by law to be closed in New York City or Washington, D.C.; provided

that (i) for purposes of determining LIBOR, the term shall exclude any day on which banks are not open 

for dealing in Dollar deposits in the London interbank eurodollar market and (ii) when used in the 

definition of “Market Value” shall mean any day when markets are open for trading in the relevant 

securities.

“Capital Commitment” shall have the meaning set forth in the Partnership Agreement.

“Capital Commitment Percentage” shall have the meaning set forth in Schedule A.

“Capital Contribution” shall have the meaning set forth in the Partnership Agreement.

“Cash” shall mean any immediately available funds in Dollars.

“Cause” shall have the meaning set forth in the Partnership Agreement.

“Code” shall have the meaning set forth in the Partnership Agreement.

“Collateral” shall have the meaning set forth in the Guarantee and Security Agreement.
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“Collateral Administration Agreement” shall mean the Collateral Administration 

Agreement, dated as of the date set forth on Schedule A, among the Borrower and Collateral 

Administrator, substantially in the form of Exhibit H.

“Collateral Administrator” shall mean The Bank of New York Mellon, not in its 

individual capacity, but solely in its capacity as collateral administrator under the Collateral 

Administration Agreement, and any successor thereto appointed in such capacity in accordance with the 

terms of the Collateral Administration Agreement.

“Collateral Agent” shall have the meaning set forth in the preamble.

“Collection Period” shall mean, (a) initially, the period commencing on the Effective 

Date and ending on and including the next succeeding Determination Date, and (b) thereafter, each period 

commencing on and including the day following each Determination Date and ending on and including 

the next succeeding Determination Date. Notwithstanding the foregoing, the final Collection Period shall 

end on the Maturity Date.

“Collections” shall mean, without duplication, (a) all payments under or in respect of, or 

any proceeds of, any Portfolio Investments, including all proceeds from the Disposition of any Portfolio 

Investments, all amounts received from regularly scheduled repayments of principal or amounts received 

in respect of prepayments of principal, in each case on any Portfolio Investments, and all interest 

payments on any Portfolio Investments;

(b) all Hedge Payments received (on a net basis) from Permitted Hedge 

Counterparties under Permitted Interest Rate Hedges (other than Hedge Payments of the type described in 

clause (b) of the definition thereof);

(c) all amounts returned to the Borrower or any Guarantor from any Permitted 

Hedge Counterparty after release of such amounts from the margin posting requirements under any credit 

support annex benefiting such Permitted Hedge Counterparty; 

(d) amounts received from Financing Subsidiaries in accordance with Section 6.12; 

and

(e) all other payments or proceeds in respect of the Collateral, including any 

insurance proceeds, and any income or return earned on any funds or assets on deposit in the Custodial 

Account and the Interest Reserve Account.

It is understood that amounts constituting drawn Capital Commitments or transferred 

from the Working Capital Reserve into the Custodial Account shall not constitute “Collections”.

“Commitment Period” shall mean the Investment Period as extended for a period no 

longer than sixty (60) days thereafter to the extent that the obligation of UST to make Capital 

Contributions is continuing during such period as provided in Section 3.1(a)(i) of the Partnership 

Agreement.

“Compliance Rules” shall have the meaning set forth in the Partnership Agreement.

“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
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“Contingent Interest Promissory Note” shall have the meaning set forth in the Partnership 

Agreement.

“Contractual Obligation” shall mean, as to any Person, any provision of any agreement, 

instrument or other undertaking to which such Person is a party or by which it or any of its property is

bound or any material provision of any security issued by such Person.

“Control” or “Controlled” shall have the meaning set forth in the Partnership Agreement.

“Controlled Affiliate” shall have the meaning set forth in Section 5.16(a).

“CUSIP” shall have the meaning set forth in the Partnership Agreement.

“Custodial Account” shall have the meaning set forth in Schedule A.

“Custodial Agreement” shall mean the Custodial Agreement, dated as of the date set forth 

on Schedule A, among the Borrower, the Administrative Agent, the Collateral Agent and the Custodian, 

substantially in the form of Exhibit F.

“Custodian” shall mean The Bank of New York Mellon, not in its individual capacity, but 

solely in its capacity as custodian under the Custodial Agreement, and any successor thereto appointed in 

such capacity in accordance with the terms of the Custodial Agreement.

“Default” shall mean any event or condition which constitutes an Event of Default or 

that, with the giving of notice or the passage of time or both, would become an Event of Default.

“Default Priority of Payments” shall have the meaning set forth in Section 2.07(b).

“Default Rate” shall mean 2.00% per annum above the interest rate otherwise applicable 

to the Loans.

“Deliver” shall have the meaning set forth in the Guarantee and Security Agreement.

“Determination Date” shall mean the last Business Day of each month; provided that the 

initial Determination Date shall occur in the month following the month in which the Effective Date 

occurs and the final Determination Date shall occur on the Maturity Date.

“Disabling Event” shall have the meaning set forth in the Partnership Agreement.

“Disposition” shall mean with respect to any Property, any sale, lease, sale and leaseback, 

assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and “Disposed of” 

shall have correlative meanings.

“Distribution Account” shall have the meaning set forth in the Partnership Agreement.

“Dollars” or “$” shall mean lawful currency of the United States.

“EAWA” shall have the meaning set forth in the Partnership Agreement.

“EESA” shall have the meaning set forth in the Partnership Agreement.

“Effective Date” shall have the meaning set forth in Schedule A.
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“Eligible Account” shall have the meaning set forth in the Guarantee and Security 

Agreement.

“Eligible Assets” shall have the meaning set forth in the Partnership Agreement. 

“Eligible Institution” shall have the meaning set forth in the Guarantee and Security 

Agreement.

“Embargoed Person” shall have the meaning set forth in Section 5.17.

“Equity Interests” shall mean any and all equity interests, including any shares of capital 

stock, membership or partnership interests, participations, beneficial interests or other equivalents 

whether certificated or uncertificated (however designated) of a corporation, limited liability company, 

partnership, statutory trust, common law trust or any other entity, and any and all similar ownership 

interests in a Person and any and all warrants, options or other rights entitling the holder thereof to 

purchase or acquire any of the foregoing.

“ERISA” shall have the meaning set forth in the Partnership Agreement.

“ERISA Affiliate” shall mean any corporation or trade or business (whether or not 

incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or 

(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as 

a single employer under Section 414(m) of the Code.

“ERISA Event” shall mean (a) any Reportable Event or a determination that a Plan is “at 

risk” (within the meaning of Section 303 of ERISA); (b) the incurrence by the Borrower, any Subsidiary 

of the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the 

termination of any Plan or the withdrawal or partial withdrawal of the Borrower, any Subsidiary of the 

Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan; (c) the receipt by the Borrower, 

any Subsidiary of the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any 

notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any 

Plan; (d) the receipt by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of any 

notice, or the receipt by any Multiemployer Plan from the Borrower, any Subsidiary of the Borrower or 

any ERISA Affiliate of any notice, that it has incurred or will be assessed Withdrawal Liability or a 

determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the 

meaning of Title IV of ERISA; or (e) the occurrence of a nonexempt Prohibited Transaction with respect 

to which the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is a “disqualified person” 

(within the meaning of Section 4975 of the Code) or with respect to which the Borrower, any Subsidiary 

of the Borrower or any ERISA Affiliate could reasonably be expected to be liable.

“Escrow Account” shall have the meaning set forth in the Partnership Agreement.

“Event of Default” shall have the meaning set forth in Section 8.01.

“Excluded Property” shall have the meaning set forth in the Guarantee and Security 

Agreement.

“Executive Order” shall have the meaning set forth in Section 5.17.

“Feeder Vehicle” shall have the meaning set forth in the Partnership Agreement.
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“Financial Covenants” shall have the meaning set forth in Schedule A.

“Financing Subsidiary” shall mean a direct or indirect wholly owned Subsidiary of the 

Borrower to which any Loan Party sells, conveys or otherwise transfers (whether directly or indirectly) 

Portfolio Investments and/or which otherwise purchases, finances and Disposes of Eligible Assets or 

Temporary Investments, which engages in no other material activities other than in connection with the 

purchase, owning, holding and Disposition of such assets and which is designated by the Borrower (as 

provided below) as a Financing Subsidiary and which at all times is in compliance with the following:

(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) 

of such Financing Subsidiary (i) is guaranteed by any Loan Party, (ii) is recourse to or obligates 

any Loan Party in any way, other than through the giving of customary representations, 

warranties and indemnities in connection with (x) purchase and trading agreements entered into 

in the ordinary course in connection with transactions involving Eligible Assets and that could not 

reasonably be expected to result in a Material Adverse Effect or (y) the participation of such 

Subsidiary in a TALF MLSA or any related customer agreement with a primary dealer that is 

required as a condition by the Federal Reserve Bank of New York or such primary dealer to such 

participation, or (iii) subjects any Property of any Loan Party, directly or indirectly, contingently 

or otherwise, to the satisfaction thereof,

(b) no Loan Party has any material contract, agreement, arrangement or 

understanding with such Financing Subsidiary other than on terms no less favorable to such Loan 

Party than those that might be obtained at the time from Persons that are not Affiliates of any 

Loan Party (other than as permitted by clause (a) above), and

(c) no Loan Party has any obligation to maintain or preserve such Financing 

Subsidiary’s financial condition or cause such Financing Subsidiary to achieve certain levels of 

operating results.

Any such designation by the Borrower of a Subsidiary as a Financing Subsidiary shall be effected 

pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent and Lender, 

which certificate shall include a statement to the effect that, to the best of such officer’s knowledge, such 

designation complied with the foregoing conditions. Each Subsidiary of a Financing Subsidiary shall be 

deemed to be a Financing Subsidiary and shall comply with the foregoing requirements of this definition.

“Foreign Assets Control Regulation” shall have the meaning set forth in Section 5.17.

“Funding Date” shall have the meaning set forth in Section 2.03(a).

“Fund Managers” shall mean each of (a) AllianceBernstein, LP; (b) Angelo, Gordon & 

Co., L.P. and GE Capital Real Estate (who, for the avoidance of doubt, shall be deemed a single Fund 

Manager); (c) BlackRock, Inc.; (d) Invesco Ltd.; (e) Marathon Asset Management, L.P.; (f) Oaktree 

Capital Management, L.P.; (g) RLJ Western Asset Management, LP.; (h) The TCW Group, Inc.; and (i) 

Wellington Management Company, LLP, but only to the extent any of the foregoing fund managers 

continues to manage a borrower or fund that is continuing to participate in the Initial PPIP.

“GAAP” shall mean generally accepted accounting principles in the United States as in 

effect from time to time, including in respect of interim statements; provided, however, that if there

occurs after the date hereof any change in GAAP that affects in any respect the calculation of any 

covenant contained in Section 7 or the calculation of any Financial Covenant, the Lender and the 

Borrower shall negotiate in good faith amendments to the provisions of this Loan Agreement that relate to 
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the calculation of such covenant or Financial Covenant with the intent of having the result of the 

calculation formula of any such covenant or Financial Covenant after such change in GAAP conform as 

nearly as possible to the result of the calculation formula of any such covenant or Financial Covenant as 

of the date of this Loan Agreement and, until any such amendments have been agreed upon, the covenants 

in Section 7 and the Financial Covenants shall be calculated as if no such change in GAAP has occurred. 

“GAO” shall have the meaning set forth in the Partnership Agreement.

“General Partner” shall have the meaning set forth in Schedule A.

“General Partner Group” shall have the meaning set forth in the Partnership Agreement.

“General Partner Group Documents” shall have the meaning set forth in Annex B to the 

Partnership Agreement.

“Governmental Authority” shall mean, with respect to any Person, any nation or 

government, any state or other political subdivision thereof, any agency, authority, instrumentality, 

regulatory body, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory 

or administrative functions of or pertaining to government, any securities exchange and any selfregulating organization and any court or arbitrator, in each case having jurisdiction over such Person, any 

of its Subsidiaries or any of its properties.

“Guarantee and Security Agreement” shall mean the Guarantee and Security Agreement, 

dated as of the date set forth on Schedule A, between the Borrower, the Lender, the Administrative Agent 

and the Collateral Agent, on behalf of the Secured Parties referenced therein, substantially in the form of 

Exhibit E.

“Guarantee Assumption Agreement” shall mean a Guarantee Assumption Agreement 

substantially in the form of Exhibit B to the Guarantee and Security Agreement between the Collateral 

Agent and an entity that, pursuant to Section 6.08(a), is required to become a “Guarantor” under the 

Guarantee and Security Agreement (with such changes as the Collateral Agent shall request, consistent 

with the requirements of Section 6.08(a)).

“Guarantee Obligation” shall mean, as to any Person (the “guaranteeing person”), any 

obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person 

that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by 

another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any 

Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person 

(the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the 

guaranteeing person, whether or not contingent, (a) to purchase any such primary obligation or any 

property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the 

purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital 

of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to 

purchase property, securities or services primarily for the purpose of assuring the owner of any such 

primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) 

otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect 

thereof; provided, however, that the term Guarantee Obligation shall not include (x) endorsements of 

instruments for deposit or collection in the ordinary course of business or customary representations, 

warranties and indemnities in connection with purchase and trading agreements entered into in the 

ordinary course in connection with transactions involving Eligible Assets or (y) guarantees of any 

Financing Subsidiary. The amount of any Guarantee Obligation of any guaranteeing person shall be 
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deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary 

obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which 

such guaranteeing person may be liable pursuant to the terms of the instrument embodying such 

Guarantee Obligation, unless such primary obligation and the maximum amount for which such 

guaranteeing person may be liable are not stated or determinable, in which case the amount of such 

Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in 

respect thereof as determined by the Borrower in good faith.

“Guarantor” shall mean, at any time, each Subsidiary of the Borrower that, at such time, 

is a guarantor under the Guarantee and Security Agreement (it being understood that, except as required 

by Section 6.08, no Financing Subsidiary shall be required to become a Guarantor).

“Hedge Agreement” shall mean any agreement with respect to any swap, forward, future 

or derivative transaction or option or similar agreement involving, or settled by reference to, one or more

rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing 

indices or measures of economic, financial or pricing risk or value or any similar transaction or any 

combination of these transactions.

“Hedge Payments” shall mean (a) any amounts in respect of any periodic, termination or 

other payments (excluding the posting of margin) due and owing at such time under Permitted Interest 

Rate Hedges, (b) any amounts required to be posted or pledged as collateral in respect of margin 

requirements under the terms of any credit support annex of a Permitted Interest Rate Hedge entered into 

in connection with a Permitted Interest Rate Hedge and (c) any amounts constituting interest payable 

under any applicable credit support annex in respect of amounts posted or pledged as margin and held as 

collateral under such credit support annex.

“Indebtedness” of any Person, shall mean, at any date, without duplication, (a) all 

indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred 

purchase price of property or services (other than trade payables incurred in the ordinary course of such 

Person’s business and not more than sixty (60) days past due unless otherwise being contested by 

appropriate proceedings), (c) all obligations of such Person evidenced by notes, bonds, debentures or 

other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title 

retention agreement with respect to Property acquired by such Person (even though the rights and 

remedies of the seller or lender under such agreement in the event of default are limited to repossession or 

sale of such property), (e) all capital lease obligations of such Person, (f) all obligations of such Person, 

contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of 

credit, surety bonds or similar arrangements, (g) the liquidation value of all mandatorily redeemable 

preferred Equity Interests of such Person, (h) all Guarantee Obligations of such Person in respect of 

obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred 

to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing 

right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract 

rights) owned by such Person, whether or not such Person has assumed or become liable for the payment 

of such obligation, and (j) all net obligations of such Person in respect of Hedge Agreements. The 

amount of any Indebtedness of any Person for purposes of clause (i) above shall be deemed to be equal to 

the lower of (x) the aggregate unpaid amount of such Indebtedness or (y) the fair market value of the 

Property encumbered on a non-recourse basis to secure such Indebtedness. The Indebtedness of any 

Person shall include the Indebtedness of any other entity (including any partnership in which such Person 

is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership 

interest in or other relationship with such entity, except to the extent the terms of such Indebtedness 

expressly provide that such Person is not liable therefor. The amount of any net obligations in respect of 

Hedge Agreements on any date shall be deemed to be the Swap Termination Value.
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095331-0005-11656-Active.11663739

“Indemnified Liabilities” shall have the meaning set forth in Section 10.05.

“Indemnitee” shall have the meaning set forth in Section 10.05.

“Information” shall have the meaning set forth in Section 10.17.

“Initial PPIP” shall mean the initial round of the PPIP, as described in the Joint Statement 

by Secretary of the Treasury Timothy F. Geithner, Chairman of the Board of Governors of the Federal

Reserve System Ben S. Bernanke, and Chairman of the Federal Deposit Insurance Corporation Sheila 

Bair on the Legacy Asset Program, dated July 8, 2009 and available at http://www.ustreas.gov.

“Interest Amount” shall mean, with respect to any Loan Payment Date, the amount of 

interest accrued on the Principal Amount from time to time outstanding during the preceding Accrual 

Period.

“Interest Reserve Account” shall have the meaning set forth in Schedule A. 

“Investment” shall mean, for any Person, (a) Equity Interests, bonds, notes, debentures, 

other securities or other assets constituting a business unit of any other Person or any acquisition of any 

Equity Interests, bonds, notes, debentures, other securities or other assets constituting a business unit of, 

or any other investment in, any other Person (including any “short sale” or any sale of any securities at a 

time when such securities are not owned by the Person entering into such sale or any total return swap 

pursuant to which such Person acquires the economic risk of ownership of any of the foregoing), (b) 

deposits, advances, loans, other extensions of credit (by way of guaranty or otherwise) or capital 

contributions made to any other Person (including purchases of Property from another Person subject to

an understanding or agreement, contingent or otherwise, to resell such property to such Person) and (c) 

Hedge Agreements.

“Investment Company Act” shall mean the Investment Company Act of 1940, as 

amended.

“Investment Guidelines” shall have the meaning set forth in the Partnership Agreement.

“Investment Period” shall have the meaning set forth in the Partnership Agreement. 

“ISIN” shall have the meaning set forth in the Partnership Agreement.

“Key Person” shall have the meaning set forth in the Partnership Agreement.

“Key Person Event” shall have the meaning set forth in the Partnership Agreement.

“Lender” shall have the meaning set forth in the preamble.

“LIBOR” shall mean the rate for eurodollar deposits for a period equal to one month 

appearing on Reuters Screen LIBOR01 Page or if such rate ceases to appear on Reuters Screen LIBOR01 

Page, on any other service providing comparable rate quotations at approximately 11:00 a.m., London 

time on the date of determination. LIBOR shall be determined for each Accrual Period on the second 

Business Day preceding the first day of such Accrual Period.

“Lien” shall mean, with respect to any Property, (a) any mortgage, deed of trust, lien 

(statutory or otherwise), pledge, hypothecation, assignment, deposit arrangement, encumbrance, charge or 
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095331-0005-11656-Active.11663739

security interest in, on or of such asset or any preference, priority or other security agreement or 

preferential arrangement of any kind or nature whatsoever, (b) the interest of a vendor or a lessor under 

any conditional sale agreement, capital lease or title retention agreement (or any financing lease having 

substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of 

securities, any purchase option, call or similar right of a third party with respect to such securities, except 

in favor of the issuer thereof.

“Limited Partners” shall have the meaning set forth in the Partnership Agreement.

“Loan” shall have the meaning set forth in Section 2.01(a).

“Loan Agreement” shall mean this Loan Agreement.

“Loan Documents” shall mean this Loan Agreement, any Note, the Security Documents, 

the Collateral Administration Agreement, the Valuation Administration Agreement, and all other 

documentation entered into in connection with the transactions contemplated under such documents (it 

being understood that documentation related to Permitted Interest Rate Hedges, other than the Security 

Documents, if applicable, shall not be considered Loan Documents).

“Loan Parties” shall mean, collectively, the Borrower and the Guarantors, and “Loan 

Party” shall mean each of them.

“Loan Payment Date” shall mean the tenth (10th) Business Day following each 

Determination Date; provided that the final Loan Payment Date shall occur on the Maturity Date.

“Majority Fund Managers” shall mean, at any date, a majority of the number of Fund 

Managers then participating in the Initial PPIP at such date. The Majority Fund Managers shall be 

determined without regard to the number of borrowers or the volume or amount of assets that any such 

Fund Manager may be managing as part of the Initial PPIP.

“Margin Stock” shall mean “margin stock” within the meaning of Regulations T, U and 

X.

“Market Value” shall mean, as of any date of determination,

(a) with respect to each Eligible Asset, the value of such Eligible Asset as determined by 

the Valuation Agent as of the applicable Measurement Date and delivered to the Borrower and 

the Agents, in each case in accordance with the Valuation Process;

(b) with respect to each Temporary Investment (other than Cash), the value of such 

Temporary Investment as determined by the Valuation Agent as of the applicable Measurement 

Date and delivered to the Borrower and the Agents, in each case in accordance with the Valuation 

Process; and

(c) with respect to any Cash in the Custodial Account or the Interest Reserve Account, 

100% of its par amount.

“Mark to Model Valuation Provider” shall have the meaning set forth in Schedule B and 

shall include any successor appointed in such capacity in accordance with Section 10.01.
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“Material Adverse Effect” shall mean a material adverse effect on (a) the business, 

assets, liabilities, property or condition (financial or otherwise) of the Loan Parties and their Subsidiaries 

(taken as a whole), (b) the ability of the Loan Parties (taken as a whole) to perform their obligations under 

the Loan Documents to which the Loan Parties are a party, (c) the validity or enforceability of any of the 

Loan Documents to which they are a party, (d) the rights and remedies of the Administrative Agent, the 

Collateral Agent or the Lender under any of the Loan Documents, or (e) the Collateral (taken as a whole).

“Maturity Date” shall mean the earliest of (i) the tenth anniversary of the Effective Date, 

(ii) the date of expiration, termination or dissolution of the Borrower, and (iii) such earlier time as the 

Obligations have been accelerated pursuant to Section 8.02.

“Maximum UST Debt Amount” shall have the meaning set forth in Schedule A.

“Measurement Date” shall mean:

(a) with respect to the calculation of the Market Value of Portfolio Investments for 

purposes of the calculation of the Asset Coverage Test and the Asset Coverage Ratio 

Requirement pursuant to Sections 2.07(a)(v) and (viii) and Section 6.01(d), respectively, the last 

Business Day of each month; provided that the initial Measurement Date under this clause (a) 

shall occur in the month following the month in which the Effective Date occurs; and

(b) with respect to the calculation of the Market Value of Portfolio Investments for 

purposes of determining (i) compliance with the Asset Coverage Test pursuant to Section 

2.07(c)(i)(B), (ii) compliance with the Financial Covenants pursuant to Section 4.02(b)(v), (iii) 

compliance with the Financial Covenants pursuant to clause (b) of the definition of “Permitted 

Investments”, (iv) the Market Value of Portfolio Investments for purposes of Section 7.01(a) of 

the Guarantee and Security Agreement and (v) any other applicable provision in the Loan 

Documents, the last Business Day immediately preceding the date of such calculation for which a 

Market Value has been calculated pursuant to Part I and Part III, as applicable, of the Valuation 

Process, and delivered by the Valuation Agent to the Borrower and the Agents as required 

pursuant to the Valuation Process.

“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37) 

of ERISA to which contributions are required to be made by the Borrower, any Subsidiary of the 

Borrower or any ERISA Affiliate or to which the Borrower, any Subsidiary of the Borrower or any 

ERISA Affiliate could reasonably be expected to have any direct or indirect liability or obligation, 

contingent or otherwise.

“Net Interest Income” shall mean, for any period, with respect to the Loan Parties, the 

sum of (i) all Cash interest income and Cash fees received on all Portfolio Investments owned directly by 

such Loan Parties during such period, plus (ii) all Cash dividends or similar distributions actually 

received by a Loan Party from a Financing Subsidiary during such period that are attributable to interest 

income or fees on Portfolio Investments (i.e., not constituting a return of capital) owned by such 

Financing Subsidiary, less (iii) Cash interest expense incurred by the Loan Parties during such period 

with respect to any Indebtedness of such Loan Parties.

“Non-Default Priority of Payments” shall have the meaning set forth in Section 2.07(a).

“Note” shall mean the promissory note provided for by Section 2.02(a) for the Loans and 

any promissory note delivered in substitution or exchange therefor.
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“Notice of Borrowing” shall have the meaning set forth in Section 2.03(a).

“Obligations” shall mean collectively, the unpaid principal of and interest on (including 

interest accruing at the then applicable rate provided herein after the maturity of the Loans and after the 

filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like 

proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is 

allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the 

Administrative Agent, the Collateral Agent, the Collateral Administrator, the Custodian, the Valuation 

Agent or the Lender, whether direct or indirect, absolute or contingent, due or to become due, or now 

existing or hereafter incurred, which may arise under, out of, or in connection with, this Loan Agreement, 

any other Loan Document, or any other document made, delivered or given in connection with any of the 

foregoing, in each case whether on account of principal, interest, fees, prepayment premiums, 

indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the 

Administrative Agent, the Collateral Agent, the Collateral Administrator, the Custodian, the Valuation 

Agent or the Lender that are required to be paid by the Borrower pursuant to the terms of any of the 

foregoing agreements).

“OFAC” shall have the meaning set forth in the Partnership Agreement.

“Partners” shall have the meaning set forth in the Partnership Agreement.

“Partnership” shall have the meaning set forth in Schedule A. 

“Partnership Agreement” shall have the meaning set forth in Schedule A.

“Partnership Expenses” shall have the meaning set forth in the Partnership Agreement.

“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding 

to any or all of its functions under ERISA.

“Permitted Borrower Administrative Expenses” shall mean Borrower Administrative 

Expenses, other than the UST Management Fee and Private Vehicle Management Fees.

“Permitted Hedge Counterparty” shall mean the counterparty to each Permitted Interest 

Rate Hedge.

“Permitted Indebtedness” shall have the meaning set forth in Schedule A.

“Permitted Interest Rate Hedges” shall mean any Hedge Agreement designed to hedge 

against interest rate mismatches between Indebtedness otherwise permitted by this Loan Agreement and 

Eligible Assets or that is otherwise designed to reduce the Borrower’s or any of its Subsidiaries’ exposure 

to changes in prevailing interest rates, including interest rate caps and collars.

“Permitted Investments” shall have the meaning set forth in Schedule A.

“Permitted Liens” shall have the meaning set forth in Schedule A.

“Permitted Secured Hedge Counterparty” shall mean a counterparty to a Permitted 

Secured Interest Rate Hedge.
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“Permitted Secured Interest Rate Hedge” shall have the meaning set forth in the 

Guarantee and Security Agreement.

“Person” shall have the meaning set forth in the Partnership Agreement.

“Plan” shall mean an employee benefit or other plan covered by Title IV of ERISA, other 

than a Multiemployer Plan, that is sponsored, established, contributed to or maintained by the Borrower, 

any Subsidiary of the Borrower or any ERISA Affiliate, or for which the Borrower, any Subsidiary of the 

Borrower or any ERISA Affiliate could reasonably be expected to have any liability, whether actual or 

contingent (whether pursuant to Section 4069 of ERISA or otherwise).

“Portfolio Investments” shall mean Eligible Assets and Temporary Investments of the 

Borrower and its Subsidiaries, but excluding any Equity Interests in any Subsidiaries owned by the 

Borrower.

“PPIP” shall have the meaning set forth in the Partnership Agreement.

“Prepayment Percentage” shall have the meaning set forth in Schedule A.

“Prime Rate” shall have the meaning set forth in the Partnership Agreement.

“Principal Amount” shall mean the aggregate principal amount of Loans outstanding as 

of any date of determination. 

“Priority of Payments” shall have the meaning set forth in Section 2.07(b).

“Private Investors” shall have the meaning set forth in the Partnership Agreement.

“Private Vehicle Documents” shall have the meaning set forth in the Partnership 

Agreement.

“Private Vehicle Management Fees” shall mean management fees payable by Private 

Investors.

“Private Vehicles” shall have the meaning set forth in the Partnership Agreement.

“Pro Forma” shall mean:

(a) with respect to the calculation of the Asset Coverage Test pursuant to Section 

2.07(a)(v) and Section 6.01(d), respectively, that such test shall be calculated as of the relevant 

date of calculation thereof (without recalculating the Market Value of Total Assets) after giving 

effect to (i) the repayment of any Principal Amount made pursuant to Section 2.07(a)(v) and (ii) 

all distributions and payments made (or to be made) pursuant to clauses (i) through (iv) of the 

Non-Default Priority of Payments (for the avoidance of doubt, payments under clause (i) or (ii) of 

this clause (a) shall reduce the aggregate amount of Total Assets); 

(b) with respect to the calculation of the Asset Coverage Ratio Requirement pursuant 

to Section 2.07(a)(viii), that such requirement shall be calculated as of the relevant date of 

calculation thereof (without recalculating the Market Value of Total Assets) after giving effect to 

all distributions and payments made (or to be made) pursuant to clauses (i) through (viii) of the 
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095331-0005-11656-Active.11663739

Non-Default Priority of Payments (for the avoidance of doubt, all such distributions and

payments shall reduce the aggregate amount of Total Assets); 

(c) with respect to the calculation of (i) the Asset Coverage Test pursuant to Section 

2.07(c)(i)(B), (ii) the calculation of the Financial Covenants pursuant to Section 4.02(b)(v) and 

clause (b) of the definition of “Permitted Investments” and (iii) any other applicable provision in 

the Loan Documents, that such test shall be calculated as of the relevant date of calculation 

thereof after giving effect to, without duplication, (A) any borrowing or incurrence of any Loans 

made (or to be made) on such date of calculation, (B) any prepayment or repayment of any 

Loans, if any, made (or to be made) on such date of calculation, (C) if such calculation date is a 

Loan Payment Date, all distributions and payments made (or to be made) pursuant to the Priority 

of Payments on such date of calculation and (D) the use, Disposition and withdrawal from the 

Custodial Account and the Interest Reserve Account of any Cash (including the Disposition of 

any Temporary Investment for Cash, with the Market Value for such Disposed Temporary 

Investment being adjusted to reflect the actual amount of Cash received in connection with such 

Disposition) for the purpose of purchasing Portfolio Investments and the purchase of such

Portfolio Investments, with the Market Value of such Portfolio Investments being deemed to be 

the purchase price thereof; provided that, except for a Disposition of Temporary Investments as 

contemplated in clause (D) above, with respect to any Disposition of a Portfolio Investment, the 

Borrower shall not account for such Disposition in its Pro Forma calculations until the settlement 

date of such Disposition; provided, further, that, with respect to the foregoing calculations, for 

purposes of making such calculations, after the giving of any Notice of Borrowing, the Borrower 

shall make such calculations by including the aggregate principal amount of Loans that will be 

incurred by the Borrower on the applicable Funding Date and the receipt of the net cash proceeds 

thereof; and

(d) with respect to the calculation of the Required Interest Reserve Amount pursuant 

to Section 2.07(c)(i)(D), that such amount shall be as determined after giving effect to the Priority 

of Payments applications on the preceding Loan Payment Date.

“Pro Rata Shares” shall have the meaning set forth in the Partnership Agreement.

“Prohibited Jurisdiction” shall mean, any country or jurisdiction, from time to time, that 

is the subject of a prohibition order (or any similar order or directive), sanctions or restrictions 

promulgated or administered by any Governmental Authority of the United States.

“Prohibited Person” shall mean any Person:

(a) subject to the provisions of the Executive Order;

(b) that is owned or Controlled by, or acting for or on behalf of, any person or entity 

that is subject to the provisions of, the Executive Order;

(c) with whom the Lender is prohibited from dealing or otherwise engaging in any 

transaction by any Requirement of Law, including the Executive Order;

(d) who commits, threatens or conspires to commit or supports “terrorism” as 

defined in the Executive Order;

(e) that is named as a “specially designated national and blocked person” on the 

most current list published by the OFAC at its official website, 
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095331-0005-11656-Active.11663739

http://www.treas.gov.ofac/t11sdn.pdf or at any replacement website or other replacement official 

publication of such list; or

(f) who is an Affiliate of or affiliated with a Person listed above.

“Prohibited Transaction” shall mean any transaction that is proscribed by Section 406 of 

ERISA and Section 4975(f)(3) of the Code.

“Property” shall mean any right or interest in or to property or asset of any kind 

whatsoever, whether real, personal or mixed and whether tangible or intangible.

“Register” shall have the meaning set forth in Section 9.11.

“Regulations T, U and X” shall mean, respectively, Regulations T, U and X of the Board 

(or any successor).

“Related Parties” shall mean, with respect to any specified Person, such Person’s 

Affiliates and the respective directors, officers, employees, administrators, counsel, agents, advisors and 

Controlling persons of such Person and such Person’s Affiliates.

“Relevant Person” shall have the meaning set forth in the Partnership Agreement.

“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA, 

other than those events as to which the thirty (30) day notice period is waived.

“Required Interest Reserve Amount” shall mean (a) on any Loan Payment Date, an 

amount equal to the amount of interest that the Collateral Administrator reasonably determines will 

accrue on the Principal Amount during the three Accrual Periods (or, if fewer Accrual Periods remain 

prior to and including the Maturity Date, such actual number of remaining Accrual Periods) 

commencing with the Accrual Period commencing on such date, based on the interest rate applicable to 

the Loans on such date and taking into account the effect of any Permitted Interest Rate Hedges (i.e., 

reduced by the amount of any ordinary expected swap receipts or increased by the amount of any 

ordinary anticipated swap payments other than margin payments) and (b) on any date of determination 

other than a Loan Payment Date, the amount of interest that the Collateral Administrator reasonably 

determines will accrue on the Principal Amount during the period beginning from and including the 

first day of the then-current Accrual Period through the two subsequent Accrual Periods (or, if fewer 

Accrual Periods remain prior to and including the Maturity Date, such actual number of remaining 

Accrual Periods) based on the interest rate applicable to the Loans on such date and taking into account 

the effect of any Permitted Interest Rate Hedges. 

“Requirement of Law” shall mean, with reference to any Person, all laws (including 

common law and requirements under EESA and EAWA), statutes, rules, regulations, ordinances, treaties, 

judgments, decrees, injunctions, writs, determinations and orders of any arbitrator or a court, 

governmental agency or authority and rules, regulations, orders, directives, licenses and permits of any 

Governmental Authority applicable to such Person or its property or in respect of its operations or to 

which such Person or any of its property is subject.

“Responsible Officer” shall mean, (a) with respect to any Person that is a corporation or a 

limited liability company, any individual holding the position of chief executive officer, president, vice 

president, chief financial officer or treasurer, (b) with respect to any Person that is a partnership (i) any 

general partner or managing partner of such Person and any individual holding the position of chief 
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095331-0005-11656-Active.11663739

executive officer, president, vice president, chief financial officer or treasurer or other authorized officer 

of the general partner or managing partner of such Person or (ii) if the general partner of such partnership 

is itself a partnership, any individual holding one of the foregoing positions of such general partner, (c) 

with respect to any other Person, the designated officers of such Person, in each case whose name appears 

on a certificate of incumbency of such Person delivered in accordance with this Loan Agreement or the 

other Loan Documents, as such certificate may be amended from time to time and (d) with respect to the 

Administrative Agent, the Collateral Agent, the Collateral Administrator, the Valuation Agent or the 

Custodian, in each case, an individual having direct responsibility for the administration of this Loan 

Agreement and/or the Valuation Process. 

“Restricted Payment” shall mean any dividend or other distribution (whether in Cash, 

securities or other property) with respect to any shares of any class of Equity Interests of the Borrower, or 

any payment (whether in Cash, securities or other property), including any set aside of assets for any

sinking or analogous fund or similar deposit, on account of the purchase, redemption, defeasance, 

retirement, acquisition, cancellation or termination of any such Equity Interests, whether now or hereafter 

outstanding, or any option, warrant or other right to acquire any such shares of Equity Interests.

“Reuters Screen LIBOR01 Page” shall mean the display page currently so designated on 

the Reuters Monitor Money Rates Service (or such other page as may replace that page on that service for 

the purpose of displaying comparable rates or prices).

“Secondary Person” shall have the meaning set forth in the Partnership Agreement.

“Secured Obligations” shall have the meaning set forth in the Guarantee and Security 

Agreement.

“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral 

Agent, the Lender and any Permitted Secured Hedge Counterparty.

“Security Documents” shall mean, collectively, the Guarantee and Security Agreement, 

the Custodial Agreement, all Uniform Commercial Code financing statements filed with respect to the 

security interests in personal property created pursuant to the Guarantee and Security Agreement and all 

other assignments, pledge agreements, security agreements, control agreements and other instruments 

executed and delivered on or after the date hereof by any of the Loan Parties pursuant to the Guarantee 

and Security Agreement or otherwise providing or relating to any collateral security for any of the 

Secured Obligations under and as defined in the Guarantee and Security Agreement.

“Side Letters” shall have the meaning set forth in the Partnership Agreement.

“SIGTARP” shall have the meaning set forth in the Partnership Agreement.

“Subadvisors” shall have the meaning set forth in the Partnership Agreement.

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership or other 

entity of which at least a majority of the securities or other ownership interests having by the terms 

thereof ordinary voting power (other than securities or other ownership interests having such power only 

by reason of the happening of a contingency) to elect a majority of the board of directors or other persons 

performing similar functions of such corporation, partnership, limited liability company or other entity, or 

the management of which is otherwise directly or indirectly Controlled by such Person or one or more 

Subsidiaries of such Person. Unless otherwise qualified, all references to “Subsidiary” or “Subsidiaries” 

in this Loan Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
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095331-0005-11656-Active.11663739

“Swap Termination Value” shall mean in respect of one or more Hedge Agreements to 

which any Person may be a party (a) for any date on or after the date of such Hedge Agreement that has 

been closed out and termination value(s) determined in accordance therewith, such termination value(s) 

and (b) for any date prior to the date referenced in clause (a), the amount(s) determined based upon one or 

more mid-market or readily available quotations provided by any recognized dealer in such Hedge 

Agreements.

“TALF MLSA” shall mean a Master Loan and Security Agreement among Federal 

Reserve Bank of New York, as lender, each of the primary dealers from time to time party thereto, each 

on behalf of itself and its respective customers as borrowers thereunder from time to time, The Bank of 

New York Mellon, as administrator, and The Bank of New York Mellon, as custodian, in connection with 

Federal Reserve Bank of New York’s Term Asset-Backed Securities Loan Facility, as amended, modified 

or supplemented from time to time by the Federal Reserve Bank of New York.

“Temporary Investment Income” shall have the meaning set forth in the Partnership 

Agreement.

“Temporary Investments” shall have the meaning set forth in the Partnership Agreement.

“Total Assets” shall mean with respect to any Person, on each Measurement Date, an 

amount equal to the Market Value of all Eligible Assets and Temporary Investments (including those held 

in the Interest Reserve Account) of such Person as determined in accordance with the Valuation Process 

as of each relevant Measurement Date and delivered by the Valuation Agent to the Borrower and the 

Agents, as required pursuant to the Valuation Process; provided that “Total Assets” shall not include 

Excluded Property.

“Trading with the Enemy Act” shall have the meaning specified in Section 5.17.

“Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from 

time to time in the State of New York; provided that if by reason of mandatory provisions of law, the 

perfection or the effect of perfection or non-perfection of the security interest in any Collateral is 

governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform 

Commercial Code” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for 

purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection.

“United States” or “U.S.” shall have the meaning set forth in the Partnership Agreement.

“USA PATRIOT Act” shall have the meaning set forth in Section 5.16(d).

“UST” shall mean the United States Department of the Treasury. 

“UST Management Fee” shall have the meaning set forth in the Partnership Agreement.

“UST Reallocation” shall have the meaning set forth in the Partnership Agreement.

“Valuation Administration Agreement” shall mean the Valuation Administration 

Agreement, dated as of the date set forth on Schedule A, among the Borrower and the Valuation Agent, 

substantially in the form of Exhibit G.

“Valuation Agent” shall mean The Bank of New York Mellon, not in its individual 

capacity, but solely in its capacity as valuation agent under the Valuation Administration Agreement, and 
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any successor thereto appointed in such capacity in accordance with the terms of the Valuation 

Administration Agreement.

“Valuation Process” shall mean the Valuation Process for Determining Market Value of 

Portfolio Investments, substantially in the form of Schedule B.

“Vendor” shall have the meaning set forth in Schedule B and shall include any successor 

appointed in such capacity in accordance with Section 10.01.

“Withdrawal Liability” shall mean any liability to a Multiemployer Plan as a result of a 

complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of 

ERISA.

“Working Capital Reserve” shall have the meaning set forth in the Partnership 

Agreement.

1.02 Interpretation, Etc. Any of the terms defined herein may, unless the context 

otherwise requires, be used in the singular or the plural depending on the reference. A gender includes all 

genders. References herein to any Section, Schedule or Exhibit shall be to a Section, a Schedule or an 

Exhibit, as the case may be, of this Loan Agreement unless otherwise specifically provided. Any 

reference to an agreement or document shall be deemed to include all exhibits, annexes, appendices and 

schedules thereto. The use herein of the word “include” or “including”, when following any general 

statement, term or matter shall not be construed to limit such statement, term or matter to the specific 

items or matters set forth immediately following such word or to similar items or matters, whether or not 

non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is 

used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within 

the broadest possible scope of such general statement, term or matter. The terms “asset” and “property” 

shall be construed to have the same meaning and effect and refer to any and all tangible and intangible 

assets and properties, including Cash, Equity Interests, securities, revenues, accounts, leasehold interests 

and contract rights. The words “hereof”, “herein” and “hereunder”, and words of similar import, when 

used in any Loan Document shall refer to such Loan Document as a whole and not to any particular 

provision of such Loan Document. The terms lease and license shall include any sub-lease and sublicense, as applicable. In the computation of a period of time from a specified date to a later date, the 

word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. 

In addition, (a) references herein to agreements and other Contractual Obligations shall be deemed to 

include all subsequent amendments, restatements, novations, modifications, supplements, changes, 

replacements and waivers to such instruments, but only to the extent that such amendments, restatements, 

novations, modifications, supplements, replacements, changes and waivers are permitted or not prohibited 

by the terms of this Loan Agreement or the affected agreement or Contractual Obligation and references 

herein to any defined term, section, clause or article of such agreements or Contractual Obligations shall 

be deemed to refer to such defined term, section, clause or article of such agreements or Contractual 

Obligations, as amended, restated or replaced, as appropriate, (b) references herein to Requirements of 

Law are to be construed as including all statutory provisions consolidating, amending, substituting, reenacting, modifying or replacing the Requirement of Law to which reference is made and all rules and 

regulations promulgated pursuant to such Requirement of Law, (c) references herein to Persons include 

their respective successors and permitted assigns and, in the case of any Governmental Authority, any 

Person succeeding to any of its functions and capacities and (d) references to days shall refer to calendar 

days, unless Business Days are specified; references to weeks, months or years shall be to calendar 

weeks, months or years, respectively. 
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A reference to a document includes an agreement (as so defined) in writing or a 

certificate, notice, instrument or document, or any information recorded in computer disk form. Where a 

Loan Party is required to provide any document to the Administrative Agent, the Collateral Agent or the 

Lender under the terms of this Loan Agreement, the relevant document shall be provided in electronic 

form (as defined in Section 6.06(a)) or both printed and electronic form unless the Administrative Agent, 

the Collateral Agent or the Lender requests otherwise.

This Loan Agreement is the result of negotiations among, and has been reviewed by 

counsel to, the Administrative Agent, the Collateral Agent, the Lender and the Loan Parties, and is the 

product of all parties. In the interpretation of this Loan Agreement, no rule of construction shall apply to 

disadvantage one party on the ground that such party proposed or was involved in the preparation of any 

particular provision of this Loan Agreement or this Loan Agreement itself. Except where otherwise 

expressly stated, the Administrative Agent, the Collateral Agent or the Lender may give or withhold, or 

give conditionally, approvals and consents and may form opinions and make determinations at its 

absolute discretion. Any requirement of good faith, discretion or judgment by the Administrative Agent, 

the Collateral Agent or the Lender shall not be construed to require the Administrative Agent, the 

Collateral Agent or the Lender to request or await receipt of information or documentation from or with 

respect to the Borrower, any other Loan Party or any other Person.

1.03 Accounting Terms and Determinations. Except as otherwise expressly 

provided herein, all accounting terms used herein and not defined herein shall be interpreted, and all 

financial statements and certificates and reports as to financial matters required to be delivered to the 

Administrative Agent, the Collateral Agent or the Lender hereunder shall be prepared, in accordance with 

GAAP.

SECTION 2. LOANS, NOTE AND PAYMENTS.

2.01 Loans.

(a) Subject to the terms and conditions hereof, the Lender agrees to make term loans 

(individually, a “Loan” and collectively, the “Loans”) from time to time during the Commitment Period, 

to the Borrower in Dollars, on each Funding Date, in an aggregate principal amount up to, but not 

exceeding at any time outstanding, the Available Amount.

(b) Any amount of any Loan repaid or prepaid may not be reborrowed hereunder and 

shall permanently reduce the Maximum UST Debt Amount.

(c) Without limiting any other provision of this Loan Agreement, following the 

effectiveness of this Loan Agreement pursuant to Section 4.01, the obligation of the Lender to fund any 

Loan is subject to the satisfaction (or waiver by the Lender) of the conditions precedent set forth in 

Section 4.02. 

2.02 The Note.

(a) The Loans made by the Lender shall be evidenced by a single promissory note of 

the Borrower substantially in the form of Exhibit A, dated the date hereof, payable to the Lender at the 

principal office of the Lender in lawful money of the United States, and in immediately available funds, 

in the principal sum of the Maximum UST Debt Amount (or such lesser amount as shall equal the 

aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under this Loan 

Agreement), as originally in effect and otherwise duly completed. Notwithstanding the foregoing, the 
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Lender shall have the right to have its Note subdivided, by exchange for promissory notes of lesser 

denominations or otherwise.

(b) The date, amount and interest rate of each Loan made by the Lender to the 

Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on 

its books and, prior to any transfer of the Note, noted by the Lender on the grid attached to the Note or 

any continuation thereof; provided that the failure of the Lender to make any such recordation or notation 

shall not affect the obligations of the Borrower to make a payment when due of any amount owing 

hereunder or under the Note.

2.03 Procedure for Borrowing.

(a) The Borrower may request a borrowing to be made on any Business Day during 

the Commitment Period (each such date a “Funding Date”) by delivering to the Administrative Agent and 

the Lender a Notice of Borrowing substantially in the form of Exhibit B (a “Notice of Borrowing”), 

appropriately completed, which Notice of Borrowing must be received no later than 2:00 p.m. 

(Washington, D.C. time) five (5) Business Days’ prior to the requested Funding Date, which notice, if not 

withdrawn prior to the date which is two (2) Business Days’ prior to such Funding Date, shall thereafter 

become irrevocable. Each Loan shall be in an amount equal to $5,000,000 (or, if the Available Amount is 

less than such amount, such lesser amount) or a whole multiple of $1,000,000 in excess thereof.

(b) Upon the Borrower’s request for a borrowing pursuant to Section 2.03(a), and 

assuming all conditions precedent to the making of such Loan have been satisfied (or waived by the 

Lender in accordance with Section 10.01), not later than 2:00 p.m. (Washington, D.C. time) on the 

requested Funding Date, the Lender shall make the proceeds of such Loan available to the Borrower in 

immediately available funds, via wire transfer (pursuant to the wire transfer instructions set forth in 

Section 2.03(c)).

(c) The Borrower hereby directs the Lender to send the proceeds of all Loans (i) by 

wire transfer to the account specified on Schedule A or (ii) to such other account as shall be designated 

by the Borrower in a Notice of Borrowing.

(d) The Borrower agrees to compensate the Lender for the losses (as calculated 

pursuant to the next succeeding sentence) that the Lender incurs as a consequence of a failure of the 

Borrower to make a borrowing of Loans of the requested amount after the Borrower has delivered a 

Notice of Borrowing which has become irrevocable in accordance with Section 2.03(a). Such losses shall 

be calculated as follows: an amount equal to the product of (i) the sum of (A) the weighted average cost 

(as determined by the Lender in its sole discretion) of all nominal marketable Indebtedness issued by UST 

over the preceding thirty (30) days, plus (B) 1.00%, multiplied by (ii) the quotient of (A) the number of 

days constituting the period from the date such Notice of Borrowing delivered by the Borrower has 

become irrevocable to the date the Borrower defaults in making a borrowing pursuant to such Notice of 

Borrowing, divided by (B) three hundred sixty (360) days, multiplied by (iii) the amount not so borrowed. 

A certificate as to the amounts payable pursuant to this Section 2.03(d) submitted to the Borrower by the 

Lender shall be conclusive in the absence of manifest error. The covenant in this Section 2.03(d) shall 

survive the termination of this Loan Agreement and the payment of the Loans and all other amounts 

payable hereunder.

2.04 Limitation on Types of Loans; Illegality. Anything herein to the contrary 

notwithstanding, if, on or prior to the determination of LIBOR for any Accrual Period:
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(a) the Lender determines, which determination shall be conclusive, that quotations 

of interest rates for the relevant deposits referred to in the definition of “LIBOR” in Section 1.01 are not 

being provided; 

(b) the Lender reasonably determines, which determination shall be conclusive, that 

LIBOR determined for any Accrual Period would not adequately and fairly reflect the cost to a 

commercial bank funding the Loans on a matched basis in the London interbank market of making or 

maintaining the Loans for such Accrual Period; or

(c) it becomes unlawful for the Lender to make or maintain Loans hereunder using 

LIBOR;

then the Lender shall give the Borrower prompt notice thereof and, for such Accrual Period and for each 

subsequent Accrual Period during which such condition remains in effect, the Borrower shall pay interest 

on the Principal Amount at a rate per annum equal to the Prime Rate plus the Applicable Margin.

2.05 Repayment of the Loans; Interest.

(a) Subject to the provisions of Section 2.04, each Loan shall bear interest on the 

Principal Amount thereof at a rate per annum equal to LIBOR plus the Applicable Margin. Interest that 

accrues on the Loans during each Accrual Period shall be due and payable in arrears on the related Loan 

Payment Date (whether or not funds are available for such purpose in accordance with the Priority of 

Payments); provided that interest accruing pursuant to Section 2.05(c) shall be payable from time to time 

upon demand.

(b) On the Maturity Date (whether or not funds are available for such purpose in 

accordance with the Priority of Payments), the Borrower shall repay to the Administrative Agent, for the 

account of the Lender, the Principal Amount, together with all interest accrued and unpaid thereon and all 

other amounts owing under this Loan Agreement and the other Loan Documents.

(c) Upon the occurrence and during the continuance of any Event of Default, the 

Principal Amount shall bear interest at a rate per annum equal to the Default Rate, from the date of such 

Event of Default (after as well as before judgment). If any interest payable on any Loan or any other 

amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or 

otherwise), then such overdue amount shall bear interest at a rate per annum equal to the Default Rate, in 

each case from the date of such non-payment until such amount is paid in full (after as well as before 

judgment).

2.06 Prepayments.

(a) To the extent there are funds available to the Borrower for such purpose, the 

Loans may be prepaid, in whole or in part, without premium or penalty, at any time. If the Borrower 

intends to prepay the Loans in whole or in part, except with respect to payments to be made on any Loan 

Payment Date pursuant to Section 2.07(a), the Borrower shall give not less than three (3) Business Days’ 

prior written notice thereof to the Administrative Agent and the Lender. If such notice is given, the 

amount specified in such notice shall become due and payable on the date specified therein, together with 

accrued interest to such date on the amount specified to be prepaid.

(b) The Borrower shall make payments on account of the Principal Amount of the 

Loans on each Loan Payment Date in the amounts required by the Priority of Payments.
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(c) If at any time, the Principal Amount of the Loans exceeds the then applicable 

Available Amount, the Borrower shall immediately repay the Loans in the amount of such excess, 

together with any accrued and unpaid interest to the date of such repayment on the amount specified to be 

repaid, to the Administrative Agent in accordance with Section 3.01.

(d) Any amount of any Loan repaid or prepaid may not be reborrowed hereunder and 

shall permanently reduce the Maximum UST Debt Amount. 

2.07 Application of Payments and Reinvestment.

(a) On each Loan Payment Date on which Section 2.07(b) is not applicable, the 

amount of the Collections attributable to or received during the related Collection Period and other Cash 

amounts remaining on deposit in the Custodial Account (including all amounts held as Temporary 

Investments in the Custodial Account, or to the extent Section 2.07(d) requires any amount to be 

withdrawn from the Interest Reserve Account, the Interest Reserve Account (which shall be liquidated to 

the extent required to make any of the payments under clauses (i) through (vi) below), but excluding (i) 

for purposes of making distributions on such Loan Payment Date, any amounts constituting Collections 

received during the subsequent Collection Period and (ii) the amount of drawn Capital Commitments that 

has been notified by the Borrower to the Agents and the Lender as having been transferred from the 

Working Capital Reserve to the Custodial Account for the purpose of purchasing Eligible Assets) shall be 

applied in accordance with the following order of priority (collectively, the “Non-Default Priority of 

Payments”):

(i) first, to the payment of taxes imposed directly on the Borrower or its 

Subsidiaries and an amount, without duplication, equal to any outstanding Borrower 

Administrative Expenses, but excluding all taxes (other than those taxes imposed directly on the 

Borrower or its Subsidiaries);

(ii) second, to the payment of amounts then due under Permitted Interest Rate 

Hedges, including in respect of any margin posting requirement (other than early termination 

payments attributable to a default by a Permitted Hedge Counterparty);

(iii) third, to the payment of the current Interest Amount and any other 

amounts (other than the Principal Amount) due to the Lender;

(iv) fourth, to the Interest Reserve Account in an amount equal to the amount, 

if any, by which the amount on deposit therein is less than the Required Interest Reserve Amount 

on such date;

(v) fifth, if the Asset Coverage Test was not satisfied as calculated as of the 

Measurement Date for the month last ended prior to such Loan Payment Date, to the payment of 

the Principal Amount in such amount so as to cause such Asset Coverage Test to be satisfied as 

recalculated as of such Measurement Date after giving Pro Forma effect to such payments or until 

the Principal Amount has been paid in full;

(vi) sixth, to the payment of amounts then due under Permitted Interest Rate 

Hedges not paid in accordance with clause (ii) above, including termination payments attributable 

to a default by a Permitted Hedge Counterparty;

(vii) seventh, at the option of the Borrower, (A) for investment in Temporary 

Investments, (B) to prepay the Loans, or (C)(x) during the Commitment Period and (y) so long as 
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no Default or Event of Default is then continuing, for investments in Eligible Assets (including by 

way of contribution to a Financing Subsidiary to the extent then permitted hereunder); 

(viii) eighth, commencing with the Loan Payment Date occurring in January 

2010, so long as no Default or Event of Default is then continuing and so long as the Borrower is 

in compliance on a Pro Forma basis as of the Measurement Date for the month last ended prior to 

such Loan Payment Date with the Asset Coverage Ratio Requirement as calculated as of such 

Measurement Date, at the option of the Borrower, an aggregate amount not to exceed in any 

period of twelve (12) consecutive months (or if shorter, the period commencing on the Effective 

Date and ending on the last day of the month immediately preceding such Loan Payment Date), 

the lesser of (x) 8% of the funded Capital Commitments as of such Loan Payment Date 

(excluding the amount of funded Capital Commitments held on such date in the Working Capital 

Reserve) and (y) the cumulative Consolidated Net Interest Income of the Borrower for the 

preceding period of twelve (12) consecutive months (or if shorter, the period commencing on the 

Effective Date and ending on the last day of the month immediately preceding such Loan 

Payment Date), to the Borrower for distribution to the Partners;

(ix) ninth, at the option of the Borrower, to the payment of the Principal 

Amount, in an amount not to exceed the lesser of (A) the product of (x) the applicable 

Prepayment Percentage, multiplied by (y) the amount remaining on deposit in the Custodial 

Account available to be distributed (the amount determined pursuant to this sub clause (A) to be 

reduced by any amounts paid on such Loan Payment Date as provided in clauses (v) and (vii) 

above) and (B) an amount which reduces the Principal Amount to zero; provided that in 

calculating the amount required to be applied pursuant to this clause (ix), dollar for dollar credit 

shall be given for any optional prepayments of the Loans made during the related Collection 

Period on any date prior to the applicable Determination Date; and

(x) tenth, at the option of the Borrower, either as a prepayment of the Loans 

or, so long as no Default or Event of Default is then continuing and the payment has been made in 

accordance with clause (ix) above on or in respect of such Loan Payment Date, to the Borrower to 

be used or distributed in accordance with the Partnership Agreement. 

Any amounts not distributed pursuant to the foregoing clauses (i) through (x) shall remain on 

deposit in the Custodial Account.

Except with respect to repaying the Loans as required by Section 2.06(c), the Borrower shall not 

be required to liquidate Eligible Assets (but shall be required to liquidate Temporary Investments in the 

Custodial Account, or to the extent Section 2.07(d) requires any amount to be withdrawn from the Interest 

Reserve Account, the Interest Reserve Account, which shall be liquidated to the extent required to make 

any of the payments under clauses (i) through (vi) above) prior to maturity in order to make distributions 

under the Non-Default Priority of Payments. 

(b) Upon the occurrence and during the continuance of any Event of Default, on each 

Loan Payment Date, the amount of Collections attributable to or received during the related Collection 

Period and other amounts remaining on deposit in the Custodial Account (including amounts held as 

Temporary Investments in the Custodial Account, or to the extent Section 2.07(d) requires any amount to 

be withdrawn from the Interest Reserve Account, the Interest Reserve Account (which shall be liquidated 

to the extent required to make any of the following payments), but excluding (i) for purposes of making 

distributions on such Loan Payment Date, any amounts constituting Collections received during the 

subsequent Collection Period and (ii) the amount of drawn Capital Commitments that has been notified 

by the Borrower to the Agents and the Lender as having been transferred from the Working Capital 
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Reserve to the Custodial Account for the purpose of purchasing Eligible Assets) shall be applied in 

accordance with the following order of priority (collectively, the “Default Priority of Payments” and, 

together with the Non-Default Priority of Payments, the “Priority of Payments”):

(i) first, to the payment of an amount equal to any outstanding Permitted 

Borrower Administrative Expenses, but excluding all taxes, other than taxes imposed directly on 

the Borrower or its Subsidiaries in an aggregate amount of taxes not to exceed, in any period of 

twelve (12) consecutive months, $100,000;

(ii) second, to the payment of amounts then due under Permitted Secured 

Interest Rate Hedges (other than early termination payments attributable to a default by a 

Permitted Secured Hedge Counterparty);

(iii) third, to the payment of the Principal Amount, Interest Amount and other 

amounts owing to the Lender, in each case whether or not then due; and

(iv) fourth, to the payment of amounts then due under Permitted Secured 

Interest Rate Hedges not paid in accordance with clause (ii) above.

Any amounts not distributed pursuant to the foregoing clauses (i) through (iv) shall remain on 

deposit in the Custodial Account.

(c) Notwithstanding anything to the contrary in this Section 2.07; 

(i) during the Commitment Period, the Borrower may withdraw funds from the 

Custodial Account for the purpose of making Investments in additional Eligible Assets or making 

upfront payments to purchase or enter into Permitted Interest Rate Hedges at any time so long as 

(A) immediately prior to and after giving effect thereto and to the use of proceeds thereof, as of 

such date no Default or Event of Default is then continuing, (B) the Asset Coverage Test as 

calculated as of the date of the proposed withdrawal is satisfied immediately prior to giving effect 

to such withdrawal and would be satisfied on a Pro Forma basis as of such trade date after giving 

effect thereto, (C) there will be on deposit in the Custodial Account (including amounts held as 

Temporary Investments) in the reasonable judgment of the Borrower sufficient funds to make the 

payments required under clauses (i), (ii) and (iii) of the Non-Default Priority of Payments on the 

next Loan Payment Date and (D) the Interest Reserve Account would contain on a Pro Forma 

basis the Required Interest Reserve Amount (it is agreed that the withdrawal of funds from the 

Custodial Account by the Borrower for the purpose of making Investments in additional Eligible 

Assets at any time shall constitute a representation and warranty by the Borrower as of the date of 

such withdrawal that the conditions contained in each of clauses (i)(A) through (i)(D) above have 

been satisfied); and

(ii) the Borrower may withdraw from the Custodial Account funds at any time 

for the purpose of (A) making required payments of interest in accordance with Section 2.05(a), 

(B) making Investments in Temporary Investments, (C) prepaying or repaying the Loans in 

accordance with Section 2.06(a) or 2.06(c), (D) making scheduled payments (including posting 

or pledging of collateral pursuant to margin requirements) on Permitted Interest Rate Hedges or 

(E) so long as, immediately prior to and after giving effect thereto and the use of the proceeds 

thereof, as of such date, no Event of Default has occurred and is continuing, making payments of 

Permitted Borrower Administrative Expenses; provided that the conditions in clauses (i)(C) and 

(i)(D) above will be satisfied after giving effect to the payment of such Permitted Borrower 

Administrative Expenses.
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(d) If on any Loan Payment Date, the amount on deposit in the Custodial Account 

and available to pay the amounts described in clauses (ii) and (iii) of the Non-Default Priority of 

Payments or in clauses (ii) and (iii) of the Default Priority of Payments, as applicable, is less than the 

amount required to pay such amounts in full, the lesser of the amount of such deficiency and the amount 

then on deposit in the Interest Reserve Account shall be applied to pay such amounts. If on any Loan 

Payment Date, the amount on deposit in the Interest Reserve Account exceeds the Required Interest 

Reserve Amount, the amount of such excess shall be transferred to the Custodial Account for distribution 

in accordance with the Priority of Payments. Notwithstanding the foregoing, however, if an Event of 

Default has occurred and is continuing, the Lender may, on any Loan Payment Date and after giving 

effect to the allocation provided in the first sentence of this Section 2.07(d), instruct the Agents in writing 

to apply the entire amount in the Interest Reserve Account to repay the Principal Amount.

(e) No later than five (5) Business Days after the end of each month, the 

Administrative Agent shall provide the current Interest Amount and Principal Amount outstanding on the 

Loans and the principal amount of any repayments on such Loans during the related Collection Period to 

the Collateral Administrator.

SECTION 3. PAYMENTS; COMPUTATIONS. 

3.01 Payments. 

(a) All payments of principal, interest and other amounts to be made by any Loan 

Party under the Loan Documents shall be made in Dollars, in immediately available funds, without 

deduction (except as may be required by applicable Requirement of Law), set-off or counterclaim, to the 

Administrative Agent, for the account of the Lender, at the account set forth in Schedule A not later than 

2:00 p.m. (Washington, D.C. time), on each Loan Payment Date or other date on which such payment 

shall be due. Any amounts received after such time on any date shall be deemed to have been received on 

the next succeeding Business Day for purposes of calculating interest thereon. If any payment hereunder 

shall be due on a day that is not a Business Day, the date for payment shall be extended to the next 

succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be 

payable for the period of such extension. 

(b) All payments should be made to (a) the account maintained by the 

Administrative Agent and specified on Schedule A or (b) such other account as shall be designated by the 

Administrative Agent upon two (2) Business Days’ written notice to the Borrower and the Lender.

3.02 Computations. Interest on the Loans shall be computed on the basis of a 360-

day year for the actual days elapsed (including the first day but excluding the last day) occurring in the 

period for which payable; provided that for any Loan bearing interest based on the Prime Rate, the basis 

of calculation shall be a 365-day or 366-day year, as applicable, for the actual days elapsed.

SECTION 4. CONDITIONS PRECEDENT.

4.01 Effective Date Conditions. The effectiveness of this Loan Agreement and the 

obligation of the Lender to make the Loans hereunder is subject to the satisfaction (or waiver in 

accordance with Section 10.01) of the following conditions precedent:

(a) Loan Agreement. The Agents and the Lender shall have received this Loan 

Agreement, duly executed and delivered by a Responsible Officer of the Borrower.
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(b) Additional Loan Documents. (i) The Agents and the Lender shall have received 

the following documents, each of which shall be reasonably satisfactory to the Agents and the Lender in 

form and substance:

(A) Guarantee and Security Agreement. The Guarantee and Security 

Agreement, duly executed and delivered by a Responsible Officer of each Loan Party; and

(B) Other Loan Documents. The Valuation Administration Agreement, the 

Collateral Administration Agreement and the Custodial Agreement, each duly executed and 

delivered by an authorized representative of each of the parties thereto.

(ii) The Lender shall have received the original Note, duly completed and executed by a 

Responsible Officer of the Borrower substantially in the form of Exhibit A.

(c) Organizational Documents. The Agents and the Lender shall have received a 

certificate of a Responsible Officer (or of a secretary or assistant secretary) of each Loan Party 

substantially in the form of Exhibit I attesting to the validity of a good standing certificate and certified 

copies of the charter, articles of organization, by-laws or equivalent organizational documents, including 

the Partnership Agreement, of such Person and of all organizational or other authority for such Person 

with respect to the execution, delivery and performance of the Loan Documents and each other document 

to be delivered by such Person from time to time in connection herewith (and the Agents and the Lender 

may conclusively rely on such certificate until it receives notice in writing from the relevant Loan Party to 

the contrary).

(d) Incumbency Certificate. The Agents and the Lender shall have received an 

incumbency certificate of a secretary, assistant secretary or other Responsible Officer of each Loan Party 

substantially in the form of Exhibit C to Exhibit I certifying the names, true signatures and titles of such 

Person’s Responsible Officers duly authorized to request a Loan hereunder, if applicable, and to execute 

the Loan Documents and the other documents to be delivered in connection therewith (and the Agents and 

the Lender may conclusively rely on such certificate until it receives notice in writing from the relevant 

Loan Party to the contrary).

(e) Other Conditions. (i) Each of the representations and warranties of the Loan 

Parties and the General Partner set forth in this Loan Agreement, the other Loan Documents and the 

Partnership Agreement shall be true and correct in all material respects on and as of the Effective Date, as 

if made on such date, except for such representations and warranties expressly stated to relate to an earlier 

date, in which case such representations and warranties shall have been true and correct in all material 

respects as of such earlier date; provided that any representation and warranty that is qualified by 

materiality or “Material Adverse Effect” or similar language shall be true and correct in all respects on 

such respective dates, (ii) at the time of and immediately after giving effect to the making of any Loan, no 

Default or Event of Default has occurred and is continuing, (iii) the Loan Parties shall be in compliance in 

all material respects (or, in the case of covenants or other agreements qualified by materiality or material 

adverse effect, shall be in compliance in all respects) with the covenants and other agreements set forth in 

this Loan Agreement and the other Loan Documents, and the General Partner shall be in compliance in all 

material respects (or, in the case of covenants or other agreements qualified by materiality or material 

adverse effect, shall be in compliance in all respects) with the covenants and other agreements set forth in 

the Partnership Agreement, (iv) all necessary material authorizations, approvals or consents of any 

Governmental Authority or any other Person in connection with the execution, delivery and performance 

of this Loan Agreement and the other Loan Documents (including for the extensions of credit to be made 

hereunder) by the Loan Parties shall have been obtained by the Borrower and its Subsidiaries (including 

Partner approvals, if any) and shall be in full force and effect; (v) there shall exist no action, suit, 
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investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or, to the 

knowledge of the Borrower, threatened before any Governmental Authority (A) as to which individually 

or in the aggregate there is a reasonable likelihood of an adverse decision and that, if adversely 

determined, could reasonably be expected to have a Material Adverse Effect or (B) which questions the 

legality, validity or enforceability of any Loan Document or any action to be taken in connection with the 

transactions contemplated hereby or thereby and (vi) the Borrower shall have raised a minimum of $500 

million in Capital Commitments from Partners, other than UST, available to be contributed to the 

Borrower. The Agents and the Lender shall have received a certificate (which may be combined with a 

Notice of Borrowing) of a Responsible Officer of the Borrower certifying to each of the foregoing matters 

as of the Effective Date.

(f) Legal Opinion. A legal opinion of (i) outside counsel to the Loan Parties in form 

and substance reasonably satisfactory to the Lender, which legal opinion shall be addressed and delivered 

to the Lender, the Administrative Agent and the Collateral Agent and (ii) outside counsel to the 

Custodian, Collateral Administrator, Valuation Agent, Administrative Agent and Collateral Agent, in 

form and substance reasonably satisfactory to the Lender, which legal opinion shall be addressed and 

delivered to the Lender and the Loan Parties.

(g) Collateral Requirements. The Collateral Agent shall have received (i) 

certificates, if any, representing the certificated shares of Equity Interests required to be pledged pursuant 

to the Security Documents, together with an undated stock power for each such certificate executed in 

blank by a duly authorized officer of the pledgor thereof, (ii) evidence that the registries of the ownership 

interests for all uncertificated Equity Interests of the Borrower’s Subsidiaries reflects the Collateral 

Agent’s security interests in such Equity Interests and (iii) each document (including Uniform 

Commercial Code financing statements) required by the Security Documents or by Requirements of Law 

or reasonably requested by the Administrative Agent or Collateral Agent to be filed, registered or 

recorded in order to perfect the Collateral Agent’s security interest in the Collateral, which shall have 

been properly prepared and executed or authorized for filing, registration or recording in each office in 

each jurisdiction in which such filings, registrations and recordations are required to perfect such security 

interest.

(h) Searches. The Agents and the Lender shall have received from the Borrower the 

results of a recent lien search in each of the jurisdictions in which Uniform Commercial Code financing 

statements or other filings or recordations should be made to evidence or perfect security interests in the 

Collateral, and such search shall reveal no Liens on any of the Collateral, and shall in all cases be 

reasonably satisfactory to the Lender.

(i) Fees and Expenses. The Administrative Agent, the Collateral Agent, the 

Collateral Administrator, the Custodian, the Valuation Agent and the Lender shall have received all fees 

and expenses for which invoices have been presented, to the extent such party is entitled to 

reimbursement of such fees and expenses under Section 10.05, in each case including, but not limited to, 

counsel fees. All such amounts will be paid with the proceeds of Loans made on the Effective Date.

(j) Consents, Licenses, Approvals, etc. The Lender shall have received copies 

certified by each Loan Party of all consents, licenses and approvals, if any, including, but not limited to, 

consent and approvals of all relevant shareholders, members and Partners required in connection with the 

execution, delivery and performance by each Loan Party of, and the validity and enforceability of, the 

Loan Documents, which consents, licenses and approvals shall be in full force and effect.

(k) Litigation. There shall exist no action, suit, investigation, litigation or 

proceeding affecting the Borrower or any of its Subsidiaries pending or, to the knowledge of the 
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Borrower, threatened before any Governmental Authority (i) as to which individually or in the aggregate 

there is a reasonable likelihood of an adverse decision and that, if adversely determined, could reasonably 

be expected to have a Material Adverse Effect or (ii) which questions the legality, validity or 

enforceability of any Loan Document or any action to be taken in connection with the transactions 

contemplated hereby or thereby.

(l) Accounts. The Agents and the Lender shall have received evidence of the 

establishment of the Custodial Account and Interest Reserve Account and the Agents shall have received 

the Custodial Agreement executed by all parties thereto, which shall be a control agreement with respect 

to the Custodial Account and the Interest Reserve Account, in form and substance reasonably satisfactory 

to the Agents and the Lender.

4.02 Conditions to Initial and Subsequent Loans. The obligation of the Lender to 

make any Loan hereunder to the Borrower on any Funding Date is subject to the satisfaction (or waiver in 

accordance with Section 10.01) of the following conditions precedent:

(a) the Effective Date shall have occurred or shall occur simultaneously with such 

Funding Date;

(b) (i) each of the representations and warranties of the Loan Parties and the General 

Partner set forth in this Loan Agreement, the other Loan Documents and the Partnership Agreement shall 

be true and correct in all material respects on and as of the Funding Date, as if made on such date, except 

for such representations and warranties expressly stated to relate to an earlier date, in which case such 

representations and warranties shall have been true and correct in all material respects as of such earlier

date; provided that any representation and warranty that is qualified by materiality or “Material Adverse 

Effect” or similar language shall be true and correct in all respects on such respective dates, (ii) at the 

time of and immediately after giving effect to the making of any Loan, no Default or Event of Default has 

occurred and is continuing, (iii) the Loan Parties shall be in compliance in all material respects (or, in the 

case of covenants or other agreements qualified by materiality or material adverse effect, shall be 

compliance in all respects) with the covenants and other agreements set forth in this Loan Agreement and 

the other Loan Documents, and the General Partner shall be in compliance in all material respects (or, in 

the case of covenants or other agreements qualified by materiality or material adverse effect, shall be in 

compliance in all respects) with the covenants and other agreements set forth in the Partnership 

Agreement, (iv) all necessary material authorizations, approvals or consents of any Governmental 

Authority or any other Person in connection with the execution, delivery and performance of this Loan 

Agreement and the other Loan Documents (including for the extensions of credit to be made hereunder) 

by the Loan Parties shall have been obtained by the Borrower and its Subsidiaries (including Partner 

approvals, if any) and shall be in full force and effect, (v) the Borrower shall be in compliance with the 

Financial Covenants as calculated as of such proposed Funding Date immediately prior to giving effect to 

such funding and would be in compliance with such Financial Covenants on a Pro Forma basis as of such 

Funding Date after giving effect thereto and shall have delivered evidence to the Agents and the Lender 

demonstrating in reasonable detail the calculations supporting such compliance; (vi) the Partners, other 

than UST, have, in the aggregate, contributed an amount equal to the sum of their respective Pro Rata 

Shares of the Capital Contributions pursuant to Section 3.1 of the Partnership Agreement and (vii) the 

Borrower and its Subsidiaries shall not have engaged in any activity of any kind or entered into any 

Contractual Obligation or other undertaking which is not directly or indirectly related to (A) the 

purchasing, owning, holding and Disposition of Portfolio Investments in accordance with the Investment 

Guidelines or the ownership of Equity Interests of its Subsidiaries that it is otherwise permitted to own 

hereunder, (B) the Loan Documents and Permitted Interest Rate Hedges or (C) activities specifically 

permitted by the Partnership Agreement or incidental or ancillary to activities permitted thereunder. The 

Agents and the Lender shall have received a certificate (which may be combined with the Notice of 
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Borrowing) of a Responsible Officer of the Borrower certifying to each of the foregoing matters as of the 

Funding Date;

(c) investors in any Private Vehicle do not have voluntary withdrawal rights (other 

than as permitted by Section 5.4(c) of the Partnership Agreement) with respect to their respective Capital 

Commitments in such Private Vehicle;

(d) after giving effect to the making of any Loans on the applicable Funding Date 

and the funding of Capital Commitments as of such date (excluding the amount of drawn Capital 

Commitments held on such date in the Working Capital Reserve other than such amounts which are to be 

transferred into the Custodial Account and as to which the Borrower has notified the Agents and the 

Lender are to be allocated (and which are actually used) to purchase Portfolio Investments, in each case as 

of such date), the outstanding Principal Amount shall not exceed the Available Amount; 

(e) the Administrative Agent and the Lender shall have received an appropriately 

completed and timely delivered Notice of Borrowing;

(f) the Agents or their designees shall have received any other documents reasonably 

requested by the Agents and the Lender, and the Borrower shall have provided such documents within a 

reasonable period of time after such request and reasonably before the applicable Funding Date; and

(g) the Borrower shall have deposited funds into, or there shall be on deposit funds 

in, the Interest Reserve Account an amount no less than the Required Interest Reserve Amount.

SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower

represents and warrants to the Agents and the Lender that:

5.01 Existence. Each of the Borrower and its Subsidiaries (a) is duly organized, 

validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all 

requisite organizational power, and has all governmental licenses, authorizations, consents and approvals, 

necessary to own its assets and carry on its business as now being or as proposed to be conducted, except 

where the lack of such licenses, authorizations, consents and approvals could not be reasonably expected 

to have a Material Adverse Effect, (c) is qualified to do business and is in good standing in all other 

jurisdictions in which the nature of the business conducted by it makes such qualification necessary, 

except where the failure to so qualify could not be reasonably expected to have a Material Adverse Effect; 

(d) is in compliance with (to the extent such law, guidance or regulation is applicable pursuant to its terms 

to the Borrower or such Subsidiary) (i) Section 111 of EESA, as implemented by any guidance or 

regulations issued by UST thereunder, including 31 CFR 30 and (ii) EAWA, as implemented by any 

guidance or regulation issued by UST thereunder and (e) is in compliance in all material respects with all 

other Requirements of Law.

5.02 Financial Condition. Since the date of formation of the Borrower there has 

been no development, event or circumstance that has had or could reasonably be expected to have, a 

Material Adverse Effect.

5.03 Litigation. There are no actions, suits, arbitrations, investigations or proceedings 

now pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or any of its 

Subsidiaries or affecting any of the Property of any thereof, by or before any arbitrator or Governmental 

Authority, (a) as to which individually or in the aggregate there is a reasonable likelihood of an adverse 

decision and that, if adversely determined, could reasonably be expected to have a Material Adverse 

Effect or (b) which questions the legality, validity or enforceability of this Loan Agreement or any of the 
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other Loan Documents or any action to be taken in connection with the transactions contemplated hereby 

or thereby.

5.04 No Breach. Neither the execution and delivery of the Loan Documents, the 

performance of the obligations set forth in this Loan Agreement and the other Loan Documents nor the 

consummation of the transactions therein contemplated in compliance with the terms and provisions 

thereof will (a) conflict with or result in a breach of (i) the charter, articles of organization, by-laws, 

partnership agreement (including the Partnership Agreement), operating agreement or similar 

organizational document of the Borrower or any of its Subsidiaries, or (ii) any Requirement of Law, (b) 

constitute a default under any material Contractual Obligation with respect to which the Borrower or any 

of its Subsidiaries is a party or (c) except for the Liens created pursuant to the Security Documents, result 

in the creation or imposition of any Lien upon any Property of the Borrower or any of its Subsidiaries, 

pursuant to the terms of any such material Contractual Obligation.

5.05 Action, Binding Obligations. Each Loan Party has all necessary organizational 

power, authority and legal right to execute, deliver and perform its obligations under each of the Loan 

Documents to which it is a party and to consummate the transactions contemplated thereby. The 

execution, delivery and performance by each Loan Party of each of the Loan Documents to which it is a 

party has been duly authorized by all necessary organizational action on its part. Each Loan Document 

has been duly and validly executed and delivered by each Loan Party and constitutes, or when executed 

and delivered, will constitute, a legal, valid and binding obligation of such Loan Party, enforceable 

against such Loan Party in accordance with its terms, subject to the Bankruptcy Exceptions.

5.06 Approvals. No consent, approval or authorization of, registration or filing with, 

notice to or other act by or in respect of, any Governmental Authority or any other Person is required in 

connection with the extensions of credit hereunder or with the execution, delivery, performance, validity 

or enforceability of this Loan Agreement or any of the other Loan Documents, except (a) consents, 

approvals, authorizations, filings, registrations, and notices that have been or will be obtained or made, 

each of which is in full force and effect and (b) the filings and recordings in respect of the Liens created 

pursuant to the Security Documents.

5.07 Taxes. Each of the Borrower and its Subsidiaries has filed all material federal 

income tax or information returns and all other material tax or information returns that are required to be 

filed by them and has paid all material taxes due (if any) pursuant to such returns or pursuant to any 

assessment received by any of them to the extent such taxes have become due, except for (i) any such 

taxes or assessments, if any, that are being appropriately contested in good faith by appropriate 

proceedings diligently conducted and with respect to which adequate reserves have been provided in 

accordance with GAAP and which do not constitute a Lien on any of the Collateral or (ii) any such taxes, 

assessments or tax returns where a failure to so pay or file such taxes, assessments or tax returns could not 

be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. The charges, 

accruals and reserves on the books of each of the Borrower and its Subsidiaries in respect of taxes and 

other governmental charges are, in the opinion of the Borrower, adequate. Any material taxes, fees and 

other governmental charges payable by any Loan Party in connection with the Loans and the execution 

and delivery of the Loan Documents have been paid (or if not then due and payable, will be paid, when so 

due and payable).

5.08 Investment Company Act. None of the Loan Parties is required to register as 

an “investment company”, or is a company “controlled” by a Person required to register as an 

“investment company”, within the meaning of the Investment Company Act. No Loan Party is subject to 

any Requirement of Law which limits its ability to incur Indebtedness.
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5.09 No Default. Each of the Borrower and its Subsidiaries is in compliance with all 

Contractual Obligations binding upon it or its property, except where the failure to be in compliance, 

individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 

Neither the Borrower nor any of its Subsidiaries is subject to any Contractual Obligation, the performance 

of which by such Person could reasonably be expected to result in a Material Adverse Effect. Neither the 

Borrower nor any Subsidiary is in default under or with respect to any of its Contractual Obligations in 

any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of 

Default has occurred and is continuing.

5.10 True and Complete Disclosure. The information, reports, financial statements, 

exhibits and schedules furnished by or on behalf of the Borrower or any of its Subsidiaries to the 

Administrative Agent, the Collateral Agent or the Lender or their agents or representatives in connection 

with the negotiation, preparation or delivery of this Loan Agreement and the other Loan Documents or 

included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain 

any untrue statement of material fact or omit to state any material fact necessary to make the statements 

herein or therein, in light of the circumstances under which they were made, not misleading; it being 

understood that in the case of projections, such projections have been prepared in good faith and are based 

on assumptions and estimates believed to be reasonable on the date as of which such information is stated 

or certified. All information furnished after the date hereof by or on behalf of the Borrower or any of its 

Subsidiaries to the Administrative Agent, the Collateral Agent or the Lender in connection with this Loan 

Agreement and the other Loan Documents and the transactions contemplated hereby and thereby (taken 

as a whole) is true, complete and accurate in every material respect, or (in the case of projections) 

prepared in good faith and based on assumptions and estimates believed to be reasonable, on the date as 

of which such information is stated or certified. 

5.11 Activities. Neither the Borrower nor any of its Subsidiaries has engaged in any 

activity of any kind or entered into any Contractual Obligation or other undertaking since its formation 

which is not directly or indirectly related to (a) the purchasing, owning, holding and Disposition of 

Portfolio Investments in accordance with the Investment Guidelines, the ownership of Equity Interests of 

its Subsidiaries that it is otherwise permitted to own hereunder, (b) the Loan Documents and Permitted 

Interest Rate Hedges or (c) activities permitted by the Partnership Agreement or incidental or ancillary to 

activities permitted thereunder.

5.12 ERISA. None of the Borrower, its Subsidiaries or any ERISA Affiliate 

maintains, participates in, or is otherwise deemed an “employer” (as defined in Section 3(5) of ERISA) 

with respect to, any Plans, and none of the Borrower, its Subsidiaries or any ERISA Affiliate has any 

liability to the PBGC under ERISA.

5.13 Subsidiaries; Equity Interests. All of the Subsidiaries are listed on Schedule 

5.13 as supplemented from time to time pursuant to Section 6.08(b), which schedule as supplemented sets 

forth the name and jurisdiction of formation of each of its Subsidiaries and, as to each such Subsidiary, 

the percentage of each class of Equity Interests owned by the Borrower or any of its Subsidiaries. Except 

as set forth on Schedule 5.13, neither the Borrower nor any Subsidiary owns any Equity Interest (other 

than an Equity Interest that is also an Eligible Asset).

5.14 Capitalization. One hundred percent (100%) of the issued and outstanding 

Equity Interests of each Subsidiary of the Borrower is owned by the Persons listed on Schedule 5.14 as 

supplemented from time to time pursuant to Section 6.08(b) and such Equity Interests are owned by such 

Persons, free and clear of all Liens (other than Liens created by the Security Documents). No Subsidiary 

of the Borrower has issued or granted any options or rights with respect to the issuance of its respective 

Equity Interests which is presently outstanding.
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5.15 Ownership of Property; Liens. Each of the Borrower and its Subsidiaries has 

good and marketable title to all its Property, including the Collateral; and none of such Property is subject 

to any Lien other than Permitted Liens.

5.16 USA PATRIOT Act.

(a) Neither the Borrower nor any of its respective Subsidiaries or Affiliates over 

which it exercises management Control (a “Controlled Affiliate”) is a Prohibited Person, and such 

Controlled Affiliates are in compliance with all applicable orders, rules, regulations and recommendations 

of OFAC.

(b) Neither the Borrower nor any of its Subsidiaries, Relevant Persons, members, 

shareholders or partners: (i) are subject to U.S. or multilateral economic or trade sanctions adopted by the 

U.S. and currently in force, (ii) are owned or Controlled by, or act on behalf of, any governments, 

corporations, entities or individuals that are subject to U.S. or multilateral economic or trade sanctions 

adopted by the U.S. and currently in force, (iii) is a Prohibited Person or is otherwise named, identified or 

described on any blocked persons list, designated nationals list, denied persons list, entity list, debarred 

party list, unverified list, sanctions list or other list of individuals or entities with whom U.S. persons may 

not conduct business, including but not limited to lists published or maintained by OFAC, lists published 

or maintained by the U.S. Department of Commerce, and lists published or maintained by the U.S. 

Department of State.

(c) None of the Collateral is traded or used, directly or indirectly by a Prohibited 

Person or organized in a Prohibited Jurisdiction.

(d) The Borrower and its Subsidiaries have established an anti-money laundering 

compliance program as required by all applicable anti-money laundering laws and regulations, including 

the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism Act of 2001 (Public Law 107-56) (the “USA PATRIOT Act”).

5.17 Embargoed Person. (a) None of the Borrower’s or any of its Subsidiaries’ 

funds or other assets constitute property of, or are beneficially owned, directly or indirectly, by any 

Person subject to trade restrictions under U.S. law, including but not limited to, the International 

Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 

U.S.C. App. 1 et seq. (the “Trading With the Enemy Act”), any of the foreign assets control regulations of 

the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) (the “Foreign 

Assets Control Regulations”) or any enabling legislation or regulations promulgated thereunder or 

executive order relating thereto (which for the avoidance of doubt shall include but shall not be limited to 

(i) Executive Order No. 13224, effective as of September 24, 2001 and relating to Blocking Property and 

Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. 

Reg. 49079 (2001)) (the “Executive Order”) and (ii) the USA PATRIOT Act), with the result that the 

Investment in the Borrower or any of its Subsidiaries (whether directly or indirectly), is prohibited by 

Requirements of Law or any Loan made by the Lender is in violation of Requirements of Law 

(“Embargoed Person”), (b) no Embargoed Person has any interest of any nature whatsoever in the 

Borrower or any of its Subsidiaries with the result that the Investment in the Borrower or any of its 

Subsidiaries (whether directly or indirectly), is prohibited by Requirements of Law or any Loan is in 

violation of Requirements of Law, (c) none of the Borrower’s or any of its Subsidiaries’ funds have been 

derived from any unlawful activity with the result that the Investment in the Borrower or any of its 

Subsidiaries (whether directly or indirectly), is prohibited by Requirements of Law or any Loans is in 

violation of Requirements of Law and (d) neither the Borrower, any of its Subsidiaries, or any of their 

respective Affiliates (i) is a “blocked person” as described in the Executive Order, the Trading With the 
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Enemy Act or the Foreign Assets Control Regulations or (ii) engages in any dealings or transactions, or 

be otherwise associated, with any such “blocked person”. For purposes of determining whether a 

representation with respect to any indirect ownership is true under this Section 5.17, neither the Borrower 

nor any Subsidiary of the Borrower shall be required to make any investigation into (a) the ownership of 

publicly traded stock or other publicly traded securities or (b) the ownership of assets by a collective 

investment fund that holds assets for employee benefit plans or retirement arrangements.

5.18 Borrowing for Own Benefit; Margin Rules. The Borrower and its Subsidiaries 

are the beneficiaries of this Loan Agreement and the Loans to be received hereunder. The Borrower will 

use the proceeds of the Loans solely as set forth in Section 6.09 and the use of the Loans will comply with 

all Requirements of Law, including anti-money laundering laws. Neither the Borrower nor any of its 

Subsidiaries is engaged principally, or as one of its important activities, in the business of extending 

credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and 

no part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin 

Stock.

5.19 Indebtedness. No Loan Party has incurred any Indebtedness other than 

Permitted Indebtedness.

5.20 Investment Guidelines. Each of the Borrower and any Person subject to the 

Investment Guidelines has complied in all material respects with, and is in compliance in all material 

respects with, the Investment Guidelines.

5.21 Compliance Rules. Each of the Borrower and any Person, including the General 

Partner, any Relevant Person or any Secondary Person, subject to the Compliance Rules has complied in 

all material respects with, and is in compliance in all material respects with, the Compliance Rules.

SECTION 6. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees 

that, from the Effective Date and until the principal of and interest on each Loan and all other Obligations 

shall have been indefeasibly paid in full and the commitment of the Lender under Section 2.01(a) to make 

Loans has terminated:

6.01 Financial Statements. The Borrower will furnish to the Agents, the Lender and 

SIGTARP: 

(a) within sixty (60) days after the end of each of the first three quarterly fiscal 

periods of each fiscal year of the Borrower, except that the first fiscal period shall be the period 

commencing on the Effective Date and ending on the first calendar quarter end that is at least sixty (60) 

calendar days after the Effective Date, the unaudited Consolidated balance sheet of the Borrower and its 

Consolidated Subsidiaries as at the end of such period and the related unaudited Consolidated statement 

of income and of cash flows for the Borrower and its Consolidated Subsidiaries for such period and for 

the portion of the fiscal year through the end of such period, setting forth in each case in comparative 

form the figures for the previous year;

(b) within one hundred twenty (120) days after the end of each fiscal year of the 

Borrower, the audited Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at 

the end of such fiscal year and the related audited Consolidated statement of income and of cash flows for 

the Borrower and its Consolidated Subsidiaries for such year, setting forth in each case in comparative 

form the figures for the previous year, accompanied by a report thereon of an internationally recognized 

accounting firm reasonably acceptable to the Lender, which report shall state that such Consolidated 

financial statements fairly present the Consolidated financial condition and results of operations of the 
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Borrower and its Consolidated Subsidiaries at the end of, and for, such fiscal year in accordance with 

GAAP and which report shall not contain any qualifications arising out of the scope of the audit;

The financial statements delivered pursuant to clauses (a) and (b) above shall be complete and correct in 

all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied 

(except as approved by such accountants or a Responsible Officer, as the case may be, and disclosed in 

reasonable detail therein) consistently throughout the periods reflected therein and with prior periods.

(c) (i) within fifteen (15) days after the end of each month, or if such fifteenth day is 

not a Business Day, no later than the next Business Day following such fifteenth day, a report containing 

the following, as of the end of the prior month, in a format reasonably acceptable to the Agents and the 

Lender: 

(A) a description of the holdings of Portfolio Investments of the Borrower 

and its Subsidiaries (including CUSIP or ISIN, date of purchase, security description, par value, 

cost, Market Value and accrued income);

(B) details of securities transactions of the Borrower and its Subsidiaries 

(including purchases and sales with information sufficient to identify securities throughout the 

period) for such month;

(C) details of capital activity of the Borrower and its Subsidiaries (including 

contributions and withdrawals of Portfolio Investments and Cash) for such month;

(D) a summary of the change in the Market Value of the Borrower’s and its 

Subsidiaries’ Portfolio Investments;

(E) performance data of the Borrower and its Subsidiaries (including 1-

month, 3-month, year-to-date, latest 12-months, and since inception (on both a cumulative and 

annualized basis));

(F) management discussion and analysis of the Borrower’s and its 

Subsidiaries’ investment activities;

(G) an analysis of current market conditions; and

(H) solely in the case of instances in which an investment vehicle (other than 

the Borrower) or separate account for which the General Partner or any member of the General 

Partner Group acts as the manager or primary source of investments purchases Eligible Assets, 

information documenting (w) either (i) the offer to the Borrower of any Eligible Asset acquired 

by such investment vehicle or separate account or (ii) the rationale for why such offer was not 

made to the Borrower (which rationale may include that the Borrower is prohibited from 

investing in such Eligible Assets as set forth under “Diversification and Investment Limitations” 

on Schedule A to the Partnership Agreement), (x) the allocation of investment and disposition 

opportunities with respect to Eligible Assets among the Borrower and such other investment 

vehicles and separate accounts for which the General Partner or any member of the General 

Partner Group acts as the manager or primary source of investments, (y) purchases and sales of 

Eligible Assets by such investment vehicles and separate accounts (in each case including CUSIP 

number or ISIN, date of purchase and/or sale, security description, par value, acquisition or sale 

price, Market Value, as applicable) and (z) purchases and sales by such investment vehicles and 

separate accounts of any derivative instrument the value of which is connected to any Eligible 
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Asset held by the Borrower; provided that the General Partner will not be required to identify by 

name the investors in such investment vehicles or the clients with respect to such separate 

accounts; and

(ii) within fifteen (15) days after the end of each fiscal quarter of the 

Borrower, a report containing the following as of the end of each such fiscal quarter in a format 

reasonably acceptable to the Agents and the Lender: 

(A) disclosure of the ten (10) largest positions (as measured by Market 

Value) of the Borrower, which shall be publicly disclosed by UST at such time as UST 

determines in its sole discretion that such disclosure will not harm the ongoing business 

operations of the Borrower; 

(B) disclosure of each Private Investor that, individually or together with its 

Affiliates, directly or indirectly holds at least a 10% interest in the Borrower;

(C) disclosure of any amount retained pursuant to Section 3.4(f) of the 

Partnership Agreement and the purpose for which such amount has been retained; and

(D) disclosure of all instances in which the Borrower acquires Eligible Assets 

(including for this purpose, loans or other assets underlying Eligible Assets) which are serviced 

by the General Partner, the Subadvisors or any of their respective Affiliates; 

provided, that upon reasonable prior notice, the Borrower will provide the Agents, the Lender and their 

respective advisors and representatives access to any additional information requested regarding the 

subject matter of such monthly reports; provided further that the Borrower will update the information 

provided pursuant to clause (i)(H) on as close to a real-time basis as is reasonably feasible and provide the 

Agents, the Lender, SIGTARP and their respective advisors and representatives continual on-going access 

to such updated information by secure website;

(d) if the Borrower is not in compliance at the end of any month with the Asset 

Coverage Test as calculated as of the Measurement Date for such month, within two (2) Business Days 

after the end of each week until the Borrower gets back into compliance at the end of any month with the 

Asset Coverage Test as calculated as of the Measurement Date for such month on a Pro Forma basis, a 

report as of the last Business Day of the preceding week containing the information set forth in clauses 

(A), (B) and (C) of Section 6.01(c)(i);

(e) no later than five (5) Business Days prior to the effectiveness thereof, copies of 

any amendment to the Partnership Agreement or the organizational documents of the Borrower or of any 

Subsidiary;

(f) promptly after receipt thereof, copies of all material reports (excluding any draft 

of such reports) submitted by the Borrower’s independent public accountants in connection with each 

annual, interim or special audit or review of any type of the financial statements or related internal control 

systems of the Borrower or any of its Subsidiaries delivered by such accountants to the management or 

board of directors (or analogous body) of the Borrower;

(g) promptly after the same become publicly available, copies of all periodic and 

other reports, registration statements and proxy statements and other materials filed by the Borrower or 

any of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority 
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succeeding to any or all of the functions of said Commission, or with any national securities exchange, as 

the case may be; and

(h) promptly following any written request therefor, such other information, 

documents, records or reports with respect to the Collateral, the Portfolio Investments, Indebtedness of 

the Financing Subsidiaries or regarding the affairs, business affairs and condition (financial or otherwise) 

of the Borrower or any of its Subsidiaries, or compliance with the terms of this Loan Agreement and the 

other Loan Documents, as the Administrative Agent, the Collateral Agent, the Lender or SIGTARP may 

reasonably request; provided that the Lender shall bear the reasonable expenses of the preparation of such 

report if such report (A) is not (1) of a type customarily provided by investment fund managers or (2) a 

Requirement of Law and (B) will require the General Partner to incur a substantial expense to prepare.

Concurrently with the delivery of the information required to be delivered under clauses 

(a) and (b) above, the Borrower will furnish to the Administrative Agent and the Lender a certificate of a 

Responsible Officer of the Borrower substantially in the form of Exhibit C, (i) wherein such Responsible 

Officer shall certify that (A) said Consolidated financial statements fairly present the Consolidated 

financial condition and results of operations of the Borrower and its Consolidated Subsidiaries in 

accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal 

year-end audit adjustments and the absence of footnotes if applicable), (B) to the best of such Responsible 

Officer’s knowledge, each Loan Party during such period has observed or performed in all material 

respects all of its covenants and other agreements and has satisfied, in all material respects, every 

condition contained in this Loan Agreement and the other Loan Documents to be observed, performed or 

satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of 

Default that has occurred and is continuing except as specified in such certificate (and, if any Default or 

Event of Default has occurred and is continuing, describing the same in reasonable detail and describing 

the action the Borrower has taken or proposes to take with respect thereto) and (ii) stating whether any 

change in GAAP as applied by (or in the application of GAAP by) the Borrower has occurred since the 

delivery of the latest financial information delivered under Section 6.01(a) or (b) and, if any such change 

has occurred, specifying the effect of such change on the financial statements accompanying such 

certificate.

Not later than the sixth (6th) Business Day after the end of each month, the Borrower will 

furnish to the Administrative Agent, the Collateral Administrator and the Lender a certificate of a 

Responsible Officer of the Borrower substantially in the form of Exhibit D (i) setting forth all 

information and reasonably detailed calculations necessary for determining the Financial Covenants and 

(ii) certifying that all information and calculations of the Market Value of all Portfolio Investments held 

by the Borrower and its Subsidiaries, as determined by the Valuation Agent, including the ownership of 

such assets by the Person holding such assets, fairly present the Market Value of such Portfolio 

Investments (it being understood that the Borrower shall not have any responsibility or obligation for any 

errors or omissions made by any Vendor, Broker, Mark to Model Valuation Provider or other pricing 

services used to value Collateral and shall have no liability with respect to any such valuation if such 

valuation was made in accordance with the Valuation Process regardless of whether such valuation is 

significantly greater or less than other possible valuations).

At the time it furnishes each set of financial statements pursuant to paragraphs (a), (b) or 

(c) above, the General Partner agrees to cause the Key Persons and other relevant investment 

professionals to be available, upon reasonable advance notice and at reasonable times during normal 

business hours, to discuss the Borrower and its activities with the Lender and its advisors and 

representatives at the request of the Lender.
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6.02 Notices of Material Events. The Borrower will promptly furnish written notice 

to the Administrative Agent, the Lender and SIGTARP of:

(a) Defaults. The occurrence of any Default or Event of Default;

(b) Litigation. 

(i) Any litigation or proceeding of which the Borrower has knowledge that 

may exist at any time in which the Borrower or one of its Subsidiaries or any Relevant Person or 

Secondary Person in connection with such Relevant Person’s or Secondary Person’s activities 

related to the Borrower, is a named party and which, if adversely determined could reasonably be 

expected to have a Material Adverse Effect and the outcome, when resolved, of any such 

litigation or proceeding;

(ii) The commencement of any formal investigation (other than routine or 

sweep investigations) of which the Borrower becomes aware by any Governmental Authority that 

involves an allegation of a material violation of law by the Borrower or one of its Subsidiaries or 

any Relevant Person or Secondary Person in connection with such Relevant Person’s or 

Secondary Person’s activities related to the Borrower, that involves an allegation of a material 

violation of law by such Relevant Person or Secondary Person, as applicable, and the outcome, 

when resolved, of any such investigation; and

(iii) Any litigation or proceeding of which the Borrower has knowledge 

affecting the Borrower or any Subsidiary of the Borrower (A) in which the amount involved is 

$1,000,000 or more, (B) in which injunctive or similar relief is sought or (C) which relates to any 

Loan Document;

(c) ERISA. The occurrence or existence of any of the events or conditions specified 

below with respect to any Plan or Multiemployer Plan as soon as reasonably possible, and in any event 

within five (5) Business Days after a Responsible Officer of the Borrower knows or has reason to believe, 

that any such event or condition has occurred or exists, together with a certificate signed by a Responsible 

Officer of the Borrower setting forth details respecting such event or condition and the action, if any, that 

the Borrower, any Subsidiary of the Borrower or its ERISA Affiliate proposes to take with respect thereto 

(and a copy of any report or notice required to be filed with or given to PBGC by the Borrower, any 

Subsidiary of the Borrower or an ERISA Affiliate with respect to such event or condition):

(i) any Reportable Event (provided that a failure to meet the minimum 

funding standard of Section 412 of the Code or Section 302 of ERISA, including the failure to 

make on or before its due date a required installment under the Code or ERISA, shall be a 

reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of 

the Code); and any request for a waiver under Section 412(d) of the Code for any Plan;

(ii) the distribution under Section 4041(c) of ERISA of a notice of intent to 

terminate any Plan or any action taken by the Borrower, any Subsidiary of the Borrower or any 

ERISA Affiliate to terminate any Plan;

(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for 

the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the 

Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of a notice from a 

Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer 

Plan;
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(iv) the complete or partial withdrawal from a Multiemployer Plan by the 

Borrower, any Subsidiary of the Borrower or any ERISA Affiliate that results in liability under 

Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result 

of a purchaser default) or the receipt by the Borrower, any Subsidiary of the Borrower or any 

ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency 

pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under 

Section 4041A of ERISA;

(v) the institution of a proceeding by a fiduciary of any Multiemployer Plan 

against the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate to enforce 

Section 515 of ERISA, which proceeding is not dismissed within thirty (30) days; and

(vi) any violation of Section 401(a)(29) of the Code; 

(d) Proposed Change of Public Accountants. A proposed change of the Borrower’s 

accounting firm, including the name of the new accounting firm, which firm shall be an internationally 

recognized accounting firm reasonably acceptable to the Lender;

(e) Disabling Event. The occurrence of any Disabling Event of which it has 

knowledge;

(f) Amendments to the Private Vehicles. Any proposed amendment or supplement 

to the Private Vehicle Documents or any Side Letter, and in any event no later than ten (10) Business 

Days’ prior to such amendment or supplement becoming effective, which notice will be accompanied by 

a certificate of a Responsible Officer stating whether such amendment adversely affects the Lender, the 

Borrower or the Borrower’s investment activities;

(g) Waste, Fraud and Abuse. Any instance or suspected instance of waste, fraud or 

abuse relating to the Borrower, any of its Subsidiaries or the General Partner and will provide the General 

Partner Group and their respective employees with SIGTARP’s hotline information, available at 

www.sigtarp.gov; and

(h) Material Adverse Effect. Any development or event of which the Borrower has 

knowledge that has had or could reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 6.02 shall be accompanied by a certificate of a Responsible Officer of 

the Borrower setting forth details of the occurrence referred to therein and stating what action, if any, the 

relevant Person proposes to take with respect thereto.

6.03 Existence; Conduct of Business. The Borrower will, and will cause each of its 

Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and 

effect its legal existence and take all reasonable action to maintain all material rights, licenses, permits, 

privileges and franchises necessary or desirable in the normal conduct of the business of the Borrower and 

its Subsidiaries; provided that the foregoing shall not prohibit any merger, consolidation, liquidation 

amalgamation, winding-up or dissolution permitted under Section 7.03.

6.04 Payment of and Compliance with Obligations. The Borrower will, and will 

cause each of its Subsidiaries to, comply with and pay, discharge or otherwise satisfy at or before 

maturity or before they become delinquent, as the case may be, its obligations of whatever nature, 

including (i) material taxes, assessments and governmental charges or levies imposed on it or its income 

or profits or on any of its Property and (ii) pursuant to other Contractual Obligations, in each case before 
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the same shall become delinquent or in default, except where (a) the validity or amount thereof is being 

contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on 

its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make 

payment pending such contest could not reasonably be expected to result in a Material Adverse Effect. 

The Borrower and its Subsidiaries shall file on a timely basis all federal, state and local tax and 

information returns, reports and any other information statements or schedules required to be filed by or 

in respect of it where the failure to file could reasonably be expected to have a Material Adverse Effect.

6.05 Maintenance of Properties. The Borrower will, and will cause each of its 

Subsidiaries to, keep and maintain all Property useful and necessary to the conduct of the business of the 

Borrower and its Subsidiaries in good working order and condition, ordinary wear and tear and casualty 

excepted.

6.06 Books and Records; Inspection. (a) The Borrower will, and will cause of each 

of its Subsidiaries to, keep or cause to be kept complete, accurate and appropriate books and records. The 

books and records, together with all documents and records (including electronic messages) relating to the 

Borrower or its Subsidiaries (collectively, the “Borrower Documents”), shall be retained by the Borrower 

or such Subsidiary until the three-year anniversary of the termination and dissolution of the Borrower. 

The Borrower Documents shall be maintained on a basis which allows the proper preparation of the 

Borrower’s and its Consolidated Subsidiaries’ financial statements and tax returns. The Borrower shall, 

and shall cause each of its Subsidiaries to, provide the Administrative Agent, the Collateral Agent, the 

Lender and SIGTARP and their respective advisors and representatives access to in electronic form, and 

copies upon request of, the Borrower Documents. For purposes of this Loan Agreement, (i) in all 

instances where access by UST, SIGTARP, GAO, the Lender and their respective advisors and 

representatives is required, such access shall be during normal business hours and upon prior written 

request; provided that the foregoing limitation shall not apply to the extent such access is provided in an 

electronic form via a secured website, which website shall be accessible to UST and the Lender at all 

times (provided that access may be reasonably limited for periodic maintenance or pending resolution of 

technological difficulties) and (ii) “electronic form” shall mean in a form that can be stored electronically 

and accessed directly by a computer.

(b) The Borrower will keep or cause to be kept complete, accurate and appropriate 

books and records of the Private Vehicles and Feeder Vehicles. The Private Vehicle Documents shall be 

retained by the Borrower until the three-year anniversary of the termination and dissolution of the 

Borrower. The Borrower shall provide the Administrative Agent, the Collateral Agent, the Lender and 

SIGTARP and their respective advisors and representatives reasonable access to in electronic form, and 

copies upon request of, the Private Vehicle Documents, including, for the avoidance of doubt, any 

information in the possession of the Borrower and any of its Subsidiaries and any of their respective 

Affiliates regarding (i) the beneficial owners of interests in the Private Vehicles and the Feeder Vehicles 

in their capacity as beneficial owners of the Private Vehicles or Feeder Vehicles, as applicable and (ii) 

notices of events of default, material litigation and other material events relating to the Private Vehicles 

and the Feeder Vehicles.

(c) The Borrower will, and will cause each of its Subsidiaries and each of their 

respective Affiliates that are members of the General Partner Group to, with respect to such Affiliate’s 

activities in connection with the Borrower and/or the acquisition or Disposition of Eligible Assets, keep 

or cause to be kept complete, accurate and appropriate books and records of the members of the General 

Partner Group. The General Partner Group Documents shall be retained by such member until the threeyear anniversary of the termination and dissolution of the Borrower. The Borrower shall, and shall cause 

each of its Subsidiaries to, provide the Lender and its advisors and representatives reasonable access to in 

electronic form, and copies upon request of, the General Partner Group Documents; provided that the 
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Borrower and its Subsidiaries will not be required to identify by name the investors in any investment 

vehicles (other than the Borrower, the Private Vehicles and any Feeder Vehicles) or the clients of any 

separate accounts for which any member of the General Partner Group acts as the manager or primary 

source of investments.

(d) The Borrower Documents, Private Vehicle Documents and General Partner 

Group Documents will be maintained at the principal office of any member of the General Partner Group, 

any member of the General Partner Group’s off-site document and record storage facilities or at the back 

office service providers of any member of the General Partner Group, as applicable; provided that if the 

Borrower Documents, Private Vehicle Documents or the General Partner Group Documents are 

maintained at any member of the General Partner Group’s off-site document and record storage facilities, 

such documents, upon the request of UST (and solely in the case of the Borrower Documents, upon the 

request of SIGTARP), will be recalled and relocated to the offices of such member within two (2) 

Business Days of such request.

(e) The Borrower will, and will cause each of its Subsidiaries to, procure that the 

GAO (i) shall have access to and copies upon request of any information, data, schedules, books, 

accounts, financial records, reports, files, electronic communications, or other papers, things, or property 

belonging to or in use by the Borrower, any of its Subsidiaries, the Private Vehicles, the Feeder Vehicles 

and the General Partner Group and to the officers, employees, directors, independent public accountants, 

financial advisors and any and all other agents and representatives thereof, at such time as the GAO may 

request and (ii) may make and retain copies of such books, accounts, and other records as the GAO 

determines appropriate in its sole and absolute discretion. The foregoing provisions of this Section 

6.06(e) shall not extend the GAO’s access beyond that which is required by applicable Requirements of 

Law.

6.07 Compliance with Laws. The Borrower will, and will cause each of its 

Subsidiaries to, comply with (to the extent such law, guidance or regulation is applicable pursuant to its 

terms to the Borrower or such Subsidiary) (a) (i) Section 111 of EESA, as implemented by any guidance 

or regulations issued and/or to be issued by UST thereunder, including 31 CFR 30 and (ii) EAWA, as 

implemented by any guidance or regulations issued and/or to be issued by UST thereunder and (b) all 

other Requirements of Law, including the Investment Company Act and orders of any Governmental 

Authority applicable to it or its property, except, in the case of clause (b), where the failure to do so, 

individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

6.08 Certain Obligations Respecting Subsidiaries; Further Assurances.

(a) Subsidiary Guarantors. If the Borrower or any of its Subsidiaries shall form or 

acquire any new Subsidiary, the Borrower will cause such new Subsidiary to become a “Guarantor” (and, 

thereby, a “Loan Party”) under the Guarantee Assumption Agreement and to promptly, but in any event 

no later than five (5) Business Days after formation or acquisition, deliver such proof of organizational 

action, incumbency of Responsible Officers, opinions of counsel and other documents as is consistent 

with those delivered by the Borrower pursuant to Section 4.01 upon the Effective Date or as the Lender 

shall otherwise reasonably request.

(b) Notice of Formation; Ownership of Subsidiaries. Prior to the formation or 

acquisition of any Subsidiary, the Borrower will provide notice of such formation or acquisition to the 

Agents and the Lender, together with an updated Schedule 5.13 and Schedule 5.14 reflecting the addition 

of such Subsidiary. The Borrower will, and will cause each of its Subsidiaries to, take such action from 

time to time as shall be necessary to ensure that each of its Subsidiaries is a wholly owned Subsidiary 

formed under the laws of the United States or any state thereof.
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(c) Further Assurances. The Borrower will, and will cause each of the Guarantors 

to, take such action from time to time as shall reasonably be requested by the Administrative Agent or the 

Collateral Agent to effectuate the purposes and objectives of this Loan Agreement and the other Loan 

Documents. Without limiting the generality of the foregoing, the Borrower will, and will cause each of 

the Guarantors to, take such action from time to time (including filing appropriate Uniform Commercial 

Code financing statements and executing and delivering such assignments, security agreements and other 

instruments) as shall be reasonably requested by the Administrative Agent, the Collateral Agent or the 

Lender (i) to create, in favor of the Collateral Agent for the benefit of the Secured Parties perfected 

security interests in the Collateral subject to no Liens other than Permitted Liens; provided that any such 

security interest shall be subject to the relevant requirements of the Security Documents and 

Requirements of Law and (ii) upon the acquisition or purchase of any additional Portfolio Investments, to 

take such actions to Deliver such assets to the Custodian to be held in the Custodial Account in the 

manner set forth in the Guarantee and Security Agreement and the Custodial Agreement.

6.09 Use of Proceeds. The Borrower will use the proceeds of the Loans to finance the 

acquisition (either directly or through one or more Subsidiaries) of Portfolio Investments and to pay costs 

and expenses ancillary thereto, to fund the Interest Reserve Account in accordance with the terms hereof, 

to make payments or provide margin for Permitted Interest Rate Hedges in a manner consistent with the 

Investment Guidelines and to pay Permitted Borrower Administrative Expenses; provided that neither the 

Administrative Agent, the Collateral Agent nor the Lender shall have any responsibility as to the use of 

any of such proceeds. No part of the proceeds of any Loan will be used in violation of any Requirement 

of Law or, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or 

carrying any Margin Stock. Margin Stock shall be purchased by the Borrower and its Subsidiaries only 

with the proceeds of Indebtedness not directly or indirectly secured by Margin Stock, or with the proceeds 

of equity capital of the Borrower.

6.10 Investment Guidelines. The Borrower shall, and shall cause each of its 

Subsidiaries to, comply in all material respects with the Investment Guidelines.

6.11 OFAC. The Borrower, its Subsidiaries and their respective Controlled Affiliates 

(a) shall be in full compliance with all applicable orders, rules, regulations and recommendations of 

OFAC and (b) shall not permit any Collateral to be maintained, insured, traded, or used (directly or 

indirectly) in violation of any United States Requirements of Law, in a Prohibited Jurisdiction or by a 

Prohibited Person, and no lessee or sublessee shall be a Prohibited Person or organized in a Prohibited 

Jurisdiction.

6.12 Financing Subsidiaries. The Borrower will cause proceeds of investments 

owned by Financing Subsidiaries to repay Indebtedness of such Financing Subsidiaries to the extent 

required by the terms thereof, and will cause any surplus proceeds, to the extent permitted by the terms 

thereof, to be distributed to the Borrower promptly.

6.13 Information; Reports. The Borrower will provide the Valuation Agent with 

any information that is in the possession of the Borrower or any Subsidiary that is, in the reasonable 

judgment of the Valuation Agent, necessary or advisable for the preparation of any report required to be 

delivered by the Valuation Agent in accordance with the Loan Documents.

6.14 USA PATRIOT Act. The Borrower, its Subsidiaries and their respective 

Controlled Affiliates shall be in full compliance with all applicable anti-money laundering laws, rules and 

regulations, including the USA Patriot Act.
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6.15 Compliance Rules. The Borrower shall, and shall cause each of its Subsidiaries 

to, at all times, be in compliance in all material respects with the Compliance Rules.

SECTION 7. NEGATIVE COVENANTS. The Borrower covenants and agrees that, 

from the Effective Date and until the principal of and interest on each Loan and all other Obligations shall 

have been indefeasibly paid in full and the commitment of the Lender under Section 2.01(a) to make 

Loans has terminated:

7.01 Indebtedness. The Borrower will not, nor will it permit any of its Subsidiaries 

to, create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness, other than 

Permitted Indebtedness. 

7.02 Liens. The Borrower will not, nor will it permit any of its Subsidiaries to, create, 

incur, assume or suffer to exist any Lien on any Property now owned or hereafter acquired by it, or assign 

or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, other 

than Permitted Liens. 

7.03 Fundamental Changes. The Borrower will not, nor will it permit any of its 

Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up 

or dissolve itself (or suffer any liquidation or dissolution) or Dispose of all or substantially all of its 

Property or business, except that:

(a) any Guarantor may be merged or consolidated with or into the Borrower or any 

other Guarantor;

(b) any Subsidiary of the Borrower may Dispose of its Property or business (upon 

voluntary liquidation or otherwise) to the Borrower or any Guarantor;

(c) the Equity Interests of any Subsidiary of the Borrower may be sold, transferred or 

otherwise Disposed of to the Borrower; and

(d) the Borrower and its Subsidiaries may consummate transactions permitted by 

Sections 7.04 and 7.05 and may Dispose of Portfolio Investments in accordance with the Investment 

Guidelines. 

7.04 Investments. The Borrower will not, nor will it permit any of its Subsidiaries to, 

acquire, make or enter into, or hold, any Investments, other than Permitted Investments. 

7.05 Restricted Payments. The Borrower will not declare or make, or agree to pay or 

make, directly or indirectly, any Restricted Payment, other than Restricted Payments permitted pursuant 

to the Priority of Payments. 

7.06 Certain Restrictions on Subsidiaries. The Borrower will not permit any of its 

Subsidiaries, to enter into or suffer to exist or become effective any consensual encumbrance or 

consensual restriction on the ability of any Subsidiary of the Borrower to (a) make payments in respect of 

any Equity Interests of such Subsidiary held by, or pay any Indebtedness or other obligation owed to, the 

Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, 

the Borrower or any other Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or 

any other Subsidiary of the Borrower.
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7.07 Transactions with Affiliates. The Borrower will not, and will not permit any of 

its Subsidiaries to, enter into any transaction, including any purchase, sale or exchange of Property, the 

rendering of any service or the payment of any management, advisory or similar fees, with any of its 

Affiliates, even if otherwise permitted under this Loan Agreement, except (a) with the prior written 

consent of the Lender, (b) transactions between or among the Borrower and the Guarantors not involving 

any other Affiliate, (c) transactions permitted by the Partnership Agreement and (d) Restricted Payments 

permitted by Section 7.05.

7.08 Lines of Business. The Borrower will not, nor will it permit any of its 

Subsidiaries to, engage in any activity of any kind or enter into any Contractual Obligation or other 

undertaking which is not directly or indirectly related to (a) the purchasing, owning, holding and 

Disposition of Portfolio Investments in accordance with the Investment Guidelines or the ownership of 

Equity Interests of its Subsidiaries that it is otherwise permitted to own hereunder, (b) the Loan 

Documents and Permitted Interest Rate Hedges or (c) activities specifically permitted by the Partnership 

Agreement or incidental or ancillary to activities permitted thereunder.

7.09 No Further Negative Pledge. The Borrower will not, and will not permit any of 

its Subsidiaries to, enter into or suffer to exist or become effective any Contractual Obligation that 

prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon 

any of its Properties, assets or revenues, whether now owned or hereafter acquired, or which requires the 

grant of any security for an obligation if security is granted for another obligation, except the following: 

(a) this Loan Agreement and the other Loan Documents, (b) covenants in documents creating Liens 

permitted by Section 7.02 and prohibiting further Liens on the assets encumbered thereby, (c) restrictions 

imposed by Requirements of Law and (d) restrictions on pledging collateral which has been pledged or 

posted to any Permitted Hedge Counterparty in respect of margin requirements under the terms of any 

Permitted Interest Rate Hedge (other than a Permitted Secured Interest Rate Hedge) to secure the 

obligations of the Borrower or any Subsidiary thereunder.

7.10 Modifications of Certain Agreements. The Borrower will not, and will not 

permit any of its Subsidiaries to, amend, modify, waive or otherwise change or consent to or agree to any 

amendment, modification, waiver or other change to any of its organizational documents, including the 

Partnership Agreement, unless such amendment, modification, waiver or change could not reasonably be 

expected to have an adverse impact on the Lender. 

7.11 Hedge Agreements. The Borrower will not, and will not permit any of its 

Subsidiaries to, enter into any Hedge Agreement, other than Permitted Interest Rate Hedges. 

7.12 Subsidiary Capitalization. The Borrower will not, and will not permit any of 

its Subsidiaries to, create, form, acquire or make any Investment in any Subsidiary or other Person, except 

in compliance with Sections 6.08 and 7.04.

7.13 Accounts. The Borrower will not, and will not permit any of its Subsidiaries 

(other than Financing Subsidiaries) to, open or maintain any deposit, securities or commodities account, 

other than (i) the Custodial Account (which will include sub-accounts holding Temporary Investments), 

(ii) the Interest Reserve Account, (iii) an account (which will include sub-accounts holding Temporary 

Investments) in which the sole amount on deposit is the Working Capital Reserve, (iv) one or more 

accounts in which the sole funds on deposit are required to be posted or pledged as collateral in respect of 

margin requirements to a Permitted Hedge Counterparty under the terms of any credit support annex or 

similar documents entered into in connection with a Permitted Interest Rate Hedge, (v) the Escrow 

Account and (vi) the Distribution Account.
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7.14 Payments. The Borrower will not, and will not permit any of its Subsidiaries 

(other than Financing Subsidiaries), to make any payment to any Person or make any expenditure for any 

Property, including Eligible Assets, except in accordance with Section 2.07.

7.15 Embargoed Person. The Borrower will not, and will not permit any of its 

Subsidiaries or any of their respective Affiliates (i) to become a “blocked person” as described in the 

Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (ii) to 

engage in any dealings or transactions, or be otherwise associated, with any such “blocked person”. For 

purposes of determining compliance with this Section 7.15, neither the Borrower nor any Subsidiary of 

the Borrower shall be required to make any investigation into (a) the ownership of publicly traded stock 

or other publicly traded securities or (b) the ownership of assets by a collective investment fund that holds 

assets for employee benefit plans or retirement arrangements.

SECTION 8. EVENTS OF DEFAULT.

8.01 Events of Default. If any of the following events (each an “Event of Default”) 

shall occur and be continuing:

(a) the Borrower shall fail to pay (i) the Principal Amount on the Maturity Date or 

(ii) any Interest Amount or other amount payable hereunder or under any other Loan Document, when 

and as the same becomes due and payable hereunder or thereunder and such failure shall continue 

unremedied for a period of two (2) Business Days or (iii) any other mandatory payment of the Loans 

under the Priority of Payments for which Collections are available in accordance therewith (and, with 

respect to clause (iii) above, in the case of a failure to make payment solely resulting from an 

administrative error (as determined by the Lender in its sole discretion), such failure to pay shall continue 

unremedied for a period of two (2) Business Days); or

(b) any representation or warranty made or deemed made by any Loan Party herein 

or in any other Loan Document or that is contained in any certificate, document or financial or other 

statement furnished by it at any time under or in connection with this Loan Agreement or any such other 

Loan Document shall prove to have been inaccurate in any material respect (or, in the case of any 

representation that is qualified by materiality or “Material Adverse Effect”, in any respect) on or as of the 

date made or deemed made; or

(c) any Loan Party shall default in the observance or performance of any agreement 

contained in Section 2.07(c), Section 6.02(a), Section 6.03 (with respect to the Borrower’s existence), 

Section 6.08(a) or (b), or Section 7 of this Loan Agreement or Section 7 of the Guarantee and Security 

Agreement (and, with respect to a default under Section 2.07(c) solely resulting from an administrative 

error (as determined by the Lender in its sole discretion), such default shall continue unremedied for a 

period of two (2) Business Days); or

(d) any Loan Party shall default in the observance or performance of any agreement 

contained in Section 6.01(c), Section 6.01(d), Section 6.10 or Section 6.15, or the Borrower, any of its 

Subsidiaries or any other Person subject to the Investment Guidelines or the Compliance Rules 

(including, in respect of the Compliance Rules, the General Partner, any Relevant Person or any 

Secondary Person) shall default in any material respect in the observance or performance of the 

Investment Guidelines or the Compliance Rules, and such default shall continue unremedied for a period 

of five (5) Business Days after a Responsible Officer of the Borrower has knowledge thereof or the 

Borrower receives notice thereof from the Lender or the Administrative Agent; or
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(e) any Loan Party shall default in the observance or performance of any other 

agreement contained in this Loan Agreement or any other Loan Document (other than as provided in 

paragraphs (a) through (d) of this Section 8), and such default shall continue unremedied for a period of 

thirty (30) days after a Responsible Officer of the Borrower has knowledge thereof or the Borrower 

receives notice thereof from the Lender or the Administrative Agent; or

(f) the Borrower or any Subsidiary shall (i) default in making any payment of any 

principal of any Indebtedness (other than the Loans) on the scheduled or original due date with respect 

thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period 

of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or 

(iii) default in the observance or performance of any other agreement or condition relating to any such 

Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any 

other event shall occur or condition exist, the effect of which default or other event or condition is to 

cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such 

holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due 

prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to 

become payable; provided that a default, event or condition described in clause (i), (ii) or (iii) of this 

paragraph (f) shall not at any time constitute an Event of Default unless, at such time, one or more 

defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (f) shall 

have occurred and be continuing with respect to Indebtedness the aggregate outstanding principal amount 

of which is $10,000,000 or more; or

(g) (i) any of the General Partner, the Borrower or any Subsidiary shall commence 

any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or 

foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order 

for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking 

reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief 

with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or 

other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced 

against any of the General Partner, the Borrower or any Subsidiary any case, proceeding or other action of 

a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such 

adjudication or appointment or (B) remains undismissed or undischarged for a period of sixty (60) days; 

or (iii) there shall be commenced against any of the General Partner, the Borrower or any Subsidiary any 

case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or 

similar process against all or any substantial part of its assets that results in the entry of an order for any 

such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty 

(60) days from the entry thereof; or (iv) any of the General Partner, the Borrower or any Subsidiary shall 

take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the 

acts set forth in clause (i), (ii), or (iii) above; or (v) any of the General Partner, the Borrower or any 

Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts 

as they become due; or (vi) any of the General Partner, the Borrower or any Subsidiary shall make a 

general assignment for the benefit of its creditors; or

(h) (i) an ERISA Event shall have occurred, (ii) the Borrower, any Subsidiary or any 

ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or 

will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have 

reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal 

Liability in a timely and appropriate manner or (iii) any other similar event or condition shall occur or 

exist with respect to a Plan; and in each case in clauses (i) through (iii) above, such event or condition, 

together with all other such events or conditions, if any, could reasonably be expected to result in liability 
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of the Borrower, any Subsidiary or any ERISA Affiliate in an aggregate amount exceeding (A) 

$10,000,000 in any year or (B) $30,000,000 for all periods; or

(i) one or more judgments or decrees shall be entered against any of the Borrower or 

any Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance as to which 

the relevant insurance company has acknowledged coverage) of $10,000,000 or more, and all such 

judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 

days from the entry thereof; or

(j) any of the Security Documents shall cease, for any reason, to be in full force and 

effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of 

the Security Documents shall cease to be enforceable and of the same effect and priority purported to be 

created thereby; or

(k) the guarantee contained in Section 3 of the Guarantee and Security Agreement 

shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan 

Party shall so assert; or

(l) the occurrence of any event of Cause or Key Person Event and such event shall 

not have been resolved in a manner satisfactory to the Lender within thirty (30) days or such longer 

period as the Lender in its sole discretion may permit; or

(m) the withdrawal of the General Partner or general partner of the Borrower or the 

occurrence of a removal of one of the General Partners as the general partner of the Borrower upon the 

vote of UST and the other Limited Partners; or

(n) any Loan Party becomes an “investment company” required to be registered 

under the Investment Company Act.

8.02 Remedies. Upon the occurrence and during the continuance of one or more 

Events of Default, other than those referred to in Section 8.01(g)(i) or (ii), the Administrative Agent may 

and, at the request of the Lender, shall immediately take one or both of the following actions: terminate 

the Lender’s commitment to fund Loans on any subsequent Funding Date and declare the Principal 

Amount of all Loans to be immediately due and payable, together with all interest thereon and all other 

obligations of the Loan Parties accrued under this Loan Agreement and the other Loan Documents; 

provided that upon the occurrence of an Event of Default referred to in Section 8.01(g)(i) or (ii), the 

commitment to fund Loans on any subsequent Funding Date shall terminate automatically and the Loans 

shall immediately and automatically become due and payable without any further action by the 

Administrative Agent or the Lender. Upon such declaration or such automatic acceleration, the Principal 

Amount of the Loan shall become immediately due and payable, without presentment, demand, protest or 

other formalities of any kind, all of which are hereby expressly waived by the Borrower and each other 

Loan Party and the Agents may thereupon exercise any remedies available to them at law or pursuant to 

the Loan Documents, including the liquidation of the Collateral. The Administrative Agent may, and at 

the request of the Lender shall, exercise at any time after the occurrence and during the continuation of an 

Event of Default one or more remedies, as it so desires, and may thereafter at any time and from time to 

time exercise any other remedy or remedies.

SECTION 9. AGENCY PROVISIONS.

9.01 Appointment. The Lender hereby designates and appoints the Administrative 

Agent as the agent of such Lender under this Loan Agreement and the other Loan Documents, and the 
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Lender authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the 

provisions of this Loan Agreement and the other Loan Documents and to exercise such powers and 

perform such duties as are expressly delegated to the Administrative Agent by the terms of this Loan 

Agreement and the other Loan Documents, together with such other powers as are reasonably incidental 

thereto. Notwithstanding any provision to the contrary elsewhere in this Loan Agreement, the 

Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein 

and in the other Loan Documents, or any fiduciary relationship with the Lender, and no implied 

covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Loan 

Agreement or any other Loan Document or otherwise exist against the Administrative Agent.

9.02 Delegation of Duties. The Administrative Agent may execute ministerial and 

ancillary duties under this Loan Agreement and the other Loan Documents through third party ministerial 

or ancillary service providers. The Administrative Agent shall have no monitoring responsibility with 

respect to such persons and shall not be responsible for any misconduct or negligence on the part of any 

such persons appointed by the Administrative Agent with due care.

9.03 Exculpatory Provisions. Neither the Administrative Agent nor any of its 

officers, directors, employees, agents, administrators, advisors, attorneys in fact or Affiliates shall be (a) 

liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with 

this Loan Agreement or any other Loan Document (except to the extent that any of the foregoing are 

found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from its 

or such Person’s own negligence, bad faith, willful misconduct or fraudulent action) or (b) responsible in 

any manner to the Lender or any other Person for any recitals, statements, representations or warranties 

made by any Loan Party or any officer thereof contained in this Loan Agreement or any other Loan 

Document or in any certificate, report, statement, opinion of counsel or other document referred to or 

provided for in, or received by the Administrative Agent under or in connection with, this Loan 

Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, 

enforceability or sufficiency of this Loan Agreement or any other Loan Document or for any failure of 

any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Administrative 

Agent shall not be under any obligation to the Lender to ascertain or to inquire as to the observance or 

performance of any of the agreements contained in, or conditions of, this Loan Agreement or any other 

Loan Document, or to inspect the properties, books or records of any Loan Party.

9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled 

to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, 

certificate, affidavit, letter, facsimile or email message, statement, order or other document or 

conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by 

the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the 

Borrower), independent accountants and other experts selected by the Administrative Agent. The 

Administrative Agent shall be fully justified in failing or refusing to take any action under this Loan 

Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the 

Lender as it deems appropriate. The Administrative Agent shall in all cases be fully protected in acting, 

or in refraining from acting, under this Loan Agreement and the other Loan Documents in accordance 

with a request of the Lender.

9.05 Notice of Default. The Administrative Agent shall not be deemed to have 

knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent 

has received written notice from the Lender or the Borrower referring to this Loan Agreement in 

accordance with Section 10.02, describing such Default or Event of Default and stating that such notice is 

a “notice of default”. In the absence of receipt of such notice, the Administrative Agent may conclusively 

assume that there is no Default or Event of Default. In the event that the Administrative Agent receives 
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such a notice, the Administrative Agent shall give notice thereof to the Lender. The Administrative 

Agent shall take such action with respect to such Default or Event of Default as shall be directed by the 

Lender; provided that unless and until the Administrative Agent shall have received such direction, the 

Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such 

action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of 

the Lender.

9.06 Non-Reliance on Administrative Agent. The Lender expressly acknowledges 

that neither the Administrative Agent nor any of its officers, directors, employees, agents, advisors, 

attorneys in fact or Affiliates have made any representations or warranties to it and that no act by the 

Administrative Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate 

of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent 

to the Lender. The Lender represents to the Administrative Agent that it has, independently and without 

reliance upon the Administrative Agent, and based on such documents and information as it has deemed 

appropriate, made its own appraisal of and investigation into the business, operations, property, financial 

and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own 

decision to make its Loans hereunder and enter into this Loan Agreement. The Lender also represents 

that it will, independently and without reliance upon the Administrative Agent, and based on such 

documents and information as it shall deem appropriate at the time, continue to make its own credit 

analysis, appraisals and decisions in taking or not taking action under this Loan Agreement and the other

Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, 

operations, property, financial and other condition and creditworthiness of the Loan Parties and their 

Affiliates. Except for notices, reports and other documents expressly required to be furnished to the 

Lender by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or 

responsibility to provide the Lender with any credit or other information concerning the business, 

operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party 

or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of 

its officers, directors, employees, agents, advisors, attorneys in fact or Affiliates.

9.07 Resignation and Removal of Administrative Agent. 

(a) The Administrative Agent may resign as Administrative Agent, or the Lender 

may, in its sole discretion, remove the Administrative Agent, with sixty (60) days’ (in the case of the 

Administrative Agent resigning) or thirty (30) days’ (in the case of the removal of the Administrative 

Agent) prior written notice (i) to the Lender and the Borrower (in the case of the Administrative Agent 

resigning) or (ii) to the Collateral Agent, the Collateral Administrator, the Custodian, the Valuation 

Agent, the Administrative Agent and the Borrower (in the case of the removal of the Administrative 

Agent). Any such resignation or removal shall become effective following the appointment of a 

successor Administrative Agent in accordance with the provisions of this Section 9.07. Upon any 

resignation or removal of the Administrative Agent, the Lender shall appoint a successor Administrative 

Agent, which successor Administrative Agent shall succeed to the rights, powers and duties of the 

Administrative Agent, and the term “Administrative Agent” shall mean such successor Administrative 

Agent effective upon such appointment and approval, and the former Administrative Agent’s rights, 

powers and duties as Administrative Agent shall be terminated, without any other or further act or deed 

on the part of such former Administrative Agent or any of the parties to this Loan Agreement or any 

holders of the obligations owing hereunder. On and after the effective date of any resignation or removal 

of the Administrative Agent hereunder, the provisions of this Section 9 shall inure to its benefit as to any 

actions taken or omitted to be taken by it while it was Administrative Agent under this Loan Agreement.

(b) If no successor Administrative Agent shall be appointed and shall have accepted 

such appointment within ninety (90) days after the aforesaid notice of resignation or removal, the 
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Administrative Agent, in the case of resignation, and the Lender, in the case of removal, may apply to any 

court of competent jurisdiction to appoint a successor Administrative Agent to act until such time, if any, 

as a successor Administrative Agent shall have been appointed as provided in this Section 9.07. Any 

successor so appointed by such court shall immediately and without further act be superseded by any 

successor Administrative Agent appointed pursuant to the preceding paragraph. Any Administrative 

Agent shall be entitled to all Administrative Agent fees to the extent incurred or arising, or relating to 

events occurring, before such resignation or removal becomes effective, and the protections of Section 

10.05 with respect to any costs and expenses to the extent incurred or arising, or relating to events 

occurring, before such resignation or removal shall survive.

(c) If at any time the Administrative Agent shall resign or be removed or otherwise 

become incapable of acting, or if at any time a vacancy shall occur in the office of the Administrative 

Agent for any other cause, a successor Administrative Agent may be appointed as set forth in Section 

9.07(a). The powers, duties, authority and title of the predecessor Administrative Agent as set forth in 

Section 9.07(a) shall be terminated and canceled without procuring the resignation of such predecessor 

and without any other formality (except as may be required by law) other than as described in Section 

9.07(a). Such appointment and designation shall be full evidence of the right and authority to make the 

same and of all the facts therein recited, and this Loan Agreement shall vest in such successor, without 

any further act, deed or conveyance, all the estates, properties, rights, powers, trusts, duties, authority and 

title of its predecessor, but such predecessor shall, nevertheless, on the written request of the Lender or 

the successor, execute and deliver an instrument transferring to such successor all the estates, properties, 

rights, powers, trusts, duties, authority and title of such predecessor hereunder and shall deliver all 

Collateral held by it or its agents to such successor. Should any deed, conveyance or other instrument in 

writing from the Lender be required by any successor Administrative Agent for more fully and certainly 

vesting in such successor the estates, properties, rights, powers, trusts, duties, authority and title vested or 

intended to be vested in the successor Administrative Agent, any and all such deeds, conveyances and 

other instruments in writing shall, on reasonable request of such successor, be executed, acknowledged 

and delivered by the Lender.

9.08 Status of Successor Administrative Agent. Every successor Administrative 

Agent appointed pursuant to this Section 9 shall be a financial institution, including for purposes of 

Section 1.1441-1 of the Treasury Regulations, in good standing and having power to act as 

Administrative Agent hereunder, organized under the laws of the United States of America or any State 

thereof or the District of Columbia and shall have such level of experience and capabilities and also have 

capital, surplus and undivided profits of not less than $250,000,000 or such other amount of capital, 

surplus or profits as the Lender shall deem acceptable in its sole discretion.

9.09 Merger of the Administrative Agent. Any Person into which the 

Administrative Agent may be merged, or with which it may be consolidated, or any Person resulting from 

any merger or consolidation to which the Administrative Agent shall be a party, or any Person to which 

all or substantially all of the corporate trust assets of the Administrative Agent shall be sold, shall be 

Administrative Agent under this Loan Agreement without the execution or filing of any paper or any 

further act on the part of the parties hereto. The Administrative Agent shall provide written notice of any 

merger or consolidation, including any change in name, to the Lender, the Collateral Agent the Collateral 

Administrator, the Custodian, the Valuation Agent and the Borrower promptly, and in any event within 

fifteen (15) days of the effective date thereof to solicit such approvals as may be required hereunder.

9.10 Other Business Relationships. It is expressly acknowledged and agreed that 

The Bank of New York Mellon, in its capacity as Administrative Agent, and its respective Affiliates may 

engage in any kind of other banking, trust, financial advisory, or other business with any party hereto, or 

with the Collateral Administrator, the Custodian, the Valuation Agent, the Lender or the Borrower, in 
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each case as though it was not the Administrative Agent hereunder. Among other things, it is 

acknowledged and agreed that pursuant to such activities, The Bank of New York Mellon, in its capacity 

as Administrative Agent, or its respective Affiliates may from time to time receive information (including 

information that may be subject to confidentiality obligations) and the Administrative Agent shall be 

under no obligation to provide such information to any party in a way that would violate any such 

confidentiality obligations or other obligations it may have in respect of such other business relationships.

9.11 Register. The Administrative Agent, acting for this purpose as an agent of the 

Borrower, shall maintain a register for the recordation of the name and address of the Lender, and the 

commitments of, and principal amount of the Loans owing to, the Lender pursuant to the terms hereof 

from time to time (the “Register”). The entries in the Register shall be conclusive (absent manifest error), 

and the Borrower, the Agents, and the Lender may treat each Person whose name is recorded in the 

Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Loan Agreement. 

9.12 Certain Matters Affecting the Administrative Agent. 

(a) The Administrative Agent shall not be required to expend or risk its own funds or 

otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any 

of its rights or powers if there is reasonable ground for believing that the repayment of such funds or 

adequate indemnity against such risk or liability is not assured to it.

(b) Notwithstanding anything in this Loan Agreement to the contrary, in no event 

shall the Administrative Agent be liable for special, indirect, punitive or consequential loss or damage or 

lost profits or loss of business arising or in connection with this Loan Agreement or the other Loan 

Documents.

(c) The right of the Administrative Agent to perform any discretionary act 

enumerated in this Loan Agreement shall not be construed as a duty, and the Administrative Agent shall 

not be liable for the omission to perform any such act.

(d) The Administrative Agent shall not be required to give any bond or surety in 

connection with this Loan Agreement or the powers granted hereunder.

(e) The Administrative Agent shall at no time be under any duty to direct or 

supervise the investment of, or to advise or make any recommendation for the purchase, sale, retention or 

disposition of, Collateral.

(f) The Administrative Agent shall not be liable for the title, validity, sufficiency, 

value, genuineness or transferability of any Collateral.

(g) The Administrative Agent shall have no liability with respect to any valuation 

regardless of whether such valuation is significantly greater or less than other possible valuations.

SECTION 10. MISCELLANEOUS.

10.01 Amendments and Waivers. Neither this Loan Agreement, any other Loan 

Document, nor any terms hereof or thereof may be amended, supplemented or modified except in 

accordance with the provisions of this Section 10.01. Subject to the provisions of the next succeeding 

paragraph, the Lender and each Loan Party to the relevant Loan Document may, from time to time (a) 

enter into written amendments, supplements or modifications hereto and to the other Loan Documents for 

the purpose of adding any provisions to this Loan Agreement or the other Loan Documents or changing in 
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any manner the rights of the Lender and Loan Parties or (b) waive, on such terms and conditions as the 

Lender may specify in such instrument, any of the requirements of this Loan Agreement or the other Loan 

Documents or any Default or Event of Default and its consequences; provided, however, that no such 

waiver and no such amendment, supplement or modification shall amend any provision of Section 9 or 

Section 9 of the Guarantee and Security Agreement without the written consent of the applicable Agent. 

Any such waiver and any such amendment, supplement or modification shall be binding upon the Loan 

Parties, the Lender and the Agents. In the case of any waiver, the Loan Parties, the Lender and the 

Agents shall be restored to their former position and rights hereunder and under the other Loan 

Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; 

but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any 

right consequent thereon. Any purported amendment, supplement or modification not complying with the 

terms of this Section 10.01 shall be null and void.

Notwithstanding the foregoing, the Valuation Process may be amended, supplemented or 

otherwise modified from time to time (i) by the Lender, in its sole discretion and without the consent of 

the Borrower, the Agents or any other Person, to remove any Vendor, Broker or the Mark to Model 

Valuation Provider (and/or reorder the hierarchy in the case of Vendors) and to appoint a successor 

vendor or vendors, broker or brokers and/or Mark to Model Valuation Provider to provide the services 

outlined in the Valuation Process in the event any Vendor, Broker or the Mark to Model Valuation 

Provider ceases for any reason to provide prices or valuations with respect to Eligible Assets or 

Temporary Investments, as applicable, and (ii) by the Lender, with the consent of the Valuation Agent 

and the Majority Fund Managers, to make any other changes to the Valuation Process, and with respect to 

each of the foregoing clauses (i) and (ii), any such amendment, supplement or modification shall be 

binding upon the Loan Parties, the Lender and the Agents. 

10.02 Notices.

(a) All notices, reports, requests, demands and other communications hereunder shall 

be in writing and shall be deemed to have been duly given if (i) sent by certified or registered mail, return 

receipt requested, (ii) sent by overnight mail or courier, (iii) posted on the Borrower’s intranet website in 

accordance with Section 10.02(b) or (iv) delivered by hand, in each case, if to the Agents, at the Agents’ 

address, as set forth on Schedule A, if to the Custodian, at the Custodian’s address, as set forth on 

Schedule A, if to the Collateral Administrator, at the Collateral Administrator’s address, as set forth on 

Schedule A, if to the Valuation Agent, at the Valuation Agent’s address, as set forth on Schedule A, if to 

the Borrower, to the Borrower’s address, as set forth on Schedule A, if to any other Person party hereto at 

the address such Person shall have last designated by notice to each other party hereto and if to the 

Lender, at the Lender’s address, as set forth on Schedule A; provided that the Lender may only receive 

notices, reports, requests, demands and other communications hereunder pursuant to clauses (i) through 

(iii). Any notice, report, request, demand and other communication will be deemed received (i) if sent by 

certified or registered mail, return receipt requested, when actually received, (ii) if sent by overnight mail 

or courier, when actually received, (iii) if posted on the Borrower’s intranet website in accordance with 

Section 10.02(b), on the day an e-mail is sent to the Lender at the email address of the Lender set forth on 

Schedule A instructing it that a notice has been posted; provided that if such e-mail is sent after 5:00 p.m. 

(Washington, D.C. time) or on a day that is not a Business Day, such notice shall be deemed received on 

the next succeeding Business Day and (iv) if delivered by hand, when actually received.

(b) The Borrower may, in its discretion, provide any notice, report, request, demand, 

consent or other communication to the Lender by posting such notice on the Borrower’s intranet website 

and sending an e-mail to the Lender at the email address of the Lender set forth on Schedule A notifying 

it of such posting.
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10.03 No Waiver; Cumulative Remedies. No failure or delay on the part of the 

Agents or the Lender to exercise, and no course of dealing with respect to, any right, power, privilege or 

remedy under any Loan Document shall operate as a waiver thereof, nor shall any single or partial 

exercise by Agents or the Lender of any right, power, privilege or remedy under any Loan Document 

preclude any other or further exercise thereof or the exercise of any other right, power, privilege or 

remedy. All rights, powers, privileges and remedies of the Agents or the Lender provided for herein are 

cumulative and in addition to any and all other rights, powers, privileges and remedies provided by 

Requirements of Law, the Loan Documents and the other instruments and agreements contemplated 

hereby and thereby, and are not conditional or contingent on any attempt by the Agents or the Lender to 

exercise any of its rights under any other related document. The Agents or the Lender may exercise at 

any time after the occurrence of an Event of Default one or more remedies, as they so desire, and may 

thereafter at any time and from time to time exercise any other remedy or remedies.

10.04 Survival. The obligations of the Borrower under Sections 2.03(d) and 10.05 

hereof and its rights under Sections 10.15 and 10.17 hereof, shall survive the repayment of the Loans and 

the termination of this Loan Agreement. In addition, each representation and warranty made, or deemed 

to be made by a request for a borrowing herein or pursuant hereto, shall survive the making of such 

representation and warranty, and the Lender shall not be deemed to have waived, by reason of making 

any Loan, any Default that may arise by reason of such representation or warranty proving to have been 

false or misleading, notwithstanding that the Lender may have had notice or knowledge or reason to 

believe that such representation or warranty was false or misleading at the time such Loan was made.

10.05 Payment of Expenses, Taxes and Indemnification. The Borrower agrees (a) to 

pay or reimburse, as Borrower Administrative Expenses in accordance with Section 2.07, each of the 

Administrative Agent, the Collateral Agent, the Collateral Administrator, the Custodian and the Valuation 

Agent for all of their respective reasonable documented out-of-pocket costs and expenses incurred in 

connection with the development, preparation and execution of, and any amendment, supplement or 

modification to, this Loan Agreement and the other Loan Documents and any other documents prepared 

in connection herewith or therewith, and the consummation and administration of the transactions 

contemplated hereby and thereby, including the reasonable fees and disbursements of counsel to each 

such Person and filing and recording fees and expenses, (b) to pay or reimburse, as Borrower 

Administrative Expenses in accordance with Section 2.07, the Agents and the Lender for all their 

respective documented out-of-pocket costs and expenses incurred in connection with the enforcement or 

preservation of any rights under this Loan Agreement, the other Loan Documents and any such other 

documents, including the reasonable fees and disbursements of counsel to the Agents and the Lender, (c) 

to pay, indemnify, and hold the Agents and the Lender and their respective Related Parties harmless from, 

any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay 

in paying, stamp, excise, recording and other similar taxes (excluding, for the avoidance of doubt, any tax 

imposed on gross or net income, profits, receipts or any other tax in the nature of an income tax, whether 

administered by withholding or otherwise), if any, that may be payable or determined to be payable in 

connection with the execution and delivery of, or consummation or administration of any of the 

transactions contemplated by, or any amendment, supplement and modification of, or any waiver or

consent under or in respect of, this Loan Agreement, the other Loan Documents and any such other 

documents and (d) to pay, indemnify, and hold each of the Administrative Agent, the Collateral Agent, 

the Collateral Administrator, the Custodian and the Valuation Agent and their respective Related Parties 

(each, an “Indemnitee”) harmless and defend them from and against any and all other liabilities, 

obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the 

reasonable fees and disbursements of legal counsel) or disbursements of any kind or nature whatsoever 

(except with respect to taxes, which shall be governed by clause (c) of this Section 10.05) with respect to 

the execution, delivery, enforcement, performance and administration of this Loan Agreement, the other 

Loan Documents and any such other documents, including any of the foregoing relating to the use of 
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095331-0005-11656-Active.11663739

proceeds of the Loans (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); 

provided that the Borrower shall have no obligation hereunder to any Indemnitee with respect to 

Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable 

decision of a court of competent jurisdiction to have resulted from the negligence, bad faith, willful 

misconduct or fraudulent action of any Indemnitee or any of its Related Parties. The Borrower may, in its 

sole discretion, and at its expense, control the defense of any claim arising under clause (d) including, 

without limitation, designating counsel for the Indemnitees (which counsel shall be reasonably 

satisfactory to the Indemnitees) and controlling all negotiations, litigation, arbitration, settlements, 

compromises and appeals of any claim; provided that (i) the Borrower may not agree to any settlement 

involving any Indemnitee that contains any element other than the payment of money and complete 

indemnification of the Indemnitee without the prior written consent of the affected Indemnitee and (ii) the 

Borrower shall engage and pay the reasonable expenses of separate counsel for the Indemnitee to the 

extent that the interests of the Indemnitee are in conflict with those of the Borrower. The Borrower shall 

be responsible to pay the reasonable fees of such separate legal counsel if such a conflict exists. The 

Borrower may not control the defense of any claim arising under clause (c) above and may not designate 

counsel for the Agents and the Lender and their respective Related Parties or control the negotiations, 

litigation, arbitration, settlements, compromises or appeals of any claims under such clause (c). 

Notwithstanding anything to the contrary in this Section 10.05, the Lender and its Related Parties shall be 

represented solely by the U.S. Department of Justice with respect to any claim arising under this Loan 

Agreement. All amounts due under this Section 10.05 shall be payable as Borrower Administrative 

Expenses in accordance with Section 2.07 and any request for payment under this Section 10.05 must be 

received by the Borrower, the Agents, the Collateral Administrator, the Valuation Agent and the 

Custodian no later than two (2) Business Days prior to the last Business Day of any month in connection 

with payments to be made on the next succeeding Loan Payment Date. The agreements in this Section 

10.05 shall survive repayment of the Loans and all other amounts payable hereunder.

10.06 Successors and Assigns. This Loan Agreement shall be binding upon and inure 

to the benefit of the parties hereto and their respective successors and permitted assigns; provided that (a) 

the Borrower may not assign, transfer or delegate any of its rights or obligations under this Loan 

Agreement or the other Loan Documents without the prior written consent of the Lender and (b) the 

Lender may not assign, transfer or delegate any of its rights or obligations under this Loan Agreement or 

the other Loan Documents to an assignee that is not an Affiliate of the Lender without the prior written 

consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) and, with 

respect to each of the foregoing clauses (a) and (b), upon any assignment, transfer or delegation, the 

Borrower and the Lender hereby agree to enter into such reasonably acceptable amendments, supplements 

and modifications to this Loan Agreement and the other Loan Documents as may be necessary to account 

for the assignment, transfer or delegation (including to an Affiliate) to a new Lender, including 

amendments with respect to withholding tax indemnities, Register maintenance requirements for federal 

U.S. income tax purposes, increased cost provisions and customary LIBOR breakage provisions.

10.07 Captions. The table of contents and captions and section headings appearing 

herein are included solely for convenience of reference and are not intended to affect the interpretation of 

any provision of this Loan Agreement.

10.08 Counterparts and Facsimile. This Loan Agreement may be executed by one or 

more parties to this Loan Agreement on any number of separate counterparts. Each counterpart shall be 

deemed to be an original, and all such counterparts taken together shall be deemed to constitute one and 

the same instrument. The parties intend that faxed signatures and electronically imaged signatures such 

as .pdf files shall constitute original signatures and are binding on all parties. The original documents 

shall be promptly delivered, if requested.
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10.09 Set-Off. In addition to any rights and remedies of the Lender provided by law, if 

an Event of Default has occurred and is continuing, the Lender shall have the right after payment of any 

Permitted Borrower Administrative Expenses, without notice to the Borrower, any such notice being 

expressly waived by the Borrower to the extent permitted by applicable law, to apply to the payment of 

any Obligations due and payable by the Borrower (whether at the stated maturity, by acceleration or 

otherwise), by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or 

final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case 

whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the 

Lender to or for the credit or the account of the Borrower. The Lender agrees promptly to notify the 

Borrower and the Administrative Agent after any such application made by the Lender, provided that the 

failure to give such notice shall not affect the validity of such application. The Lender hereby 

acknowledges that the Custodian may have the right of setoff in accordance with Article V of the 

Custodial Agreement.

10.10 Severability. Any provision of this Loan Agreement that is prohibited or 

unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such 

prohibition or unenforceability without invalidating the remaining provisions hereof, and any such 

prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such 

provision in any other jurisdiction.

10.11 Integration. This Loan Agreement, the other Loan Documents, the Partnership 

Agreement, the Investment Guidelines and the Compliance Rules represent the entire agreement of the 

Borrower, the Agents and the Lender with respect to the subject matter hereof and thereof, and there are 

no promises, undertakings, representations or warranties by the Agents or the Lender relative to the 

subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.

10.12 GOVERNING LAW. THIS LOAN AGREEMENT, AND THE RIGHTS AND 

OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND 

CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW AND NOT THE 

LAW OF ANY STATE OR LOCALITY. TO THE EXTENT THAT A COURT LOOKS TO THE 

LAWS OF ANY STATE TO DETERMINE OR DEFINE THE FEDERAL LAW, IT IS THE

INTENTION OF THE PARTIES HERETO THAT SUCH COURT SHALL LOOK ONLY TO THE 

LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE RULES OF CONFLICTS OF 

LAWS.

10.13 SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY HERETO 

HEREBY IRREVOCABLY AND UNCONDITIONALLY:

(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR 

PROCEEDING RELATING TO THIS LOAN AGREEMENT, THE NOTE AND THE OTHER 

LOAN DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY 

JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION 

OF EITHER THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT 

OF NEW YORK OR THE U.S. COURT OF FEDERAL CLAIMS;

(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE 

BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES 

ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY 

SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR 

PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO 

PLEAD OR CLAIM THE SAME;
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(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR 

PROCEEDING MAY BE EFFECTED (I) IF TO PARTIES OTHER THAN THE LENDER, BY 

MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY 

SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS 

SET FORTH IN SECTION 10.02 OR AT SUCH OTHER ADDRESS OF WHICH THE 

LENDER SHALL HAVE BEEN NOTIFIED AND (II) IF TO THE LENDER, ONLY IN THE 

MANNER PROSCRIBED FOR SERVING PROCESS ON AN AGENCY OF THE U.S. 

FEDERAL GOVERNMENT UNDER THE FEDERAL RULES OF CIVIL PROCEDURE; AND

(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO 

EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

10.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY 

IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF 

LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT 

OF OR RELATING TO THIS LOAN AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE 

TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

10.15 Limited Recourse. Notwithstanding anything to the contrary contained in this 

Loan Agreement and the other Loan Documents, the obligations of the Borrower under this Loan 

Agreement and all other Loan Documents are solely the obligations of the Borrower and not any direct or 

indirect owner, director, shareholder, member, partner or officer of the Borrower and shall be payable 

solely to the extent of funds received by and available to the Borrower in accordance with Section 2.07. 

No recourse shall be had for the payment of any amount owing in respect of any obligation of, or claim 

against, the Borrower arising out of or based upon this Loan Agreement or any other Loan Document 

against any Limited Partner, General Partner, Private Vehicle or any advisor or Subadvisor of the 

Borrower and, except as specifically provided herein and in the other Loan Documents, no recourse shall 

be had for the payment of any amount owing in respect of any obligation of, or claim against, the 

Borrower arising out of or based upon this Loan Agreement against the Administrative Agent, the 

Collateral Agent, the Collateral Administrator, the Custodian, the Valuation Agent or the Lender or any 

Affiliate of any thereof; provided, however, that the foregoing shall not relieve any Person from any 

liability such Person would otherwise have as a result of their own acts or omissions that constitute willful 

misconduct, bad faith or fraud. The provisions of this Section 10.15 shall survive the termination or 

expiration of this Loan Agreement.

10.16 Acknowledgments. The Borrower hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this 

Loan Agreement, the Note and the other Loan Documents to which it is a party;

(b) neither the Administrative Agent, the Collateral Agent, the Collateral 

Administrator, the Custodian, the Valuation Agent nor the Lender has any fiduciary relationship to any 

Loan Party, and the relationship between the Borrower and the Lender is solely that of debtor and 

creditor; and

(c) no joint venture exists among or between the Lender and any Loan Party.

10.17 Confidentiality.

Each of the Administrative Agent, the Collateral Agent, the Collateral Administrator, the 

Custodian and the Valuation Agent agrees to maintain the confidentiality of the Information (as defined 
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095331-0005-11656-Active.11663739

below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ 

respective partners, directors, officers, employees, agents, advisors, accountants and other representatives 

(it being understood that the Persons to whom such disclosure is made will be informed of the 

confidential nature of such Information and be required to keep such Information confidential), (b) in 

response to any order, subpoena or other form of legal process issued by any court, administrative, 

legislative, regulatory or governmental body purporting to have jurisdiction over it (including any selfregulatory authority) or otherwise required by any applicable law or regulation; provided that prior to any 

disclosure of such information, the party receiving such order, subpoena or other form of legal process 

shall notify the Borrower, the Administrative Agent, the Collateral Agent, the Collateral Administrator, 

the Custodian, the Valuation Agent and the Lender, unless prohibited by any Requirement of Law from 

doing so, of any proposed disclosure as far in advance of such disclosure as practicable so that such 

applicable party may seek a protective order or other appropriate remedy and upon such applicable 

party’s request, the party receiving such order, subpoena or other form of legal process shall take all 

reasonable actions to ensure that any information disclosed shall be accorded confidential treatment, (c) to 

any other party hereto, (d) in connection with the exercise of any remedies hereunder or under any other 

Loan Document or any action or proceeding relating to this Loan Agreement or any other Loan Document 

or the enforcement of rights hereunder or thereunder, (e) subject to an agreement containing provisions 

substantially the same as those of this Section 10.17, to any actual or prospective counterparty (or its 

advisors) to any derivative transaction relating to the Borrower and its Obligations, (f) with the written 

consent of the Borrower or (g) to the extent such Information (i) becomes publicly available other than as 

a result of a breach of this Section 10.17 or (ii) becomes available to the Administrative Agent, the 

Collateral Agent, the Collateral Administrator, the Custodian or the Valuation Agent or any of their 

respective Affiliates on a non-confidential basis from a source other than the Borrower or the Lender. 

UST intends, subject to applicable Requirement of Law, to hold confidential all confidential information 

provided to it by or on behalf of any member of the General Partner Group.

For purposes of this Section 10.17, “Information” means all information (including any 

financial models (and any assumptions and inputs underlying such models) and any non-publicly 

available information in respect of any Portfolio Investments (including holdings, CUSIP numbers and 

market prices thereof)) received from the General Partner, the Administrative Agent, the Collateral Agent, 

the Collateral Administrator, the Custodian, the Valuation Agent, the Subadvisors, the Borrower or any of 

its Subsidiaries or any of their respective Affiliates relating to the Borrower or any of its Subsidiaries or 

any of their respective Affiliates or any of their respective businesses, other than any such information 

that is available to the Administrative Agent, the Collateral Agent, the Collateral Administrator, the 

Custodian, the Valuation Agent and the Lender on a non-confidential basis prior to disclosure by the 

Borrower or any of its Subsidiaries; provided that, in the case of information received from the Borrower 

or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of 

delivery as confidential. Any Person required to maintain the confidentiality of Information as provided 

in this Section 10.17 shall be considered to have complied with its obligation to do so if such Person has 

exercised the same degree of care to maintain the confidentiality of such Information as such Person 

would accord to its own confidential information.

10.18 Schedule A. Each provision of this Loan Agreement is subject to the 

amendments, restatements, supplements or other modifications contained in Schedule A. In the event of 

a conflict between the terms of this Loan Agreement and the terms of Schedule A, Schedule A shall 

control.

10.19 Lender in Capacity as an Investor. The parties hereto acknowledge that the

Lender is also a Limited Partner under the Partnership Agreement and agree that to the extent permitted 

by applicable law, the Lender may act in such capacity under the Partnership Agreement and generally 
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095331-0005-11656-Active.11663739

engage with the Borrower or any of its Subsidiaries in such capacity as though the Lender were not the 

Lender and without affecting in any manner its rights under this Loan Agreement.

10.20 Limitation of Liability. No claim may be made by any party under this Loan 

Agreement against the Lender, the Borrower or their respective Affiliates, employees, directors, officers, 

advisors, administrators, agents and counsel for any special, indirect, punitive or consequential losses or 

damages of any kind in respect of any claim for breach of contract or any other theory of liability arising 

out of or related to the transactions contemplated by this Loan Agreement or by the other Loan 

Documents, or any act, omission or event occurring in connection therewith and such party hereby 

waives, releases and agrees not to sue upon any claim for any such losses or damages, whether or not 

accrued and whether or not known or suspected to exist in its favor. 

10.21 Termination. Upon the termination of the commitment of the Lender under 

Section 2.01(a) to make Loans and the indefeasible payment in full in Cash of all of the Secured 

Obligations and any other obligations and liabilities of the Borrower and the Guarantors to any Permitted 

Hedge Counterparty under any Permitted Interest Rate Hedge, this Loan Agreement shall terminate (other 

than any provisions hereof expressly stated to survive termination).

[SIGNATURE PAGE FOLLOWS]




















095331-0005-11656-Active.11663739

EXHIBIT A

FORM OF NOTE

[MAXIMUM UST DEBT AMOUNT]

[ ] [ ], 2009 New York, New York

FOR VALUE RECEIVED, [BORROWER], a [BORROWER ENTITY TYPE AND 

JURISDICTION] (the “Borrower”), hereby promises to pay to THE UNITED STATES DEPARTMENT 

OF THE TREASURY or its registered assigns (the “Lender”), at the principal office of the Lender in 

lawful money of the United States, and in immediately available funds, the principal sum of [MAXIMUM 

UST DEBT AMOUNT] (or such lesser amount as shall equal the aggregate unpaid principal amount of 

the Loans made by the Lender to the Borrower under the Loan Agreement), on the dates and in the 

principal amounts provided in the Loan Agreement, and to pay interest on the unpaid principal amount of 

each such Loan, at such office, in like money and funds, for the period commencing on the date of such 

Loan until such Loans shall be paid in full, at the rates per annum and on the dates provided in the Loan 

Agreement.

The date, amount and interest rate of each Loan made by the Lender to the Borrower, and 

each payment made on account of the principal thereof, shall be recorded by the Lender on its books; 

provided that the failure of the Lender to make any such recordation shall not affect the obligations of the 

Borrower to make a payment when due of any amount owing under the Loan Agreement or hereunder in 

respect of the Loans made by the Lender.

This Note is the Note referred to in the Loan Agreement dated as of the date set forth in 

Schedule A thereto (as amended, supplemented or otherwise modified and in effect from time to time, the 

“Loan Agreement”), by and among the Borrower, The Bank of New York Mellon, as administrative agent 

and collateral agent, and the Lender, and evidences the Loans made by the Lender thereunder. Terms 

used but not defined in this Note have the respective meanings assigned to them in the Loan Agreement. 

The terms and conditions of the Loan Agreement are hereby incorporated in their entirety by reference as 

though fully set forth herein. Upon the occurrence of certain Events of Default as more particularly 

described in the Loan Agreement, the unpaid principal amount evidenced by this Note, together with any 

accrued and unpaid interest, shall become, and upon the occurrence and during the continuance of certain 

other Events of Default, such unpaid principal amount, together with any accrued and unpaid interest, 

may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in 

the Loan Agreement.

The Borrower, and any indorsers or guarantors hereof, (a) severally waive diligence, 

presentment, protest and demand and also notice of protest, demand, dishonor and nonpayment of this 

Note, (b) expressly agree that this Note, or any payment hereunder, may be extended from time to time in 

accordance with the terms of the Loan Agreement, and consent to the acceptance of further Collateral and 

the release of any Collateral for this Note and (c) expressly agree that it will not be necessary for the 

Lender, in order to enforce payment of this Note, to first institute or exhaust the Lender’s remedies 

against the Borrower or any other party liable hereon or against any Collateral for this Note. No 

extension of time for the payment of this Note, or any installment hereof, made by agreement by the 

Lender with any person now or hereafter liable for the payment of this Note, shall affect the liability 

under this Note of the Borrower, even if the Borrower is not a party to such agreement; provided, 

however, that the Lender and the Borrower, by written agreement between them, may affect the liability 

of the Borrower.
095331-0005-11656-Active.11663739

Sections 10.12, 10.13, 10.14, 10.15 and 10.20 of the Loan Agreement shall apply to this 

Note and are hereby incorporated by reference herein.

By:

Name:

Title:
095331-0005-11656-Active.11663739

SCHEDULE OF LOANS

This Note evidences the Loans made under the within-described Loan Agreement to the 

Borrower, on the dates, in the principal amounts and bearing interest at the rates set forth below, and 

subject to the payments and prepayments of principal set forth below:
095331-0005-11656-Active.11663739

LOAN GRID

Date of

Borrowing

and

Rate

Principal Amount 

of

Loan

Amount of

Principal Paid

or Prepaid

Unpaid

Principal

Balance

Notation

Made By
095331-0005-11656-Active.11663739

EXHIBIT B

FORM OF [EFFECTIVE DATE CERTIFICATE][NOTICE OF BORROWING]1

[certificate # __ ]2

[insert date]

The Bank of New York Mellon

[ADDRESS]

Attention:

United States Department of the Treasury

[ADDRESS]

Attention: 

Ladies/Gentlemen:

Reference is made to the Loan Agreement dated as of the date set forth in Schedule A

thereto (as amended, supplemented or otherwise modified and in effect from time to time, the “Loan 

Agreement”), by and among [BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] 

(the “Borrower”), THE BANK OF NEW YORK MELLON, as administrative agent (in such capacity, 

together with its successors in such capacity, the “Administrative Agent”) and as collateral agent, and 

THE UNITED STATES DEPARTMENT OF THE TREASURY (the “Lender”). Capitalized terms used 

but not otherwise defined herein shall have the meaning given them in the Loan Agreement.

[In accordance with Section 2.03(a) of the Loan Agreement, the undersigned, in its 

capacity as a Responsible Officer of the Borrower and without assuming personal liability, hereby 

requests that you, the Lender, make a Loan in the amount of $[AMOUNT] to the Borrower on [insert 

date] (the “Funding Date”).]3

The Borrower hereby certifies to the Administrative Agent and the Lender, as of the 

[Effective Date][Funding Date], that:

(a) no Default or Event of Default has occurred and is continuing as of the date 

hereof [and on such Funding Date]4;

(b) each of the representations and warranties made by the Loan Parties and the 

General Partner in the Loan Agreement, the other Loan Documents and the Partnership Agreement is true 

and correct in all material respects on and as of such date, as if made on and as of the date hereof [and on 

such Funding Date]5(or, if any such representation or warranty is expressly stated to have been made as 

of an earlier date, as of such earlier date, or, if such representation or warranty is qualified by materiality 

or “Material Adverse Effect” or similar language, in all respects on such respective dates);

1 Effective Date Notice may be combined with Notice of Borrowing provided there is a borrowing on the Effective 

Date

2 Notice of Borrowing only

3 Notice of Borrowing only

4 Notice of Borrowing only

5 Notice of Borrowing only
095331-0005-11656-Active.11663739

(c) the Loan Parties are in compliance in all material respects (or, in the case of 

covenants or other agreements qualified by materiality or material adverse effect, is in compliance in all 

respects) with the covenants and other agreements set forth in the Loan Agreement and the other Loan 

Documents, and the General Partner is in compliance in all material respects (or, in the case of covenants 

or other agreements qualified by materiality or material adverse effect, is in compliance in all respects) 

with the covenants and other agreements set forth in the Partnership Agreement;

(d) the Borrower and its Subsidiaries have obtained all necessary material 

authorizations, approvals or consents (including Partner approvals, if any) of any Governmental Authority 

or any other Person in connection with the execution, delivery and performance of the Loan Agreement 

and the other Loan Documents (including for the extensions of credit to be made thereunder) by the Loan 

Parties, and such authorizations, approvals or consents are in full force and effect;

(e) [the Borrower is in compliance with the Financial Covenants as calculated as of 

such proposed Funding Date immediately prior to giving effect to such funding and is in compliance with 

such Financial Covenants on a Pro Forma basis as of such Funding Date after giving effect thereto]6;

(f) [the Borrower and its Subsidiaries have not engaged in any activity of any kind 

or entered into any Contractual Obligation or other undertaking which is not directly or indirectly related 

to (i) the purchasing, owning, holding and Disposition of Portfolio Investments in accordance with the 

Investment Guidelines or the ownership of Equity Interests of its Subsidiaries that it is otherwise 

permitted to own hereunder, (ii) the Loan Documents and Permitted Interest Rate Hedges or (iii) activities 

specifically permitted by the Partnership Agreement or incidental or ancillary to activities permitted 

thereunder]7;

(g) [there exists no action, suit, investigation, litigation or proceeding affecting the 

Borrower or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened before any 

Governmental Authority (i) as to which individually or in the aggregate there is a reasonable likelihood of 

an adverse decision and that, if adversely determined could reasonably be expected to have a Material 

Adverse Effect or (ii) which questions the legality, validity or enforceability of any Loan Document or 

any action to be taken in connection with the transaction contemplated thereby]8;

(h) [the Borrower has raised a minimum of $500 million in Capital Commitments 

from Partners, other than UST, available to be contributed to the Borrower]9;

(i) the Borrower and its Subsidiaries have satisfied (or the Lender has waived in 

accordance with Section 10.01) all conditions precedent in Section[s] [4.01] [and] [4.02] of the Loan 

Agreement and all other requirements of the Loan Agreement; and

(j) [the Partners, other than UST have, in the aggregate, contributed an amount equal 

to the sum of their respective Pro Rata Shares of the Capital Contributions pursuant to Section 3.1 of the 

Partnership Agreement]10.

Very truly yours,

6 Notice of Borrowing only

7 Notice of Borrowing only

8 Effective Date only

9 Effective Date only

10 Notice of Borrowing only
095331-0005-11656-Active.11663739

By:

Name:

Title:
095331-0005-11656-Active.11663739

EXHIBIT C

FORM OF FINANCIAL STATEMENT CERTIFICATE

This Financial Statement Certificate (“Certificate”) is delivered pursuant to Section 6.01 of the 

Loan Agreement dated as of the date set forth on Schedule A thereto (as amended, supplemented or 

otherwise modified and in effect from time to time, the “Loan Agreement”), by and among 

[BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] (the “Borrower”), THE 

BANK OF NEW YORK MELLON, as administrative agent (in such capacity, together with its 

successors in such capacity, the “Administrative Agent”) and collateral agent and THE UNITED 

STATES DEPARTMENT OF THE TREASURY (the “Lender”). Capitalized terms used herein, but not 

herein defined, shall have the meanings ascribed thereto in the Loan Agreement.

The undersigned, in its capacity as a Responsible Officer and without assuming personal liability, 

hereby certifies to the Administrative Agent and the Lender as follows:

1. I am a duly elected, qualified and acting Responsible Officer of the Borrower.

2. I have reviewed and am familiar with the contents of this Certificate.

3. I have reviewed the terms of the Loan Agreement and the other Loan Documents and have 

made or caused to be made under my supervision, a review in reasonable detail of the 

transactions and condition of the Borrower during the accounting period covered by the 

financial statements attached hereto as Attachment 1 (the “Financial Statements”). The 

Financial Statements have been prepared in accordance with GAAP and fairly present the 

Consolidated financial condition and results of operations of the Borrower and its 

Consolidated Subsidiaries consistently applied as at the date thereof, subject to normal yearend audit adjustments and the absence of footnotes, if applicable. Such review did not 

disclose the existence during or at the end of the accounting period covered by the Financial 

Statements, and I have no knowledge of the existence, as of the date of this Certificate, of any 

condition or event which constitutes a Default or Event of Default [,except [specify]].

4. To the best of my knowledge, during the last fiscal [quarter][year], each Loan Party has 

observed or performed, in all material respects, all of its covenants and other agreements and 

has satisfied, in all material respects, every condition contained in the Loan Agreement and 

other Loan Documents to be observed, performed or satisfied by it [,except [specify]].

5. There has been no change in GAAP, as applied by (or in the application of GAAP by) the 

Borrower since the delivery of the latest Financial Statements [,except [specify]].

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date 

set forth below.
095331-0005-11656-Active.11663739

[BORROWER]

By:_________________

Name:______________

Title:________________

Dated: ________ __, 20__
095331-0005-11656-Active.11663739

EXHIBIT D

FORM OF CALCULATION CERTIFICATE

This Calculation Certificate (“Certificate”) is delivered pursuant to Section 6.01 of the Loan 

Agreement dated as of the date set forth on Schedule A thereto (as amended, supplemented or otherwise 

modified and in effect from time to time, the “Loan Agreement”), by and among [BORROWER], a 

[BORROWER ENTITY TYPE AND JURISDICTION] (the “Borrower”), THE BANK OF NEW YORK

MELLON, as administrative agent (in such capacity, together with its successors in such capacity, the 

“Administrative Agent”) and collateral agent and THE UNITED STATES DEPARTMENT OF THE 

TREASURY (the “Lender”). Capitalized terms used herein, but not herein defined, shall have the 

meanings ascribed thereto in the Loan Agreement.

The undersigned, in its capacity as a Responsible Officer and without assuming personal liability, 

hereby certifies to the Administrative Agent, the Collateral Administrator and the Lender as follows:

1. I am the duly elected, qualified and acting Responsible Officer of the Borrower.

2. I have reviewed and am familiar with the contents of this Certificate.

3. Attached hereto as Attachment 1 are the computations of the Financial Covenants which 

computations are provided for informational purposes only.

4. The calculations set forth in Attachment 2 with respect to the Market Value of all Portfolio 

Investments held by the Borrower and its Subsidiaries as of such date, as determined by the 

Valuation Agent, including the ownership of such assets by the Person holding such assets, 

fairly present the Market Value of such Portfolio Investments; it being understood that the 

Borrower shall not have any responsibility or obligation for any errors or omissions made by 

any Vendor, Broker, Mark to Model Valuation Provider or other pricing services used to 

value Collateral and shall have no liability with respect to any such valuation if such 

valuation was made in accordance with the Valuation Process regardless of whether such 

valuation is significantly greater or less than other possible valuations.

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date 

set forth below.

[BORROWER]

By:_________________

Name:______________

Title:________________

Dated: ________ __, 20__
095331-0005-11656-Active.11663739

EXHIBIT E

FORM OF GUARANTEE AND SECURITY AGREEMENT

[See attached]
FINAL FORM

095331-0005-00074-Active.11691471.29

GUARANTEE AND SECURITY AGREEMENT

dated as of the date set forth in Schedule A to the Loan Agreement referred to herein

among

THE BORROWER IDENTIFIED ON THE SIGNATURE PAGES HERETO,

as Borrower,

THE UNITED STATES DEPARTMENT OF THE TREASURY,

as Lender,

and

THE BANK OF NEW YORK MELLON,

as Administrative Agent and Collateral Agent
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Table of Contents

Page

Section 1. Definitions, Etc ................................................................................................... 1

1.01 Certain Uniform Commercial Code Terms .......................................................... 1

1.02 Additional Definitions......................................................................................... 2

Section 2. Representations and Warranties........................................................................... 7

2.01 Organization........................................................................................................ 7

2.02 Authorization; Enforceability .............................................................................. 7

2.03 No Conflicts........................................................................................................ 8

2.04 Governmental Approvals..................................................................................... 8

2.05 Title; Financing Statements................................................................................. 8

2.06 Creation and Perfection of Security Interests....................................................... 8

2.07 Names, Etc .......................................................................................................... 9

2.08 Changes in Circumstances................................................................................... 9

2.09 Accounts............................................................................................................. 9

Section 3. Guarantee ............................................................................................................ 9

3.01 The Guarantee ..................................................................................................... 9

3.02 Obligations Unconditional................................................................................. 10

3.03 Reinstatement.................................................................................................... 10

3.04 Subrogation....................................................................................................... 11

3.05 Remedies........................................................................................................... 11

3.06 Continuing Guarantee........................................................................................ 11

3.07 Instrument for the Payment of Money................................................................ 11

3.08 Rights of Contribution....................................................................................... 11

3.09 General Limitation on Guarantee Obligations.................................................... 11

Section 4. Collateral........................................................................................................... 12

4.01 Grant of Security Interest................................................................................... 12

4.02 Rights of Loan Parties ....................................................................................... 13

Section 5. Certain Agreements Among Secured Parties...................................................... 14

5.01 Priorities; Additional Collateral......................................................................... 14

5.02 Turnover of Collateral ....................................................................................... 14

5.03 Cooperation of Secured Parties.......................................................................... 14

5.04 Limitation upon Certain Independent Actions by Secured Parties...................... 14

5.05 No Challenges................................................................................................... 15

5.06 Rights of Secured Parties as to Secured Obligations .......................................... 15

Section 6. Permitted Secured Interest Rate Hedges; Recordkeeping, Etc ............................ 15
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6.01 Designation of Permitted Secured Interest Rate Hedges..................................... 15

6.02 Information ....................................................................................................... 16

6.03 Recordkeeping .................................................................................................. 17

Section 7. Covenants of the Loan Parties ........................................................................... 17

7.01 Delivery and Other Perfection ........................................................................... 17

7.02 Payment of Obligations..................................................................................... 18

7.03 Maintenance of Perfected Security Interest........................................................ 18

7.04 Notices.............................................................................................................. 18

7.05 Other Financing Statements or Control.............................................................. 19

7.06 Changes in Name, etc ........................................................................................ 19

7.07 Collections........................................................................................................ 19

7.08 Additional Guarantors....................................................................................... 19

7.09 Custodial Account ............................................................................................. 19

7.10 Interest Reserve Account................................................................................... 20

7.11 Permitted Investments of Funds on Deposit in the Custodial Account and the 

Interest Reserve Account................................................................................... 20

7.12 No Certification of Limited Liability Company Interests and Limited Partnership 

Interests............................................................................................................. 21

Section 8. Acceleration Notice; Remedies; Distribution of Collateral................................. 21

8.01 Events of Default, Etc........................................................................................ 21

8.02 Deficiency......................................................................................................... 22

8.03 Private Sale ....................................................................................................... 23

8.04 Application of Proceeds after Default ................................................................ 23

8.05 Waiver of Stays, etc........................................................................................... 23

8.06 Attorney-in-Fact................................................................................................ 23

8.07 Agreement regarding Control Agreements......................................................... 24

8.08 Release of Collateral; Guarantors ...................................................................... 24

8.09 Custody and Safekeeping .................................................................................. 25

Section 9. The Collateral Agent. ........................................................................................ 25

9.01 Appointment, Powers and Immunities............................................................... 25

9.02 Information Regarding Secured Parties.............................................................. 26

9.03 Delegation of Duties.......................................................................................... 26

9.04 Exculpatory Provisions...................................................................................... 26

9.05 Reliance by Collateral Agent ............................................................................. 26

9.06 Notice of Default............................................................................................... 26

9.07 Non-Reliance on Collateral Agent ..................................................................... 27

9.08 Resignation and Removal of Collateral Agent ................................................... 27

9.09 Status of Successor Collateral Agent ................................................................. 28

9.10 Merger of the Collateral Agent .......................................................................... 29

9.11 Other Business Relationships ............................................................................ 29

9.12 Certain Matters Affecting the Collateral Agent.................................................. 29
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Section 10. Miscellaneous.................................................................................................... 30

10.01 Amendments, Etc .............................................................................................. 30

10.02 Notices.............................................................................................................. 30

10.03 No Waiver; Cumulative Remedies..................................................................... 31

10.04 Survival............................................................................................................. 31

10.05 Payment of Expenses, Taxes and Indemnification.............................................. 32

10.06 Successors and Assigns..................................................................................... 33

10.07 Captions............................................................................................................ 33

10.08 Counterparts and Facsimile ............................................................................... 33

10.09 Severability ....................................................................................................... 33

10.10 Integration......................................................................................................... 34

10.11 GOVERNING LAW ......................................................................................... 34

10.12 SUBMISSION TO JURISDICTION; WAIVERS.............................................. 34

10.13 WAIVER OF JURY TRIAL.............................................................................. 35

10.14 Limited Recourse .............................................................................................. 35

10.15 Limitation of Liability ....................................................................................... 35
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ANNEX 1 Filing Details

EXHIBIT A Form of Notice of Designation

EXHIBIT B Form of Guarantee Assumption Agreement

EXHIBIT C Form of Acknowledgment
095331-0005-00074-Active.11691471.29

GUARANTEE AND SECURITY AGREEMENT

GUARANTEE AND SECURITY AGREEMENT, dated as of the date set forth in 

Schedule A to the Loan Agreement referred to below (this “Agreement”), among the 

BORROWER IDENTIFIED ON THE SIGNATURE PAGES HERETO (the “Borrower”); each 

entity that becomes a “GUARANTOR” after the date hereof pursuant to Section 7.08 hereof 

(collectively, the “Guarantors” and, together with the Borrower, the “Loan Parties”); THE 

UNITED STATES DEPARTMENT OF THE TREASURY (the “Lender”); and THE BANK OF 

NEW YORK MELLON, a New York state chartered bank, as administrative agent for the 

Lender under the Loan Agreement referred to below (in such capacity, together with its 

successors in such capacity, the “Administrative Agent”) and as collateral agent for the Secured 

Parties referred to below (in such capacity, together with its successors in such capacity, the 

“Collateral Agent”).

W I T N E S S E T H :

WHEREAS, concurrently with the execution and delivery of this Agreement the 

Borrower, the Lender, the Administrative Agent and the Collateral Agent are entering into a 

Loan Agreement, dated as of the date hereof (the “Loan Agreement”) pursuant to which the 

Lender has agreed to make Loans to the Borrower from time to time thereunder upon the terms 

and subject to the conditions set forth therein;

WHEREAS, to induce the Lender to make Loans to the Borrower under the Loan 

Agreement, the Borrower wishes to provide (a) for certain of its Subsidiaries from time to time 

to become parties hereto and to guarantee the payment and performance of the Guaranteed 

Obligations (as hereinafter defined), and (b) for the Borrower and the Guarantors to provide 

collateral security for the Secured Obligations (as hereinafter defined);

WHEREAS, the Borrower and the Guarantors may from time to time enter into 

Permitted Interest Rate Hedges (as defined in the Loan Agreement) and may designate their 

obligations under such hedges to constitute Secured Obligations hereunder;

WHEREAS, the Collateral Agent (on behalf of itself and the Secured Parties) is 

or will be entering into this Agreement for the purpose of setting forth its rights to the Collateral 

(as hereinafter defined); and

WHEREAS, the Loan Parties and the Secured Parties agree that the Collateral 

Agent shall administer the Collateral, and the Collateral Agent is willing to administer the 

Collateral pursuant to the terms and conditions set forth herein;

NOW THEREFORE, the parties hereto agree as follows:

Section 1. Definitions, Etc.

1.01 Certain Uniform Commercial Code Terms. As used herein, the terms 

“Account”, “Chattel Paper”, “Commodity Account”, “Commodity Contract”, “Deposit

Account”, “Document”, “Electronic Chattel Paper”, “General Intangible”, “Instrument”, 

“Investment Property”, “Letter-of-Credit Right”, “Money”, “Proceeds”, “Promissory Note”, 
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“Supporting Obligation” and “Tangible Chattel Paper” have the respective meanings set forth in 

Article 9 of the Uniform Commercial Code, and the terms “Certificated Security”, “Clearing 

Corporation”, “Entitlement Holder”, “Entitlement Order”, “Financial Asset”, “Indorsement”, 

“Securities Account”, “Securities Intermediary”, “Security”, “Security Entitlement” and 

“Uncertificated Security” have the respective meanings set forth in Article 8 of the Uniform 

Commercial Code.

1.02 Additional Definitions. 

(a) Unless otherwise defined herein, terms defined in the Loan Agreement 

and used herein (including terms used in the preamble and the recitals hereto) shall have the 

meanings given to them in the Loan Agreement.

(b) The “Interpretation” provisions set forth in Section 1.02 of the Loan 

Agreement shall apply to this Agreement, including terms defined in the preamble and the 

recitals hereto, mutatis mutandis.

(c) In addition, as used herein:

“Administrative Agent” has the meaning set forth in the preamble hereto.

“Agent Members” means members of, or participants in, a depositary, including 

the DTC, Euroclear or Clearstream.

“Agreement” means this Guarantee and Security Agreement.

“Borrower” has the meaning set forth in the preamble hereto.

“Clearing Corporation Security” means a security that is registered in the name 

of, or Indorsed to, a Clearing Corporation or its nominee or is in the possession of the Clearing 

Corporation in bearer form or Indorsed in blank by an appropriate Person.

“Clearstream” means Clearstream Banking, société anonyme, a corporation 

organized under the laws of the Grand Duchy of Luxembourg.

“Clearstream Security” means a Security that (a) is a debt or equity security and 

(b) is capable of being transferred to an Agent Member’s account at Clearstream pursuant to the 

definition of “Delivery”, whether or not such transfer has occurred. 

“Collateral” has the meaning set forth in Section 4.01.

“Collateral Agent” has the meaning set forth in the preamble.

“Control” means “control” as defined in Section 9-104, 9-105, 9-106 or 9-107 of 

the Uniform Commercial Code, as the context may require.

“Controlling Party” means (a) at any time during the Investment Period or when 

any Loan Agreement Obligations remain outstanding, the Lender, and (b) at any time when the 
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foregoing clause (a) is not applicable, the Permitted Secured Hedge Counterparties holding a 

majority of the notional amount of Hedge Agreements constituting Permitted Secured Interest 

Rate Hedges at such time.

“Custodial Account” has the meaning set forth in Schedule A to the Loan 

Agreement.

“Deliver”, “Delivered” or “Delivery” means, with respect to any Portfolio

Investment or other property, that such Portfolio Investment or other property is held, registered 

or covered by a recorded and/or filed UCC-1 financing statement as described below, in each 

case in a manner reasonably satisfactory to the Collateral Agent:

(a) subject to clause (k) below, in the case of each Certificated Security (other 

than a U.S. Government Security, Clearing Corporation Security, Euroclear Security or 

Clearstream Security), that such Certificated Security is in the possession of the 

Custodian and registered in the name of the Custodian (or its nominee) or Indorsed in 

blank under an arrangement where either (i) the Custodian has agreed to hold such 

Certificated Security as bailee on behalf of the Collateral Agent or (ii) the Custodian has 

credited the same to a Securities Account for which the Custodian is a Securities 

Intermediary and has agreed that such Certificated Security constitutes a Financial Asset 

and that the Collateral Agent has Control over such Securities Account;

(b) subject to clause (k) below, in the case of each Instrument, that such 

Instrument is in the possession of the Custodian in the United States and Indorsed to the 

Custodian or in blank under an arrangement where the Custodian has agreed to hold such 

Instrument as bailee on behalf of the Collateral Agent;

(c) subject to clause (k) below, in the case of each Uncertificated Security 

(other than a U.S. Government Security, Clearing Corporation Security, Euroclear 

Security or Clearstream Security), that such Uncertificated Security is registered on the 

books of the issuer thereof to the Custodian (or its nominee) under an arrangement where 

the Custodian has credited the same to a Securities Account for which the Custodian is a 

Securities Intermediary and has agreed that such Uncertificated Security constitutes a 

Financial Asset and that the Collateral Agent has Control over such Securities Account;

(d) subject to clause (k) below, in the case of each Clearing Corporation 

Security, that such Clearing Corporation Security is credited to a Securities Account of 

the Custodian at such Clearing Corporation (and, if a Certificated Security, so held in the 

possession of such Clearing Corporation, or of an agent or custodian on its behalf) and 

the Security Entitlement of the Custodian in such Clearing Corporation Securities 

Account has been credited by the Custodian to a Securities Account for which the 

Custodian is a Securities Intermediary under an arrangement where the Custodian has 

agreed that such Security constitutes a Financial Asset and that the Collateral Agent has 

Control over such Securities Account;

(e) in the case of each Euroclear Security and Clearstream Security, that the 

actions described in clause (d) above have been taken with respect to such Security as if 
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such Security were a Clearing Corporation Security and Euroclear and Clearstream were 

Clearing Corporations; provided that such additional actions shall have been taken as 

shall be necessary under the law of Belgium (in the case of Euroclear) and Luxembourg 

(in the case of Clearstream) to accord the Collateral Agent rights substantially equivalent 

to Control over such Security under the Uniform Commercial Code;

(f) in the case of each U.S. Government Security, that such U.S. Government 

Security is credited to a securities account of the Custodian at a Federal Reserve Bank 

and the Security Entitlement of the Custodian in such Federal Reserve Bank Securities 

Account has been credited by the Custodian to a Securities Account for which the 

Custodian is a Securities Intermediary under an arrangement where the Custodian has 

agreed that such U.S. Government Security constitutes a Financial Asset and that the 

Collateral Agent has Control over such Securities Account;

(g) in the case of any Tangible Chattel Paper, that the original of such 

Tangible Chattel Paper is in the possession of the Custodian in the United States under an 

arrangement where the Custodian has agreed to hold such Tangible Chattel Paper as 

bailee on behalf of the Collateral Agent and any agreements that constitute or evidence 

such Tangible Chattel Paper are free of any marks or notations indicating that it is then 

pledged, assigned or otherwise conveyed to any Person other than the Collateral Agent;

(h) in the case of each General Intangible (including any participation in a 

debt obligation) of a Loan Party organized in the United States, such General Intangible 

falls within the collateral description of a UCC-1 financing statement, naming the 

relevant Loan Party as debtor and the Collateral Agent as secured party and filed in the 

jurisdiction in which such Loan Party is located as provided in Section 9-307 of the 

Uniform Commercial Code; provided that in the case of a participation in a debt 

obligation that is evidenced by an Instrument, either (i) such Instrument is in the 

possession of the institution which sold such participation in the United States, and such 

institution has agreed that it holds possession of such Instrument for the benefit of the 

Collateral Agent (or for the benefit of the Custodian, and the Custodian has agreed that it 

holds the interest in such Instrument as bailee on behalf of the Collateral Agent) or (ii) 

such Instrument is in the possession of the institution which sold such participation 

outside of the United States and such institution (and, if applicable, the obligor that issued 

such Instrument) has taken such actions as shall be necessary under the law of the 

jurisdiction where such Instrument is physically located to accord the Collateral Agent 

rights equivalent to Control over such Instrument under the Uniform Commercial Code;

(i) in the case of any Deposit Account or Securities Account, that the bank or 

Securities Intermediary at which such Deposit Account or Securities Account, as 

applicable, is located has agreed that the Collateral Agent has Control over such Deposit 

Account or Securities Account;

(j) in the case of any money (regardless of currency), that such money has 

been credited to a Deposit Account over which the Collateral Agent has Control as 

described in clause (i) above;
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(k) in the case of any Certificated Security, Uncertificated Security or 

Instrument either physically located outside of the United States or issued by a Person 

organized outside of the United States, that such additional actions shall have been taken 

as shall be necessary under applicable Requirements of Law to accord the Collateral 

Agent rights substantially equivalent to those accorded to a secured party under the 

Uniform Commercial Code that has possession or control of such Certificated Security, 

Uncertificated Security or Instrument; and

(l) in the case of each Portfolio Investment not of a type covered by the 

foregoing clauses (a) through (k) that such Portfolio Investment has been transferred to 

the Collateral Agent in accordance with applicable law and regulation.

“DTC” means The Depository Trust Company, its nominees and their respective 

successors. 

“Eligible Account” means a segregated account with, or a segregated trust 

account with the corporate trust department of, an Eligible Institution; provided that, in any such 

case, such account is under the Control of the Collateral Agent.

“Eligible Institution” means any of (i) the Collateral Agent, (ii) a depository 

institution organized under the laws of the United States of America or any one of the states 

thereof or the District of Columbia (or any domestic branch of a foreign bank), (A) the unsecured 

and non-credit enhanced debt obligations of which are rated at least “AA” or “A-1+” by S&P, 

“Aa2” or “P-1” by Moody’s and “AA” or F-1 from Fitch and (B) whose deposits are insured by 

the FDIC or (iii) any other institution acceptable to the Controlling Party.

“Euroclear” means Euroclear Bank, S.A., as operator of the Euroclear system.

“Euroclear Security” means a Security that (a) is a debt or equity Security and (b) 

is capable of being transferred to an Agent Member’s account at Euroclear, whether or not such 

transfer has occurred. 

“Event of Default” means any Event of Default under and as defined in the Loan 

Agreement and, after the Investment Period and at such time when no Loan Agreement 

Obligations remain outstanding, any comparable event under any Permitted Secured Interest 

Rate Hedge.

“Excluded Property” means (a) the Working Capital Reserve identified in writing 

by the Borrower to the Collateral Agent by account number, (b) any asset posted or pledged as 

collateral in respect of margin to a Permitted Hedge Counterparty under the terms of any credit 

support annex or similar documents entered into in connection with a Permitted Interest Rate 

Hedge (but not any “Return Amount” (as such term is described in such credit support annex or 

similar documents) or similar amount due to a Loan Party under such credit support annex or 

similar document) and held by such Permitted Hedge Counterparty or in a separate account, (c) 

the Capital Commitments and any rights related thereto until funded, (d) any Capital 

Contribution call rights, (e) the Escrow Account identified in writing by the Borrower to the 

Collateral Agent by account number and all funds on deposit therein and (f) the Distribution 
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095331-0005-00074-Active.11691471.29

Account identified in writing by the Borrower to the Collateral Agent by account number and all 

funds on deposit therein.

“FDIC” means The Federal Deposit Insurance Corporation, or any successor 

thereto.

“Fitch” means Fitch, Inc., or any successor thereto.

“Guarantee Assumption Agreement” means a Guarantee Assumption Agreement 

substantially in the form of Exhibit B between the Collateral Agent and an entity that, pursuant 

to Section 7.08, is required to become a “Guarantor” hereunder.

“Guaranteed Obligations” means, collectively, the Loan Agreement Obligations 

and the Hedge Agreement Obligations.

“Hedge Agreement Obligations” means, collectively, all obligations and liabilities 

of a Loan Party to a Permitted Secured Hedge Counterparty under the related Permitted Secured 

Interest Rate Hedge, whether direct or indirect, absolute or contingent, due or to become due, or 

now existing or hereafter incurred, which may arise under, out of, or in connection with, any 

Permitted Secured Interest Rate Hedge or any other document made, delivered or given in 

connection with the foregoing, in each case whether on account of payments, interest, fees, 

premiums, indemnities, costs, expenses or otherwise (including, without limitation, all 

reasonable fees and disbursements of counsel to the Permitted Secured Hedge Counterparty that 

are required to be paid by a Loan Party pursuant to the terms of any of the foregoing 

agreements).

“Indemnified Liabilities” has the meaning set forth in Section 10.05.

“Indemnitee” has the meaning set forth in Section 10.05.

“Interest Reserve Account” has the meaning set forth in Schedule A to the Loan 

Agreement.

“Loan Agreement Obligations” means, collectively, the unpaid principal of and 

interest on (including, without limitation, interest accruing at the then applicable rate after the 

maturity of the Loans and after the filing of any petition in bankruptcy, or the commencement of 

any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a 

claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all 

other obligations and liabilities of the Borrower to the Administrative Agent, the Collateral 

Agent, the Collateral Administrator, the Custodian, the Valuation Agent or the Lender, whether 

direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter 

incurred, which may arise under, out of, or in connection with, the Loan Agreement, any other 

Loan Document or any other document made, delivered or given in connection with any of the 

foregoing, in each case whether on account of principal, interest, fees, prepayment premiums, 

indemnities, costs, expenses or otherwise (including, without limitation, all fees and 

disbursements of counsel to the Administrative Agent, the Collateral Agent, the Collateral 

Administrator, the Custodian, the Valuation Agent or the Lender that are required to be paid by 

the Borrower pursuant to the terms of any of the foregoing agreements).
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“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

“Notice of Designation” has the meaning set forth in Section 6.01.

“Permitted Secured Interest Rate Hedge” means any Permitted Interest Rate 

Hedge that has been designated by the Borrower as a “Permitted Secured Interest Rate Hedge” 

for purposes of this Agreement in accordance with the requirements of Section 6.01.

“S&P” means Standard & Poor’s Rating Services, a division of The McGraw Hill 

Companies, Inc., or any successor thereto.

“Secured Obligations” means, collectively, (a) in the case of the Borrower, the 

Loan Agreement Obligations and the Hedge Agreement Obligations and (b) in the case of the 

Guarantors, the obligations of the Guarantors in respect of the Guaranteed Obligations pursuant 

to Section 3.01.

“Specified Actions” has the meaning set forth in Section 5.04.

“U.S. Government Security” means any Security issued by, or unconditionally

guaranteed or insured by, the United States or issued by any agency thereof and backed by the 

full faith and credit of the United States.

Section 2. Representations and Warranties. Each Loan Party represents and 

warrants to the Secured Parties that:

2.01 Organization. Such Loan Party (a) is duly organized, validly existing and 

in good standing under the laws of the jurisdiction of its organization, (b) has all requisite 

organizational power, and has all governmental licenses, authorizations, consents and approvals, 

necessary to own its assets and carry on its business as now being or as proposed to be 

conducted, except where the lack of such licenses, authorizations, consents and approvals could 

not be reasonably expected to have a Material Adverse Effect, (c) is qualified to do business and 

is in good standing in all other jurisdictions in which the nature of the business conducted by it 

makes such qualification necessary, except where the failure to so qualify could not be 

reasonably expected to have a Material Adverse Effect; (d) is in compliance with (to the extent 

such law, guidance or regulation is applicable pursuant to its terms to such Loan Party) (i) 

Section 111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, 

including 31 CFR 30 and (ii) EAWA, as implemented by any guidance or regulations issued by 

UST thereunder and (e) is in compliance in all material respects with all other Requirements of 

Law.

2.02 Authorization; Enforceability. Such Loan Party has all necessary 

organizational power, authority and legal right, as applicable, to execute, deliver and perform its 

obligations under each of the Loan Documents to which it is a party, to grant the Liens 

contemplated hereunder, and to consummate the transactions contemplated thereby. The 

execution, delivery and performance by such Loan Party of each of the Loan Documents to 

which it is a party, and the granting of the Liens contemplated hereby, have been duly authorized 

by all necessary organizational action on its part. Each Loan Document has been duly and validly 

executed and delivered by such Loan Party and constitutes, or when executed and delivered, will 
8

095331-0005-00074-Active.11691471.29

constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such 

Loan Party in accordance with its terms, subject to the Bankruptcy Exceptions.

2.03 No Conflicts. Neither the execution and delivery of the Loan Documents, 

the performance of the obligations set forth in the Loan Documents, the granting of the Liens 

contemplated hereunder, nor the consummation of the transactions therein contemplated in 

compliance with the terms and provisions thereof will (a) conflict with or result in a breach of (i) 

the charter, articles of organization, by-laws, partnership agreement (including, if applicable, the 

Partnership Agreement), operating agreement or similar organizational document of such Loan 

Party, or (ii) any Requirement of Law, (b) constitute a default under any material Contractual 

Obligation with respect to which such Loan Party is a party, or (c) except for the Liens created 

pursuant to the Security Documents, result in the creation or imposition of any Lien upon any 

Property of such Loan Party, pursuant to the terms of any such material Contractual Obligation.

2.04 Governmental Approvals. No consent, approval or authorization of, 

registration or filing with, notice to or other act by or in respect of, any Governmental Authority 

or any other Person is required in connection the granting of the Liens contemplated hereunder 

or with the execution, delivery, performance, validity or enforceability of the Loan Documents to 

which such Loan Party is party, except (i) consents, approvals, authorizations, filings, 

registrations, and notices that have been or will be obtained or made and are in full force and 

effect and (ii) the filings and recordings in respect of the Liens created pursuant to the Security 

Documents.

2.05 Title; Financing Statements. 

(a) Such Loan Party is the sole beneficial owner, and has good and 

marketable title to, each item of the Collateral in which a security interest is granted by such 

Loan Party hereunder and no Lien exists upon such Collateral other than (i) the security interest 

created or provided for herein, which security interest constitutes a valid first and prior perfected 

Lien on the Collateral and (ii) Permitted Liens.

(b) No security agreement, financing statement, equivalent security or lien 

instrument, continuation statement or other public notice with respect to all or any part of the 

Collateral or listing such Loan Party as “debtor” is on file or of record in any public office, 

except (x) such as have been filed in favor of the Collateral Agent, for the benefit of the Secured 

Parties, pursuant to this Agreement and (y) such as have been filed in respect of Permitted Liens. 

Such Loan Party has not authorized the filing of, nor is aware of, any financing statements 

against any Loan Party, except such as have been filed in favor of the Collateral Agent, for the 

benefit of the Secured Parties, pursuant to this Agreement and such as have been filed in respect 

of Permitted Liens.

2.06 Creation and Perfection of Security Interests. This Agreement, together 

with the other Security Documents, is effective to create in favor of the Collateral Agent, for the 

benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral. 

Upon Delivery of any Collateral, this Agreement shall constitute a fully perfected Lien on, and 

security interest in, all right, title and interest of the Loan Parties in such Collateral and the 
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proceeds thereof, as security for the Secured Obligations, in each case prior and superior in right 

to any other Person.

2.07 Names, Etc. The full and correct legal name, type of organization, 

jurisdiction of organization, organizational ID number (if applicable), federal tax ID number and 

mailing address of the Borrower as of the date hereof are correctly set forth in Annex 1 (and of 

each other Loan Party as of the date of the Guarantee Assumption Agreement referred to below 

are set forth in the supplement to Annex 1 in Appendix A to the Guarantee Assumption 

Agreement executed and delivered by such Loan Party pursuant to Section 7.08).

2.08 Changes in Circumstances. Such Loan Party has not (a) within the period 

of four months prior to the date hereof (or, in the case of any Guarantor, within the period of four 

months prior to the date it becomes a party hereto pursuant to a Guarantee Assumption 

Agreement), or, if formed less than four months prior to the date hereof, since its date of 

formation, changed its location (as defined in Section 9-307 of the Uniform Commercial Code), 

(b) as of the date hereof (or, with respect to any Guarantor, as of the date it becomes a party 

hereto pursuant to a Guarantee Assumption Agreement), changed its name or (c) as of the date 

hereof (or, with respect to any Guarantor, as of the date it becomes a party hereto pursuant to a 

Guarantee Assumption Agreement), become a “new debtor” (as defined in Section 9-102(a)(56) 

of the Uniform Commercial Code) with respect to a currently effective security agreement 

previously entered into by any other Person and binding upon such Loan Party, in each case 

except as notified in writing to the Collateral Agent prior to the date hereof (or, in the case of any 

Guarantor, prior to the date it becomes a party hereto pursuant to a Guarantee Assumption 

Agreement).

2.09 Accounts. It maintains no Deposit Accounts, Securities Accounts or 

Commodity Accounts other than (a) the Custodial Account (which will include sub-accounts 

holding Temporary Investments), (b) the Interest Reserve Account, (c) an account (which will 

include sub-accounts holding Temporary Investments) in which the sole amount on deposit is the 

Working Capital Reserve, (d) one or more accounts in which the sole funds on deposit are assets 

required to be pledged or received as collateral in respect of margin requirements to a Permitted 

Hedge Counterparty under the terms of any credit support annex or similar documents entered 

into in connection with a Permitted Interest Rate Hedge, (e) the Escrow Account and (f) the 

Distribution Account.

Section 3. Guarantee.

3.01 The Guarantee. The Guarantors hereby jointly and severally guarantee to 

the Collateral Agent, for the benefit of the Secured Parties and their respective successors, 

indorsees, transferees and assigns, the prompt payment in full in Cash when due (whether at 

stated maturity, by acceleration or otherwise) of the Guaranteed Obligations. The Guarantors 

hereby further jointly and severally agree that if the Borrower shall fail to pay in full in Cash 

when due (whether at stated or extended maturity, by acceleration or otherwise) any of the 

Guaranteed Obligations, the Guarantors will jointly and severally pay the same without any 

demand or notice whatsoever, and that in the case of any extension of time of payment or 

renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due 
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(whether at extended maturity, by acceleration or otherwise) in accordance with the terms of 

such extension or renewal.

3.02 Obligations Unconditional. The obligations of the Guarantors under 

Section 3.01 are irrevocable, absolute and unconditional, and joint and several, irrespective of 

the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any 

agreement or instrument referred to herein or therein, or any substitution, release or exchange of 

any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest 

extent permitted by applicable Requirements of Law, irrespective of any other circumstance 

whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety 

or guarantor, it being the intent of this Section 3 that the obligations of the Guarantors hereunder 

shall be absolute and unconditional under any and all circumstances. Without limiting the 

generality of the foregoing, it is agreed that the occurrence of any one or more of the following 

shall not alter or impair the liability of the Guarantors hereunder, which shall remain absolute 

and unconditional as described above:

(a) at any time or from time to time, without notice to the Guarantors, the time 

for any performance of or compliance with any of the Guaranteed Obligations shall be 

extended, or such performance or compliance shall be waived;

(b) any of the acts mentioned in any of the provisions of this Agreement, the 

other Loan Documents or any other agreement or instrument referred to herein or therein 

shall be done or omitted;

(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or 

any of the Guaranteed Obligations shall be modified, supplemented or amended in any 

respect, or any right under this Agreement, the other Loan Documents or any other 

agreement or instrument referred to herein or therein shall be waived or any other 

guarantee of any of the Guaranteed Obligations or any security therefor shall be released 

or exchanged in whole or in part or otherwise dealt with; or

(d) any Lien or security interest granted to, or in favor of, any Secured Party 

as security for any of the Guaranteed Obligations shall fail to be perfected.

The Guarantors hereby expressly waive diligence, presentment, demand for payment, protest and 

all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or 

remedy or proceed against the Borrower under this Agreement, the other Loan Documents or any

other agreement or instrument referred to herein or therein, or against any other Person under any 

other guarantee of, or security for, any of the Guaranteed Obligations.

3.03 Reinstatement. The obligations of the Guarantors under this Section 3

shall be automatically reinstated if and to the extent that for any reason any payment by or on 

behalf of the Borrower in respect of the Guaranteed Obligations is rescinded or must be 

otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any 

proceedings in bankruptcy or reorganization or otherwise, and the Guarantors jointly and 

severally agree that they will indemnify the Secured Parties on demand for all reasonable costs 

and expenses (including reasonable fees and other charges of counsel) incurred by the Secured 
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Parties in connection with such rescission or restoration, including any such costs and expenses 

incurred in defending against any claim alleging that such payment constituted a preference, 

fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

3.04 Subrogation. The Guarantors hereby jointly and severally agree that until 

the payment and satisfaction in full of all Guaranteed Obligations, and the expiration and 

termination of all commitments to make Loans under all Loan Documents, they shall not 

exercise any right or remedy arising by reason of any performance by them of their guarantee in 

Section 3.01 or a right of contribution under Section 3.08, whether by subrogation or otherwise, 

against the Borrower or any other guarantor of any of the Guaranteed Obligations or any security 

for any of the Guaranteed Obligations.

3.05 Remedies. The Guarantors jointly and severally agree that, as between the 

Guarantors and the Secured Parties, a Guaranteed Obligation may be declared to be or may 

automatically become forthwith due and payable as provided in the respective Loan Document 

therefor for purposes of Section 3.01 notwithstanding any stay, injunction or other prohibition 

preventing such declaration (or such obligations from becoming automatically due and payable) 

as against the Borrower or any Guarantors and that, in the event of such declaration (or such 

obligations being deemed to have become automatically due and payable), such obligations 

(whether or not due and payable by the Borrower) shall forthwith become due and payable by the 

Guarantors for purposes of Section 3.01.

3.06 Continuing Guarantee. The guarantee in this Section 3 is a continuing 

guarantee of payment (and not of collection), and shall apply to all Guaranteed Obligations 

whenever arising.

3.07 Instrument for the Payment of Money. Each Guarantor hereby 

acknowledges that the guarantee in this Section 3 constitutes an instrument for the payment of 

money, and consents and agrees that the Collateral Agent, on behalf of the Secured Parties, at its 

sole option, in the event of a dispute by such Guarantor in the payment of any moneys due 

hereunder, shall have the right to bring motion action under New York CPLR Section 3213.

3.08 Rights of Contribution. Each Guarantor hereby agrees that to the extent 

that a Guarantor shall have paid more than its proportionate share of any payment made 

hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any

other Guarantor hereunder which has not paid its proportionate share of such payment. Each 

Guarantor’s right of contribution shall be subject to the terms and conditions of Section 3.04. 

The provisions of this Section 3.08 shall in no respect limit the obligations and liabilities of any 

Guarantor to the Collateral Agent and the Secured Parties, and each Guarantor shall remain 

liable to the Collateral Agent for the full amount guaranteed by such Guarantor hereunder.

3.09 General Limitation on Guarantee Obligations. In any action or proceeding 

involving any state corporate or other Requirement of Law, or any federal or state bankruptcy, 

insolvency, reorganization or other Requirement of Law affecting the rights of creditors 

generally, if the obligations of any Guarantor under Section 3.01 would otherwise, taking into 

account the provisions of Sections 3.04 and 3.08, be held or determined to be void, invalid or 

unenforceable, or subordinated to the claims of any other creditors, on account of the amount of 
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such Guarantor’s liability under Section 3.01, then, notwithstanding any other provision hereof 

to the contrary, the amount of such liability shall, without any further action by such Guarantor, 

any Secured Party or any other Person, be automatically limited and reduced to the highest 

amount that is valid and enforceable and not subordinated to the claims of other creditors as 

determined in such action or proceeding.

Section 4. Collateral. 

4.01 Grant of Security Interest. As collateral security for the payment in full 

when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, 

each Loan Party hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a 

security interest in all of such Loan Party’s right, title and interest in, to and under all Cash, all 

checks, all Money, all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all 

General Intangibles, all Instruments, all Investment Property (including all Securities, all 

Securities Accounts and Financial Assets carried therein or credited thereto and all Security 

Entitlements with respect thereto, and all Commodity Accounts and Commodity Contracts), and 

all Letter-of-Credit Rights where the underlying letter of credit supports a Portfolio Investment, 

including, the following property, in each case whether tangible or intangible, wherever located, 

and whether now owned by such Loan Party or hereafter acquired and whether now existing or 

hereafter coming into existence (all of the property described in this Section 4.01 being 

collectively referred to as “Collateral”):

(a) the Custodial Account, including all sub-accounts thereof or replacements 

of such account, if any, and all Cash, checks, Instruments, Documents, Securities, 

whether certificated or uncertificated, other Financial Assets carried therein and Security 

Entitlements with respect thereto;

(b) the Interest Reserve Account, including all sub-accounts thereof or 

replacements of such account, if any, and all Cash, checks, Instruments, Documents, 

Securities, whether certificated or uncertificated, other Financial Assets carried therein 

and Security Entitlements with respect thereto;

(c) all Portfolio Investments and all monies due and to become due to a Loan 

Party in connection with such Portfolio Investments, and all rights, remedies, powers, 

privileges and claims of such Loan Party as holder of such Portfolio Investments, 

including the rights of such Loan Party to enforce the agreements or instruments pursuant 

to which the Portfolio Investments are issued and the obligations of any Person 

thereunder and to give or withhold any and all consents, requests, notices, directions, 

approvals, extensions or waivers under or with respect to such agreements or instruments 

or the obligations of any Person thereunder to the same extent as such Loan Party could, 

but for the security interest granted to the Collateral Agent in this Section 4.01;

(d) all Permitted Interest Rate Hedges (and any guarantees thereof) and all 

rights, remedies, powers, privileges and claims of any Loan Party thereunder; including 

(i) all payments and distributions of any kind or character, whether in Cash or other 

property, at any time made or distributable to any Loan Party thereunder or in connection 

therewith, whether due or to become due, and (ii) the rights of the Borrower to enforce 
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such Permitted Interest Rate Hedge (and any guarantees thereof), and to give or withhold 

any and all consents, requests, notices, directions, approvals, extensions or waivers under 

or with respect to any Permitted Interest Rate Hedge (and any guarantees thereof) to the 

same extent as any Loan Party could, but for the security interest granted to the Collateral 

Agent in this Section 4.01; provided, however, that any Loan Party’s rights under any 

Permitted Interest Rate Hedge (and any guarantees of any thereof) shall not secure any 

related Hedge Agreement Obligations;

(e) all other Property of the Loan Parties; and

(f) to the extent not otherwise included, all Proceeds, Supporting Obligations 

and products of any and all of the foregoing and all collateral security and guarantees 

given by any Person with respect to any of the foregoing and, to the extent related to any 

of the foregoing, all books, correspondence, credit files, records, invoices and other 

papers (including all tapes, cards, computer runs and other papers and documents in the 

possession or under the control of such Loan Party or any computer bureau or service 

company from time to time acting for such Loan Party);

provided, however, that at no time shall Collateral include any Excluded Property.

The foregoing grants are made to the Collateral Agent to hold as collateral agent 

hereunder for the benefit of the Secured Parties to secure the Secured Obligations. The 

Collateral Agent, as collateral agent on behalf of the Secured Parties, acknowledges such grant, 

accepts the duties on its part to be performed by it under this Agreement in accordance with the 

provisions of this Agreement and agrees to perform its duties required in this Agreement and the 

other Security Documents to which it is a party. 

4.02 Rights of Loan Parties. Notwithstanding the security interests so granted 

to the Collateral Agent, each Loan Party shall nevertheless be permitted, so long as no Event of 

Default has occurred and is continuing, to give all consents, requests, notices, directions, 

approvals, extensions or waivers, if any, that are permitted or required to be given by such Loan 

Party by the specific terms of any of the agreements or instruments pursuant to which Portfolio 

Investments have been issued or are governed, and the security interest so granted to the 

Collateral Agent shall not relieve such Loan Party from the performance of any term, covenant, 

condition or agreement on such Loan Party’s part to be performed or observed by it under or in 

connection with any of the agreements or instruments pursuant to which Portfolio Investments 

have been issued or are governed or impose any obligation on the Collateral Agent or any other 

Secured Party to perform or observe any such term, covenant, condition or agreement on such 

Loan Party’s part to be so performed or observed by it or otherwise impose any liability on the 

Collateral Agent or any other Secured Party for any act or omission on the part of such Loan 

Party relative thereto or for any breach of any representation or warranty on the part of such 

Loan Party contained in the agreements or instruments pursuant to which Portfolio Investments 

have been issued or are governed or made in connection therewith or to make any payment, or to 

make any inquiry as to the nature or sufficiency of any payment received by it, or present or file 

any claim, or take any action to collect or enforce the payment of any amounts which may have 

been assigned to it or to which it may be entitled at any time or times. 
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Section 5. Certain Agreements Among Secured Parties.

5.01 Priorities; Additional Collateral.

(a) Pari Passu Status of Obligations. Each of the Lender, the Administrative 

Agent, the Collateral Agent and each Permitted Secured Hedge Counterparty by acceptance of 

the benefits of this Agreement and the other Security Documents agree that their respective 

security interests in the Collateral shall rank pari passu and that the Secured Obligations shall be 

equally and ratably secured by the Security Documents subject to the terms hereof and subject to 

the Priority of Payments.

(b) Sharing of Guarantees and Liens. Each of the Lender, the Administrative 

Agent, the Collateral Agent and each Permitted Secured Hedge Counterparty by acceptance of 

the benefits of this Agreement and the other Security Documents agrees that (i) such Secured 

Party will not accept from any Subsidiary of the Borrower a guarantee of the Guaranteed 

Obligations unless such guarantor simultaneously guarantees the payment of the Guaranteed 

Obligations owing to all Secured Parties and (ii) such Secured Party will not hold, take, accept or 

obtain any Lien upon any Property of any Loan Party to secure the payment and performance of 

the Secured Obligations except and to the extent that such Lien is in favor of the Collateral

Agent pursuant to this Agreement or another Security Document to which the Collateral Agent is 

a party for the benefit of all of the Secured Parties as provided herein.

5.02 Turnover of Collateral. If a Secured Party acquires custody, control or 

possession of any Collateral or the proceeds therefrom, other than pursuant to the terms of this 

Agreement, such Secured Party shall promptly (but in any event within five (5) Business Days) 

turn over and/or Deliver such Collateral or proceeds to the Custodian on behalf of the Collateral 

Agent in accordance with the provisions of this Agreement. Until such time as such Secured 

Party shall have complied with the provisions of the immediately preceding sentence, such 

Secured Party shall be deemed to hold such Collateral and proceeds in trust for the benefit of the 

Collateral Agent.

5.03 Cooperation of Secured Parties. Each Secured Party will cooperate with 

the Collateral Agent and with each other Secured Party in the enforcement of the Liens upon the 

Collateral and otherwise in order to accomplish the purposes of this Agreement and the other 

Security Documents.

5.04 Limitation upon Certain Independent Actions by Secured Parties. Other 

than in accordance with Section 8 of this Agreement or Section 8.02 of the Loan Agreement, no 

Secured Party shall have any right to institute any action or proceeding to enforce any term or 

provision of the Security Documents or to enforce any of its rights in respect of the Collateral or 

to exercise any other remedy pursuant to the Security Documents or at law or in equity, for the 

purpose of realizing on the Collateral, or by reason of jeopardy of any Collateral, or for the 

execution of any trust or power hereunder (collectively, the “Specified Actions”), unless the 

Controlling Party shall have delivered written instructions to the Collateral Agent and the 

Collateral Agent shall have failed to act in accordance with such instructions within five (5) 

Business Days thereafter. In such case but not otherwise, the Controlling Party may take any of 

the Specified Actions and shall be entitled to commence proceedings in any court of competent 
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jurisdiction or to take any other Specified Actions as the Collateral Agent might have taken 

pursuant to this Agreement or the Security Documents. The Loan Parties acknowledge and 

agree that should the Controlling Party act in accordance with this provision, the Controlling 

Party will have all the rights, remedies, benefits and powers as are granted to the Collateral 

Agent pursuant hereto or pursuant to any other Security Documents.

5.05 No Challenges. In no event shall any Secured Party take any action to 

challenge, contest or dispute the validity, extent, enforceability or priority of the security 

interests granted hereunder or under any other Security Document with respect to any of the 

Collateral, or that would have the effect of invalidating any such security interest or support any

Person who takes any such action. Each of the Secured Parties agrees that it will not take any 

action to challenge, contest or dispute the validity, enforceability or secured status of any other 

Secured Party’s claims against any Loan Party (other than any such claim resulting from a 

breach of this Agreement by a Secured Party, or any challenge, contest or dispute alleging 

arithmetical error in the determination of a claim), or that would have the effect of invalidating 

any such claim, or support any Person who takes any such action.

5.06 Rights of Secured Parties as to Secured Obligations. Notwithstanding any 

other provision of this Agreement, the right of each Secured Party to receive payment of the 

Secured Obligations held by such Secured Party when due (whether at the stated maturity 

thereof, by acceleration or otherwise) as expressed in any instrument evidencing or agreement 

governing such Secured Obligations, or to institute suit for the enforcement of such payment on 

or after such due date, and the obligation of the Loan Parties to pay their respective Secured 

Obligations when due, shall not be impaired or affected without the written consent of such 

Secured Party; provided that, notwithstanding the foregoing, each Secured Party agrees that it 

will not attempt to exercise remedies with respect to any Collateral except as provided in this 

Agreement or the Loan Agreement.

Section 6. Permitted Secured Interest Rate Hedges; Recordkeeping, Etc.

6.01 Designation of Permitted Secured Interest Rate Hedges. The Borrower 

may at any time designate as a “Permitted Secured Interest Rate Hedge” hereunder any Permitted 

Interest Rate Hedge, such designation to be effected by delivery to the Collateral Agent of a 

notice substantially in the form of Exhibit A (a “Notice of Designation”), which notice shall 

identify such Permitted Interest Rate Hedge, request that such Permitted Interest Rate Hedge be 

designated as a “Permitted Secured Interest Rate Hedge” hereunder and be accompanied by a 

certificate of a Responsible Officer of the Borrower delivered to the Collateral Agent:

(a) certifying that such Hedge Agreement constitutes a Permitted Interest Rate 

Hedge, and

(b) attaching (and certifying as true and complete) copies of the related ISDA 

master agreement and schedule (and, if available at the time of designation, any related 

confirmations). 

No such designation shall be effective unless and until the related Permitted 

Secured Hedge Counterparty shall have executed and delivered to the Collateral Agent an 
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acknowledgement substantially in the form of Exhibit C, or shall have acknowledged in the 

related schedule to the master agreement (or any confirmation thereunder), the grant of a security 

interest in the Collateral to the Collateral Agent, for the benefit of the Secured Parties, which 

acknowledgement shall constitute the irrevocable appointment of the Collateral Agent as its 

agent for the purpose of evidencing the existence and maintaining the perfection of the security 

interests granted to the Collateral Agent for the benefit of such Permitted Secured Hedge 

Counterparty hereunder in accordance with the provisions of this Agreement and its acceptance 

and agreement to all of the provisions of this Agreement, including Section 5 and this Section 6. 

The Collateral Agent agrees that, upon receipt of such Notice of Designation and 

acknowledgment, it will be deemed to have accepted such appointment by such Permitted 

Secured Hedge Counterparty. The foregoing appointment and agreement shall not impose upon 

the Collateral Agent, or be construed to constitute an assignment to, or assumption on the part of 

the Collateral Agent of, any duties, obligations or liabilities under any such Permitted Secured 

Interest Rate Hedge. Notwithstanding anything else to the contrary herein, (i) by its acceptance 

of the benefits of this Agreement, each Permitted Secured Hedge Counterparty shall be deemed 

to (x) agree not to exercise any rights or remedies thereunder or otherwise with respect to the 

Collateral for so long as any Loans and any other Obligations (other than Hedge Agreement 

Obligations) remain outstanding without the express written consent of the Lender and (y) agree 

to be bound by the terms of this Agreement and (ii) the Lien created herein in favor of the 

Permitted Secured Hedge Counterparties shall remain in effect until payment in full of the Hedge 

Agreement Obligations owing to such Persons, notwithstanding the termination of the Loan 

Agreement and the payment in full of the Loans and all other Loan Agreement Obligations. No 

failure of the Collateral Agent as the agent for the Permitted Secured Hedge Counterparties to 

evidence the existence or maintain the perfection of the security interest granted herein to the 

Collateral Agent for the benefit of the Permitted Hedge Counterparties shall release the 

Permitted Secured Hedge Counterparties from the agreement set forth in clause (i) of the 

preceding sentence.

6.02 Information. The Borrower will furnish to the Administrative Agent, the 

Collateral Agent and the Lender, promptly after the same become effective, all confirmations 

executed pursuant to any Permitted Secured Interest Rate Hedge. The Borrower will at such 

times and from time to time as shall be reasonably requested by the Administrative Agent, the 

Collateral Agent or the Lender, supply a list in form and detail reasonably satisfactory to the 

Administrative Agent, the Collateral Agent and the Lender setting forth the amount (on both a 

notional and mark to market exposure basis) of the Hedge Agreement Obligations held by each 

Permitted Secured Hedge Counterparty as at a date specified in such request. Each Permitted 

Secured Hedge Counterparty will provide promptly to the Administrative Agent, the Collateral 

Agent or the Lender, at such Agent’s or the Lender’s request, any information with respect to its 

Permitted Secured Interest Rate Hedge that the Administrative Agent, the Collateral Agent or the 

Lender may reasonably request for the purpose of administering this Agreement or of making 

distributions pursuant to the Priority of Payments (it being understood that if a Permitted Secured 

Hedge Counterparty fails to provide such information to the Administrative Agent, the Collateral 

Agent or the Lender, the Administrative Agent, the Collateral Agent or the Lender may in its 

discretion withhold distributions to such Secured Party pending receipt of such information or 

may make distributions based solely on information provided by the Borrower or take the actions 

described in Section 8.04).
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6.03 Recordkeeping. The Collateral Agent will maintain books and records 

necessary to enable it to determine at any time all transactions under this Agreement which have 

occurred on or prior to such time. Each Loan Party agrees that such books and records 

maintained in good faith by the Collateral Agent shall be conclusive as to the matters contained 

therein absent manifest error. Each Loan Party shall have the right to inspect such books and 

records during normal business hours upon reasonable prior notice.

Section 7. Covenants of the Loan Parties.

In furtherance of the grant of the security interest pursuant to Section 4, each 

Loan Party hereby covenants to the Collateral Agent for the benefit of the Secured Parties as 

follows:

7.01 Delivery and Other Perfection. 

(a) Within ten (10) days after the acquisition by a Loan Party of any Portfolio 

Investment constituting part of the Collateral as to which physical possession by the 

Custodian is required in order for such Portfolio Investment to have been “Delivered”, 

such Loan Party shall take such actions as shall be necessary to effect Delivery of such 

Portfolio Investment. As to all other Portfolio Investments constituting part of the 

Collateral, such Loan Party shall cause the same to be Delivered within five (5) Business 

Days of the acquisition thereof; provided that it shall not be a violation of this Section 

7.01(a) if, at any given time, Portfolio Investments constituting part of the Collateral with 

an aggregate Market Value of 2% or less of the aggregate Market Value of all Portfolio

Investments held by the Loan Parties shall not have been Delivered in accordance with 

the foregoing provisions of this Section 7.01(a). In addition, and without limiting the 

generality of the foregoing, each Loan Party shall promptly from time to time give, 

execute, deliver, file, record, authorize or obtain all such financing statements, 

continuation statements, notices, instruments, documents, account control agreements or 

any other agreements or consents or other papers as may be necessary or desirable in the 

reasonable judgment of the Collateral Agent to create, preserve, perfect, maintain the 

perfection and first priority nature of, or validate the security interests granted pursuant 

hereto, or to enable the Collateral Agent to exercise and enforce its rights hereunder with 

respect to such security interest, and without limiting the foregoing, shall:

(i) keep full and accurate books and records relating to the Collateral in all 

material respects, and stamp or otherwise mark such books and records in such 

manner as the Collateral Agent may reasonably require in order to reflect the 

security interests granted by this Agreement; and

(ii) permit representatives of the Lender or the Collateral Agent, upon 

reasonable notice, at any time during normal business hours to inspect and make 

abstracts from its books and records pertaining to the Collateral, and, if an Event 

of Default shall have occurred and be continuing, permit representatives of the 

Lender or the Collateral Agent to be present at such Loan Party’s place of 

business to receive copies of communications and remittances relating to the 

Collateral, and forward copies of any notices or communications received by such 
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Loan Party with respect to the Collateral, all in such manner as the Lender or the 

Collateral Agent may reasonably require; provided that each such Loan Party 

shall be entitled to have its representatives and advisors present during any 

inspection of its books and records at such Loan Party’s place of business.

(b) Without relieving a Loan Party of its obligations set forth in Section 

7.01(a), each Loan Party hereby authorizes the Collateral Agent to file and refile such 

financing statements, continuation statements, amendments thereto, notices and other 

documents or instruments (including this Agreement) (and such financing statements, 

continuation statements, amendments thereto, notices and other documents or instruments 

may describe the Collateral as “all assets”, “all personal property” or words of similar 

effect) in such offices as the Collateral Agent may deem necessary or desirable in the 

reasonable judgment of the Collateral Agent in order to perfect and preserve the rights 

and interests granted to the Collateral Agent hereby, and agrees to do such further acts 

and things, and to execute and deliver to the Collateral Agent such additional 

assignments, agreements, powers and instruments, as the Collateral Agent reasonably 

determines to be necessary to carry into effect the purposes of this Agreement or to better 

assure and confirm unto the Collateral Agent its rights, powers, privileges and remedies 

hereunder; provided that the foregoing powers on the part of the Collateral Agent shall 

not impose any affirmative obligation upon the Collateral Agent.

7.02 Payment of Obligations. Each Loan Party will pay and discharge or 

otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all 

material taxes, assessments and governmental charges or levies imposed upon the Collateral or in 

respect of income or profits therefrom imposed upon such Loan Party in respect of the Collateral, 

as well as all claims of any kind against or with respect to the Collateral, except that no such 

charge or levy need be paid if the amount or validity thereof is currently being contested in good 

faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have 

been provided on the books of such Loan Party or such taxes, assessments, governmental charges 

or levies could not reasonably be expected to result in a Material Adverse Effect.

7.03 Maintenance of Perfected Security Interest. (a) Each Loan Party shall 

maintain and preserve the security interest created by this Agreement and the other Security

Documents as a first priority perfected security interest (subject to Permitted Liens), shall 

enforce the rights, title and interests of the Collateral Agent and the Secured Parties with respect 

to the Collateral and shall preserve and defend title to the Collateral and the rights and interests 

of the Collateral Agent and the other Secured Parties in such Collateral against the claims and 

demands of all Persons whomsoever.

(b) Each Loan Party will furnish to the Collateral Agent from time to time 

statements and schedules further identifying and describing the assets and property of such Loan 

Party and such other reports in connection therewith as the Collateral Agent may reasonably 

request, all in reasonable detail.

7.04 Notices. Promptly after any Loan Party has actual knowledge of any Lien 

on any of the Collateral, such Loan Party will advise the Collateral Agent promptly, in writing 
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and in reasonable detail (and making express reference to this Section 7.04), of such Lien (other 

than security interests created hereby and the Permitted Liens).

7.05 Other Financing Statements or Control. The Loan Parties shall not (a) file 

or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or 

like instrument with respect to any of the Collateral other than any such financing statement or 

like instrument naming the Collateral Agent as secured party in its capacity as agent hereunder, 

or (b) cause or permit any Person other than the Collateral Agent to have Control of any Deposit 

Account, Electronic Chattel Paper, Investment Property or Letter-of-Credit Right constituting 

part of the Collateral.

7.06 Changes in Name, etc. A Loan Party will not, except upon thirty (30) 

days’ prior written notice to the Collateral Agent and delivery to the Collateral Agent of all 

additional financing statements and other properly executed documents reasonably requested by 

the Collateral Agent to maintain the validity, perfection and priority of the security interests 

provided for herein, (i) change its jurisdiction of organization, organizational identification 

number (if applicable), federal tax identification number, mailing address or the address of its 

registered office from that referred to on Annex 1 or (ii) change its name. Such notice shall 

make specific reference to this Section 7.06.

7.07 Collections. Each Loan Party shall, and the Collateral Agent is authorized 

to, cause all amounts due and to become due to the Loan Parties under or in connection with the 

Collateral, including all Collections, or otherwise constituting proceeds of Collateral to be paid 

directly to the Custodian for deposit into the Custodial Account. Each Loan Party agrees that if 

such amounts shall be received directly by such Loan Party, such monies, instruments, Cash and 

other proceeds will not be commingled by such Loan Party with any of its other funds or 

property, if any, but will be held separate and apart therefrom and shall be held in trust by such 

Loan Party for, and immediately remitted to, the Custodian, with any necessary endorsement for 

deposit into the Custodial Account. 

7.08 Additional Guarantors. As contemplated by Section 6.08 of the Loan 

Agreement, any new Subsidiary of the Borrower formed or acquired by the Borrower after the 

date hereof that is required to become a “Guarantor” under this Agreement shall do so by 

executing and delivering to the Collateral Agent a Guarantee Assumption Agreement in the form 

of Exhibit B. Accordingly, upon the execution and delivery of any such Guarantee Assumption 

Agreement by any such Subsidiary, such new Subsidiary shall automatically and immediately, 

and without any further action on the part of any Person, become a “Guarantor” and a “Loan 

Party” for all purposes of this Agreement, and Annex 1 hereto shall be deemed to be 

supplemented in the manner specified in such Guarantee Assumption Agreement. In addition, 

upon execution and delivery of any such Guarantee Assumption Agreement, the new Guarantor 

makes (solely as to such Guarantor) the representations and warranties set forth in Section 2 as of 

the date of such Guarantee Assumption Agreement.

7.09 Custodial Account. 

(a) The Borrower shall, at all times during the term of this Agreement, 

maintain the Custodial Account with the Custodian, which shall be a non-interest bearing 
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account and shall bear a designation clearly indicating that the funds deposited therein are 

subject to the security interest of this Agreement and the operation of which shall be 

governed by the terms of this Section 7.09 and the Priority of Payments. The Custodial 

Account may be further sub-divided into sub-accounts. If the Custodial Account at any 

time ceases to be an Eligible Account, the Borrower may, with the written consent of the 

Controlling Party, or shall promptly, at the direction of the Controlling Party, reestablish 

such account as an Eligible Account at an Eligible Institution.

(b) Funds on deposit in the Custodial Account shall be invested, applied or 

distributed in the manner set forth in Section 7.11 and in the Custodial Agreement.

(c) The Collateral Agent shall have Control over the Custodial Account. The 

Borrower, the Collateral Agent and the Custodian shall always be party to an 

authenticated record that the Custodian will comply with instructions originated by the 

Collateral Agent directing Disposition of the funds and securities from the Custodial 

Account without further written consent of the Borrower.

7.10 Interest Reserve Account. 

(a) The Borrower shall, at all times during the term of this Agreement, 

maintain the Interest Reserve Account with the Custodian, which shall be a non-interest 

bearing account and shall bear a designation clearly indicating that the funds deposited 

therein are subject to the security interest of this Agreement and the operation of which 

shall be governed by the terms of this Section 7.10. The Interest Reserve Account may 

be further sub-divided into sub-accounts. If the Interest Reserve Account at any time 

ceases to be an Eligible Account, the Borrower may, with the written consent of the 

Controlling Party, or shall promptly, at the direction of the Controlling Party, reestablish 

such account as an Eligible Account at an Eligible Institution.

(b) Funds on deposit in the Interest Reserve Account shall be invested, 

applied or distributed in the manner set forth in set forth in Section 7.11 and in the 

Custodial Agreement.

(c) The Collateral Agent shall have Control over the Interest Reserve 

Account. The Borrower, the Collateral Agent and the Custodian shall always be party to 

an authenticated record that the Custodian will comply with instructions originated by the 

Collateral Agent directing Disposition of the funds and securities from the Interest 

Reserve Account without further written consent of the Borrower.

7.11 Permitted Investments of Funds on Deposit in the Custodial Account and 

the Interest Reserve Account. Funds on deposit in the Custodial Account and the Interest 

Reserve Account shall be invested, and the proceeds of investments shall be reinvested, by the 

Custodian in Temporary Investments pursuant to the written direction of the Borrower, in each 

case subject to and in accordance with the Partnership Agreement; provided that, in allocating 

funds in such accounts for the purpose of reinvestment, (i) the Borrower shall take into 

consideration any amounts that may be payable pursuant to the Priority of Payments on the next 

succeeding Loan Payment Date and (ii) funds held in the Custodial Account may be invested or 
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withdrawn as provided in the Loan Agreement. The Collateral Agent and the Custodian shall not 

be responsible or liable for any loss resulting from the investment performance of an investment

or reinvestment of funds on deposit in the Custodial Account or the Interest Reserve Account 

and shall not be responsible for giving any investment advice. In the absence of any written 

investment direction, the Collateral Agent and the Custodian shall hold the funds in the Custodial 

Account and the Interest Reserve Account uninvested.

7.12 No Certification of Limited Liability Company Interests and Limited 

Partnership Interests. With respect to the ownership by any Loan Party of any Equity Interests in 

any Subsidiary that is organized as a limited liability company or limited partnership, such Loan 

Party agrees to elect not to treat such Equity Interests as a “Security” within the meaning of 

Article 8 of the Uniform Commercial Code and not to allow such Equity Interests to be 

represented by a certificate. 

Section 8. Acceleration Notice; Remedies; Distribution of Collateral.

8.01 Events of Default, Etc. During any period during which an Event of 

Default shall have occurred and be continuing:

(a) each Loan Party shall, at the request of the Collateral Agent, assemble the 

Collateral owned by it at such place or places, as the Collateral Agent shall reasonably 

request;

(b) the Collateral Agent may make any compromise or settlement deemed 

desirable with respect to any of the Collateral and may extend the time of payment, 

arrange for payment in installments, or otherwise modify in any manner the terms of, any 

of the Collateral;

(c) the Collateral Agent shall have all of the rights and remedies with respect 

to the Collateral of a secured party under the Uniform Commercial Code (whether or not 

the Uniform Commercial Code is in effect in the jurisdiction where the rights and 

remedies are asserted) and such additional rights and remedies to which a secured party is 

entitled under all Requirements of Law in effect in any jurisdiction where any rights and 

remedies hereunder may be asserted, including the right, to the fullest extent permitted by 

applicable law, to exercise all voting, consensual and other powers of ownership 

pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner 

thereof (and each Loan Party agrees to take all such action as may be appropriate to give 

effect to such right);

(d) the Collateral Agent in its discretion may, in its name or in the name of 

any Loan Party or otherwise, demand, sue for, collect or receive any money or property at 

any time payable or receivable on account of or in exchange for any of the Collateral, but 

shall be under no obligation to do so; and

(e) the Collateral Agent may, upon five (5) Business Days’ prior written 

notice to the Loan Parties of the time and place (or, if such sale is to take place on an 

established exchange or other recognized market, prior to the time of such sale or other 
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Disposition), with respect to the Collateral or any part thereof which shall then be or shall 

thereafter come into the possession, custody or control of the Collateral Agent, the other 

Secured Parties or any of their respective agents, sell, assign or otherwise Dispose of all 

or any part of such Collateral, at such place or places as the Collateral Agent deems best, 

and for Cash or for credit or for future delivery (without thereby assuming any credit 

risk), at public or private sale, without demand of performance or notice of intention to 

effect any such Disposition or of the time or place thereof (except such notice as is 

required above or by applicable statute and cannot be waived), and the Collateral Agent 

or any other Secured Party or anyone else may be the purchaser, assignee or recipient of 

any or all of the Collateral so Disposed of at any public sale (or, to the extent permitted 

by law, at any private sale) and thereafter, to the fullest extent permitted by Requirements 

of Law, hold the same absolutely, free from any claim or right of whatsoever kind, 

including any right or equity of redemption (statutory or otherwise), of the Loan Parties, 

any such demand, notice and right or equity being hereby expressly waived and released, 

to the fullest extent permitted by law.

The Collateral Agent may, without notice or publication, adjourn any public or 

private sale or cause the same to be adjourned from time to time by announcement at the 

time and place fixed for the sale, and such sale may be made at any time or place to 

which the sale may be so adjourned.

The proceeds of each collection, sale or other Disposition under this Section 8.01

shall be deposited into the Custodial Account and applied in accordance with the Default Priority 

of Payments and any amounts obtained by the Collateral Agent on account of, or as a result of 

the exercise by, the Collateral Agent of any right of offset or banker’s lien or right of attachment 

or garnishment with respect to any funds at any time and from time to time on deposit in, or 

otherwise to the credit of, the Custodial Account shall be held by the Collateral Agent as 

additional collateral security for the repayment of the Secured Obligations and shall be applied as 

provided in accordance with the Default Priority of Payments.

The Loan Parties recognize that, by reason of certain prohibitions contained in the 

Securities Act of 1933, as amended, and applicable state securities laws, the Collateral Agent 

may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers 

to those who will agree, among other things, to acquire the Collateral for their own account, for 

investment and not with a view to the distribution or resale thereof. Each Loan Party 

acknowledges and agrees that any such private sale may result in prices and other terms less 

favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees 

that any such private sale shall be deemed to have been made in a commercially reasonable 

manner. The Collateral Agent shall be under no obligation to delay a sale of any item of 

Collateral for the period of time necessary to permit the issuer thereof to register such securities 

for public sale under the Securities Act of 1933, as amended, or under applicable state securities 

laws, even if such issuer would agree to do so.

8.02 Deficiency. Subject to Section 10.14 of this Agreement and Section 10.15 

of the Loan Agreement, if the proceeds of sale, collection or other realization of or upon the 

Collateral pursuant to Section 8.01 are insufficient to cover the costs and expenses of such 
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realization and the payment in full of the Secured Obligations, the Loan Parties shall remain 

liable for any deficiency.

8.03 Private Sale. The Collateral Agent and the Secured Parties shall incur no 

liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to 

Section 8.01. Each Loan Party hereby waives any claims against the Collateral Agent or any 

other Secured Party arising by reason of the fact that the price at which the Collateral may have 

been sold at such a private sale was less than the price which might have been obtained at a 

public sale or was less than the aggregate amount of the Secured Obligations, even if the 

Collateral Agent accepts the first offer received and does not offer the Collateral to more than 

one offeree; it being understood that a private sale conducted in accordance with this Section 

8.03 that satisfies the requirements set forth in Section 8.01(e) shall be deemed to have been 

conducted in a commercially reasonable manner.

8.04 Application of Proceeds after Default. Except as otherwise herein 

expressly provided, the proceeds of any collection, sale or other realization of all or any part of 

the Collateral of any Loan Party pursuant to Section 8.01, and any other Cash of any Loan Party 

at the time held by the Collateral Agent under this Agreement, shall be applied by the Collateral 

Agent in accordance with the Default Priority of Payments. In making the allocations required 

by the Default Priority of Payments, the Collateral Agent may rely upon its records and 

information supplied to it pursuant to Section 6.02 (except as otherwise provided in Section 

9.02), and the Collateral Agent shall have no liability to any of the Secured Parties for actions 

taken in reliance on such information, except to the extent of its negligence, bad faith, willful 

misconduct or fraudulent action. The Collateral Agent may, in its sole discretion, at the time of 

any application under this Section 8.04, withhold all or any portion of the proceeds otherwise to 

be applied to the Secured Obligations as provided in the Default Priority of Payments and 

maintain the same in a segregated cash collateral account in the name and under the exclusive 

Control of the Collateral Agent, to the extent that it in good faith believes that the information 

provided to it pursuant to Section 6.02 is either incomplete or inaccurate and that application of 

the full amount of such proceeds to the Secured Obligations would be disadvantageous to any 

Secured Party. All distributions made by the Collateral Agent pursuant to this Section 8 shall be 

final (subject to any decree of any court of competent jurisdiction), and the Collateral Agent shall 

have no duty to inquire as to the application by the other Secured Parties of any amounts 

distributed to them.

8.05 Waiver of Stays, etc. To the full extent that each Loan Party may lawfully 

so agree, each Loan Party agrees that it will not at any time plead, claim or take the benefit of 

any appraisement, valuation, stay, extension, moratorium or redemption law now or hereafter in 

force to prevent or delay the enforcement of this Agreement in accordance with its terms or the 

absolute sale of any portion of or all of the Collateral in accordance with this Agreement or the 

possession thereof by any purchaser at any sale under and in compliance with this Agreement, 

and each Loan Party, for itself and all who may claim under such Loan Party, as far as such Loan 

Party now or hereafter lawfully may do so, hereby waives the benefit of all such Requirement of 

Law.

8.06 Attorney-in-Fact. Without limiting any rights or powers granted by this 

Agreement to the Collateral Agent while no Event of Default has occurred and is continuing, 
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upon the occurrence and during the continuance of any Event of Default, the Collateral Agent is 

hereby appointed the attorney-in-fact of each Loan Party for the purpose of carrying out the 

provisions of this Section 8 and taking any action and executing any instruments which the 

Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes 

hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. 

Without limiting the generality of the foregoing, so long as the Collateral Agent shall be entitled 

under this Section 8 to make collections in respect of the Collateral, the Collateral Agent shall 

have the right and power to receive, endorse and collect all checks made payable to the order of 

any Loan Party representing any dividend, payment or other distribution in respect of the 

Collateral or any part thereof and to give full discharge for the same.

8.07 Agreement regarding Control Agreements. The Collateral Agent agrees 

with the Loan Parties that it will not give or deliver any notice of exclusive control or similar 

notice or any Entitlement Order or other instruction, pursuant to any control agreement relating 

to Deposit Accounts, Securities Accounts or Commodities Accounts constituting Collateral or 

otherwise with respect to Collateral unless an Event of Default has occurred and is then 

continuing.

8.08 Release of Collateral; Guarantors. 

(a) Upon any Disposition by a Loan Party of any Collateral that is permitted 

under the Loan Documents or upon the release of any Guarantor from its guarantee 

obligations under Section 3 as described below, the security interest of the Collateral 

Agent in such Collateral or in the Property of such Guarantor shall be automatically 

released; provided that (i) at the time of such Disposition, no Event of Default has 

occurred and is continuing and (ii) no Event of Default would occur upon giving effect to 

(A) such release of security interest and (B) the application of any Proceeds attributable 

to such Disposition. Notwithstanding the foregoing, in the event that the Borrower 

reasonably so requests, the Collateral Agent shall in a timely manner (i) sign release 

documentation that may be necessary or reasonably requested to confirm such release to 

third parties and (ii) deliver to the Borrower such amendments to financing statements as 

may be reasonably requested by the Borrower to be filed to evidence such release. The 

Collateral Agent is also authorized to release (and shall release) any Guarantor from any 

of its guarantee obligations under Section 3 to the extent such Subsidiary is the subject of 

a Disposition permitted under the Loan Documents, such Subsidiary is designated as a 

Financing Subsidiary to the extent permitted by the Loan Agreement, or the Controlling 

Party shall have consented to such release in writing and upon such release, the Collateral 

Agent is authorized to release (and shall release) any collateral security granted by such 

Guarantor hereunder and under the other Security Documents.

(b) The Borrower shall post or pledge any asset required to be posted or 

pledged as collateral in respect of margin or other requirements to a Permitted Hedge 

Counterparty under the terms of any credit support annex or similar document entered 

into in connection with a Permitted Interest Rate Hedge free and clear of the Lien and 

security interest created hereby and the security interest of the Collateral Agent in any 

such asset required to be posted or pledged as collateral shall be automatically released.
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(c) Upon the termination of the commitment of the Lender under Section 

2.01(a) of the Loan Agreement to make Loans and indefeasible payment in full in Cash 

of all of the Secured Obligations, this Agreement shall terminate (other than any 

provisions hereof expressly stated to survive termination) and the Borrower shall be 

entitled to the return, upon its request and at its expense, of such of the Collateral as shall 

not have been sold or otherwise applied pursuant to the terms hereof and the Collateral 

Agent shall execute without recourse such instruments and documents as may be 

reasonably requested by the Borrower to evidence such termination and the release of the 

Lien hereof.

8.09 Custody and Safekeeping. The Collateral Agent’s sole duty with respect 

to the custody, safekeeping and physical preservation of the Collateral in its possession shall be 

to deal with it in a similar manner as the Collateral Agent deals with similar property for similar 

customers, subject to Section 9-207 of the Uniform Commercial Code and subject to the 

protections and limitations on liability afforded to the Collateral Agent under this Agreement. 

Neither the Collateral Agent nor any of its Related Parties shall be liable for failure to demand, 

collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be 

under any obligation to sell or otherwise Dispose of any Collateral; provided that it has acted in 

accordance with the instructions of the Controlling Party and in compliance with (and subject to) 

the terms of this Agreement and all Requirements of Law.

Section 9. The Collateral Agent.

9.01 Appointment, Powers and Immunities. The Lender and, by acceptance of 

the benefits of this Agreement and other Security Documents, each Permitted Secured Hedge 

Counterparty, hereby appoints and authorizes The Bank of New York Mellon to act as its agent 

hereunder with such powers as are specifically delegated to the Collateral Agent by the terms of 

this Agreement, together with such other powers as are reasonably incidental thereto. The 

Collateral Agent:

(a) shall have no duties or responsibilities except those expressly set forth in 

this Agreement and shall not by reason of this Agreement be a trustee for, or a fiduciary 

with respect to, the Lender or any Permitted Secured Hedge Counterparty;

(b) shall not be responsible to the Lender, any Permitted Secured Hedge 

Counterparty, or any other Person for any recitals, statements, representations or 

warranties contained in this Agreement or in any notice delivered hereunder, or in any 

other certificate, report, statement, opinion of counsel or other document referred to or 

provided for in, or received by it under, this Agreement, or for the value, validity,

effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other 

document referred to or provided for herein or therein or for any failure by the Loan 

Parties or any other Person to perform any of its obligations hereunder; and

(c) shall not be required to initiate or conduct any litigation or collection 

proceedings hereunder except for any such litigation or proceedings relating to the 

enforcement of the guarantee set forth in Section 3, or the security interests created 

pursuant to Section 4.
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9.02 Information Regarding Secured Parties. The Collateral Agent shall be 

entitled to rely upon the information provided to it by the Borrower or any Permitted Secured 

Hedge Counterparty pursuant to Section 6.02, and such information shall be conclusive and 

binding for all purposes of this Agreement, except to the extent the Collateral Agent shall have 

been notified by a Permitted Secured Hedge Counterparty that such information as set forth on 

any such list is inaccurate or in dispute between such Secured Party and the Borrower.

9.03 Delegation of Duties. The Collateral Agent may execute ministerial and 

ancillary duties under this Agreement and the other Loan Documents through third party 

ministerial or ancillary service providers. The Collateral Agent shall have no monitoring 

responsibility with respect to such persons and shall not be responsible for any misconduct or 

negligence on the part of any such persons appointed by the Collateral Agent with due care.

9.04 Exculpatory Provisions. Neither the Collateral Agent nor any of its 

officers, directors, employees, agents, administrators, advisors, attorneys in fact or Affiliates 

shall be liable for any action lawfully taken or omitted to be taken by it or such Person under or 

in connection with this Agreement or any other Loan Document (except to the extent that any of 

the foregoing are found by a final and non-appealable decision of a court of competent 

jurisdiction to have resulted from its or such Person’s own negligence, bad faith, willful 

misconduct or fraudulent action). The Collateral Agent shall not be under any obligation to the 

Secured Parties to ascertain or to inquire as to the observance or performance of any of the 

agreements contained in, or conditions of, this Agreement or any other Loan Document, or to 

inspect the properties, books or records of any Loan Party.

9.05 Reliance by Collateral Agent. The Collateral Agent shall be entitled to 

rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, 

consent, certificate, affidavit, letter, facsimile or email message, statement, order or other 

document or conversation reasonably believed by it to be genuine and correct and to have been 

signed, sent or made by the proper Person or Persons and upon advice and statements of legal 

counsel (including counsel to the Loan Parties), independent accountants and other experts 

selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or 

refusing to take any action under this Agreement or any other Loan Document unless it shall first 

receive such advice or concurrence of the Controlling Party as it deems appropriate. The 

Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under 

this Agreement and the other Loan Documents in accordance with a request of the Controlling 

Party.

9.06 Notice of Default. The Collateral Agent shall not be deemed to have 

knowledge or notice of the occurrence of any Default or Event of Default unless the Collateral 

Agent has received written notice from the Controlling Party or a Loan Party referring to this 

Agreement in accordance with Section 10.02, describing such Default or Event of Default and 

stating that such notice is a “notice of default”. In the absence of receipt of such notice, the 

Collateral Agent may conclusively assume that there is no Default or Event of Default. In the 

event that the Collateral Agent receives such a notice, the Collateral Agent shall give notice 

thereof to the Secured Parties. The Collateral Agent shall take such action with respect to such 

Default or Event of Default as shall be directed by the Controlling Party; provided that unless 

and until the Collateral Agent shall have received such direction, the Collateral Agent may (but 
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shall not be obligated to) take such action, or refrain from taking such action, with respect to 

such Default or Event of Default as it shall deem advisable in the best interests of the Secured 

Parties.

9.07 Non-Reliance on Collateral Agent. Each of the Secured Parties expressly 

acknowledges that neither the Collateral Agent nor any of its officers, directors, employees, 

agents, advisors, attorneys in fact or Affiliates have made any representations or warranties to it 

and that no act by the Collateral Agent hereafter taken, including any review of the affairs of a 

Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or 

warranty by the Collateral Agent to such Secured Party. Each of the Secured Parties represents 

to the Collateral Agent that it has, independently and without reliance upon the Collateral Agent, 

and based on such documents and information as it has deemed appropriate, made its own 

appraisal of and investigation into the business, operations, property, financial and other 

condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision 

to make its Loans or extend credit to or enter into Permitted Interest Rate Hedges with the Loan 

Parties. Each Secured Party also represents that it will, independently and without reliance upon 

the Collateral Agent, and based on such documents and information as it shall deem appropriate 

at the time, continue to make its own credit analysis, appraisals and decisions in taking or not 

taking action under this Agreement and the other Loan Documents, and to make such 

investigation as it deems necessary to inform itself as to the business, operations, property, 

financial and other condition and creditworthiness of the Loan Parties and their Affiliates. 

Except for notices, reports and other documents expressly required to be furnished to the Secured 

Parties by the Collateral Agent hereunder, the Collateral Agent shall not have any duty or 

responsibility to provide any Secured Party with any credit or other information concerning the 

business, operations, property, condition (financial or otherwise), prospects or creditworthiness 

of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the 

Collateral Agent or any of its officers, directors, employees, agents, advisors, attorneys in fact or 

Affiliates.

9.08 Resignation and Removal of Collateral Agent. 

(a) The Collateral Agent may resign as Collateral Agent, or the Controlling 

Party may, in its sole discretion, remove the Collateral Agent, with sixty (60) days’ (in 

the case of the Collateral Agent resigning) or thirty (30) days’ (in the case of the removal 

of the Collateral Agent) prior written notice to (i) the Controlling Party, the other Secured 

Parties and the Borrower (in the case of the Collateral Agent resigning), or (ii) to the 

Collateral Administrator, the Custodian, the Valuation Agent, the Administrative Agent, 

the Collateral Agent, the other Secured Parties and the Borrower (in the case of the 

removal of the Collateral Agent). Any such resignation or removal shall become 

effective following the appointment of a successor Collateral Agent in accordance with 

the provisions of this Section 9.08. Upon any resignation or removal of the Collateral 

Agent, the Controlling Party shall appoint a successor Collateral Agent, which successor 

Collateral Agent shall succeed to the rights, powers and duties of the Collateral Agent, 

and the term “Collateral Agent” shall mean such successor Collateral Agent effective 

upon such appointment and approval, and the former Collateral Agent’s rights, powers 

and duties as Collateral Agent shall be terminated, without any other or further act or 

deed on the part of such former Collateral Agent or any of the parties to this Agreement 
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or any holders of the obligations owing hereunder. On and after the effective date of any 

resignation or removal of the Collateral Agent hereunder, the provisions of this Section 9

shall inure to its benefit as to any actions taken or omitted to be taken by it while it was 

Collateral Agent under this Agreement.

(b) If no successor Collateral Agent shall be appointed and shall have 

accepted such appointment within ninety (90) days after the aforesaid notice of 

resignation or removal, the Collateral Agent, in the case of resignation, and the 

Controlling Party, in the case of removal, may apply to any court of competent 

jurisdiction to appoint a successor Collateral Agent to act until such time, if any, as a 

successor Collateral Agent shall have been appointed as provided in this Section 9.08. 

Any successor so appointed by such court shall immediately and without further act be 

superseded by any successor Collateral Agent appointed pursuant to the preceding 

paragraph. Any Collateral Agent shall be entitled to all Collateral Agent fees to the 

extent incurred or arising, or relating to events occurring, before such resignation or 

removal becomes effective, and the protections of Section 10.05 with respect to any costs 

and expenses to the extent incurred or arising, or relating to events occurring, before such 

resignation or removal shall survive.

(c) If at any time the Collateral Agent shall resign or be removed or otherwise 

become incapable of acting, or if at any time a vacancy shall occur in the office of the 

Collateral Agent for any other cause, a successor Collateral Agent may be appointed as 

set forth in Section 9.08(a). The powers, duties, authority and title of the predecessor 

Collateral Agent as set forth in Section 9.08(a) shall be terminated and canceled without 

procuring the resignation of such predecessor and without any other formality (except as 

may be required by law) other than as described in Section 9.08(a). Such appointment

and designation shall be full evidence of the right and authority to make the same and of 

all the facts therein recited, and this Agreement shall vest in such successor, without any 

further act, deed or conveyance, all the estates, properties, rights, powers, trusts, duties, 

authority and title of its predecessor, but such predecessor shall, nevertheless, on the 

written request of the Controlling Party or the successor, execute and deliver an 

instrument transferring to such successor all the estates, properties, rights, powers, trusts, 

duties, authority and title of such predecessor hereunder and shall deliver all Collateral 

held by it or its agents to such successor. Should any deed, conveyance or other 

instrument in writing from the Controlling Party be required by any successor Collateral 

Agent for more fully and certainly vesting in such successor the estates, properties, rights, 

powers, trusts, duties, authority and title vested or intended to be vested in the successor 

Collateral Agent, any and all such deeds, conveyances and other instruments in writing 

shall, on reasonable request of such successor, be executed, acknowledged and delivered 

by the Controlling Party.

9.09 Status of Successor Collateral Agent. Every successor Collateral Agent 

appointed pursuant to this Section 9 shall be a financial institution, including for purposes of 

Section 1.1441-1 of the Treasury Regulations, in good standing and having power to act as 

Collateral Agent hereunder, organized under the laws of the United States of America or any 

State thereof or the District of Columbia and shall have such level of experience and capabilities 

and also have capital, surplus and undivided profits of not less than $250,000,000 or such other 
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095331-0005-00074-Active.11691471.29

amount of capital, surplus or profits as the Controlling Party shall deem acceptable in its sole 

discretion.

9.10 Merger of the Collateral Agent. Any Person into which the Collateral 

Agent may be merged, or with which it may be consolidated, or any Person resulting from any 

merger or consolidation to which the Collateral Agent shall be a party, or any Person to which all 

or substantially all of the corporate trust assets of the Collateral Agent shall be sold, shall be 

Collateral Agent under this Agreement without the execution or filing of any paper or any further 

act on the part of the parties hereto. The Collateral Agent shall provide written notice of any 

merger or consolidation, including any change in name, to the Secured Parties, the Valuation 

Agent, the Collateral Administrator, the Custodian and the Borrower promptly, and in any event 

within fifteen (15) days of the effective date thereof to solicit such approvals as may be required 

hereunder.

9.11 Other Business Relationships. It is expressly acknowledged and agreed 

that The Bank of New York Mellon, in its capacity as Collateral Agent, and its respective 

Affiliates may engage in any kind of other banking, trust, financial advisory, or other business 

with any party hereto, or with the Collateral Administrator, the Custodian, the Valuation Agent, 

the Lender, the Permitted Secured Hedge Counterparties or the Loan Parties, in each case as 

though it was not the Collateral Agent hereunder. Among other things, it is acknowledged and 

agreed that pursuant to such activities, The Bank of New York Mellon, in its capacity as 

Collateral Agent, or its respective Affiliates may from time to time receive information 

(including information that may be subject to confidentiality obligations) and the Collateral 

Agent shall be under no obligation to provide such information to any party in a way that would 

violate any such confidentiality obligations or other obligations it may have in respect of such 

other business relationships.

9.12 Certain Matters Affecting the Collateral Agent.

(a) The Collateral Agent shall not be required to expend or risk its own funds 

or otherwise incur financial liability for the performance of any of its duties hereunder or 

the exercise of any of its rights or powers if there is reasonable ground for believing that 

the repayment of such funds or adequate indemnity against such risk or liability is not 

assured to it.

(b) Notwithstanding anything in this Agreement to the contrary, in no event 

shall the Collateral Agent be liable for special, indirect, punitive or consequential loss or 

damage or lost profits or loss of business arising or in connection with this Agreement or 

the other Loan Documents.

(c) The right of the Collateral Agent to perform any discretionary act 

enumerated in this Agreement shall not be construed as a duty and the Collateral Agent 

shall not be liable for the omission to perform any such act.

(d) The Collateral Agent shall not be required to give any bond or surety in 

connection with this Agreement or the powers granted hereunder.
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095331-0005-00074-Active.11691471.29

(e) The Collateral Agent shall at no time, except during the continuance of an 

Event of Default, be under any duty to direct or supervise the investment of, or to advise 

or make any recommendation for the purchase sale, retention or disposition of, Collateral.

(f) The Collateral Agent shall not be under any obligation to inquire into, and 

shall not be liable for, the validity or genuineness of any Collateral, the legality of the 

purchase or sale of any Collateral, the propriety of the amount paid for any Collateral 

upon purchase or sale, or any actions of third parties with respect to the negotiability of 

any Collateral.

(g) The Collateral Agent shall have no liability with respect to any valuation 

regardless of whether such valuation is significantly greater or less than other possible 

valuations.

Section 10. Miscellaneous.

10.01 Amendments, Etc. Except as otherwise provided in any Security 

Document, the terms of this Agreement and the other Security Documents may be waived, 

altered or amended only by an instrument in writing duly executed by each Loan Party and the 

Agents, with the written consent of the Controlling Party; provided that

(a) no such amendment shall adversely affect the relative rights of any 

Secured Party as against any other Secured Party without the prior written consent of 

such first Secured Party,

(b) without the written consent of each of the Secured Parties, no 

modification, supplement or waiver shall modify the definition of the term “Controlling 

Party”; and

(c) without the written consent of the Collateral Agent, no modification, 

supplement or waiver shall modify the terms of Section 9.

Any such amendment or waiver shall be binding upon the Collateral Agent, each Secured Party 

and each Loan Party. In the case of any waiver, the Loan Parties, the Secured Parties and the 

Collateral Agent shall be restored to their former position and rights hereunder and under the 

other Loan Documents, and any Event of Default waived shall be deemed to be cured and not 

continuing; but no such waiver shall extend to any subsequent or other Event of Default, or 

impair any right consequent thereon. Any purported amendment, supplement or modification 

not complying with the terms of this Section 10.01 shall be null and void.

10.02 Notices.

(a) All notices, reports, requests, demands and other communications 

hereunder shall be in writing and shall be deemed to have been duly given if (i) sent by 

certified or registered mail, return receipt requested, (ii) sent by overnight mail or courier, 

(iii) posted on the Borrower’s intranet website in accordance with Section 10.02(b) or (iv) 

delivered by hand, in each case, if to the Agents, at the Agents’ address, as set forth on 

Schedule A to the Loan Agreement, if to the Custodian, at the Custodian’s address, as set 
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095331-0005-00074-Active.11691471.29

forth on Schedule A to the Loan Agreement, if to the Collateral Administrator, at the 

Collateral Administrator’s address, as set forth on Schedule A to the Loan Agreement, if 

to the Valuation Agent, at the Valuation Agent’s address, as set forth on Schedule A to 

the Loan Agreement, if to the Borrower, to the Borrower’s address, as set forth on 

Schedule A to the Loan Agreement (provided that notices to any Guarantor shall be given 

to such Guarantor care of the Borrower at the address for the Borrower specified herein) 

and, in the case of any Permitted Secured Hedge Counterparty that shall become a party 

hereto after the date hereof, at such “Address for Notices” as shall be specified in the 

related Notice of Designation delivered pursuant to Section 6.01, if to any other Person 

party hereto at the address such Person shall have last designated by notice to each other 

party hereto and if to the Lender, at the Lender’s address, as set forth on Schedule A to 

the Loan Agreement; provided that the Lender may only receive notices, reports, 

requests, demands and other communications hereunder pursuant to clauses (i) through 

(iii). Any notice, report, request, demand and other communication will be deemed 

received (i) if sent by certified or registered mail, return receipt requested, when actually 

received, (ii) if sent by overnight mail or courier, when actually received, (iii) if posted 

on the Borrower’s intranet website in accordance with Section 10.02(b), on the day an email is sent to the Lender at the email address of the Lender set forth on Schedule A to 

the Loan Agreement instructing it that a notice has been posted; provided that if such email is sent after 5:00 p.m. (Washington, D.C. time) or on a day that is not a Business 

Day, such notice shall be deemed received on the next succeeding Business Day and (iv) 

if delivered by hand, when actually received.

(b) The Borrower may, in its discretion, provide any notice, report, request, 

demand, consent or other communication to the Lender by posting such notice on the 

Borrower’s intranet website and sending an e-mail to the Lender at the email address of 

the Lender set forth on Schedule A to the Loan Agreement notifying it of such posting.

10.03 No Waiver; Cumulative Remedies. No failure or delay on the part of the 

Agents or the Controlling Party to exercise, and no course of dealing with respect to, any right, 

power, privilege or remedy under this Agreement or any other Security Document shall operate 

as a waiver thereof, nor shall any single or partial exercise by Agents or the Controlling Party of 

any right, power, privilege or remedy under this Agreement or any other Security Document 

preclude any other or further exercise thereof or the exercise of any other right, power, privilege 

or remedy. All rights, powers, privileges and remedies of the Agents or the Controlling Party 

provided for herein are cumulative and in addition to any and all other rights, powers, privileges 

and remedies provided by Requirements of Law, the Loan Documents and the other instruments 

and agreements contemplated hereby and thereby, and are not conditional or contingent on any 

attempt by the Agents or the Controlling Party to exercise any of its rights under any other 

related document. The Agents or the Controlling Party may exercise at any time after the 

occurrence of an Event of Default one or more remedies, as they so desire, and may thereafter at 

any time and from time to time exercise any other remedy or remedies.

10.04 Survival. The obligations of the Loan Parties under Section 10.05 and 

their rights under Section 10.14 hereof shall survive the repayment of the Secured Obligations 

and the termination of this Agreement. In addition, each representation and warranty made, or 

deemed to be made, pursuant hereto shall survive the making of such representation and 
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095331-0005-00074-Active.11691471.29

warranty, and the Secured Parties shall not be deemed to have waived, by reason of the making 

of any extension of credit, any Default that may arise by reason of such representation or 

warranty proving to have been false or misleading, notwithstanding that the Secured Parties may 

have had notice or knowledge or reason to believe that such representation or warranty was false 

or misleading at the time such extension of credit was made.

10.05 Payment of Expenses, Taxes and Indemnification. The Loan Parties, 

jointly and severally, agree (a) to pay or reimburse, as Borrower Administrative Expenses in 

accordance with the Priority of Payments, each of the Administrative Agent, the Collateral 

Agent, the Collateral Administrator, the Custodian and the Valuation Agent for all of their 

respective reasonable documented out-of-pocket costs and expenses incurred in connection with

the development, preparation and execution of, and any amendment, supplement or modification 

to, this Agreement and the other Security Documents and any other documents prepared in 

connection herewith or therewith, and the consummation and administration of the transactions 

contemplated hereby and thereby, including the reasonable fees and disbursements of counsel to 

each such Person and filing and recording fees and expenses, (b) to pay or reimburse, as 

Borrower Administrative Expenses in accordance with the Priority of Payments, the Agents and 

the Controlling Party for all their respective documented out-of-pocket costs and expenses 

incurred in connection with the enforcement or preservation of any rights under this Agreement, 

the other Security Documents and any such other documents, including the reasonable fees and 

disbursements of counsel to the Agents and the Controlling Party, (c) to pay, indemnify, and hold 

the Agents and the Secured Parties and their respective Related Parties harmless from, any and 

all recording and filing fees and any and all liabilities with respect to, or resulting from any delay 

in paying, stamp, excise, recording and other similar taxes (excluding, for the avoidance of 

doubt, any tax imposed on gross or net income, profits, receipts or any other tax in the nature of 

an income tax, whether administered by withholding or otherwise), if any, that may be payable 

or determined to be payable in connection with the execution and delivery of, or consummation 

or administration of any of the transactions contemplated by, or any amendment, supplement and 

modification of, or any waiver or consent under or in respect of, this Agreement, the other 

Security Documents and any such other documents and (d) to pay, indemnify, and hold each of 

the Administrative Agent, the Collateral Agent, any Permitted Secured Hedge Counterparty, the 

Collateral Administrator, the Custodian and the Valuation Agent and their respective Related 

Parties (each, an “Indemnitee”) harmless and defend them from and against any and all other 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses 

(including the reasonable fees and disbursements of legal counsel) or disbursements of any kind 

or nature whatsoever (except with respect to taxes, which shall be governed solely by clause (c) 

of this Section 10.05) with respect to the execution, delivery, enforcement, performance and 

administration of this Agreement, the other Security Documents and any such other documents, 

including any of the foregoing relating to the use of proceeds of the Loans (all the foregoing in 

this clause (d), collectively, the “Indemnified Liabilities”); provided that the Loan Parties shall 

have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the 

extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of 

competent jurisdiction to have resulted from the negligence, bad faith, willful misconduct or 

fraudulent action of any Indemnitee or any of its Related Parties. The Loan Parties may, in their 

sole discretion, and at their expense, control the defense of any claim arising under clause (d) 

including, without limitation, designating counsel for the Indemnitees (which counsel shall be 

reasonably satisfactory to the Indemnitees) and controlling all negotiations, litigation, 
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095331-0005-00074-Active.11691471.29

arbitration, settlements, compromises and appeals of any claim; provided that (i) the Loan Parties 

may not agree to any settlement involving any Indemnitee that contains any element other than 

the payment of money and complete indemnification of the Indemnitee without the prior written 

consent of the affected Indemnitee and (ii) the Loan Parties shall engage and pay the reasonable 

expenses of separate counsel for the Indemnitee to the extent that the interests of the Indemnitee 

are in conflict with those of the Loan Parties. The Loan Parties shall be responsible to pay the 

reasonable fees of such separate legal counsel if such a conflict exists. The Loan Parties may not 

control the defense of any claim arising under clause (c) above and may not designate counsel 

for the Agents and the Secured Parties and their respective Related Parties or control the 

negotiations, litigation, arbitration, settlements, compromises or appeals of any claims under 

such clause (c). Notwithstanding anything to the contrary in this Section 10.05, the Lender and 

its Related Parties shall be represented solely by the U.S. Department of Justice with respect to 

any claim arising under this Agreement. All amounts due under this Section 10.05 shall be 

payable as Borrower Administrative Expenses in accordance with the Priority of Payments and 

any request for payment under this Section 10.05 must be received by the Loan Parties, the 

Administrative Agent, the Collateral Agent, the Collateral Administrator, the Valuation Agent 

and the Custodian no later than two (2) Business Days prior to the last Business Day of any 

month in connection with payments to be made on the next succeeding Loan Payment Date. The 

agreements in this Section 10.05 shall survive repayment of the Loans and all other amounts 

payable hereunder.

10.06 Successors and Assigns. This Agreement shall be binding upon and inure 

to the benefit of the parties hereto and their respective successors and permitted assigns; 

provided that (a) no Loan Party may assign, transfer or delegate any of its rights or obligations 

under this Agreement or the other Loan Documents without the prior written consent of the 

Lender and (b) the Lender may not assign, transfer or delegate any of its rights or obligations 

under this Agreement or the other Loan Documents to an assignee that is not an Affiliate of the 

Lender without the prior written consent of the Borrower (such consent not to be unreasonably 

withheld, delayed or conditioned) and upon any such assignment, transfer or delegation 

(including to an Affiliate), the Borrower and the Lender hereby agree to enter into such 

reasonably acceptable amendments, supplements and modifications to this Agreement as may be 

necessary to account for the assignment, transfer or delegation to a new Lender.

10.07 Captions. The table of contents and captions and section headings 

appearing herein are included solely for convenience of reference and are not intended to affect 

the interpretation of any provision of this Agreement.

10.08 Counterparts and Facsimile. This Agreement may be executed by one or 

more parties to this Agreement on any number of separate counterparts. Each counterpart shall 

be deemed to be an original, and all such counterparts taken together shall be deemed to 

constitute one and the same instrument. The parties intend that faxed signatures and 

electronically imaged signatures such as .pdf files shall constitute original signatures and are 

binding on all parties. The original documents shall be promptly delivered, if requested.

10.09 Severability. Any provision of this Agreement that is prohibited or 

unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such 

prohibition or unenforceability without invalidating the remaining provisions hereof, and any 
34

095331-0005-00074-Active.11691471.29

such prohibition or unenforceability in any jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction.

10.10 Integration. This Agreement, the other Loan Documents, the Partnership 

Agreement, the Investment Guidelines and the Compliance Rules represent the entire agreement 

of the Loan Parties, the Agents and the Secured Parties with respect to the subject matter hereof 

and thereof, and there are no promises, undertakings, representations or warranties by the Agents 

or the Secured Parties relative to the subject matter hereof not expressly set forth or referred to 

herein or in the other Loan Documents.

10.11 GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND 

OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND 

CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE

STATE OF NEW YORK (SUBJECT TO APPLICABLE FEDERAL LAW).

10.12 SUBMISSION TO JURISDICTION; WAIVERS. EACH LOAN PARTY 

HEREBY IRREVOCABLY AND UNCONDITIONALLY:

(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL 

ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER 

SECURITY DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF 

ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL 

JURISDICTION OF EITHER THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF NEW YORK OR THE U.S. COURT OF FEDERAL 

CLAIMS;

(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE 

BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, 

WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE 

VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR 

THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN 

INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR 

PROCEEDING MAY BE EFFECTED (I) IF TO PARTIES OTHER THAN THE 

LENDER, BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED 

MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE 

PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 10.02 OR AT SUCH 

OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED 

AND (II) IF TO THE LENDER, ONLY IN THE MANNER PRESCRIBED FOR 

SERVING PROCESS ON AN AGENCY OF THE U.S. FEDERAL GOVERNMENT 

UNDER THE FEDERAL RULES OF CIVIL PROCEDURE; AND

(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT 

TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY 

LAW.
35

095331-0005-00074-Active.11691471.29

10.13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO 

HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY 

REQUIREMENTS OF LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL 

PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER 

SECURITY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR 

THEREBY.

10.14 Limited Recourse. Notwithstanding anything to the contrary contained in 

this Agreement and the other Loan Documents, the obligations of the Loan Parties under this 

Agreement and all other Loan Documents are solely the obligations of the Loan Parties and not 

any direct or indirect owner, director, shareholder, member, partner or officer of any Loan Party 

and shall be payable solely to the extent of funds received by and available to the Loan Parties in 

accordance with the Priority of Payments. No recourse shall be had for the payment of any 

amount owing in respect of any obligation of, or claim against, the Loan Parties arising out of or 

based upon this Agreement or any other Loan Document against any Limited Partner, General 

Partner, Private Vehicle or any advisor or Subadvisor of the Loan Parties and, except as 

specifically provided herein and in the other Loan Documents, no recourse shall be had for the 

payment of any amount owing in respect of any obligation of, or claim against, the Loan Parties 

arising out of or based upon this Agreement against the Administrative Agent, the Collateral 

Agent, the Collateral Administrator, the Custodian, the Valuation Agent or the other Secured 

Parties or any Affiliate of any thereof; provided, however, that the foregoing shall not relieve any 

Person from any liability such Person would otherwise have as a result of their own acts or 

omissions that constitute willful misconduct, bad faith or fraud. The provisions of this Section 

10.14 shall survive the termination or expiration of this Agreement and the Loan Agreement.

10.15 Limitation of Liability. No claim may be made by any party under this 

Agreement against the Lender, the Borrower or their respective Affiliates, employees, directors, 

officers, advisors, administrators, agents and counsel for any special, indirect, punitive or 

consequential losses or damages of any kind in respect of any claim for breach of contract or any 

other theory of liability arising out of or related to the transactions contemplated by this 

Agreement or by the other Loan Documents, or any act, omission or event occurring in 

connection therewith and such party hereby waives, releases and agrees not to sue upon any 

claim for any such losses or damages, whether or not accrued and whether or not known or 

suspected to exist in its favor.
36

095331-0005-00074-Active.11691471.29

IN WITNESS WHEREOF, the parties hereto have caused this Guarantee and 

Security Agreement to be duly executed and delivered as of the day and year first above written.

[ ]

By:

Name:

Title:

THE UNITED STATES DEPARTMENT OF THE 

TREASURY, as Lender

By:

Name:

Title:

THE BANK OF NEW YORK MELLON, as 

Administrative Agent and Collateral Agent

By:

Name:

Title:
095331-0005-00074-Active.11691471.29

ANNEX 1

FILING DETAILS

Set forth in Schedule A to the Loan Agreement.
095331-0005-00074-Active.11691471.29

EXHIBIT A

[Form of Notice of Designation]

[Date]

Attention: [The Bank of New York 

Mellon] 

Ladies and Gentlemen:

Reference is made to the Guarantee and Security Agreement, dated as of the date 

set forth on Schedule A to the Loan Agreement (as modified and supplemented and in effect 

from time to time, the “Guarantee and Security Agreement”), among the BORROWER 

IDENTIFIED ON THE SIGNATURE PAGES THERETO (the “Borrower”); each entity that is 

or becomes a “GUARANTOR” thereunder; THE UNITED STATES DEPARTMENT OF THE 

TREASURY (the “Lender”); and THE BANK OF NEW YORK MELLON, as administrative 

agent for the Lender (in such capacity, together with its successors in such capacity, the 

“Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity,

together with its successors in such capacity, the “Collateral Agent”). Capitalized terms used 

herein, unless otherwise defined herein, shall have the meanings ascribed thereto in the 

Guarantee and Security Agreement.

Pursuant to Section 6.01 of the Guarantee and Security Agreement, the Borrower 

hereby designates the following Permitted Interest Rate Hedge as a “Permitted Secured Interest 

Rate Hedge” under the Guarantee and Security Agreement:

[Complete as appropriate]

[ ]

By:

Name:

Title:
095331-0005-00074-Active.11691471.29

EXHIBIT B

[Form of Guarantee Assumption Agreement]

GUARANTEE ASSUMPTION AGREEMENT

GUARANTEE ASSUMPTION AGREEMENT (the “Guarantee Assumption 

Agreement”) dated as of ___________, by [NAME OF GUARANTOR], a 

(the “New Guarantor”), in favor of THE BANK OF NEW YORK MELLON, as collateral agent 

for the Secured Parties under and as defined in the Guarantee and Security Agreement referred to 

below (in such capacity, together with its successors in such capacity, the “Collateral Agent”).

The Borrower, any Guarantors referred to therein, the Lender, the Administrative 

Agent and the Collateral Agent are parties to a Guarantee and Security Agreement dated as of [ 

] (the “Guarantee and Security Agreement”) pursuant to which any such Guarantors have 

guaranteed the Guaranteed Obligations (as defined therein), and the Borrower and any such 

Guarantors have granted liens in favor of the Collateral Agent as collateral security for the 

Secured Obligations (as defined therein). Capitalized terms used herein, unless otherwise 

defined herein, shall have the meanings ascribed thereto in the Guarantee and Security 

Agreement.

Pursuant to Section 7.08 of the Guarantee and Security Agreement, the New 

Guarantor hereby agrees to become a Guarantor and a Loan Party under and for all purposes of 

the Guarantee and Security Agreement, and each of the Annexes to the Guarantee and Security 

Agreement shall be deemed to be supplemented in the manner specified in Appendix A hereto. 

Without limiting the foregoing, (a) the New Guarantor hereby, jointly and severally with any 

other Guarantors, guarantees to each Secured Party and their respective successors and assigns 

the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) 

of the Guaranteed Obligations in the same manner and to the same extent as is provided in 

Section 3 of the Guarantee and Security Agreement and (b) as collateral security for the payment 

in full in Cash when due (whether at stated maturity, by acceleration or otherwise) of the Secured 

Obligations of the New Guarantor, the New Guarantor hereby pledges and grants to the 

Collateral Agent for the benefit of the Secured Parties as provided in the Guarantee and Security 

Agreement a security interest in all of such New Guarantor’s right, title and interest in, to and 

under the Collateral.

In addition, the New Guarantor hereby makes the representations and warranties 

set forth in Section 2 of the Guarantee and Security Agreement, as if each reference in such 

Section to the Guarantee and Security Agreement included reference to this Guarantee 

Assumption Agreement.

The New Guarantor hereby instructs its counsel to deliver any opinions to the 

Secured Parties required to be delivered in connection with the execution and delivery hereof.

IN WITNESS WHEREOF, the New Guarantor has caused this Guarantee 

Assumption Agreement to be duly executed and delivered as of the day and year first above 

written.
2

095331-0005-00074-Active.11691471.29

[NAME OF NEW SUBSIDIARY

GUARANTOR]

By:

Name:

Title:

Accepted and agreed:

THE BANK OF NEW YORK MELLON, 

as Collateral Agent

By:

Name:

Title:
095331-0005-00074-Active.11691471.29

Appendix A

SUPPLEMENTS TO ANNEXES TO

GUARANTEE AND SECURITY AGREEMENT

Supplement to Annex 1:

[to be completed]
095331-0005-00074-Active.11691471.29

EXHIBIT C

[Form of Acknowledgment]

[Date]

Attention: [The Bank of New York 

Mellon]

Ladies and Gentlemen:

Reference is made to the Guarantee and Security Agreement, dated as of the date 

set forth on Schedule A to the Loan Agreement (as modified and supplemented and in effect 

from time to time, the “Guarantee and Security Agreement”), among the BORROWER 

IDENTIFIED ON THE SIGNATURE PAGES THERETO (the “Borrower”); each entity that is 

or becomes a “GUARANTOR” thereunder; THE UNITED STATES DEPARTMENT OF THE 

TREASURY (the “Lender”); and THE BANK OF NEW YORK MELLON, as administrative 

agent for the Lender (in such capacity, together with its successors in such capacity, the 

“Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity,

together with its successors in such capacity, the “Collateral Agent”). Capitalized terms used 

herein, unless otherwise defined herein, shall have the meanings ascribed thereto in the 

Guarantee and Security Agreement.

Pursuant to Section 6.01 of the Guarantee and Security Agreement, the 

undersigned Permitted Secured Hedge Counterparty hereby acknowledges the grant of a security 

interest in the Collateral to the Collateral Agent, for the benefit of the Secured Parties.

[PERMITTED SECURED HEDGE 

COUNTERPARY]

By:

Name:

Title:
095331-0005-11656-Active.11663739

EXHIBIT F

FORM OF CUSTODIAL AGREEMENT

[See attached]
FINAL FORM

095331-0005-11404-Active.11752359.16

CUSTODIAL AGREEMENT

THIS CUSTODIAL AGREEMENT, dated as of the date set forth in Schedule A to the 

Loan Agreement referred to below (this “Agreement”), is entered into by and among THE BORROWER 

IDENTIFIED ON THE SIGNATURE PAGES HEREOF (the “Borrower”), THE BANK OF NEW 

YORK MELLON, a New York state chartered bank, as administrative agent (in such capacity, together 

with its successors in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, 

together with its successors in such capacity, the “Collateral Agent”) under the Loan Agreement referred 

to below, and THE BANK OF NEW YORK MELLON, a New York state chartered bank, as custodian 

under this Agreement, for the Borrower and the Agents (in such capacity, the “Custodian”).

WHEREAS, the Borrower, The United States Department of the Treasury, as lender (in 

such capacity, the “Lender”), the Administrative Agent and the Collateral Agent have entered into a Loan 

Agreement (as the same may be amended, extended, restated, supplemented or otherwise modified from 

time to time, the “Loan Agreement”) dated as of the date set forth in Schedule A to the Loan Agreement, 

pursuant to which, among other things, the Lender has agreed to make Loans to the Borrower;

WHEREAS, the Borrower, the Lender, the Administrative Agent and the Collateral 

Agent have entered into a Guarantee and Security Agreement (the “Guarantee and Security Agreement”) 

dated as of the date set forth in Schedule A to the Loan Agreement, pursuant to which the Collateral is 

pledged to secure the Loans and the other Secured Obligations;

WHEREAS, the Borrower wishes to engage the Custodian on behalf of the Borrower 

(and on behalf of the other Loan Parties) to act as custodian for the Collateral pursuant to the Loan 

Agreement, the Guarantee and Security Agreement and the Collateral Administration Agreement; and

WHEREAS, the Custodian is prepared to act as custodian on the terms and conditions set 

forth herein,

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and 

other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the 

parties hereto agree as follows:

ARTICLE I

DEFINITIONS; INTERPRETATION

SECTION 1.1 Definitions. Whenever used in this Agreement, the following words 

shall have the meanings set forth below:

“Account Property” shall have the meaning set forth in Section 2.1.

“Agent Members” shall mean members of, or participants in, a depository, including the 

DTC, Euroclear or Clearstream.

“Certificate of Responsible Officers” shall mean a certificate in the form of Exhibit A

hereto signed on behalf of the Borrower, the Administrative Agent or the Collateral Agent, as applicable, 

by a Responsible Officer thereof and delivered to the Custodian hereunder.

“Indemnified Liabilities” shall have the meaning set forth in Section 7.2(a).
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“Indemnitee” shall have the meaning set forth in Section 7.2(a).

“Instructing Party” shall mean (a) at any time prior to the receipt by the Custodian of a 

Notice of Exclusive Control, the Borrower, and (b) at any time following the receipt by the Custodian of 

such notice, the Collateral Agent.

“Loan Payment Date Report” shall mean, with respect to a Loan Payment Date, a report 

containing the information set forth or referred to in Exhibit D for such Loan Payment Date.

“Notice of Exclusive Control” shall mean a written notice in the form of Exhibit B

delivered by the Collateral Agent to the Custodian.

“NYUCC” shall mean the Uniform Commercial Code as in effect in the State of New 

York.

“Records” shall have the meaning set forth in Section 8.13.

“Written Instructions” shall mean, with respect to each Instructing Party, any notices, 

instructions or other instruments in writing received by the Custodian from a Responsible Officer of such 

Instructing Party, or from a person reasonably believed by the Custodian to be a Responsible Officer of 

such Instructing Party, by letter, telex, telecopy, facsimile, the Custodian’s on line communication 

system, or any other method whereby the Custodian is able to verify the sender of such communications 

or the sender is required to provide a password or other identification code.

As used herein, the term “Money” shall have the meaning set forth in Article 1 of the 

NYUCC, the terms “Bank” and “Deposit Account” shall have the meaning set forth in Article 9 of the 

NYUCC, and the terms “Entitlement Holder”, “Entitlement Order”, “Financial Asset”, “Securities 

Account”, “Securities Intermediary” and “Security” shall have the respective meanings set forth in Article 

8 of the NYUCC.

Unless otherwise defined herein, terms defined in the Loan Agreement or in the 

Guarantee and Security Agreement, as applicable, and used herein (including terms used in the preamble 

and the recitals hereto) shall have the meanings given to them in the Loan Agreement or in the Guarantee 

and Security Agreement, as applicable.

SECTION 1.2 The “Interpretation” provisions set forth in Section 1.02 of the Loan 

Agreement shall apply to this Agreement, including terms defined in the preamble and the recitals hereto.

ARTICLE II

APPOINTMENT OF CUSTODIAN; CUSTODIAL ACCOUNT AND INTEREST RESERVE 

ACCOUNT

SECTION 2.1 Appointment of Custodian; Establishment of Custodial Account and 

Interest Reserve Account. The Borrower hereby appoints the Custodian as custodian of all its Portfolio 

Investments at any time delivered to the Custodian and identified for deposit into or credit to the 

Custodial Account or the Interest Reserve Account by or on behalf of the Borrower during the term of this 

Agreement, including all distributions from and proceeds of the foregoing received by the Custodian 

during such term that are deposited in the Custodial Account or the Interest Reserve Account 

(collectively, the “Account Property”) and authorizes the Custodian to hold or credit to the Custodial 

Account or the Interest Reserve Account, as applicable, the Account Property as herein provided, and the 
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Custodian hereby accepts such appointment. The Borrower shall establish with the Custodian on or 

before the date hereof and maintain (a) a Custodial Account which shall be a “Securities Account” within 

the meaning of Section 8-501(a) of the NYUCC to the extent that Financial Assets are credited to such 

account and a “Deposit Account” within the meaning of Sections 9-102(a)(29) and 9-104 of the NYUCC 

to the extent that Cash or Money is deposited to such account and, in both cases, which shall be initially 

identified in Schedule A to the Loan Agreement and (b) an Interest Reserve Account which shall be a 

“Securities Account” within the meaning of Section 8-501(a) of the NYUCC to the extent that Financial

Assets are credited to such account and a “Deposit Account” within the meaning of Sections 9-102(a)(29) 

and 9-104 of the NYUCC to the extent that Cash or Money is deposited to such account and, in both 

cases, which shall be initially identified in Schedule A to the Loan Agreement, in which the Custodian 

will hold the Account Property in such accounts as provided herein. For purposes of the foregoing and 

Sections 2.2 and 2.3, the parties expressly agree that the Custodian shall be a Securities Intermediary

whose jurisdiction is the State of New York for purposes of Article 8 and Section 9-305 of the NYUCC 

and a Bank whose jurisdiction is the State of New York for purposes of Section 9-304 of the NYUCC. 

The Custodian also agrees to establish sub-accounts to the extent contemplated by the Loan Documents or 

as the Custodian, the Borrower, the Collateral Agent or the Administrative Agent may determine would 

be useful for record-keeping purposes.

Each party hereto agrees that each item constituting “Account Property” and other 

property, if any (other than Cash or Money) contained in or credited to the Custodial Account or the 

Interest Reserve Account, of whatever nature or kind, is to be treated as a “Financial Asset” within the 

meaning of Section 8-102(a)(9) of the NYUCC. Any Cash or Money constituting Account Property shall 

be maintained by the Custodian in Temporary Investments as provided in Section 4.4 of this Agreement 

and in the Guarantee and Security Agreement.

SECTION 2.2 Borrower as Entitlement Holder; Grant of Control of Custodial 

Account and Interest Reserve Account to the Collateral Agent. Each party hereto agrees that the 

Borrower shall be the “Entitlement Holder” (within the meaning of Section 8-102(a)(7) of the NYUCC) 

of the Custodial Account and the Interest Reserve Account. If at any time the Custodian shall receive an 

“Entitlement Order” (within the meaning of Section 8-102(a)(8) of the NYUCC) from the Collateral 

Agent or any instruction directing disposition of the funds (in the case of Cash or Money) originated by 

the Collateral Agent, the Custodian shall comply with such entitlement order or instruction, without 

further consent of the Borrower or any other Person. In the event of a conflict between an Entitlement 

Order or instruction, as the case may be, of (a) the Borrower, on one hand, and (b) the Collateral Agent, 

on the other hand, the Entitlement Order or instruction of the Collateral Agent shall prevail. It is the 

intent of the parties that by virtue of the preceding sentence, the Collateral Agent shall have “Control” 

within the meaning of Sections 8-106(d)(2), 9-104 and 9-106 of the NYUCC. Without limiting the effect 

of the foregoing, the Collateral Agent and the Borrower are each authorized to give, and the Custodian is 

authorized to accept, the instructions contemplated herein to be given by the Borrower or the Collateral 

Agent, as applicable.

SECTION 2.3 Effect of Notice of Exclusive Control. 

(a) The Custodian shall comply with Entitlement Orders and other directions 

concerning Account Property (including Financial Assets held in the Custodial Account and the Interest 

Reserve Account) at the direction of the Borrower or its Responsible Officers, until such time as the 

Collateral Agent delivers to the Custodian a Notice of Exclusive Control stating that the Collateral Agent 

is thereby exercising exclusive control over the Custodial Account, the Interest Reserve Account and the 

Account Property. 
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(b) After delivery of a Notice of Exclusive Control, the Custodian shall (i) follow 

only the instructions of the Collateral Agent regarding the funds or other property on deposit in the 

Custodial Account or the Interest Reserve Account and not follow any directions regarding the funds or 

other property on deposit in the Custodial Account and the Interest Reserve Account from the Borrower 

and (ii) take all reasonable actions as directed by the Collateral Agent with respect to foreclosure or 

enforcement proceedings, including the prompt transfer to the Collateral Agent from time to time at its 

direction of all funds in the Custodial Account and the Interest Reserve Account and of all proceeds and 

products of the Account Property.

ARTICLE III

CUSTODY AND RELATED SERVICES

SECTION 3.1 Obligation to Deliver. The Borrower shall Deliver each item of 

Account Property to the Custodian in accordance with the terms of Section 7.01 of the Guarantee and 

Security Agreement.

SECTION 3.2 Acceptance of Delivery of Account Property by Reasonable Means. 

Notwithstanding any term of Article II and this Article III to the contrary, the Custodian shall be entitled 

in any instance to take delivery of and hold any Account Property by such other means and procedures 

(whether or not as described in, or in compliance with, the terms of Article II and Article III) as it may 

deem appropriate or expedient, or as may be consistent with its then-applicable procedures, including, 

using nominees or other methods of good delivery, utilizing or holding through other agents, 

intermediaries, brokers, dealers, clearing or depository banks, sub-custodians or other depositories, or 

through any “direct paper” book entry or other recognized securities system, in each case in any 

combination, as it may deem appropriate or, where appropriate, holding of securities as part of a fungible 

bulk, subject, however, to its duties under any Requirement of Law.

SECTION 3.3 Further Assurances of Delivery. The Borrower covenants and agrees 

to take all actions reasonably requested by the Custodian in order to facilitate the Delivery of Account 

Property owned by it and Delivered hereunder, including, providing certifications required in connection 

with the transfer of any such Account Property subject to restrictions on transfer.

SECTION 3.4 Registration of Account Property. The Custodian is authorized to 

register ownership of any Account Property in its nominee name or through any Agent Member without 

increase or decrease of its liability.

SECTION 3.5 Daily Transactions; Summary of Transfers. The Custodian shall 

make available to the Borrower and the Collateral Administrator on a daily basis a listing of all 

transactions and amounts involving Account Property, on both a settlement date and trade date basis, 

including all transfers to or from the Custodial Account and the Interest Reserve Account and a listing of 

all amounts constituting Collections in respect of the Account Property, in all cases no later than 5 p.m. 

(Washington, D.C. time) each Business Day for such transactions or amounts received prior to 4 p.m. 

(Washington, D.C. time) on such Business Day; it being understood that any transactions or amounts 

received after 4 p.m. (Washington, D.C. time) on such Business Day shall be included in the listing for 

the following Business Day. The Custodian shall also provide to the Borrower a listing of daily 

transactions which have settled on such date and a discrepancy report which sets forth all trades which 

have not settled in a timely manner. The Custodian shall reasonably cooperate with the Borrower to 

resolve all issues related to such failed trades.
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SECTION 3.6 Obligations Relating to Account Property. With respect to all 

Account Property held in the Custodial Account and the Interest Reserve Account, the Custodian shall, 

unless otherwise instructed to the contrary:

(a) Receive all income and other payments with respect to all Account Property and 

advise the Instructing Party and the Borrower (if not the Instructing Party) no later than 5 p.m. 

(Washington, D.C. time) on the Business Day following the date such income or other payments was 

expected to be received, of any amounts due but not paid;

(b) Present for payment and receive the amount paid upon all Account Property 

which may mature and advise the Instructing Party and the Borrower (if not the Instructing Party) no later 

than 5 p.m. (Washington, D.C. time) on the Business Day following the date such income or other 

payments was expected to be received, of any amounts due but not paid;

(c) Promptly upon receipt, forward to the Instructing Party, with a copy to the 

Borrower (if not the Instructing Party) all information or documents that it may receive from an issuer of 

Account Property;

(d) Affirm trades on a trade date plus one basis, notify the Borrower of any issues 

with such trades and reasonably cooperate with the Borrower to resolve such issues.

(e) Execute, as custodian, any certificates of ownership, affidavits, declarations or 

other certificates under any tax laws now or hereafter in effect in connection with the collection of bond 

and note coupons;

(f) Hold directly, or through an Agent Member, all rights and similar Account 

Property issued with respect to any Account Property credited to the Account hereunder; 

(g) Endorse, solely as custodian on behalf of the Instructing Party, for collection 

checks, drafts or other negotiable instruments;

(h) Promptly, notify the Borrower of rights or discretionary actions and of the date or 

dates by when such rights must be exercised or such action must be taken; provided that the Custodian has 

received from the issuer of Account Property or the relevant Agent Member notice of such rights or 

discretionary actions or of the date or dates such rights must be exercised or such actions must be taken;

(i) Maintain possession of all Instruments delivered to it for custody in the state of 

New York;

(j) Provide the Borrower with all available and readily obtainable information and 

reports relating to the Account Property reasonably requested by the Borrower or its designee and take any 

steps reasonably related or reasonably requested by the Borrower in connection with its performance of the 

obligations set forth in this Article III;

(k) Whenever Account Property confers optional rights on the Borrower or provides 

for discretionary action or alternative courses of action by the Borrower, the Borrower shall be responsible 

for making any decisions relating thereto and for directing the Custodian to act. In order for the Custodian 

to act, it must receive the Borrower’s Written Instructions at the Custodian's offices, addressed as the 

Custodian may from time to time request, not later than noon (Washington, D.C. time) at least two (2) 

Business Days prior to the last scheduled date to act with respect to such Account Property. In the event 

the Custodian does not receive the Borrower’s Written Instructions in a timely manner, the Custodian shall 
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not be liable for failure to take any action relating to or to exercise any rights conferred by such Account 

Property

(l) No later than the 2nd Business Day after the last day of each month, provide the 

Collateral Administrator and the Borrower with a statement of the Collateral held in the Custodial 

Account as of the last Business Day of such month, including the principal and interest received on the 

Eligible Assets for the calendar month ending on the preceding Determination Date; and

(m) On each Loan Payment Date, make the payments and transfers in respect of the 

Custodial Account, or to the extent Section 2.07(d) of the Loan Agreement requires any amount to be 

transferred from the Interest Reserve Account, the Interest Reserve Account, set forth or specified in the 

related final Loan Payment Date Report furnished to it by the Collateral Administrator.

SECTION 3.7 Sufficiency of Instructions from Instructing Party. Each instruction 

by an Instructing Party shall be complete and contain sufficient information to enable the Custodian to 

perform the instruction, including, with respect to any Delivery of Collateral to the Custodian, the 

respective account to which such item of Collateral shall be credited or deposited and with respect to any 

disposal or transfer of Collateral, the respective account from which such Collateral shall be withdrawn. 

Without limiting the foregoing, each instruction to forward amounts to any other Person shall identify the 

nature of such payment and the account from which such amounts shall be withdrawn. 

SECTION 3.8 Priority of the Collateral Agent’s Security Interest. The Custodian 

(a) subordinates to the security interest in favor of the Collateral Agent on behalf of the Secured Parties 

any security interest, lien or right of recoupment or setoff that the Custodian may have, now or in the 

future against the Custodial Account or the Interest Reserve Account or any funds or financial assets 

credited thereto and (b) agrees that it will not exercise any right in respect of any such security interest or 

Lien or any such right of recoupment or setoff until the security interest is terminated (except that the 

Custodian may set off the face amount of any checks which have been credited to the accounts, but are 

subsequently returned unpaid because of uncollected or insufficient funds). 

SECTION 3.9 Release of Account Property. Any release or distribution of Account 

Property by the Custodian pursuant to the instruction of an Instructing Party shall automatically and 

without further action or consent by the Collateral Agent release such Account Property free and clear 

from the Lien of the Collateral Agent, for the benefit of the Secured Parties, granted pursuant to the 

Guarantee and Security Agreement. The Custodian agrees to effectuate any such release within two (2) 

Business Days after receipt of the request from the Instructing Party.

SECTION 3.10 Tax Matters.

(a) The Borrower shall provide to the Custodian a properly executed IRS Form W-9 

in the name of the Borrower and shall respond to any reasonable request by the Custodian for such other 

documentation and information as the Custodian may reasonably require or reasonably request in 

connection with the Custodian’s duties under Section 3.6(e), and the Borrower warrants that, when given, 

this information shall be true and correct in all material respects, not misleading in any material way, and 

contain all material information. The Borrower undertakes to notify the Custodian promptly if any such 

information requires updating or amendment.

(b) The Custodian shall not be liable to the Borrower or any third party for any taxes, 

fines or penalties payable by the Custodian or the Borrower and shall be indemnified accordingly, whether 

these result from the inaccurate completion of documents by the Borrower or any third party, or as a result 

of the provision to the Custodian or any third party of inaccurate or misleading information or the 
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withholding of material information by the Borrower or any third party, or as a result of any delay of any 

revenue authority or any other matter beyond the Custodian’s control; provided, however, the Custodian 

shall remain liable for (and shall not be indemnified by the Borrower for) any such taxes, fines or penalties 

(i) relating to income of the Custodian or (ii) arising from the Custodian's negligence, willful misconduct, 

bad faith or fraudulent action.

SECTION 3.11 Shareholders Communication Act of 1985. Concurrently with the 

execution of this Agreement, the Borrower shall execute the Shareholders Communication Act of 1985 

Authorization, substantially in the form of Exhibit C hereto.

SECTION 3.12 Facsimile/E-mail Instruction Authorization. Concurrently with the 

execution of this Agreement, the Borrower shall execute the Facsimile/E-mail Instructions Authorization 

substantially in the form of the Appendix hereto.

ARTICLE IV

PURCHASE AND SALE OF ACCOUNT

PROPERTY; CREDITS TO CUSTODIAL ACCOUNT OR INTEREST RESERVE ACCOUNT

SECTION 4.1 Purchase and Sale of Account Property. Promptly after each 

purchase or sale of Account Property (and prior to the time at which the Custodian is required to release 

or deliver any Account Property in connection therewith), the Instructing Party shall deliver to the 

Custodian Written Instructions specifying all information necessary for the Custodian to settle such 

purchase or sale. If any Written Instruction does not specify all the information necessary, the Instructing 

Party hereby authorizes the Custodian to access the required information from Bloomberg and the 

Custodian shall be entitled to rely on such information from Bloomberg without liability. The Custodian 

will execute all trades for the purchase and sale of Account Property in accordance with the Written 

Instructions of the Instructing Party until such Written Instructions have been rescinded by the Instructing 

Party, including the timely delivery of Account Property against payment as required in such Written 

Instructions. The Custodian shall account for all purchases and sales of Account Property on the actual 

settlement date unless otherwise agreed by the Custodian.

SECTION 4.2 Custodian Not Subject to Credit Risk. Each Instructing Party 

understands that when the Custodian is instructed to deliver Account Property against payment, delivery 

of such Account Property and receipt of payment therefor may not be completed simultaneously. Each 

Instructing Party assumes full responsibility for all credit risks involved in connection with the 

Custodian's delivery of Account Property pursuant to instructions of such Instructing Party.

SECTION 4.3 Credits to Custodial Account or Interest Reserve Account. The 

Custodian may, as a matter of bookkeeping convenience or by separate agreement with the Borrower, 

credit the Custodial Account or the Interest Reserve Account with the proceeds from the sale, redemption 

or other disposition of Account Property or interest, dividends or other distributions payable on Account 

Property prior to its actual receipt of final payment therefor. All such credits shall be conditional until the 

Custodian’s actual receipt of final payment and may be reversed by the Custodian to the extent that final 

payment is not received. Payment with respect to a transaction will not be “final” until the Custodian 

shall have received immediately available funds which under Requirements of Law are irrevocable and 

not subject to any security interest, levy or other encumbrance, and which are specifically applicable to 

such transaction.
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SECTION 4.4 Funds Invested as Temporary Investments. Funds on deposit in the 

Custodial Account and the Interest Reserve Account shall be invested, and the proceeds of investments 

shall be reinvested, by the Custodian in Temporary Investments pursuant to the Written Instructions of 

the Borrower. The Agents and the Custodian shall not be responsible or liable for any loss resulting from 

the investment performance of an investment or reinvestment of funds on deposit in the Custodial 

Account or the Interest Reserve Account and shall not be responsible for giving any investment advice. 

In the absence of any Written Instructions, the Custodian shall be under no obligation or duty to invest 

funds held in the Custodial Account or the Interest Reserve Account.

SECTION 4.5 Compliance with Loan Documents. Each of the Borrower and the 

Collateral Agent hereby covenants and agrees that in any instance in which it shall or may act as 

Instructing Party, it shall only instruct the Custodian with respect to the Custodial Account, the Interest 

Reserve Account and the Account Property in a way that is consistent with and in compliance with the 

Loan Agreement, the Guarantee and Security Agreement, this Agreement and the other Loan Documents 

to which it is a party.

ARTICLE V

OVERDRAFTS OR INDEBTEDNESS

If there shall arise for whatever reason (other than as a result of the Custodian’s 

negligence, bad faith, willful misconduct or fraudulent action) an overdraft in the Custodial Account or 

the Interest Reserve Account in the ordinary course of the Custodian’s custody business, the Borrower 

shall reimburse the Custodian on written demand the amount of the overdraft. The Custodian shall not 

make any loans or otherwise extend any credit to the Borrower, except that the Custodian may, in 

accordance with the requirements of the Loan Documents, advance funds to the Borrower to purchase, or 

to make payment on or against delivery of, Eligible Assets, so long as the Borrower expects that there will 

be sufficient funds on deposit in the Custodial Account in order to reimburse the Custodian for the 

amount of such advance by the end of the Business Day on which such advance is made. To the extent 

that the funds advanced (or the overdraft provided) by the Custodian are not reimbursed to the 

Custodian by the end of such Business Day, the Borrower agrees to pay to the Custodian forthwith on 

demand such unreimbursed amount in immediately available funds with interest thereon, for each day 

from and including the date such amount is made available (or the overdraft provided) to the Borrower to 

but excluding the date of payment to the Custodian, at the rate set forth in a separate fee letter with the 

Borrower in connection herewith. The parties hereto agree and acknowledge that the Custodian shall have 

a continuing security interest in and right of setoff against the Account Property in the Custodial Account 

in the amount of such overdraft or unreimbursed advance (together with accrued and unpaid interest, if 

any, thereon as specified above) until such time as the Custodian is repaid the amount of such overdraft or 

advance (together with accrued and unpaid interest, if any, thereon as specified above). 

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

SECTION 6.1 Borrower. The Borrower hereby represents and warrants to the 

Custodian and the Agents that:

(a) The Borrower (i) is duly organized, validly existing and in good standing under 

the laws of the jurisdiction of its organization, (ii) has all requisite organizational power, and has all 

governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its 

business as now being or as proposed to be conducted, except where the lack of such licenses, 
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authorizations, consents and approvals could not be reasonably expected to have a Material Adverse 

Effect, (iii) is qualified to do business and is in good standing in all other jurisdictions in which the nature 

of the business conducted by it makes such qualification necessary, except where the failure to so qualify 

could not be reasonably expected to have a Material Adverse Effect, (iv) is in compliance with (to the 

extent such law, guidance or regulation is applicable pursuant to its terms to the Borrower) (A) Section 

111 of EESA, as implemented by any guidance or regulations issued by UST thereunder, including 31 

CFR 30 and (B) EAWA, as implemented by any guidance or regulation issued by UST thereunder and (v) 

is in compliance in all material respects with all Requirements of Law. 

(b) The Borrower has all necessary organizational power, authority and legal right to 

execute, deliver and perform its obligations under this Agreement. The execution, delivery and 

performance by the Borrower of this Agreement has been duly authorized by all necessary organizational 

action on its part. This Agreement has been duly and validly executed and delivered by the Borrower and 

constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of the 

Borrower, enforceable against the Borrower in accordance with its terms, subject to the Bankruptcy 

Exceptions.

(c) No consent, approval or authorization of, registration or filing with, notice to or 

other act by or in respect of, any Governmental Authority or any other Person is required in connection 

with the execution, delivery, performance, validity or enforceability of this Agreement, except (i) 

consents, approvals, authorizations, filings, registrations, and notices that have been or will be obtained 

or made, each of which is in full force and effect and (ii) the filings and recordings in respect of the Liens 

created pursuant to the Security Documents.

(d) Neither the execution and delivery of this Agreement by the Borrower nor the 

performance by the Borrower of its obligations set forth in this Agreement will (i) conflict with or result 

in a breach of (A) the charter, articles of organization, by laws, partnership agreement (including the 

Partnership Agreement), operating agreement or similar organizational document of the Borrower, or (B) 

any Requirement of Law, (ii) constitute a default under any material Contractual Obligation with respect 

to which the Borrower is a party, or (iii) except for the Liens created pursuant to the Security Documents, 

result in the creation or imposition of any Lien upon any Property of the Borrower, pursuant to the terms 

of any such material Contractual Obligation.

SECTION 6.2 Administrative Agent. The Administrative Agent hereby represents

and warrants that it is the duly authorized administrative agent under the Loan Agreement and the 

Guarantee and Security Agreement acting on behalf of and for the benefit of the Lender.

SECTION 6.3 Collateral Agent. The Collateral Agent hereby represents and 

warrants that it is the duly authorized collateral agent under the Loan Agreement and the Guarantee and 

Security Agreement acting on behalf of and for the benefit of the Secured Parties, and hereby covenants 

that any actions taken by it hereunder will be solely for the benefit of the Secured Parties in accordance 

with the Loan Agreement and the Guarantee and Security Agreement.

SECTION 6.4 Custodian. The Custodian hereby represents and warrants that:

(a) The Custodian (i) is a New York state chartered bank duly organized and validly 

existing under the laws of the State of New York, (ii) has all requisite organizational power, and has all 

governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its 

business as now being or as proposed to be conducted, (iii) is qualified to do business and is in good 

standing in all other jurisdictions in which the nature of the business conducted by it makes such 

qualification necessary and (iv) is in compliance in all material respects with all Requirements of Law.
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(b) The Custodian has all necessary organizational power, authority and legal right to 

execute, deliver and perform its obligations under this Agreement. The execution, delivery and 

performance by the Custodian of this Agreement has been duly authorized by all necessary organizational 

action on its part. This Agreement has been duly and validly executed and delivered by the Custodian 

and constitutes, or when executed and delivered, will constitute, a legal, valid and binding obligation of 

the Custodian, enforceable against the Custodian in accordance with its terms, subject to the Bankruptcy 

Exceptions.

(c) No consent, approval or authorization of, registration or filing with, notice to or 

other act by or in respect of, any Governmental Authority or any other Person is required in connection 

with the execution, delivery, performance, validity or enforceability of this Agreement.

(d) Neither the execution and delivery of this Agreement nor the performance of the 

obligations set forth in this Agreement will (i) conflict with or result in a breach of (A) the charter, articles 

of organization, by laws, partnership agreement, operating agreement or similar organizational document 

of the Custodian, or (B) any Requirement of Law, (ii) constitute a default under any material Contractual 

Obligation to which the Custodian is a party, or (iii) result in the creation or imposition of any material 

Lien upon any Property of the Custodian or, pursuant to the terms of any such material Contractual 

Obligation.

ARTICLE VII

CONCERNING CUSTODIAN

SECTION 7.1 Duty of Care. Notwithstanding any provision contained herein or in 

any other document or instrument to the contrary, neither the Custodian nor any of its Related Parties 

shall be liable for (i) actions taken pursuant to the instruction of the Instructing Party in accordance with 

this Agreement and (ii) except as otherwise provided herein as between the Custodian and the Borrower, 

in all other respects, for any action taken or not taken by it (or them) under or in connection with this 

Agreement, except for the Custodian’s (or their) own negligence, bad faith, willful misconduct or 

fraudulent action; provided that in no event shall the Custodian be liable for any special, indirect or 

consequential damages, or lost profits or loss of business, arising in connection with this Agreement. 

Without limiting the foregoing and notwithstanding any provision to the contrary elsewhere, the 

Custodian and each of its Related Parties:

(a) shall have no responsibilities, obligations or duties other than those expressly set 

forth in this Agreement or the other Loan Documents to which it is a party, and no implied duties, 

responsibilities or obligations shall be read into this Agreement against the Custodian; without limiting the 

foregoing, the Custodian shall have no duty to preserve, exercise or enforce rights in the Account Property 

(against prior parties or otherwise);

(b) shall in any instance where the Custodian determines that it lacks or is uncertain 

as to its authority to take or refrain from taking certain action, or as to the requirements of this Agreement 

under any circumstance before it, request instructions from the Instructing Party or advice from legal 

counsel (or other appropriate advisor), as the case may be, with respect to such uncertainty and may delay 

or refrain from taking such action unless and until it has received such instructions or advice;

(c) may, with respect to questions of law relating specifically to the Custodial 

Account and Interest Reserve Account, apply for and obtain the advice and opinion of counsel, and shall 

be fully protected with respect to anything done or omitted by it in good faith in conformity with such 

reasonable advice or opinion;
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(d) will not be responsible to any Person for any statement, warranty or 

representation made by any party other than the Custodian and any of its Related Parties in connection 

with this Agreement;

(e) will have no duty to ascertain or inquire as to the performance or observance by 

the Borrower of any of the terms, conditions or covenants of any security agreement with the 

Administrative Agent or the Collateral Agent;

(f) will not be responsible to any Person for the due execution, legality, validity, 

enforceability, genuineness, effectiveness or sufficiency of this Agreement, except to the extent set forth in 

Section 6.4, or the title, validity or genuineness of the Collateral or any Account Property (including any 

Financial Assets in or delivered into the Accounts);

(g) may rely on any notice, direction, instruction, instrument, document, resolution, 

officer’s certificate, opinion of counsel, certificate of auditors or any other certificate, statement, opinion, 

report, request, consent, order, appraisal, bond or other paper reasonably believed by it or them in good 

faith to be genuine and to have been signed or presented by the proper party or parties (and need not 

investigate any fact or matter stated in any such notice, direction, instruction, instrument, document, 

resolution, officer’s certificate, opinion of counsel, certificate of auditors or any other certificate, 

statement, opinion, report, request, consent, order, appraisal, bond or other paper), and shall be entitled to 

presume the genuineness, legal capacity and due authority of any signature appearing thereon;

(h) shall not be deemed to have or be charged with notice or knowledge of any fact 

or matter unless a written notice relating thereto has been received by the Custodian at the address and to 

the person designated in (or as subsequently designated pursuant to) this Agreement;

(i) shall not be obligated or required by any provision of this Agreement to expend 

or risk the Custodian’s own funds, or to take any action (including but not limited to the institution or 

defense of legal proceedings) which in its or their judgment may cause it or them to incur or suffer any 

expense or liability, unless the Custodian shall have been provided with security or indemnity for the 

payment of the costs, expenses (including but not limited to reasonable attorneys’ fees) and liabilities 

which may be incurred therein or thereby, satisfactory to the Custodian; and

(j) shall not incur any liability for acts or omissions of any Agent Member for the 

central handling of Account Property.

SECTION 7.2 Limitation of Responsibility of the Custodian.

(a) The Borrower agrees to pay, indemnify, and hold the Custodian and each of its 

Related Parties (each, an “Indemnitee”) harmless and defend them from and against any and all liabilities, 

obligations, losses, damages, penalties, actions, judgments, suits, overdrafts, advances, costs, expenses 

(including the reasonable fees and disbursements of legal counsel) or disbursements of any kind or nature 

whatsoever with respect to the execution, delivery, enforcement, performance and administration of this 

Agreement, but excluding income taxes or taxes arising from an Indemnitee's negligence, willful 

misconduct, bad faith or fraudulent action (all the foregoing non-excluded items, collectively, the 

“Indemnified Liabilities”); provided that the Borrower shall have no obligation hereunder to any 

Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a 

final and nonappealable decision of a court of competent jurisdiction to have resulted from the negligence, 

bad faith, willful misconduct or fraudulent action of any Indemnitee or any of its Related Parties. The 

Borrower may, in its sole discretion, and at its expense, control the defense of the claim including, without 

limitation, designating counsel for the Indemnitees (which counsel shall be reasonably satisfactory to the 
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Indemnitees) and controlling all negotiations, litigation, arbitration, settlements, compromises and appeals 

of any claim; provided that (i) the Borrower may not agree to any settlement involving any Indemnitee that 

contains any element other than the payment of money and complete indemnification of the Indemnitee 

without the prior written consent of the affected Indemnitee and (ii) the Borrower shall engage and pay the 

reasonable expenses of separate counsel for the Indemnitee to the extent that the interests of the 

Indemnitee are in conflict with those of the Borrower. The Borrower shall be responsible to pay the 

reasonable fees of such separate legal counsel if such a conflict exists. All amounts due under this Section 

7.2(a) shall be payable as Borrower Administrative Expenses in accordance with Section 2.07 of the Loan 

Agreement and any request for payment under this Section 7.2(a) must be received by the Borrower, the 

Agents and the Collateral Administrator no later the last Business Day of each month in connection with 

payments to be made on the next succeeding Loan Payment Date.

(b) The indemnity provided to the Custodian in this Section 7.2 shall survive any 

termination of this Agreement, including any termination under any bankruptcy law, or the resignation or 

removal of the Custodian hereunder.

(c) To the extent permitted by applicable law, no party shall assert, and each hereby 

waives, and no party shall have any indemnity obligation with respect to, any claim against any other 

party, on any theory of liability for special, indirect, consequential or punitive damages (as opposed to 

direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any 

agreement or instrument contemplated hereby, or the transactions contemplated hereby.

(d) The Custodian shall have no duty (i) to see to any recording or filing of this 

Agreement or any agreement referred to herein or any financing statement or continuation statement 

evidencing a security interest, or to see to the maintenance of any such recording or filing or to any 

rerecording or refiling of any thereof, (ii) to see to any insurance, or (iii) to see to the payment or discharge 

of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with 

respect to, assessed or levied against, any Collateral.

(e) The Custodian shall not be required to give any bond or surety in connection 

herewith or the powers granted hereunder.

(f) The Custodian may execute ministerial and ancillary duties through third party 

ministerial or ancillary service providers, including, but not limited to, pricing services, software vendors 

or corporate action service providers; provided that upon request by the Borrower, the Custodian shall to 

the extent permitted by applicable law, sue such ministerial or ancillary service provider or otherwise 

enforce its rights against such service provider (provided that the Custodian shall be indemnified by the 

Borrower for any costs or expenses in connection with such action) and collect, on behalf of the Borrower, 

any proceeds or damages awarded in respect of any related judgment against such service provider, less 

any costs and expenses owing to the Custodian. The Custodian shall have no monitoring responsibility 

with respect to such persons and shall not be responsible for any misconduct or negligence on the part of 

any such persons appointed by the Custodian with due care.

(g) The Custodian shall not be under any obligation to take action to collect any 

amount payable on Collateral in default, or if payment is refused after due demand and presentment.

(h) The Custodian is authorized to rely on information from the Valuation Agent or 

any generally recognized pricing information service (including brokers and dealers of the Collateral 

Administrator) as is necessary in order for it to perform its responsibilities hereunder and the Custodian 

shall not be liable for any fees, costs, expenses, liabilities or losses incurred as a result of errors or 

omissions of any such pricing information service, broker or dealer or Valuation Agent. The Custodian 
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may rely on data supplied by third parties (“Pricing Data”), such as pricing data, model pricing and 

indicative data, without independent investigation. The Custodian does not represent or warrant that the 

Pricing Data are correct, complete or current. THE CUSTODIAN IS NOT RESPONSIBLE FOR ANY 

ACTIONS TAKEN OR NOT TAKEN AS A RESULT OF THE USE OF OR RELIANCE UPON 

PRICING DATA.

SECTION 7.3 Compensation. The Custodian will perform its duties and provide 

the services called for hereunder in exchange for compensation and expense reimbursement set forth in a 

separate fee letter with the Borrower in connection herewith. The payment obligations to the Custodian 

pursuant to this Section 7.3 accrued prior to the termination of this Agreement and the resignation or 

removal of the Custodian shall survive the termination of this Agreement and the resignation or removal 

of the Custodian. For the avoidance of doubt, all amounts payable under this Section 7.3 shall be payable 

only as Borrower Administrative Expenses in accordance with the order specified in the Priority of 

Payments as set forth in Section 2.07 of the Loan Agreement. 

SECTION 7.4 Compliance with Legal Processes and Judicial Orders. If any 

Account Property subject to this Agreement is at any time attached or levied upon, or in case the transfer, 

delivery, redemption or withdrawal of any such Account Property shall be stayed or enjoined, or in the 

case of any other legal process or judicial order affecting such Account Property, the Custodian is 

authorized to comply with any such order in any matter as the Custodian or its legal counsel reasonably 

deems appropriate. If the Custodian complies with any process, order, writ, judgment or decree relating 

to the Account Property in accordance with the preceding sentence, then the Custodian shall not be liable 

to the Borrower, the Administrative Agent or the Collateral Agent or to any other person or entity even if 

such order or process is subsequently modified, vacated or otherwise determined to have been without 

legal force or effect.

SECTION 7.5 Force Majeure. The Custodian shall be responsible for maintaining 

and preserving its operations, facilities and systems (including its computer and communication systems) 

in a manner consistent with commercial and supervisory standards prevalent in its industry. The 

Custodian agrees that it shall enter into and shall maintain in effect, at all times during the term of this 

Agreement, with appropriate parties one or more agreements making reasonable provision for (a) periodic 

back-up of computer files and data with respect to any accounts held by it and (b) emergency use of 

electronic data processing equipment to provide services under this Agreement. So long as the Custodian 

shall have complied with the foregoing maintenance or preservation requirements and provided that any 

delay or failure to take such action as may be required under this Agreement could not be prevented by 

the exercise of reasonable diligence by the Custodian, the Custodian shall not be liable for any delay or 

failure to take any action as may be required under this Agreement to the extent that any such delay or 

failure is caused, directly or indirectly, by circumstances beyond its reasonable control, including acts of 

God; earthquakes; fires; floods; nuclear or natural catastrophes; wars; civil or military disturbances; 

sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities; accidents; labor disputes; and 

acts of civil or military authority or governmental actions; it being understood that the Custodian shall use 

its best efforts to resume performance as soon as practicable under the circumstances. The Custodian 

shall provide the Borrower and the Agents with written notice of failure or delay to take action as may be 

required under this Agreement.

SECTION 7.6 Covenants of the Custodian. 

(a) No Adverse Interest. The Custodian has not entered into, and hereafter during 

the term of this Agreement shall not enter into, any agreement granting “Control” (within the meaning of 

Sections 8-106(d)(2), 9-104 and 9-106 of the NYUCC) with respect to the Custodial Account, the Interest 

Reserve Account or the Account Property to any Person, other than as set forth in this Agreement. The 
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Custodian has a trust department which in the ordinary course of its business maintains security accounts 

for others and is acting in that capacity as Custodian under this Agreement.

(b) Duty to Negotiate in Good Faith. The Custodian hereby agrees that it shall, at 

the expense of the Borrower, negotiate in good faith with the other parties hereto with respect to any 

amendments, supplements or other modifications to this Agreement which may be proposed by any such 

party for the purpose of ensuring the perfection of the security interests which have been granted by the 

Borrower in the Account Property to the Collateral Agent; provided, however, that nothing in this Section 

7.6(b) shall require the Custodian to undertake any obligation, business, service or activity (i) which it 

shall have chosen as an institutional, legal, business or policy matter (A) not to offer to the public or (B) to 

discontinue or (ii) for which it is not, based on its reasonable determination, adequately compensated. In 

executing or accepting the terms of any such amendment, supplement or modification, the Custodian shall 

be entitled to receive and shall be fully protected in relying upon an opinion of counsel stating that the 

execution of such amendment, supplement or modification is authorized or permitted by this Agreement 

and that all conditions precedent thereto have been complied with. The Custodian may, but shall not be 

obligated to, enter into any such amendment, supplement or modification which affects the Custodian’s 

own rights, duties or indemnities under this Agreement or otherwise.

(c) Compliance with Loan Agreement and Guarantee and Security Agreement. The 

Custodian hereby agrees that it is familiar with the provisions of the Loan Agreement and the Guarantee 

and Security Agreement and that it shall comply with such provisions to the extent that such provisions are 

applicable to the Custodian thereunder or pursuant to the terms hereof.

SECTION 7.7 Customer Identification Program. The Borrower hereby 

acknowledges that the Custodian is subject to federal laws, including the Customer Identification Program 

(“CIP”) requirements under the USA PATRIOT Act and its implementing regulations, pursuant to which 

the Custodian must obtain, verify and record information that allows the Custodian to identify the 

Borrower. Accordingly, prior to opening the Custodial Account or the Interest Reserve Account the 

Custodian will ask the Borrower to provide certain information including, but not limited to, name, 

physical address, tax identification number and other information that will help the Custodian to identify 

and verify the Borrower’s identity such as organizational documents, certificate of good standing, license 

to do business, or other pertinent identifying information. The Borrower agrees that the Custodian cannot 

open the Custodial Account or the Interest Reserve Account unless and until the Custodian verifies the 

Borrower’s identity in accordance with its CIP.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.1 Delivery of Certificate of Responsible Officers. 

(a) The Borrower and the Agents agree to furnish to the Custodian a new Certificate 

of Responsible Officers in the event of any change in the then designated Responsible Officers. Until such 

new Certificate is received, the Custodian shall be fully protected in acting upon Written Instructions of 

such designated Responsible Officers.

(b) The Custodian shall give the Loan Parties and the Secured Parties prompt notice 

if the Custodian receives notice or becomes aware that the Account Property becomes subject to any writ, 

order, judgment, warrant of attachment, execution or similar process.
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SECTION 8.2 Amendments. This Agreement may not be amended, changed, 

modified or terminated (except as otherwise expressly provided herein) except in a writing signed by the 

Borrower, the Agents, the Custodian and the Lender.

SECTION 8.3 Governing Law. THIS AGREEMENT, AND THE RIGHTS AND 

OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND 

CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF 

NEW YORK (SUBJECT TO APPLICABLE FEDERAL LAW).

SECTION 8.4 Notices.

(a) All notices, reports, requests, demands and other communications hereunder shall 

be in writing and shall be deemed to have been duly given if (i) sent by certified or registered mail, return 

receipt requested, (ii) sent by overnight mail or courier, (iii) posted on the Borrower’s intranet website in 

accordance with Section 8.4(b), or (iv) delivered by hand, in each case, if to the Agents, at the Agents’ 

address, as set forth on Schedule A to the Loan Agreement, if to the Custodian, at the Custodian’s address, 

as set forth on Schedule A to the Loan Agreement, if to the Collateral Administrator, at the Collateral 

Administrator’s address, as set forth on Schedule A to the Loan Agreement, if to the Valuation Agent, at 

the Valuation Agent’s address, as set forth on Schedule A to the Loan Agreement, if to the Borrower, to 

the Borrower’s address, as set forth on Schedule A to the Loan Agreement, if to any other Person party 

hereto at the address such Person shall have last designated by notice to each other party hereto and if to 

the Lender, at the Lender’s address, as set forth on Schedule A to the Loan Agreement; provided that the 

Lender may only receive notices, reports, requests, demands and other communications hereunder 

pursuant to clauses (i) through (iii). Any notice, report, request, demand and other communication will be 

deemed received (i) if sent by certified or registered mail, return receipt requested, when actually received, 

(ii) if sent by overnight mail or courier, when actually received, (iii) if posted on the Borrower’s intranet 

website in accordance with Section 8.4(b), on the day an e-mail is sent to the Lender at the email address 

of the Lender set forth on Schedule A to the Loan Agreement instructing it that a notice has been posted; 

provided that if such e-mail is sent after 5:00 p.m. (Washington, D.C. time) or on a day that is not a 

Business Day, such notice shall be deemed received on the next succeeding Business Day and (iv) if 

delivered by hand, when actually received.

(b) The Borrower may, in its discretion, provide any notice, report, request, demand, 

consent or other communication to the Lender by posting such notice on the Borrower’s intranet website 

and sending an e-mail to the Lender at the email address of the Lender set forth on Schedule A to the Loan 

Agreement notifying it of such posting.

SECTION 8.5 SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY 

HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR 

PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND 

ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL 

JURISDICTION OF EITHER THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK OR THE U.S. COURT OF FEDERAL CLAIMS;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE 

BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY 

OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH 

ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING 
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WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM 

THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR 

PROCEEDING MAY BE EFFECTED (I) IF TO PARTIES OTHER THAN THE LENDER, BY 

MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY 

SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET 

FORTH IN SECTION 8.4 OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL 

HAVE BEEN NOTIFIED AND (II) IF TO THE LENDER, ONLY IN THE MANNER PRESCRIBED 

FOR SERVING PROCESS ON AN AGENCY OF THE U.S. FEDERAL GOVERNMENT UNDER THE 

FEDERAL RULES OF CIVIL PROCEDURE; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO 

EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

SECTION 8.6 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO 

HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY 

REQUIREMENTS OF LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL 

PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

SECTION 8.7 Successors and Assigns.

(a) This Agreement shall inure to the benefit of, and be binding upon, the successors 

and assigns of each of the parties hereto. Except as set forth in Section 7.2(f), the Custodian may not 

assign or delegate its rights and obligations hereunder without the prior written consent of the Borrower 

and the Lender, except that the Custodian may delegate to, employ as agent, or otherwise cause any duty 

or obligation hereunder to be performed by, any Affiliate of the Custodian or its successors without such 

consent; provided that the Custodian or any successor thereto shall be responsible for and be or become 

liable for (i) any actions taken or inactions omitted to be taken, in either case, by any such Affiliates and 

(ii) the execution and performance of any such duties to the same extent as if any such duties had not been 

delegated.

(b) Notwithstanding the provisions of Section 8.7(a), any Person into which the 

Custodian may be merged or converted or with which it may be consolidated, or any Person resulting from 

any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding 

to all or substantially all of the corporate trust business of the Custodian, shall be the successor of the 

Custodian hereunder and shall be bound by the provisions hereof, without the execution or filing of any 

paper or any further act on the part of any of the parties hereto and without the written consent of any other 

party hereto.

SECTION 8.8 Counterparts and Facsimile. This Agreement may be executed by 

one or more parties to this Agreement on any number of separate counterparts. Each counterpart shall be 

deemed to be an original, and all such counterparts taken together shall be deemed to constitute one and 

the same instrument. The parties intend that faxed signatures and electronically imaged signatures such 

as .pdf files shall constitute original signatures and are binding on all parties. The original documents 

shall be promptly delivered, if requested.

SECTION 8.9 Bankruptcy Non-Petition. The Custodian hereby covenants and 

agrees that it will not at any time (a) commence or institute against the Borrower or join with or facilitate 

any other Person in commencing or instituting against the Borrower any bankruptcy, reorganization, 

arrangement, readjustment of debt, dissolution, receivership, insolvency, liquidation proceedings, or other 
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proceedings under any United States federal or state, or other jurisdiction, bankruptcy or similar law or 

statute now or hereafter in effect in connection with any obligations relating to this Agreement or any of 

the other Loan Documents or (b) in its capacity as Custodian, participate in any assignment for the benefit 

of creditors, compositions, or arrangements with respect to the Borrower’s debts. The provisions of this 

Section 8.9 shall survive the termination of this Agreement. 

SECTION 8.10 Limited Recourse. Notwithstanding anything to the contrary 

contained in this Agreement, the obligations of the Borrower under this Agreement are solely the 

obligations of the Borrower and not of any direct or indirect owner, director, shareholder, member, 

partner or officer of the Borrower and shall be payable solely to the extent of funds received by and 

available to the Borrower in accordance with Section 2.07 of the Loan Agreement. No recourse shall be 

had for the payment of any amount owing in respect of any obligation of, or claim against, the Borrower 

arising out of or based upon this Agreement against any Limited Partner, General Partner, Private Vehicle 

or any advisor or Subadvisor of the Borrower and, except as specifically provided herein, no recourse 

shall be had for the payment of any amount owing in respect of any obligation of, or claim against, the 

Borrower arising out of or based upon this Agreement against the Custodian or any Affiliate thereof; 

provided, however, that the foregoing shall not relieve any Person from any liability such Person would 

otherwise have as a result of its own acts or omissions that constitute willful misconduct, bad faith or 

fraud. The provisions of this Section 8.10 shall survive the termination or expiration of this Agreement 

and the Loan Agreement. 

SECTION 8.11 Third Party Beneficiaries. The parties hereto agree that the Lender is 

the only express third party beneficiary of this Agreement.

SECTION 8.12 Access to Books and Records. The Custodian shall permit the 

Borrower, any representatives designated by the Administrative Agent, the Collateral Agent or the 

Lender, including SIGTARP, the GAO and their respective advisors and representatives, (a) upon 

reasonable prior notice and during normal business hours, to visit and inspect its properties, to examine 

and make extracts from the Records (as defined below) and will cause its personnel to assist in any such 

inspections, examinations and extractions of such Records and (b) at reasonable times, as often as 

reasonably requested and during normal business hours, to meet with it to discuss matters that fall within 

the scope of this engagement.

SECTION 8.13 Maintenance of Books and Records. During the term of this 

Agreement, the Custodian shall keep and retain and make easily accessible all information, materials and 

records in whatever format (collectively, “Records”) which it has or which come into its possession in

connection with the services provided under this Agreement, in each case to the extent consistent with the 

Custodian’s internal records and maintenance and records retention policy; provided that prior to any 

destruction of any Records by the Custodian in accordance with such policy, the Custodian shall notify 

the Borrower and the Agents and provide the Borrower with an opportunity to take possession of such 

Records from the Custodian. Upon the termination of this Agreement or its services hereunder, the 

Custodian and the Borrower shall, in good faith, agree on the timing and mechanism for transferring all 

Records to the Borrower; provided that the Custodian shall retain all Records until the earlier of (a) the 

three-year anniversary of the termination of the Partnership and (b) the termination of its services 

hereunder and transfer of all Records to a successor Custodian. In transferring such Records, the 

Custodian shall provide a certificate of a Responsible Officer certifying (a) as to whether it has kept and 

retained the Records in accordance with the requirements set forth herein and (b) that the Records being 

transferred represent all of the Records that have not been previously delivered or destroyed in 

compliance with this Section 8.13. Notwithstanding the foregoing, the Custodian may make and retain 

copies of Records to satisfy existing internal audit, compliance or record retention requirements; provided

that such certificate includes information as to the copies of Records that it is retaining.
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SECTION 8.14 Confidentiality. 

The Custodian agrees to maintain the confidentiality of the Information (as defined 

below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ 

respective partners, directors, officers, employees, agents, advisors, accountants and other representatives 

(it being understood that the Persons to whom such disclosure is made will be informed of the 

confidential nature of such Information and be required to keep such Information confidential), (b) in 

response to any order, subpoena or other form of legal process issued by any court, administrative, 

legislative, regulatory or governmental body purporting to have jurisdiction over it (including any selfregulatory authority) or otherwise required by any applicable law or regulation; provided that prior to any 

disclosure of such information, the Custodian shall notify the Borrower, the Administrative Agent, the 

Collateral Agent, the Collateral Administrator, the Valuation Agent and the Lender unless prohibited by 

any Requirement of Law from doing so, of any proposed disclosure as far in advance of such disclosure 

as practicable so that such applicable party may seek a protective order or other appropriate remedy and 

upon such applicable party’s request, the Custodian shall take all reasonable actions to ensure that any 

information disclosed shall be accorded confidential treatment, (c) to any other party hereto, (d) in 

connection with the exercise of any remedies hereunder or any action or proceeding relating to this 

Agreement or the enforcement of rights hereunder, (e) subject to an agreement containing provisions 

substantially the same as those of this Section 8.14, to any actual or prospective counterparty (or its 

advisors) to any derivative transaction relating to the Borrower and its Obligations, (f) with the written 

consent of the Borrower or (g) to the extent such Information (i) becomes publicly available other than as 

a result of a breach of this Section 8.14 or (ii) becomes available to the Custodian or any of its Affiliates 

on a non-confidential basis from a source other than the Borrower, the Lender or otherwise pursuant to 

the transactions contemplated hereunder. UST intends, subject to applicable law, regulation or 

governmental order, to hold confidential all confidential information provided to it by or on behalf of any 

member of the General Partner Group.

For purposes of this Section 8.14, “Information” means all information (including any 

financial models (and any assumptions and inputs underlying such models) and any non-publicly 

available information in respect of any Portfolio Investments (including holdings, CUSIP numbers and 

market prices thereof)) received from the General Partner, the Valuation Agent, the Administrative Agent, 

the Collateral Agent, the Collateral Administrator, the Lender, the Subadvisors, the Borrower or any of its 

Subsidiaries or any of their respective Affiliates relating to the Borrower or any of its Subsidiaries or any 

of their respective Affiliates or any of any of their respective businesses, other than any such information 

that is available to the Custodian on a non-confidential basis prior to disclosure by the Borrower; 

provided that, in the case of information received from the Borrower after the date hereof, such 

information is clearly identified at the time of delivery as confidential. Any Person required to maintain 

the confidentiality of Information as provided in this Section 8.14 shall be considered to have complied 

with its obligation to do so if such Person has exercised the same degree of care to maintain the 

confidentiality of such Information as such Person would accord to its own confidential information.

SECTION 8.15 No Joint Venture. Nothing contained in this Agreement (a) shall 

constitute the Custodian and the Borrower as members of any partnership, joint venture, association, 

syndicate, unincorporated business or other separate entity, (b) shall be construed to impose any liability 

as such on any of them or (c) shall be deemed to confer on any of them any express, implied or apparent 

authority to incur any obligation or liability on behalf of the other.

ARTICLE IX

TERM; TERMINATION
-19-

095331-0005-11404-Active.11752359.16

SECTION 9.1 Term. This Agreement shall continue in effect so long as the Loan 

Agreement remains in effect with respect to the Loans, unless this Agreement has been previously 

terminated in accordance with Section 9.2 hereof.

SECTION 9.2 Termination. This Agreement shall continue in full force and effect 

until it has been terminated in accordance with this Section 9.2. The Custodian may resign as Custodian, 

or the Borrower (with the prior consent of the Lender) may, in its sole discretion, remove the Custodian 

with sixty (60) days’ (in the case of the Custodian resigning) or thirty (30) days’ (in the case of the 

removal of the Custodian) prior written notice to each other party hereto; provided that no termination of 

this Agreement shall be effective until the Borrower shall have appointed a successor Custodian that has 

been approved by the Lender in its sole discretion. If the Borrower shall fail to appoint a successor 

Custodian within ninety (90) days after notice of resignation from the Custodian, then the Custodian may 

petition any court of competent jurisdiction for the appointment of a successor Custodian. The indemnity 

provided to the resigning Custodian under Section 7.2 shall survive its resignation under this Agreement 

with respect to any Indemnified Liabilities to the extent incurred or arising, or relating to events 

occurring, before such termination.

[Remainder of Page Left Blank Intentionally]
095331-0005-11404-Active.11752359.16

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly 

executed and delivered by their respective officers or signatories thereunto duly authorized as of the day 

and year first above written.

[ ], as Borrower

By: _______________________________

Name:

Title: 
095331-0005-11404-Active.11752359.16

THE BANK OF NEW YORK MELLON, in its capacity as 

Administrative Agent and Collateral Agent

By: _______________________________

Name:

Title: 
095331-0005-11404-Active.11752359.16

THE BANK OF NEW YORK MELLON, in its capacity as 

Custodian

By: _________________________________

Name: 

Title: 
EXHIBIT A

095331-0005-11404-Active.11752359.16

CERTIFICATE OF RESPONSIBLE OFFICERS

([Borrower][Administrative Agent][Collateral Agent] - Written Instructions)

The undersigned hereby certifies that he/she is the duly elected and acting 

____________________ of _________________________________ (the "[ ]"), and further certifies 

that the following officers or employees of the [ ] have been duly authorized in conformity with 

the [ ]’s [Articles of Incorporation and By-Laws][Partnership Agreement][Operating 

Agreement] to deliver Written Instructions to THE BANK OF NEW YORK MELLON, as custodian (in 

such capacity, the “Custodian”) pursuant to the Custodial Agreement dated as of the date set forth in 

Schedule A to the Loan Agreement by and among The Bank of New York Mellon, as Administrative 

Agent and as Collateral Agent, _______, as Borrower, and The Bank of New York Mellon, as Custodian, 

and that the signatures appearing opposite their names are true and correct:

___________________ ___________________ ___________________

Name Title Signature

___________________ ___________________ ___________________

Name Title Signature

___________________ ___________________ ___________________

Name Title Signature

___________________ ___________________ ___________________

Name Title Signature

___________________ ___________________ ___________________

Name Title Signature

___________________ ___________________ ___________________

Name Title Signature

This certificate supersedes any certificate of authorized individuals you may currently have on 

file.

[corporate ___________________________________________

seal]

Title:

Date:
EXHIBIT B

095331-0005-11404-Active.11752359.16

[to be placed on Collateral Agent’s Letterhead]

NOTICE OF EXCLUSIVE CONTROL

________________ 20__

THE BANK OF NEW YORK MELLON, 

as Custodian

[Address] 

Attention: 

Re: Custodial Agreement dated as of the date set forth in Schedule A to the Loan 

Agreement (the “Agreement”) by and among The Bank of New York Mellon, as 

Administrative Agent and as Collateral Agent, [ ], as Borrower, and The 

Bank of New York Mellon, as Custodian.

Ladies and Gentlemen:

Reference is made to the above-defined Agreement. Terms defined in the Agreement are 

used herein as defined therein.

This constitutes the Notice of Exclusive Control referred to in the above-defined 

Agreement that the Collateral Agent is exercising exclusive control over the Custodial Account, the 

Interest Reserve Account and the Account Property.

THE BANK OF NEW YORK MELLON, in its capacity as 

Collateral Agent

By:

Name:

Title:
EXHIBIT C

095331-0005-11404-Active.11752359.16

[LETTERHEAD OF THE BANK OF NEW YORK MELLON]

SHAREHOLDERS COMMUNICATION ACT OF 1985 AUTHORIZATION

Re: Custodial Agreement dated as of the date set forth in Schedule A to the Loan Agreement by and among 

The Bank of New York Mellon, as administrative agent and as collateral agent, [ ], as borrower, and The 

Bank of New York Mellon, as custodian (the “Agreement”)

Date: ____________________________

With respect to securities issued in the United States, the Shareholders Communications Act of 1985 (the 

“Act”) requires the Custodian to disclose to the issuers, upon their request, the name, address and 

securities position of its customers who are (a) the “beneficial owners” (as defined in the Act) of the 

issuer’s securities, if the beneficial owner does not object to such disclosure, or (b) acting as a 

“respondent bank” (as defined in the Act) with respect to the securities. (Under the Act, “respondent 

banks” do not have the option of objecting to such disclosure upon the issuers’ request.) The Act defines a 

“beneficial owner” as any person who has, or shares, the power to vote a security (pursuant to an 

agreement or otherwise), or who directs the voting of a security. The Act defines a “respondent bank” as 

any bank, association or other entity that exercises fiduciary powers which holds securities on behalf of 

beneficial owners and deposits such securities for safekeeping with a bank, such as the Custodian. Under 

the Act, [INSERT BORROWER’S NAME] (“Customer”) is either the “beneficial owner” or a 

“respondent bank.”

[ ] Customer is the “beneficial owner,” as defined in the Act, of the securities to be held by Custodian 

hereunder.

[ ] Customer is not the beneficial owner of the securities to be held by Custodian, but is acting as a 

“respondent bank,” as defined in the Act, with respect to the securities to be held by Custodian hereunder.

IF NO BOX IS CHECKED, CUSTODIAN SHALL ASSUME THAT CUSTOMER IS THE 

BENEFICIAL OWNER OF THE SECURITIES.

For beneficial owners of the securities only:

[ ] Customer objects

[ ] Customer does not object

to the disclosure of its name, address and securities position to any issuer which requests such information 

pursuant to the Act for the specific purpose of direct communications between such issuer and Customer.

IF NO BOX IS CHECKED, CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT 

RECEIVES A CONTRARY WRITTEN INSTRUCTION FROM CUSTOMER.

With respect to securities issued outside of the United States, information shall be released to issuers only 

if required by law or regulation of the particular country in which the securities are located.
APPENDIX

095331-0005-11404-Active.11752359.16

[LETTERHEAD OF THE BANK OF NEW YORK MELLON]

FACSIMILE/E-MAIL INSTRUCTIONS AUTHORIZATION

Re: Custodial Agreement dated as of the date set forth in Schedule A to the Loan Agreement by and among 

The Bank of New York Mellon, as administrative agent and as collateral agent, [ ], as borrower (the 

“Borrower”), and The Bank of New York Mellon, as custodian (the “Agreement”)

Date: ____________________________

Customer Authorization, Limitation of Liability and Indemnity:

[INSERT BORROWER’S NAME] ("Customer") hereby authorizes The Bank of New York Mellon (the 

"Bank") to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar 

unsecured electronic methods (but excluding on-line communications systems covered by a separate 

agreement (such as the Bank’s Inform or CA$H-Register Plus system) (“On-Line Communications

Systems”)) (“Electronic Methods”) by persons believed by the Bank to be Responsible Officers designated by 

Customer pursuant to the Agreement (“Responsible Officers”). Except as set forth below with respect to 

funds transfers, the Bank shall have no duty or obligation to verify or confirm that the person who sent such 

instructions or directions is, in fact, a Responsible Officer of Customer (other than to verify that the signature 

on a facsimile is the signature of a Responsible Officer of Customer); and the Bank shall have no liability for 

any losses, liabilities, costs or expenses incurred or sustained by Customer as a result of such reliance upon or 

compliance with such instructions or directions. Customer agrees to assume all risks arising out of the use of 

Electronic Methods to submit instructions and directions to the Bank, including without limitation the risk of 

the Bank acting on unauthorized instructions, and the risk of interception and misuse by third parties. 

Funds Transfers. With respect to any “funds transfer,” as defined in Article 4-A of the Uniform Commercial 

Code, the following security procedure will apply: Customer’s payment instruction is to include the name 

and (in the case of a facsimile) signature of the person initiating the funds transfer request. If the name is 

listed as an authorized signer on the relevant account, the Bank will confirm the instructions by telephone call 

to a Responsible Officer of Customer who has been designated in writing by the Borrower as having authority 

to approve funds transfers, who may be the same person who initiated the instruction. When calling back, the 

Bank will request from Customer’s Responsible Officer his or her name. If the name is listed in the Bank’s 

records as a Responsible Officer of the Borrower with authority to approve funds transfers, the Bank will 

confirm the instructions with respect to amount, names and numbers of accounts to be charged or credited and 

other relevant reference information. Customer acknowledges that the Bank has offered to Customer other 

security procedures that are more secure and are commercially reasonable for Customer, and that Customer 

has nonetheless chosen the procedures described in this paragraph. Customer agrees to be bound by any 

payment order issued in its name, whether or not authorized that is accepted by the Bank in accordance with 

the above procedures. When instructed to credit or pay a party by both name and a unique numeric or alphanumeric identifier (e.g. ABA number or account number), the Bank, and any other bank participating in the 

funds transfer, may rely solely on the unique identifier, even if it identifies a party different than the party 

named. This applies to beneficiaries as well as any intermediary bank. Customer agrees to be bound by the 

rules of any funds transfer network used in connection with any payment order accepted by the Bank 

hereunder.

This authorization shall remain in full force and effect until canceled, revoked or amended by written notice 

received by the Bank; and replaces and supersedes any previous authorization from Customer to the Bank 

relating to the giving of instructions by facsimile, e-mail or other similar Electronic Methods (but excluding 
095331-0005-11404-Active.11752359.16

On-Line Communications Systems) and is in addition to all other authorizations. Notwithstanding any 

revocation, cancellation or amendment of this authorization, any action taken by the Bank pursuant to this 

authorization prior to the Bank's actual receipt and acknowledgement of a notice of revocation, cancellation or 

amendment shall not be affected by such notice.

Customer agrees to indemnify and hold harmless the Bank against any and all claims, losses, damages 

liabilities, judgments, costs and expenses (including reasonable attorneys' fees) (collectively, "Losses") 

incurred or sustained by the Bank as a result of or in connection with the Bank's reliance upon and 

compliance with instructions or directions given by Electronic Methods, provided, however, that such Losses 

have not arisen from the negligence or willful misconduct of the Bank (it being understood that, other than 

with respect to verifying and confirming that instructions received by email or other similar Electronic 

Method, are, in fact, from an email address or address of another similar Electronic Method, of a person 

believed by the Bank to be a Responsible Officer of such Customer, the failure by the Bank to verify or 

confirm that the person giving the instructions or directions by email or other similar Electronic Method, is, in 

fact, an authorized person will not constitute negligence or willful misconduct.

This document shall be governed by, and shall be construed in accordance with, the substantive laws (and not 

the choice of law rules) of the jurisdiction governing the Agreement.

Customer hereby represents and warrants to the Bank that this authorization is properly given and has been 

duly approved by a resolution of its Board of Directors or other governing body.

Nothing contained herein shall, or be deemed to, alter or modify the rights and remedies of the Bank as set 

forth in the Agreement.

The execution of this document by Customer constitutes acceptance of the foregoing.

Yours faithfully,

THE BANK OF NEW YORK MELLON

By: ____________________

Name:

Title:

Customer hereby accepts and agrees to

the terms and conditions set forth herein.

___________________________________

[Name of Customer]

By: ________________________________

Name:

Title:
095331-0005-11656-Active.11663739

EXHIBIT G

FORM OF VALUATION ADMINISTRATION AGREEMENT

[See attached]
FINAL FORM

095331-0005-11875-Active.11752389.17

VALUATION ADMINISTRATION AGREEMENT

This VALUATION ADMINISTRATION AGREEMENT, dated as of the date set forth 

in Schedule A to the Loan Agreement referred to below (this “Agreement”), is entered into by and among 

THE BORROWER IDENTIFIED ON THE SIGNATURE PAGES HEREOF (the “Borrower”), and 

THE BANK OF NEW YORK MELLON, a New York state chartered bank (in its capacity as valuation 

agent under this agreement, the “Valuation Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, The United States Department of the Treasury, as lender (in 

such capacity, the “Lender”), and The Bank of New York Mellon, as administrative agent (in such 

capacity, together with its successors in such capacity, the “Administrative Agent”) and as collateral agent 

(in such capacity, together with its successors in such capacity, the “Collateral Agent”) have entered into 

a Loan Agreement (as the same may be amended, extended, restated, supplemented or otherwise modified 

from time to time, the “Loan Agreement”) dated as of the date set forth in Schedule A to the Loan 

Agreement, pursuant to which, among other things, the Lender has agreed to make Loans to the 

Borrower;

WHEREAS, the Borrower, the Lender, the Administrative Agent and the Collateral 

Agent have entered into a Guarantee and Security Agreement (the “Guarantee and Security Agreement”) 

dated as of the date set forth in Schedule A to the Loan Agreement, pursuant to which the Collateral is 

pledged to secure the Loans and the other Secured Obligations;

WHEREAS, the Borrower wishes to engage the Valuation Agent to perform on behalf of 

the Borrower (and on behalf of the other Loan Parties) and for the benefit of the Lender certain 

administrative duties of the Borrower with respect to the Collateral pursuant to the Loan Agreement and 

the Guarantee and Security Agreement; and

WHEREAS, the Valuation Agent is prepared to provide the administrative services as 

specified herein.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and 

other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the 

parties hereto agree as follows:

1. Definitions. 

(a) Unless otherwise defined herein, terms defined in the Loan Agreement or in the 

Guarantee and Security Agreement, as applicable, and used herein (including terms used in the preamble 

and the recitals hereto) shall have the meanings given to them in the Loan Agreement or in the Guarantee 

and Security Agreement, as applicable.

(b) The “Interpretation” provisions set forth in Section 1.02 of the Loan Agreement 

shall apply to this Agreement, including terms defined in the preamble and the recitals hereto.

(c) In addition, as used herein, the following terms shall have the meaning specified 

below:

“Indemnified Liabilities” shall have the meaning set forth in Section 4(b).
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095331-0005-11875-Active.11752389.17

“Indemnitee” shall have the meaning set forth in Section 4(b).

“Market Value” shall mean, as of any date of determination,

(a) with respect to each Eligible Asset, the value of such Eligible Asset as determined by 

the Valuation Agent as of the applicable Measurement Date and delivered to the Borrower and 

the Agents, in each case in accordance with the Valuation Process;

(b) with respect to each Temporary Investment (other than Cash), the value of such 

Temporary Investment as determined by the Valuation Agent as of the applicable Measurement 

Date and delivered to the Borrower and the Agents, in each case in accordance with the Valuation 

Process; and

(c) with respect to any Cash in the Custodial Account or the Interest Reserve Account, 

100% of its par amount.

“Records” shall have the meaning set forth in Section 20.

“Valuation Process” shall mean the Valuation Process for Determining Market Value of 

Portfolio Investments, substantially in the form of Exhibit A.

2. Powers and Duties of the Valuation Agent and the Borrower.

(a) The Borrower hereby appoints The Bank of New York Mellon as its agent to 

perform the services set forth herein to be performed by the Valuation Agent and The Bank of New York 

Mellon hereby accepts such appointment and shall act in the capacity of valuation agent until its 

resignation or removal or the termination of this Agreement pursuant to Section 7. The Valuation Agent 

shall value the Collateral on an ongoing basis in accordance with the provisions set forth in the Valuation 

Process, including consulting with any Vendors, Brokers and the Mark to Model Valuation Provider. The 

Valuation Agent does not, and shall not be deemed to, assume the obligations of the Borrower under the 

Loan Agreement.

(b) The Valuation Agent shall provide the Borrower with certain other information 

set forth in the fee letter between the Valuation Agent and the Borrower (the “Fee Letter”) as required to 

be provided by it in order to assist the Borrower or its designee in the preparation of such other reports, 

instructions, schedules, statements, certificates and other data that is required by the Loan Agreement and 

the other Loan Documents and that is reasonably requested in writing by the Borrower, the 

Administrative Agent or the Collateral Agent and agreed to by the Valuation Agent.

(c) The Valuation Agent shall provide the daily and month-end Market Value of 

each Portfolio Investment in accordance with the Valuation Process.

(d) The Valuation Agent shall provide the accounting firm of the Borrower (which 

shall be an internationally recognized accounting firm reasonably acceptable to the Lender) with certain 

available or readily obtainable necessary information required by such accounting firm in connection with 

the preparation of financial statements required by Sections 6.01(a) and (b) of the Loan Agreement. 

(e) The Valuation Agent shall keep accurate books and records and take any steps 

reasonably related or reasonably requested by the Borrower, the Administrative Agent, the Collateral 

Agent or the Collateral Administrator in connection with its performance of the obligations set forth in 

Section 2(b) though (d) above. 
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095331-0005-11875-Active.11752389.17

The Valuation Agent shall deliver any reports or other information that it is required to 

prepare pursuant to this Section 2 in accordance with the notice provisions of Section 11.

Nothing contained in this Agreement shall prohibit the Valuation Agent or any of its 

Affiliates from engaging in other businesses or from rendering services of any kind to any Person.

3. Compensation. The Valuation Agent will perform its duties and provide the services 

called for hereunder in exchange for compensation and expense reimbursement set forth in the Fee Letter. 

The payment obligations to the Valuation Agent pursuant to this Section 3 accrued prior to the 

termination of this Agreement and the resignation or removal of the Valuation Agent shall survive the 

termination of this Agreement and the resignation or removal of the Valuation Agent. For the avoidance 

of doubt, all amounts payable under this Section 3 shall be payable only as Borrower Administrative 

Expenses in accordance with the order specified in the Priority of Payments as set forth in Section 2.07 of 

the Loan Agreement.

4. Limitation of Responsibility of the Valuation Agent. 

(a) Notwithstanding any provision contained herein or in any other document or 

instrument to the contrary, neither the Valuation Agent nor any of its Related Parties shall be liable, 

except as otherwise provided herein as between the Valuation Agent and the Borrower, in all other 

respects, for any action taken or not taken by it (or them) under or in connection with this Agreement, 

except for the Valuation Agent’s (or their) own negligence, bad faith, willful misconduct or fraudulent 

action. For the avoidance of doubt, any action taken by the Valuation Agent or any of its Related Parties 

in compliance with this Agreement or the other Loan Documents shall not constitute negligence, bad 

faith, willful misconduct or fraudulent action.

(b) The Borrower agrees to pay, indemnify, and hold the Valuation Agent and each 

of its Related Parties (each, an “Indemnitee”) harmless and defend them from and against any and all 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the 

reasonable fees and disbursements of legal counsel) or disbursements of any kind or nature whatsoever 

with respect to the execution, delivery, enforcement, performance and administration of this Agreement, 

but excluding income taxes (all the foregoing non-excluded items, collectively, the “Indemnified 

Liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnitee with 

respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and 

nonappealable decision of a court of competent jurisdiction to have resulted from the negligence, bad 

faith, willful misconduct or fraudulent action of any Indemnitee or any of its Related Parties. The 

Borrower may, in its sole discretion, and at its expense, control the defense of the claim including, 

without limitation, designating counsel for the Indemnitees (which counsel shall be reasonably 

satisfactory to the Indemnitees) and controlling all negotiations, litigation, arbitration, settlements, 

compromises and appeals of any claim; provided that (i) the Borrower may not agree to any settlement 

involving any Indemnitee that contains any element other than the payment of money and complete 

indemnification of the Indemnitee without the prior written consent of the affected Indemnitee and (ii) the 

Borrower shall engage and pay the reasonable expenses of separate counsel for the Indemnitee to the 

extent that the interests of the Indemnitee are in conflict with those of the Borrower. The Borrower shall 

be responsible to pay the reasonable fees of such separate legal counsel if such a conflict exists. All 

amounts due under this Section 4(b) shall be payable as Borrower Administrative Expenses in accordance 

with Section 2.07 of the Loan Agreement and any request for payment under this Section 4(b) must be 

received by the Borrower, the Agents and the Collateral Administrator no later than the last Business Day 

of each month in connection with payments to be made on the next succeeding Loan Payment Date.
4

095331-0005-11875-Active.11752389.17

(c) The indemnity provided to the Valuation Agent in this Section 4 shall survive 

any termination of this Agreement, including any termination under any bankruptcy law or the resignation 

or removal of the Valuation Agent hereunder.

(d) To the extent permitted by applicable law, no party shall assert, and each hereby 

waives, and no party shall have any indemnity obligation with respect to, any claim against any other 

party, on any theory of liability for special, indirect, consequential or punitive damages (as opposed to 

direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any 

agreement or instrument contemplated hereby, or the transactions contemplated hereby.

(e) The Valuation Agent shall not be liable for the title, validity, sufficiency, value, 

genuineness or transferability of any Collateral.

(f) The Valuation Agent may rely on any notice, direction, instruction, instrument, 

document, resolution, officer’s certificate, opinion of counsel, certificate of auditors or any other 

certificate, statement, opinion, report, request, consent, order, appraisal, bond or other paper reasonably 

believed by it or them in good faith to be genuine and to have been signed or presented by the proper 

party or parties (and need not investigate any fact or matter stated in any such notice, direction, 

instruction, instrument, document, resolution, officer’s certificate, opinion of counsel, certificate of 

auditors or any other certificate, statement, opinion, report, request, consent, order, appraisal, bond or 

other paper), and the Valuation Agent shall be entitled to presume the genuineness, legal capacity and due 

authority of any signature appearing thereon.

(g) The Valuation Agent shall not be deemed to have notice of any fact or matter 

unless and until (i) such fact or matter actually becomes known to the Valuation Agent, (ii) notice thereof 

referencing this Agreement in writing is received by the Valuation Agent at its notice address provided 

for in Section 11 or (iii) notice is provided to the Valuation Agent pursuant to the Valuation Process.

(h) The duties and obligations of the Valuation Agent shall be determined by the 

express provisions of this Agreement and the Valuation Process, the Valuation Agent shall not be liable 

except for the performance of such duties and obligations as are specifically set forth in this Agreement 

and the Valuation Process, and no obligations shall be read into this Agreement or the Valuation Process 

against the Valuation Agent.

(i) The right of the Valuation Agent to perform any discretionary act enumerated in 

this Agreement shall not be construed as a duty, and the Valuation Agent shall not be liable for the 

omission to perform any such act.

(j) The Valuation Agent may, with respect to questions of law relating specifically 

to the Custodial Account and Interest Reserve Account, apply for and obtain the advice and opinion of 

counsel, and shall be fully protected with respect to anything done or omitted by it in good faith in 

conformity with such reasonable advice or opinion.

(k) The Valuation Agent may execute ministerial and ancillary duties through third 

party ministerial or ancillary service providers, including but not limited to, software vendors; provided

that upon request by the Borrower, the Valuation Agent shall to the extent permitted by applicable law, 

sue such ministerial or ancillary service provider or otherwise enforce its rights against such service 

provider (provided that the Valuation Agent shall be indemnified by the Borrower for any costs or 

expenses in connection with such action) and collect, on behalf of the Borrower, any proceeds or damages 

awarded in respect of any related judgment against such service provider, less any costs and expenses 

owing to the Valuation Agent. The Valuation Agent shall have no monitoring responsibility with respect 
5

095331-0005-11875-Active.11752389.17

to such persons and shall not be responsible for any misconduct or negligence on the part of any such 

persons appointed by the Valuation Agent with due care. Notwithstanding anything to the contrary 

contained herein, the Valuation Agent shall be responsible for adhering to the Valuation Process and for 

ensuring that pricing information is obtained from Vendors, Brokers, the Mark to Model Valuation 

Provider and other sources, as appropriate, in accordance with the Valuation Process.

(l) The Valuation Agent shall have no liability with respect to any valuation made in 

accordance with the Valuation Process regardless of whether such valuation is significantly greater or less 

than other possible valuations and shall have no duty to obtain pricing information from any Person other 

than Vendors, Brokers and the Mark to Model Valuation Provider in accordance with the Valuation 

Process.

(m) No Vendor or Broker is an agent of the Valuation Agent in its capacity as such. 

The Valuation Agent, in its capacity as such, shall have no liability for any marked prices submitted by a 

Vendor or Broker or for any actions, inactions, information provided by or determinations made by any 

such Vendor or Broker, it being understood that such actions, inactions, information or determinations 

made by any such Vendor or Broker do not relieve the Valuation Agent from its obligations to perform its 

duties as specified in this Agreement and the Valuation Process, such as providing, requesting, receiving 

and transmitting information from or to such Vendors or Brokers referred to therein.

(n) The Valuation Agent hereby represents that it has engaged the Mark to Model 

Valuation Provider with due care and the parties hereto acknowledge that the Valuation Agent has 

engaged the services of the Mark to Model Valuation Provider to perform the services set forth in Part II, 

Step 2-Monthly Market Price Determination, Clause 3 in the Valuation Process. The Valuation Agent 

shall have no liability for any Mark to Model Market Price (as defined in the Valuation Process) provided 

by the Mark to Model Valuation Provider or the methodology used by the Mark to Model Valuation 

Provider in obtaining such Mark to Model Market Price, except to the extent that a Responsible Officer of 

the Valuation Agent has actual knowledge that, in the determination of such Mark to Model Market Price, 

the Mark to Model Valuation Provider was acting in a manner that would constitute negligence, willful 

misconduct, bad faith or reckless disregard of the Valuation Agent’s obligations under this Agreement.

(o) To the extent required by any third party data or pricing provider, any provision 

of third party data or pricing to the Borrower is subject to the Borrower being a party to an agreement 

with such third party provider, or with the Valuation Agent for the benefit of such third party provider, 

containing terms and conditions acceptable to such third party provider.

5. No Joint Venture. Nothing contained in this Agreement (a) shall constitute the Valuation 

Agent and the Borrower as members of any partnership, joint venture, association, syndicate, 

unincorporated business or other separate entity, (b) shall be construed to impose any liability as such on 

any of them or (c) shall be deemed to confer on any of them any express, implied or apparent authority to 

incur any obligation or liability on behalf of the other.

6. Term. This Agreement shall continue in effect so long as the Loan Agreement remains in 

effect with respect to the Loans, unless this Agreement has been previously terminated in accordance with 

Section 7 hereof.

7. Termination. This Agreement shall continue in full force and effect until it has been 

terminated in accordance with this Section 7. The Valuation Agent may resign as Valuation Agent, or the 

Borrower (with the prior consent of the Lender) may, in its sole discretion, remove the Valuation Agent, 

with sixty (60) days’ (in the case of the Valuation Agent resigning) or thirty (30) days’ (in the case of the 

removal of the Valuation Agent) prior written notice to each other party hereto; provided that no 
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095331-0005-11875-Active.11752389.17

termination of this Agreement shall be effective until the Borrower shall have appointed a successor 

Valuation Agent that has been approved by the Lender in its sole discretion. If the Borrower shall fail to 

appoint a successor Valuation Agent within ninety (90) days after notice of resignation from the 

Valuation Agent, then the Valuation Agent may petition any court of competent jurisdiction for the 

appointment of a successor Valuation Agent. The indemnity provided to the resigning Valuation Agent 

under Section 4 shall survive its resignation under this Agreement with respect to any Indemnified 

Liabilities to the extent incurred or arising, or relating to events occurring, before such termination.

8. Representations and Warranties.

(a) The Borrower hereby represents and warrants to the Valuation Agent as follows:

(i) The Borrower (A) is duly organized, validly existing and in good 

standing under the laws of the jurisdiction of its organization, (B) has all 

requisite organizational power, and has all governmental licenses,

authorizations, consents and approvals, necessary to own its assets and 

carry on its business as now being or as proposed to be conducted, except 

where the lack of such licenses, authorizations, consents and approvals 

could not be reasonably expected to have a Material Adverse Effect, (C) 

is qualified to do business and is in good standing in all other 

jurisdictions in which the nature of the business conducted by it makes 

such qualification necessary, except where the failure to so qualify could 

not be reasonably expected to have a Material Adverse Effect, (D) is in 

compliance with (to the extent such law, guidance or regulation is 

applicable pursuant to its terms to the Borrower) (1) Section 111 of 

EESA, as implemented by any guidance or regulations issued by UST 

thereunder, including 31 CFR 30 and (2) EAWA, as implemented by any 

guidance or regulation issued by UST thereunder and (E) is in 

compliance in all material respects with all Requirements of Law. 

(ii) The Borrower has all necessary organizational power, authority and legal 

right to execute, deliver and perform its obligations under this 

Agreement. The execution, delivery and performance by the Borrower 

of this Agreement has been duly authorized by all necessary 

organizational action on its part. This Agreement has been duly and 

validly executed and delivered by the Borrower and constitutes, or when 

executed and delivered, will constitute, a legal, valid and binding 

obligation of the Borrower, enforceable against the Borrower in 

accordance with its terms, subject to the Bankruptcy Exceptions.

(iii) No consent, approval or authorization of, registration or filing with, 

notice to or other act by or in respect of, any Governmental Authority or 

any other Person is required in connection with the execution, delivery,

performance, validity or enforceability of this Agreement, except (A) 

consents, approvals, authorizations, filings, registrations, and notices that 

have been or will be obtained or made, each of which is in full force and 

effect and (B) the filings and recordings in respect of the Liens created 

pursuant to the Security Documents.

(iv) Neither the execution and delivery of this Agreement by the Borrower 

nor the performance by the Borrower of its obligations set forth in this 
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095331-0005-11875-Active.11752389.17

Agreement will (A) conflict with or result in a breach of (1) the charter, 

articles of organization, by laws, partnership agreement (including the 

Partnership Agreement), operating agreement or similar organizational 

document of the Borrower or (2) any Requirement of Law, (B) constitute 

a default under any material Contractual Obligation with respect to 

which the Borrower is a party, or (C) except for the Liens created 

pursuant to the Security Documents, result in the creation or imposition 

of any Lien upon any Property of the Borrower, pursuant to the terms of 

any such material Contractual Obligation.

(b) The Valuation Agent hereby represents and warrants to the Borrower as follows:

(i) The Valuation Agent (A) is a New York state chartered bank duly 

organized and validly existing under the laws of the State of New York, 

(B) has all requisite organizational power, and has all governmental 

licenses, authorizations, consents and approvals, necessary to own its 

assets and carry on its business as now being or as proposed to be 

conducted, (C) is qualified to do business and is in good standing in all 

other jurisdictions in which the nature of the business conducted by it 

makes such qualification necessary and (D) is in compliance in all 

material respects with all Requirements of Law. 

(ii) The Valuation Agent has all necessary organizational power, authority 

and legal right to execute, deliver and perform its obligations under this 

Agreement. The execution, delivery and performance by the Valuation 

Agent of this Agreement has been duly authorized by all necessary 

organizational action on its part. This Agreement has been duly and 

validly executed and delivered by the Valuation Agent and constitutes, or 

when executed and delivered, will constitute, a legal, valid and binding 

obligation of the Valuation Agent, enforceable against the Valuation 

Agent in accordance with its terms, subject to the Bankruptcy 

Exceptions.

(iii) No consent, approval or authorization of, registration or filing with, 

notice to or other act by or in respect of, any Governmental Authority or 

any other Person is required in connection with the execution, delivery, 

performance, validity or enforceability of this Agreement.

(iv) Neither the execution and delivery of this Agreement, nor the 

performance of the obligations set forth in this Agreement will (A) 

conflict with or result in a breach of (1) the charter, articles of 

organization, by laws, partnership agreement, operating agreement or 

similar organizational document of the Valuation Agent or (2) any 

Requirement of Law, (B) constitute a default under any material 

Contractual Obligation to which the Valuation Agent is a party, or (C) 

result in the creation or imposition of any Lien upon any Property of the 

Valuation Agent or, pursuant to the terms of any such material 

Contractual Obligation.
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095331-0005-11875-Active.11752389.17

9. Amendments. This Agreement may not be amended, changed, modified or terminated 

(except as otherwise expressly provided herein) except in a writing signed by the Borrower, the Valuation 

Agent, the Agents and the Lender.

10. Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF 

THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND 

INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW AND NOT THE LAW OF ANY STATE 

OR LOCALITY. TO THE EXTENT THAT A COURT LOOKS TO THE LAWS OF ANY STATE TO 

DETERMINE OR DEFINE THE FEDERAL LAW, IT IS THE INTENTION OF THE PARTIES 

HERETO THAT SUCH COURT SHALL LOOK ONLY TO THE LAWS OF THE STATE OF NEW 

YORK WITHOUT REGARD TO THE RULES OF CONFLICTS OF LAWS.

11. Notices.

(a) All notices, reports, requests, demands and other communications hereunder shall 

be in writing and shall be deemed to have been duly given if (i) sent by certified or registered mail, return 

receipt requested, (ii) sent by overnight mail or courier, (iii) posted on the Borrower’s intranet website in 

accordance with Section 11(b), or (iv) delivered by hand, in each case, if to the Agents, at the Agents’ 

address, as set forth on Schedule A to the Loan Agreement, if to the Custodian, at the Custodian’s 

address, as set forth on Schedule A to the Loan Agreement, if to the Collateral Administrator, at the 

Collateral Administrator’s address, as set forth on Schedule A to the Loan Agreement, if to the Valuation 

Agent, at the Valuation Agent’s address, as set forth on Schedule A to the Loan Agreement, if to the 

Borrower, to the Borrower’s address, as set forth on Schedule A to the Loan Agreement, if to any other 

Person party hereto at the address such Person shall have last designated by notice to each other party 

hereto and if to the Lender, at the Lender’s address, as set forth on Schedule A to the Loan Agreement; 

provided that the Lender may only receive notices, reports, requests, demands and other communications 

hereunder pursuant to clauses (i) through (iii). Any notice, report, request, demand and other 

communication will be deemed received (i) if sent by certified or registered mail, return receipt requested, 

when actually received, (ii) if sent by overnight mail or courier, when actually received, (iii) if posted on 

the Borrower’s intranet website in accordance with Section 11(b), on the day an e-mail is sent to the 

Lender at the email address of the Lender set forth on Schedule A to the Loan Agreement instructing it 

that a notice has been posted; provided that if such e-mail is sent after 5:00 p.m. (Washington, D.C. time) 

or on a day that is not a Business Day, such notice shall be deemed received on the next succeeding 

Business Day and (iv) if delivered by hand, when actually received.

(b) The Borrower may, in its discretion, provide any notice, report, request, demand, 

consent or other communication to the Lender by posting such notice on the Borrower’s intranet website 

and sending an e-mail to the Lender at the email address of the Lender set forth on Schedule A to the 

Loan Agreement notifying it of such posting.

12. SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY HERETO HEREBY 

IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR 

PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND 

ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL 

JURISDICTION OF EITHER THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK OR THE U.S. COURT OF FEDERAL CLAIMS;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE 

BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY 
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095331-0005-11875-Active.11752389.17

OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH 

ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING 

WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM 

THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR 

PROCEEDING MAY BE EFFECTED (I) IF TO PARTIES OTHER THAN THE LENDER, BY 

MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY 

SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET 

FORTH IN SECTION 11 OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL 

HAVE BEEN NOTIFIED AND (II) IF TO THE LENDER, ONLY IN THE MANNER PRESCRIBED 

FOR SERVING PROCESS ON AN AGENCY OF THE U.S. FEDERAL GOVERNMENT UNDER 

THE FEDERAL RULES OF CIVIL PROCEDURE; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO 

EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY 

IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF 

LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT 

OF OR RELATING TO THIS AGREEMENT.

14. Successors and Assigns.

(a) This Agreement shall inure to the benefit of, and be binding upon, the successors 

and assigns of each of the parties hereto. Except as set forth in Section 4(k) and (n), the Valuation Agent 

may not assign or delegate its rights and obligations hereunder without the prior written consent of the 

Borrower and the Lender, except that the Valuation Agent may delegate to, employ as agent, or otherwise 

cause any duty or obligation hereunder to be performed by, any Affiliate of the Valuation Agent or its 

successors without such consent; provided that the Valuation Agent or any successor thereto shall be 

responsible for and be or become liable for (i) any actions taken or inactions omitted to be taken, in either 

case, by any such Affiliates and (ii) the execution and performance of any such duties to the same extent 

as if any such duties had not been delegated.

(b) Notwithstanding the provisions of Section 14(a), any Person into which the 

Valuation Agent may be merged or converted or with which it may be consolidated, or any Person 

resulting from any merger, conversion or consolidation to which the Valuation Agent shall be a party, or 

any Person succeeding to all or substantially all of the corporate trust business of the Valuation Agent, 

shall be the successor of the Valuation Agent hereunder and shall be bound by the provisions hereof, 

without the execution or filing of any paper or any further act on the part of any of the parties hereto and 

without the written consent of any other party hereto.

15. Counterparts and Facsimile. This Agreement may be executed by one or more parties to 

this Agreement on any number of separate counterparts. Each counterpart shall be deemed to be an 

original, and all such counterparts taken together shall be deemed to constitute one and the same 

instrument. The parties intend that faxed signatures and electronically imaged signatures such as .pdf 

files shall constitute original signatures and are binding on all parties. The original documents shall be 

promptly delivered, if requested.

16. Bankruptcy Non-Petition. The Valuation Agent hereby covenants and agrees that it will 

not at any time (i) commence or institute against the Borrower or join with or facilitate any other Person 
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095331-0005-11875-Active.11752389.17

in commencing or instituting against the Borrower any bankruptcy, reorganization, arrangement, 

readjustment of debt, dissolution, receivership, insolvency, liquidation proceedings, or other proceedings 

under any United States federal or state, or other jurisdiction, bankruptcy or similar law or statute now or 

hereafter in effect in connection with any obligations relating to this Agreement or any of the other Loan 

Documents or (ii) in its capacity as Valuation Agent, participate in any assignment for the benefit of 

creditors, compositions, or arrangements with respect to the Borrower’s debts. The provisions of this 

Section 16 shall survive the termination of this Agreement. 

17. Limited Recourse. Notwithstanding anything to the contrary contained in this 

Agreement, the obligations of the Borrower under this Agreement are solely the obligations of the 

Borrower and not of any direct or indirect owner, director, shareholder, member, partner or officer of the 

Borrower and shall be payable solely to the extent of funds received by and available to the Borrower in 

accordance with Section 2.07 of the Loan Agreement. No recourse shall be had for the payment of any 

amount owing in respect of any obligation of, or claim against, the Borrower arising out of or based upon 

this Agreement against any Limited Partner, General Partner, Private Vehicle or any advisor or 

Subadvisor of the Borrower and, except as specifically provided herein, no recourse shall be had for the 

payment of any amount owing in respect of any obligation of, or claim against, the Borrower arising out 

of or based upon this Agreement against the Valuation Agent or any Affiliate thereof; provided, however, 

that the foregoing shall not relieve any Person from any liability such Person would otherwise have as a 

result of its own acts or omissions that constitute willful misconduct, bad faith or fraud. The provisions 

of this Section 17 shall survive the termination or expiration of this Agreement and the Loan Agreement. 

18. Third Party Beneficiaries. The parties hereto agree that the Agents and the Lender are the 

only express third party beneficiaries of this Agreement.

19. Access to Books and Records. The Valuation Agent shall permit the Borrower, any 

representatives designated by the Administrative Agent, the Collateral Agent or the Lender, including 

SIGTARP, the GAO and their respective advisors and representatives, (a) upon reasonable prior notice 

and during normal business hours, to visit and inspect its properties, to examine and make extracts from 

the Records (as defined below) and will cause its personnel to assist in any such inspections, 

examinations and extractions of such Records and (b) at reasonable times, as often as reasonably 

requested and during normal business hours, to meet with it to discuss matters that fall within the scope of 

this engagement.

20. Maintenance of Books and Records. During the term of this Agreement, the Valuation 

Agent shall keep and retain and make easily accessible all information, materials and records in whatever

format (collectively, “Records”) which it has or which come into its possession in connection with the 

services provided under this Agreement, in each case to the extent consistent with the Valuation Agent’s 

internal records and maintenance and records retention policy; provided that prior to any destruction of 

any Records by the Valuation Agent in accordance with such policy, the Valuation Agent shall notify the 

Borrower and the Agents and provide the Borrower with an opportunity to take possession of such 

Records from the Valuation Agent. Upon the termination of this Agreement or its services hereunder, the 

Valuation Agent and the Borrower shall, in good faith, agree on the timing and mechanism for 

transferring all Records to the Borrower; provided that the Valuation Agent shall retain all Records until 

the earlier of (a) the three-year anniversary of the termination of the Partnership and (b) the termination of 

its services hereunder and transfer of all Records to a successor Valuation Agent. In transferring such 

Records, the Valuation Agent shall provide a certificate of a Responsible Officer certifying (a) as to 

whether it has kept and retained the Records in accordance with the requirements set forth herein and (b) 

that the Records being transferred represent all of the Records that have not been previously delivered or 

destroyed in compliance with this Section 20. Notwithstanding the foregoing, the Valuation Agent may 

make and retain copies of Records to satisfy existing internal audit, compliance or record retention 
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095331-0005-11875-Active.11752389.17

requirements; provided that such certificate includes information as to the copies of Records that it is 

retaining.

21. Confidentiality. 

The Valuation Agent agrees to maintain the confidentiality of the Information (as defined 

below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ 

respective partners, directors, officers, employees, agents, advisors, accountants and other representatives 

(it being understood that the Persons to whom such disclosure is made will be informed of the 

confidential nature of such Information and be required to keep such Information confidential), (b) in 

response to any order, subpoena or other form of legal process issued by any court, administrative,

legislative, regulatory or governmental body purporting to have jurisdiction over it (including any selfregulatory authority) or otherwise required by any applicable law or regulation; provided that prior to any 

disclosure of such information, the Valuation Agent shall notify the Borrower, the Administrative Agent, 

the Collateral Agent, the Custodian, the Collateral Administrator and the Lender unless prohibited by any 

Requirement of Law from doing so, of any proposed disclosure as far in advance of such disclosure as 

practicable so that such applicable party may seek a protective order or other appropriate remedy and 

upon such applicable party’s request, the Valuation Agent shall take all reasonable actions to ensure that 

any information disclosed shall be accorded confidential treatment, (c) to any other party hereto, (d) in 

connection with the exercise of any remedies hereunder or any action or proceeding relating to this 

Agreement or the enforcement of rights hereunder, (e) subject to an agreement containing provisions 

substantially the same as those of this Section 21, to any actual or prospective counterparty (or its 

advisors) to any derivative transaction relating to the Borrower and its Obligations, (f) with the written 

consent of the Borrower or (g) to the extent such Information (i) becomes publicly available other than as 

a result of a breach of this Section 21 or (ii) becomes available to the Valuation Agent or any of its 

Affiliates on a non-confidential basis from a source other than the Borrower, the Lender or otherwise 

pursuant to the transactions contemplated hereunder. UST intends, subject to applicable law, regulation 

or governmental order, to hold confidential all confidential information provided to it by or on behalf of 

any member of the General Partner Group.

For purposes of this Section 21, “Information” means all information (including any 

financial models (and any assumptions and inputs underlying such models), any non-publicly available 

information in respect of any Portfolio Investments (including holdings, CUSIP numbers and market 

prices thereof) and any information provided in connection with the Valuation Process) received from the 

General Partner, the Collateral Administrator, the Administrative Agent, the Collateral Agent, the 

Custodian, the Lender, the Subadvisors, the Borrower or any of its Subsidiaries or any of their respective 

Affiliates relating to the Borrower or any of its Subsidiaries or any of their respective Affiliates or any of 

their respective businesses, other than any such information that is available to the Valuation Agent on a 

non-confidential basis prior to disclosure by the Borrower; provided, that, in the case of information 

received from the Borrower after the date hereof, such information is clearly identified at the time of 

delivery as confidential. Any Person required to maintain the confidentiality of Information as provided 

in this Section 21 shall be considered to have complied with its obligation to do so if such Person has 

exercised the same degree of care to maintain the confidentiality of such Information as such Person 

would accord to its own confidential information.
095331-0005-11875-Active.11752389.17

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

effective as of the day first above written.

THE BANK OF NEW YORK MELLON, as Valuation Agent

By: __________________________________________

Name:________________________________________

Title:_________________________________________

[ ], as Borrower

By: __________________________________________

Name:________________________________________

Title:_________________________________________
095331-0005-11656-Active.11663739

EXHIBIT H

FORM OF COLLATERAL ADMINISTRATION AGREEMENT

[See attached]
FINAL FORM

095331-0005-11875-Active.11752365.21

COLLATERAL ADMINISTRATION AGREEMENT

This COLLATERAL ADMINISTRATION AGREEMENT, dated as of the date set forth 

in Schedule A to the Loan Agreement referred to below (this “Agreement”), is entered into by and among 

THE BORROWER IDENTIFIED ON THE SIGNATURE PAGES HEREOF (the “Borrower”), and THE 

BANK OF NEW YORK MELLON, a New York state chartered bank (in its capacity as collateral 

administrator under this agreement, the “Collateral Administrator”).

W I T N E S S E T H:

WHEREAS, the Borrower, The United States Department of the Treasury, as lender (in 

such capacity, the “Lender”), and The Bank of New York Mellon, as administrative agent (in such 

capacity, together with its successors in such capacity, the “Administrative Agent”) and as collateral agent 

(in such capacity, together with its successors in such capacity, the “Collateral Agent”) have entered into 

a Loan Agreement (as the same may be amended, extended, restated, supplemented or otherwise modified 

from time to time, the “Loan Agreement”) dated as of the date set forth in Schedule A to the Loan 

Agreement, pursuant to which, among other things, the Lender has agreed to make Loans to the 

Borrower;

WHEREAS, the Borrower, the Lender, the Administrative Agent and the Collateral 

Agent have entered into a Guarantee and Security Agreement (the “Guarantee and Security Agreement”) 

dated as of the date set forth in Schedule A to the Loan Agreement, pursuant to which the Collateral is 

pledged to secure the Loans and the other Secured Obligations;

WHEREAS, the Borrower wishes to engage the Collateral Administrator to perform on 

behalf of the Borrower (and on behalf of the other Loan Parties) and for the benefit of the Lender certain 

administrative duties of the Borrower with respect to the Collateral pursuant to the Loan Agreement and 

the Guarantee and Security Agreement; and

WHEREAS, the Collateral Administrator is prepared to provide the administrative 

services as specified herein.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and 

other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the 

parties hereto agree as follows:

1. Definitions. 

(a) Unless otherwise defined herein, terms defined in the Loan Agreement or in the 

Guarantee and Security Agreement, as applicable, and used herein (including terms used in the preamble 

and the recitals hereto) shall have the meanings given to them in the Loan Agreement or in the Guarantee 

and Security Agreement, as applicable.

(b) The “Interpretation” provisions set forth in Section 1.02 of the Loan Agreement 

shall apply to this Agreement, including terms defined in the preamble and the recitals hereto.

(c) In addition, as used herein, the following terms shall have the meaning specified 

below:

“Collateral Administrator Report” shall mean a report containing the information set 

forth or referred to in Exhibit A.
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095331-0005-11875-Active.11752365.21

“Indemnified Liabilities” shall have the meaning set forth in Section 4(b).

“Indemnitee” shall have the meaning set forth in Section 4(b).

“Loan Payment Date Report” shall mean, with respect to a Loan Payment Date, a report 

containing the information set forth or referred to in Exhibit B for such Loan Payment Date.

“Payment Notice” shall have the meaning set forth in the Partnership Agreement.

“Records” shall have the meaning set forth in Section 20.

2. Powers and Duties of the Collateral Administrator and the Borrower.

(a) The Borrower hereby appoints The Bank of New York Mellon as its agent to 

perform the services set forth herein to be performed by the Collateral Administrator and The Bank of 

New York Mellon hereby accepts such appointment and shall act in the capacity of collateral 

administrator until its resignation or removal or the termination of this Agreement pursuant to Section 7. 

The Collateral Administrator shall assist in monitoring the Collateral on an ongoing basis. The Collateral 

Administrator does not, and shall not be deemed to, assume the obligations of the Borrower under the 

Loan Agreement. 

(b) Promptly following the Effective Date, the Collateral Administrator shall create a 

Collateral database setting forth the Collateral held by the Custodian in a format reasonably acceptable to 

the Lender and the Borrower and shall provide access to the information contained therein to the 

Borrower, the Agents and the Lender. The Collateral Administrator shall update the Collateral database 

promptly following the sale, purchase or payment in respect of any item of Collateral based on the records 

of the Custodian of the Collateral or from information provided to the Collateral Administrator from the 

Borrower or the Collateral Agent. The Borrower authorizes the Collateral Administrator to obtain any 

necessary information on the Collateral from Bloomberg and rely on such information without liability in 

order to complete the Collateral database.

(c) Not later than the seventh (7th) Business Day after the end of each month, the 

Collateral Administrator shall provide to the Borrower and the Agents a draft of the Collateral 

Administrator Report required to be provided by the Borrower pursuant to Section 6.01(c) of the Loan 

Agreement, which shall include calculations of the Borrower’s performance and statistical portfolio 

information using the information contained in the Collateral database created by the Collateral 

Administrator pursuant to Section 2(b) and any other Collateral information normally maintained by the 

Custodian and information provided by the Borrower, the Agents, the Custodian and the Valuation Agent 

that is relevant to the Collateral Administrator Report in order to provide the Borrower with an 

opportunity to review and comment on such Collateral Administrator Report. Not later than the Business 

Day prior to the day on which the Collateral Administrator Report is required to be provided by the 

Borrower pursuant to Section 6.01(c) of the Loan Agreement, the Collateral Administrator shall provide 

to the Borrower and the Agents the final version of such Collateral Administrator Report previously 

provided to the Borrower. To the extent the Borrower is required to deliver the Collateral Administrator 

Report pursuant to Section 6.01(d) of the Loan Agreement, not later than one (1) Business Day after the 

end of each week, the Collateral Administrator shall provide to the Borrower and the Agents such 

Collateral Administrator Report, which shall include calculations of the Borrower’s performance and 

statistical portfolio information using the information contained in the Collateral database created by the 

Collateral Administrator pursuant to Section 2(b) and any other Collateral information normally 

maintained by the Custodian and information provided by the Borrower, the Agents, the Custodian and 

the Valuation Agent that is relevant to the Collateral Administrator Report. To the extent that the 
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095331-0005-11875-Active.11752365.21

Collateral Administrator has not received in a timely manner information from the Borrower, the Agents, 

the Custodian or the Valuation Agent that is reasonably necessary to complete any Collateral 

Administrator Report, the Collateral Administrator shall so inform the Borrower and the Agents and shall 

provide the related Collateral Administrator Report without such information.

(d) The Collateral Administrator shall provide the Borrower with certain other 

information set forth in the fee letter between the Collateral Administrator and the Borrower (the “Fee 

Letter”) as required to be provided by it in order to assist the Borrower or its designee in the preparation 

of such other reports, instructions, schedules, statements, certificates and other data that is required by the 

Loan Agreement and the other Loan Documents and that is reasonably requested in writing by the 

Borrower, the Administrative Agent or the Collateral Agent and agreed to by the Collateral 

Administrator. 

(e) With respect to each Loan Payment Date Report:

(i) Not later than four (4) Business Days prior to each Loan Payment Date, the 

Collateral Administrator shall:

(A) if not received from the Custodian by 5 p.m. (Washington, D.C. time) on 

such date, notify the Custodian that the Custodian has not provided a statement 

providing all reasonably necessary information regarding the Collections 

received during the period covered by such Loan Payment Date Report and all 

amounts on deposit in the Custodial Account;

(B) if not received from the Valuation Agent by 5 p.m. (Washington, D.C. 

time) on such date, notify the Valuation Agent that the Valuation Agent has not 

provided the month-end Market Value calculated in accordance with Part II and 

Part III of the Valuation Process for each Portfolio Investment owned by the 

Borrower and listed in the Collateral database maintained by the Collateral 

Administrator as at the immediately preceding Determination Date;

(C) if not received from the Borrower by 5 p.m. (Washington, D.C. time) on 

such date, notify the Borrower that the Borrower has not provided the 

information relating to Section 2.07 of the Loan Agreement that is reasonably 

necessary to enable the Collateral Administrator to assemble the Loan Payment 

Date Report, including, but not limited to, the Borrower’s calculation of the 

Asset Coverage Test for such period;

(D) if not received from the Administrative Agent by 5 p.m. (Washington, 

D.C. time) on such date, notify the Administrative Agent that the Administrative 

Agent has not provided the current Interest Amount and Principal Amount 

outstanding on the Loans and all other information reasonably necessary to 

enable the Collateral Administrator to calculate the Required Interest Reserve 

Amount.

(ii) Not later than three (3) Business Days prior to each Loan Payment Date the 

Collateral Administrator shall calculate the Required Interest Reserve Amount.

(iii) Not later than three (3) Business Days prior to each Loan Payment Date, the 

Collateral Administrator shall prepare and deliver to each of the Borrower and 

the Agents an initial draft of such Loan Payment Date Report with respect to 
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095331-0005-11875-Active.11752365.21

such Loan Payment Date (information regarding the payment of Borrower 

Administrative Expenses and indemnity payments shall be based upon invoices, 

documents or other information received by the Collateral Administrator on or 

prior to the last Business Day of any month in connection with payments to be 

made on the next succeeding Loan Payment Date (it being understood that 

invoices, documentation or other information received after such date will be 

ineligible for payment or reimbursement on such Loan Payment Date and will be 

made or reimbursed on the next succeeding Loan Payment Date) and information 

regarding payment of amounts then due under Permitted Interest Rate Hedges 

and any early termination payments attributable to a default by a Permitted 

Hedge Counterparty shall be based upon information received by the Collateral 

Administrator on or prior to the last Business Day of any month).

(iv) Not later than two (2) Business Days prior to each Loan Payment Date, the 

Borrower shall confirm its elections with respect to the distribution of funds from 

the Custodial Account pursuant to clauses (vii) through (x) of the Non-Default 

Priority of Payments set forth in Section 2.07(a) of the Loan Agreement and 

confirm the accuracy of the Loan Payment Date Report prepared by the 

Collateral Administrator and, if applicable, shall concur with or propose revisions 

of the amount, if any, of funds that the Loan Payment Date Report delivered 

pursuant to Section 2(e)(iii) above states are available for distribution from the 

Custodial Account pursuant to each item of the Priority of Payments set forth in 

Section 2.07 of the Loan Agreement and shall propose an amount to distribute on 

the forthcoming Loan Payment Date.

(v) Not later than one (1) Business Day prior to each Loan Payment Date, the 

Collateral Administrator shall deliver to each of the Borrower, the Agents and the 

Lender the final Loan Payment Date Report.

(vi) Not later than 2:00 p.m. (Washington, D.C. time), on each Loan Payment Date, 

the Collateral Administrator shall instruct the Custodian to withdraw from the 

Custodial Account, or to the extent Section 2.07(d) of the Loan Agreement 

requires any amount to be withdrawn from the Interest Reserve Account, the 

Interest Reserve Account, funds to be distributed on such Loan Payment Date in 

the amounts specified in the related final Loan Payment Date Report and shall 

distribute such funds to the Persons specified in the related final Loan Payment 

Date Report (it being understood that not all amounts on deposit in the Custodial 

Account shall be required to be distributed on any Loan Payment Date).

(vii) To the extent that the Collateral Administrator has not received in a timely 

manner the information from the Borrower, the Custodian, the Valuation Agent 

or the Administrative Agent pursuant to Section 2(e)(i) above that is reasonably 

necessary for the Collateral Administrator to complete any Loan Payment Date 

Report, the Collateral Administrator shall promptly inform the Borrower and the 

Agents and shall provide the related Loan Payment Date Report without such 

information.

(f) The Borrower shall cooperate with the Collateral Administrator in connection 

with the preparation by the Collateral Administrator of any reports, instructions, statements, certificates 

and calculations required to be delivered pursuant to Sections 2(c), (d) and (e) above. The Borrower 

shall review and verify the contents of such reports.
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(g) The Collateral Administrator shall provide the accounting firm of the Borrower 

(which shall be an internationally recognized accounting firm reasonably acceptable to the Lender) with 

certain available or readily obtainable necessary information required by such accounting firm in 

connection with the preparation of financial statements required by Sections 6.01(a) and (b) of the Loan 

Agreement. 

(h) The Collateral Administrator shall provide access to its front-end trade entry and 

risk management and reporting system (EnSIS®) to the Borrower as set forth in the Electronic Access 

and Use of EnSIS® Terms and Conditions entered into by the Borrower and the Collateral Administrator 

and dated as of the date of this Agreement. 

(i) Promptly following the Effective Date, the Collateral Administrator shall create a 

Capital Commitments database setting forth the Capital Commitments as notified to the Collateral 

Administrator by the Borrower in a format reasonably acceptable to the Lender and the Borrower and 

shall provide access to the information contained therein to the Borrower, the Agents and the Lender. The 

Collateral Administrator shall update the Capital Commitments database promptly following Capital 

Contributions or capital repayments, as such information is provided to the Collateral Administrator from 

the Borrower. The Collateral Administrator shall notify UST and the General Partner that the Partners 

other than UST have, in the aggregate, contributed an amount equal to the sum of their respective Pro 

Rata Shares of Capital Contributions in connection with any Payment Notice.

(j) The Collateral Administrator will maintain a database of all amounts received or 

due to the Escrow Account as notified by the Borrower and will record any Temporary Investment 

Income and payment made from the Escrow Account.

(k) The Collateral Administrator will maintain a database of all Borrower 

Administrator Expenses accrued and payable for each Collection Period and will instruct the Custodian to 

make payments from the Custodial Account of Borrower Administrator Expenses in accordance with 

Section 2.07 of the Loan Agreement. 

(l) The Collateral Administrator shall keep accurate books and records and take any 

steps reasonably related or reasonably requested by the Borrower, the Administrative Agent or the 

Collateral Agent in connection with its performance of the obligations set forth in Section 2(c) though (k) 

above.

(m) In order to enable the Collateral Administrator to perform its compliance 

reporting obligation, as soon as reasonably practicable after the execution of a trade, the Borrower shall 

provide the Collateral Administrator with all trade and security detail reasonably required by the 

Collateral Administrator.

The Collateral Administrator shall deliver any reports or other information that it is 

required to prepare pursuant to this Section 2 in accordance with the notice provisions of Section 11.

If, in performing its duties under this Agreement, the Collateral Administrator is required 

to decide between alternative courses of action, the Collateral Administrator may request written 

instructions from the Borrower as to the course of action desired by it. If the Collateral Administrator 

does not receive such instructions within three (3) Business Days after such request, it may, but shall be 

under no duty to, take or refrain from taking such action. The Collateral Administrator shall act in 

accordance with instructions received after such three (3) Business Day period except to the extent it has 

already taken, or committed itself to take, action inconsistent with such instructions.
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Nothing contained in this Agreement shall prohibit the Collateral Administrator or any of 

its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.

3. Compensation. The Collateral Administrator will perform its duties and provide the 

services called for hereunder in exchange for compensation and expense reimbursement set forth in the 

Fee Letter. The payment obligations to the Collateral Administrator pursuant to this Section 3 accrued 

prior to the termination of this Agreement and the resignation or removal of the Collateral Administrator 

shall survive the termination of this Agreement and the resignation or removal of the Collateral 

Administrator. For the avoidance of doubt, all amounts payable under this Section 3 shall be payable 

only as Borrower Administrative Expenses in accordance with the order specified in the Priority of 

Payments as set forth in Section 2.07 of the Loan Agreement.

4. Limitation of Responsibility of the Collateral Administrator. 

(a) Notwithstanding any provision contained herein or in any other document or 

instrument to the contrary, neither the Collateral Administrator nor any of its Related Parties shall be 

liable, except as otherwise provided herein as between the Collateral Administrator and the Borrower, in 

all other respects, for any action taken or not taken by it (or them) under or in connection with this 

Agreement, except for the Collateral Administrator’s (or their) own negligence, bad faith, willful 

misconduct or fraudulent action. For the avoidance of doubt, any action taken by the Collateral 

Administrator or any of its Related Parties in compliance with this Agreement or the other Loan 

Documents shall not constitute negligence, bad faith, willful misconduct or fraudulent action.

(b) The Borrower agrees to pay, indemnify, and hold the Collateral Administrator 

and each of its Related Parties (each, an “Indemnitee”) harmless and defend them from and against any 

and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses 

(including the reasonable fees and disbursements of legal counsel) or disbursements of any kind or nature 

whatsoever with respect to the execution, delivery, enforcement, performance and administration of this 

Agreement, but excluding income taxes (all the foregoing non-excluded items, collectively, the 

“Indemnified Liabilities”); provided that the Borrower shall have no obligation hereunder to any 

Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by 

a final and nonappealable decision of a court of competent jurisdiction to have resulted from the 

negligence, bad faith, willful misconduct or fraudulent action of any Indemnitee or any of its Related 

Parties. The Borrower may, in its sole discretion, and at its expense, control the defense of the claim 

including, without limitation, designating counsel for the Indemnitees (which counsel shall be reasonably 

satisfactory to the Indemnitees) and controlling all negotiations, litigation, arbitration, settlements, 

compromises and appeals of any claim; provided that (i) the Borrower may not agree to any settlement 

involving any Indemnitee that contains any element other than the payment of money and complete 

indemnification of the Indemnitee without the prior written consent of the affected Indemnitee and (ii) the 

Borrower shall engage and pay the reasonable expenses of separate counsel for the Indemnitee to the 

extent that the interests of the Indemnitee are in conflict with those of the Borrower. The Borrower shall 

be responsible to pay the reasonable fees of such separate legal counsel if such a conflict exists. All 

amounts due under this Section 4(b) shall be payable as Borrower Administrative Expenses in accordance 

with Section 2.07 of the Loan Agreement and any request for payment under this Section 4(b) must be 

received by the Borrower, the Agents and the Collateral Administrator no later than the last Business Day 

of each month in connection with payments to be made on the next succeeding Loan Payment Date.

(c) The indemnity provided to the Collateral Administrator in this Section 4 shall 

survive any termination of this Agreement, including any termination under any bankruptcy law or the 

resignation or removal of the Collateral Administrator hereunder.
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(d) To the extent permitted by applicable law, no party shall assert, and each hereby 

waives, and no party shall have any indemnity obligation with respect to, any claim against any other 

party, on any theory of liability for special, indirect, consequential or punitive damages (as opposed to 

direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any 

agreement or instrument contemplated hereby, or the transactions contemplated hereby. 

(e) The Collateral Administrator shall not be liable for the title, validity, sufficiency, 

value, genuineness or transferability of any Collateral.

(f) The Collateral Administrator may rely on any notice, direction, instruction, 

instrument, document, resolution, officer’s certificate, opinion of counsel, certificate of auditors or any 

other certificate, statement, opinion, report, request, consent, order, appraisal, bond or other paper 

reasonably believed by it or them in good faith to be genuine and to have been signed or presented by the 

proper party or parties (and need not investigate any fact or matter stated in any such notice, direction, 

instruction, instrument, document, resolution, officer’s certificate, opinion of counsel, certificate of 

auditors or any other certificate, statement, opinion, report, request, consent, order, appraisal, bond or 

other paper), and the Collateral Administrator shall be entitled to presume the genuineness, legal capacity 

and due authority of any signature appearing thereon.

(g) The Collateral Administrator shall not be deemed to have notice of any fact or 

matter unless and until actually known to the Collateral Administrator or notice thereof referencing this 

Agreement in writing is received by the Collateral Administrator at its notice address provided for in 

Section 11. 

(h) The duties and obligations of the Collateral Administrator shall be determined 

solely by the express provisions of this Agreement, the Collateral Administrator shall not be liable except 

for the performance of such duties and obligations as are specifically set forth in this Agreement, and no 

obligations shall be read into this Agreement against the Collateral Administrator.

(i) The right of the Collateral Administrator to perform any discretionary act 

enumerated in this Agreement shall not be construed as a duty, and the Collateral Administrator shall not 

be liable for the omission to perform any such act.

(j) The Collateral Administrator shall not be required to give any bond or surety in 

connection herewith or the powers granted hereunder.

(k) The Collateral Administrator may, with respect to questions of law relating 

specifically to the Custodial Account and Interest Reserve Account, apply for and obtain the advice and 

opinion of counsel, and shall be fully protected with respect to anything done or omitted by it in good 

faith in conformity with such reasonable advice or opinion.

(l) The Collateral Administrator may execute ministerial and ancillary duties 

through third party ministerial or ancillary service providers, including but not limited to, software 

vendors; provided that upon request by the Borrower, the Collateral Administrator shall to the extent 

permitted by applicable law, sue such ministerial or ancillary service provider or otherwise enforce its 

rights against such service provider (provided that the Collateral Administrator shall be indemnified by 

the Borrower for any costs or expenses in connection with such action) and collect, on behalf of the 

Borrower, any proceeds or damages awarded in respect of any related judgment against such service 

provider, less any costs and expenses owing to the Collateral Administrator. The Collateral Administrator 

shall have no monitoring responsibility with respect to such persons and shall not be responsible for any 
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misconduct or negligence on the part of any such persons appointed by the Collateral Administrator with 

due care.

(m) The Collateral Administrator shall have no liability with respect to any valuation 

regardless of whether such valuation is significantly greater or less than other possible valuations.

(n) No Vendor, Broker or Mark to Model Valuation Provider is an agent of the 

Collateral Administrator in its capacity as such, and the Collateral Administrator in its capacity as such is 

not liable for any actions, inactions, information provided by or determinations made by any such Vendor, 

Broker or Mark to Model Valuation Provider.

(o) The Collateral Administrator shall not be under any obligation to take action to 

collect any amount payable on Collateral in default, or if payment is refused after due demand and 

presentment.

(p) The Collateral Administrator is authorized to rely on information from the 

Valuation Agent or any generally recognized pricing information service (including brokers and dealers 

of the Collateral Administrator) as is necessary in order for it to perform its responsibilities hereunder and 

the Collateral Administrator shall not be liable for any fees, costs, expenses, liabilities or losses incurred 

as a result of errors or omissions of any such pricing information service, broker or dealer or Valuation 

Agent. The Collateral Administrator may rely on data supplied by third parties (“Pricing Data”), such as 

pricing data, model pricing and indicative data, without independent investigation. The Collateral 

Administrator does not represent or warrant that the Pricing Data are correct, complete or current. THE 

COLLATERAL ADMINISTRATOR IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN OR NOT 

TAKEN AS A RESULT OF THE USE OF OR RELIANCE UPON PRICING DATA.

5. No Joint Venture. Nothing contained in this Agreement (a) shall constitute the Collateral 

Administrator and the Borrower as members of any partnership, joint venture, association, syndicate, 

unincorporated business or other separate entity, (b) shall be construed to impose any liability as such on 

any of them or (c) shall be deemed to confer on any of them any express, implied or apparent authority to 

incur any obligation or liability on behalf of the other.

6. Term. This Agreement shall continue in effect so long as the Loan Agreement remains in 

effect with respect to the Loans, unless this Agreement has been previously terminated in accordance with 

Section 7 hereof.

7. Termination. This Agreement shall continue in full force and effect until it has been 

terminated in accordance with this Section 7. The Collateral Administrator may resign as Collateral 

Administrator, or the Borrower (with the prior consent of the Lender) may, in its sole discretion, remove 

the Collateral Administrator, with sixty (60) days’ (in the case of the Collateral Administrator resigning) 

or thirty (30) days’ (in the case of the removal of the Collateral Administrator) prior written notice to each 

other party hereto; provided that no termination of this Agreement shall be effective until the Borrower 

shall have appointed a successor Collateral Administrator that has been approved by the Lender in its sole 

discretion. If the Borrower shall fail to appoint a successor Collateral Administrator within ninety (90) 

days after notice of resignation from the Collateral Administrator, then the Collateral Administrator may 

petition any court of competent jurisdiction for the appointment of a successor Collateral Administrator. 

The indemnity provided to the resigning Collateral Administrator under Section 4 shall survive its 

resignation under this Agreement with respect to any Indemnified Liabilities to the extent incurred or 

arising, or relating to events occurring, before such termination.

8. Representations and Warranties.
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(a) The Borrower hereby represents and warrants to the Collateral Administrator as 

follows:

(i) The Borrower (A) is duly organized, validly existing and in good 

standing under the laws of the jurisdiction of its organization, (B) has all 

requisite organizational power, and has all governmental licenses, 

authorizations, consents and approvals, necessary to own its assets and 

carry on its business as now being or as proposed to be conducted, except 

where the lack of such licenses, authorizations, consents and approvals 

could not be reasonably expected to have a Material Adverse Effect, (C) 

is qualified to do business and is in good standing in all other 

jurisdictions in which the nature of the business conducted by it makes 

such qualification necessary, except where the failure to so qualify could 

not be reasonably expected to have a Material Adverse Effect, (D) is in 

compliance with (to the extent such law, guidance or regulation is 

applicable pursuant to its terms to the Borrower) (1) Section 111 of 

EESA, as implemented by any guidance or regulations issued by UST 

thereunder, including 31 CFR 30 and (2) EAWA, as implemented by any 

guidance or regulation issued by UST thereunder and (E) is in 

compliance in all material respects with all Requirements of Law. 

(ii) The Borrower has all necessary organizational power, authority and legal 

right to execute, deliver and perform its obligations under this 

Agreement. The execution, delivery and performance by the Borrower 

of this Agreement has been duly authorized by all necessary 

organizational action on its part. This Agreement has been duly and 

validly executed and delivered by the Borrower and constitutes, or when 

executed and delivered, will constitute, a legal, valid and binding 

obligation of the Borrower, enforceable against the Borrower in 

accordance with its terms, subject to the Bankruptcy Exceptions.

(iii) No consent, approval or authorization of, registration or filing with, 

notice to or other act by or in respect of, any Governmental Authority or 

any other Person is required in connection with the execution, delivery, 

performance, validity or enforceability of this Agreement, except (A) 

consents, approvals, authorizations, filings, registrations, and notices that 

have been or will be obtained or made, each of which is in full force and 

effect and (B) the filings and recordings in respect of the Liens created 

pursuant to the Security Documents.

(iv) Neither the execution and delivery of this Agreement by the Borrower 

nor the performance by the Borrower of its obligations set forth in this 

Agreement will (A) conflict with or result in a breach of (1) the charter, 

articles of organization, by laws, partnership agreement (including the 

Partnership Agreement), operating agreement or similar organizational 

document of the Borrower or (2) any Requirement of Law, (B) constitute 

a default under any material Contractual Obligation with respect to 

which the Borrower is a party, or (C) except for the Liens created 

pursuant to the Security Documents, result in the creation or imposition 

of any Lien upon any Property of the Borrower, pursuant to the terms of 

any such material Contractual Obligation.
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(b) The Collateral Administrator hereby represents and warrants to the Borrower as 

follows:

(i) The Collateral Administrator (A) is a New York state chartered bank 

duly organized and validly existing under the laws of the State of New 

York, (B) has all requisite organizational power, and has all 

governmental licenses, authorizations, consents and approvals, necessary 

to own its assets and carry on its business as now being or as proposed to 

be conducted, (C) is qualified to do business and is in good standing in 

all other jurisdictions in which the nature of the business conducted by it 

makes such qualification necessary and (D) is in compliance in all 

material respects with all Requirements of Law. 

(ii) The Collateral Administrator has all necessary organizational power, 

authority and legal right to execute, deliver and perform its obligations 

under this Agreement. The execution, delivery and performance by the 

Collateral Administrator of this Agreement has been duly authorized by 

all necessary organizational action on its part. This Agreement has been 

duly and validly executed and delivered by the Collateral Administrator 

and constitutes, or when executed and delivered, will constitute, a legal, 

valid and binding obligation of the Collateral Administrator, enforceable 

against the Collateral Administrator in accordance with its terms, subject 

to the Bankruptcy Exceptions.

(iii) No consent, approval or authorization of, registration or filing with, 

notice to or other act by or in respect of, any Governmental Authority or 

any other Person is required in connection with the execution, delivery,

performance, validity or enforceability of this Agreement.

(iv) Neither the execution and delivery of this Agreement, nor the 

performance of the obligations set forth in this Agreement will (A) 

conflict with or result in a breach of (1) the charter, articles of 

organization, by laws, partnership agreement, operating agreement or 

similar organizational document of the Collateral Administrator or (2) 

any Requirement of Law, (B) constitute a default under any material 

Contractual Obligation to which the Collateral Administrator is a party, 

or (C) result in the creation or imposition of any Lien upon any Property 

of the Collateral Administrator or, pursuant to the terms of any such 

material Contractual Obligation.

9. Amendments. This Agreement may not be amended, changed, modified or terminated 

(except as otherwise expressly provided herein) except in a writing signed by the Borrower, the Collateral 

Administrator, the Agents and the Lender.

10. Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF 

THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND 

INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW AND NOT THE LAW OF ANY STATE 

OR LOCALITY. TO THE EXTENT THAT A COURT LOOKS TO THE LAWS OF ANY STATE TO 

DETERMINE OR DEFINE THE FEDERAL LAW, IT IS THE INTENTION OF THE PARTIES 

HERETO THAT SUCH COURT SHALL LOOK ONLY TO THE LAWS OF THE STATE OF NEW 

YORK WITHOUT REGARD TO THE RULES OF CONFLICTS OF LAWS.
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11. Notices.

(a) All notices, reports, requests, demands and other communications hereunder shall be in 

writing and shall be deemed to have been duly given if (i) sent by certified or registered mail, return 

receipt requested, (ii) sent by overnight mail or courier, (iii) posted on the Borrower’s intranet website in 

accordance with Section 11(b), or (iv) delivered by hand, in each case, if to the Agents, at the Agents’ 

address, as set forth on Schedule A to the Loan Agreement, if to the Custodian, at the Custodian’s 

address, as set forth on Schedule A to the Loan Agreement, if to the Collateral Administrator, at the 

Collateral Administrator’s address, as set forth on Schedule A to the Loan Agreement, if to the Valuation 

Agent, at the Valuation Agent’s address, as set forth on Schedule A to the Loan Agreement, if to the 

Borrower, to the Borrower’s address, as set forth on Schedule A to the Loan Agreement, if to any other 

Person party hereto at the address such Person shall have last designated by notice to each other party 

hereto and if to the Lender, at the Lender’s address, as set forth on Schedule A to the Loan Agreement; 

provided that the Lender may only receive notices, reports, requests, demands and other communications 

hereunder pursuant to clauses (i) through (iii). Any notice, report, request, demand and other 

communication will be deemed received (i) if sent by certified or registered mail, return receipt requested, 

when actually received, (ii) if sent by overnight mail or courier, when actually received, (iii) if posted on 

the Borrower’s intranet website in accordance with Section 11(b), on the day an e-mail is sent to the 

Lender at the email address of the Lender set forth on Schedule A to the Loan Agreement instructing it 

that a notice has been posted; provided that if such e-mail is sent after 5:00 p.m. (Washington, D.C. time) 

or on a day that is not a Business Day, such notice shall be deemed received on the next succeeding 

Business Day and (iv) if delivered by hand, when actually received.

(b) The Borrower may, in its discretion, provide any notice, report, request, demand, consent 

or other communication to the Lender by posting such notice on the Borrower’s intranet website and 

sending an e-mail to the Lender at the email address of the Lender set forth on Schedule A to the Loan 

Agreement notifying it of such posting.

12. SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY HERETO HEREBY 

IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR 

PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND 

ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL 

JURISDICTION OF EITHER THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK OR THE U.S. COURT OF FEDERAL CLAIMS;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE 

BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY 

OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH 

ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING 

WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM 

THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR 

PROCEEDING MAY BE EFFECTED (I) IF TO PARTIES OTHER THAN THE LENDER, BY 

MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY 

SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET 

FORTH IN SECTION 11 OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL 

HAVE BEEN NOTIFIED AND (II) IF TO THE LENDER, ONLY IN THE MANNER PRESCRIBED 
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FOR SERVING PROCESS ON AN AGENCY OF THE U.S. FEDERAL GOVERNMENT UNDER 

THE FEDERAL RULES OF CIVIL PROCEDURE; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO 

EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY 

IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF 

LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT 

OF OR RELATING TO THIS AGREEMENT.

14. Successors and Assigns.

(a) This Agreement shall inure to the benefit of, and be binding upon, the successors 

and assigns of each of the parties hereto. Except as set forth in Section 4(l), the Collateral Administrator 

may not assign or delegate its rights and obligations hereunder without the prior written consent of the 

Borrower and the Lender, except that the Collateral Administrator may delegate to, employ as agent, or 

otherwise cause any duty or obligation hereunder to be performed by, any Affiliate of the Collateral 

Administrator or its successors without such consent; provided that the Collateral Administrator or any 

successor thereto shall be responsible for and be or become liable for (i) any actions taken or inactions 

omitted to be taken, in either case, by any such Affiliates and (ii) the execution and performance of any 

such duties to the same extent as if any such duties had not been delegated.

(b) Notwithstanding the provisions of Section 14(a), any Person into which the 

Collateral Administrator may be merged or converted or with which it may be consolidated, or any 

Person resulting from any merger, conversion or consolidation to which the Collateral Administrator shall 

be a party, or any Person succeeding to all or substantially all of the corporate trust business of the 

Collateral Administrator, shall be the successor of the Collateral Administrator hereunder and shall be 

bound by the provisions hereof, without the execution or filing of any paper or any further act on the part 

of any of the parties hereto and without the written consent of any other party hereto.

15. Counterparts and Facsimile. This Agreement may be executed by one or more parties to 

this Agreement on any number of separate counterparts. Each counterpart shall be deemed to be an 

original, and all such counterparts taken together shall be deemed to constitute one and the same 

instrument. The parties intend that faxed signatures and electronically imaged signatures such as .pdf 

files shall constitute original signatures and are binding on all parties. The original documents shall be 

promptly delivered, if requested.

16. Bankruptcy Non-Petition. The Collateral Administrator hereby covenants and agrees that 

it will not at any time (i) commence or institute against the Borrower or join with or facilitate any other 

Person in commencing or instituting against the Borrower any bankruptcy, reorganization, arrangement, 

readjustment of debt, dissolution, receivership, insolvency, liquidation proceedings, or other proceedings 

under any United States federal or state, or other jurisdiction, bankruptcy or similar law or statute now or 

hereafter in effect in connection with any obligations relating to this Agreement or any of the other Loan 

Documents or (ii) in its capacity as Collateral Administrator, participate in any assignment for the benefit 

of creditors, compositions, or arrangements with respect to the Borrower’s debts. The provisions of this 

Section 16 shall survive the termination of this Agreement. 

17. Limited Recourse. Notwithstanding anything to the contrary contained in this 

Agreement, the obligations of the Borrower under this Agreement are solely the obligations of the 

Borrower and not of any direct or indirect owner, director, shareholder, member, partner or officer of the 
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Borrower and shall be payable solely to the extent of funds received by and available to the Borrower in 

accordance with Section 2.07 of the Loan Agreement. No recourse shall be had for the payment of any 

amount owing in respect of any obligation of, or claim against, the Borrower arising out of or based upon 

this Agreement against any Limited Partner, General Partner, Private Vehicle or any advisor or 

Subadvisor of the Borrower and, except as specifically provided herein, no recourse shall be had for the 

payment of any amount owing in respect of any obligation of, or claim against, the Borrower arising out 

of or based upon this Agreement against the Collateral Administrator or any Affiliate thereof; provided, 

however, that the foregoing shall not relieve any Person from any liability such Person would otherwise 

have as a result of its own acts or omissions that constitute willful misconduct, bad faith or fraud. The 

provisions of this Section 17 shall survive the termination or expiration of this Agreement and the Loan 

Agreement. 

18. Third Party Beneficiaries. The parties hereto agree that the Agents and the Lender are the 

only express third party beneficiaries of this Agreement.

19. Access to Books and Records. The Collateral Administrator shall permit the Borrower, 

any representatives designated by the Administrative Agent, the Collateral Agent or the Lender, including 

SIGTARP, the GAO and their respective advisors and representatives, (a) upon reasonable prior notice 

and during normal business hours, to visit and inspect its properties, to examine and make extracts from 

the Records (as defined below) and will cause its personnel to assist in any such inspections, 

examinations and extractions of such Records and (b) at reasonable times, as often as reasonably 

requested and during normal business hours, to meet with it to discuss matters that fall within the scope of 

this engagement.

20. Maintenance of Books and Records. During the term of this Agreement, the Collateral 

Administrator shall keep and retain and make easily accessible all information, materials and records in 

whatever format (collectively, “Records”) which it has or which come into its possession in connection 

with the services provided under this Agreement, in each case to the extent consistent with the Collateral 

Administrator’s internal records and maintenance and records retention policy; provided that prior to any 

destruction of any Records by the Collateral Administrator in accordance with such policy, the Collateral 

Administrator shall notify the Borrower and the Agents and provide the Borrower with an opportunity to 

take possession of such Records from the Collateral Administrator. Upon the termination of this 

Agreement or its services hereunder, the Collateral Administrator and the Borrower shall, in good faith, 

agree on the timing and mechanism for transferring all Records to the Borrower; provided that the 

Collateral Administrator shall retain all Records until the earlier of (a) the three-year anniversary of the 

termination of the Partnership and (b) the termination of its services hereunder and transfer of all Records 

to a successor Collateral Administrator. In transferring such Records, the Collateral Administrator shall 

provide a certificate of a Responsible Officer certifying (a) as to whether it has kept and retained the 

Records in accordance with the requirements set forth herein and (b) that the Records being transferred 

represent all of the Records that have not been previously delivered or destroyed in compliance with this 

Section 20. Notwithstanding the foregoing, the Collateral Administrator may make and retain copies of 

Records to satisfy existing internal audit, compliance or record retention requirements; provided that such 

certificate includes information as to the copies of Records that it is retaining.

21. Confidentiality. 

The Collateral Administrator agrees to maintain the confidentiality of the Information (as 

defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ 

respective partners, directors, officers, employees, agents, advisors, accountants and other representatives 

(it being understood that the Persons to whom such disclosure is made will be informed of the 

confidential nature of such Information and be required to keep such Information confidential), (b) in 
14

095331-0005-11875-Active.11752365.21

response to any order, subpoena or other form of legal process issued by any court, administrative, 

legislative, regulatory or governmental body purporting to have jurisdiction over it (including any selfregulatory authority) or otherwise required by any applicable law or regulation; provided that prior to any 

disclosure of such information, the Collateral Administrator shall notify the Borrower, the Administrative 

Agent, the Collateral Agent, the Custodian, the Valuation Agent and the Lender unless prohibited by any 

Requirement of Law from doing so, of any proposed disclosure as far in advance of such disclosure as 

practicable so that such applicable party may seek a protective order or other appropriate remedy and 

upon such applicable party’s request, the Collateral Administrator shall take all reasonable actions to 

ensure that any information disclosed shall be accorded confidential treatment, (c) to any other party 

hereto, (d) in connection with the exercise of any remedies hereunder or any action or proceeding relating 

to this Agreement or the enforcement of rights hereunder, (e) subject to an agreement containing 

provisions substantially the same as those of this Section 21, to any actual or prospective counterparty (or 

its advisors) to any derivative transaction relating to the Borrower and its Obligations, (f) with the written 

consent of the Borrower or (g) to the extent such Information (i) becomes publicly available other than as 

a result of a breach of this Section 21 or (ii) becomes available to the Collateral Administrator or any of 

its Affiliates on a non-confidential basis from a source other than the Borrower, the Lender or otherwise 

pursuant to the transactions contemplated hereunder. UST intends, subject to applicable law, regulation 

or governmental order, to hold confidential all confidential information provided to it by or on behalf of 

any member of the General Partner Group.

For purposes of this Section 21, “Information” means all information (including any 

financial models (and any assumptions and inputs underlying such models) and any non-publicly 

available information in respect of any Portfolio Investments (including holdings, CUSIP numbers and 

market prices thereof)) received from the General Partner, the Valuation Agent, the Administrative Agent, 

the Collateral Agent, the Custodian, the Lender, the Subadvisors, the Borrower or any of its Subsidiaries 

or any of their respective Affiliates relating to the Borrower or any of its Subsidiaries or any of their 

respective Affiliates or any of their respective businesses, other than any such information that is 

available to the Collateral Administrator on a non-confidential basis prior to disclosure by the Borrower; 

provided that, in the case of information received from the Borrower after the date hereof, such 

information is clearly identified at the time of delivery as confidential. Any Person required to maintain 

the confidentiality of Information as provided in this Section 21 shall be considered to have complied 

with its obligation to do so if such Person has exercised the same degree of care to maintain the 

confidentiality of such Information as such Person would accord to its own confidential information.
095331-0005-11875-Active.11752365.21

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

effective as of the day first above written.

THE BANK OF NEW YORK MELLON, as Collateral 

Administrator

By: __________________________________________

Name:________________________________________

Title:_________________________________________

[ ], as Borrower

By: __________________________________________

Name:________________________________________

Title:_________________________________________
095331-0005-11656-Active.11663739

EXHIBIT I

FORM OF SECRETARY’S CERTIFICATE

[_________], 2009

Reference is made to the Loan Agreement (as the same may be amended, extended, restated, novated, 

supplemented or otherwise modified from time to time, the “Loan Agreement”), among [__________] 

(the “Borrower”), The United States Department of the Treasury, as lender (in such capacity, the 

“Lender”), and The Bank of New York Mellon, as Administrative Agent and as Collateral Agent, dated as 

of the date set forth in Schedule A to the Loan Agreement, pursuant to which, among other things, the 

Lender has agreed to make Loans to the Borrower. Capitalized terms used but not defined herein have 

the meanings set forth in the Loan Agreement.

The undersigned, [OFFICER #1 NAME], the [OFFICER #1 TITLE] of each entity listed 

on Schedule I hereto (each, a “Loan Party”), hereby certifies as follows:

[OFFICER #2 NAME] is the duly elected [OFFICER #2 TITLE] of each Loan Party and the signature set 

forth on the signature line for such officer below is such officer’s true and genuine signature, and such 

officer is duly authorized to execute and deliver, on behalf of each Loan Party, the Loan Documents to be 

delivered by each Loan Party and each other document to be delivered by each Loan Party from time to 

time in connection therewith.

The undersigned, [OFFICER #2 NAME], the [OFFICER #2 TITLE] of each Loan Party 

certifies as follows: 

Attached hereto as Exhibit A-1 – A-[ ] are true, complete and correct copies of the 

certificates or articles of incorporation, bylaws, limited liability company agreements, limited partnership 

agreements, or other organizational documents, for each of the Loan Parties, which are in full force and 

effect on the date hereof and as filed with the Secretary of State (or equivalent) of each of the Loan 

Parties’ jurisdiction of organization, and which have not been amended, repealed, modified or restated.

Attached hereto as Exhibit B-1 – B-[ ] are true, complete and correct copies of the 

certificates of good standing or the equivalent of each Loan Party from such Loan Party’s jurisdiction of 

organization.

Attached hereto as Exhibit C-1 – C-[ ] are lists of duly elected and qualified officers of 

each Loan Party holding the offices indicated next to their respective names. The signatures appearing 

opposite their respective names are the true and genuine signatures of such officers, and each of such 

officers is duly authorized to request a Loan under the Loan Agreement, if applicable, and to execute and 

deliver, on behalf of each Loan Party, each Loan Document to which such Loan Party is a party, as 

applicable, and any certificate or other document to be delivered by such Loan Party pursuant to any Loan 

Document to which such Loan Party is a party.

Attached hereto as Exhibit D-1 – D-[ ] are true, complete and correct copies of the 

resolutions duly adopted by the board of directors, the general partner, the board of managers or other 

governing body of each of the Loan Parties, authorizing the execution, delivery and performance of each 

Loan Document to which such Loan Party is a party and each of the other documents mentioned therein 

and the borrowings thereunder; such resolutions (i) have not in any way been amended, modified, 

revoked or rescinded, have been in full force and effect since their adoption to and including the date 
095331-0005-11656-Active.11663739

hereof and are now in full force and effect, (ii) are the only resolutions of each Loan Party now in force 

relating to or affecting the matters referred to therein and (iii) were adopted in accordance with the 

certificates or articles of incorporation, bylaws, limited liability company agreements, limited partnership 

agreements, or other organizational documents, of each Loan Party in effect at such time.
Secetary’s Certificate

IN WITNESS WHEREOF, the undersigned have hereto set our names as of 

the date first set above.

________________________________

Name: [OFFICER #1 NAME]

Title: [OFFICER #1 TITLE]

________________________________

Name: [OFFICER #2 NAME]

Title: [OFFICER #2 TITLE]
095331-0005-11656-Active.11663739

Schedule I

- [Borrower]

- [Guarantors]
095331-0005-11656-Active.11663739

Exhibit A

Organizational Documents

See attached.
095331-0005-11656-Active.11663739

Exhibit B

Certificates of Good Standing

See attached.
095331-0005-11656-Active.11663739

Exhibit C

Incumbency

See attached. 
095331-0005-11656-Active.11663739

Authorized Officers for [BORROWER]

Name Office Signature

[OFFICER #1 NAME] [OFFICER #1 TITLE] ________________________

________________________
095331-0005-11656-Active.11663739

Authorized Officers for [GUARANTOR]

Name Office Signature

[OFFICER #1 NAME] [OFFICER #1 TITLE] ________________________

________________________
095331-0005-11656-Active.11663739

Exhibit D

Resolutions

See attached.