formofnuveenchurchillloa






  #75870257_v11  U.S. $150,000,000  FORM OF LOAN AND SERVICING AGREEMENT  Dated as of November 24, 2020  By and Among  NUVEEN CHURCHILL BDC SPV II, LLC,  as the Borrower  and  NUVEEN CHURCHILL DIRECT LENDING CORP.,  as the Servicer   and  SUMITOMO MITSUI BANKING CORPORATION,  as the Administrative Agent, Collateral Agent and as the Lender  and  U.S. BANK NATIONAL ASSOCIATION,  as the Collateral Administrator, the Collateral Custodian and as the Account Bank  Exhibit 10.1 





 






 TABLE OF CONTENTS    Page  #75870257_v11 i   ARTICLE I DEFINITIONS .......................................................................................................... 1  SECTION 1.01 Certain Defined Terms. .................................................................. 1  SECTION 1.02 Other Terms ................................................................................. 45  SECTION 1.03 Computation of Time Periods ...................................................... 45  SECTION 1.04 Interpretation. ............................................................................... 45  ARTICLE II THE FACILITY ..................................................................................................... 47  SECTION 2.01 Variable Funding Note and Advances. ........................................ 47  SECTION 2.02 Procedure for Advances. .............................................................. 47  SECTION 2.03 Determination of Yield ................................................................ 50  SECTION 2.04 Remittance Procedures................................................................. 50  SECTION 2.05 Instructions to the Account Bank ................................................. 56  SECTION 2.06 Borrowing Base Deficiency Payments. ....................................... 56  SECTION 2.07 Substitution and Sale of Loan Assets; Affiliate  Transactions. ................................................................................ 57  SECTION 2.08 Payments and Computations, Etc. ............................................... 65  SECTION 2.09 Fees .............................................................................................. 66  SECTION 2.10 Increased Costs; Capital Adequacy. ............................................ 66  SECTION 2.11 Taxes ............................................................................................ 67  SECTION 2.12 Collateral Assignment of Agreements ......................................... 70  SECTION 2.13 Grant of a Security Interest .......................................................... 70  SECTION 2.14 Evidence of Debt.......................................................................... 71  SECTION 2.15 Survival of Representations and Warranties ................................ 71  SECTION 2.16 Release of Loan Assets. ............................................................... 71  SECTION 2.17 Treatment of Amounts Received by the Borrower ...................... 72  SECTION 2.18 Prepayment; Termination............................................................. 72  SECTION 2.19 Extension of Stated Maturity Date and Reinvestment  Period ........................................................................................... 73  SECTION 2.20 Collections and Allocations. ........................................................ 74  SECTION 2.21 Reinvestment of Principal Collections......................................... 75  SECTION 2.22 Incremental Facilities. .................................................................. 76  SECTION 2.23 Benchmark Replacement Setting. ................................................ 78  ARTICLE III CONDITIONS PRECEDENT .............................................................................. 79  





 






TABLE OF CONTENTS  (continued)  Page  #75870257_v11 ii   SECTION 3.01 Conditions Precedent to Effectiveness......................................... 79  SECTION 3.02 Conditions Precedent to All Advances ........................................ 80  SECTION 3.03 Advances Do Not Constitute a Waiver ........................................ 82  SECTION 3.04 Conditions to Acquisitions of Loan Assets .................................. 82  ARTICLE IV REPRESENTATIONS AND WARRANTIES .................................................... 83  SECTION 4.01 Representations and Warranties of the Borrower ........................ 83  SECTION 4.02 Representations and Warranties of the Borrower Relating  to the Agreement and the Collateral Portfolio ............................. 92  SECTION 4.03 Representations and Warranties of the Servicer .......................... 92  SECTION 4.04 Reserved. ...................................................................................... 96  SECTION 4.05 Representations and Warranties of the Collateral Custodian ...... 96  ARTICLE V GENERAL COVENANTS .................................................................................... 97  SECTION 5.01 Affirmative Covenants of the Borrower. ..................................... 97  SECTION 5.02 Negative Covenants of the Borrower. ........................................ 106  SECTION 5.03 Affirmative Covenants of the Servicer. ..................................... 108  SECTION 5.04 Negative Covenants of the Servicer. .......................................... 113  SECTION 5.05 Affirmative Covenants of the Collateral Custodian. .................. 114  SECTION 5.06 Negative Covenants of the Collateral Custodian. ...................... 114  SECTION 5.07 Affirmative Covenants of the Account Bank ............................. 115  ARTICLE VI ADMINISTRATION AND SERVICING OF CONTRACTS ........................... 115  SECTION 6.01 Appointment and Designation of the Servicer. .......................... 115  SECTION 6.02 Duties of the Servicer................................................................. 117  SECTION 6.03 Authorization of the Servicer. .................................................... 119  SECTION 6.04 Collection of Payments; Accounts. ............................................ 120  SECTION 6.05 Realization Upon Loan Assets ................................................... 122  SECTION 6.06 Servicing Compensation ............................................................ 123  SECTION 6.07 Payment of Certain Expenses by Servicer ................................. 123  SECTION 6.08 Reports to the Administrative Agent; Account Statements;  Servicing Information. ............................................................... 123  SECTION 6.09 Annual Statement as to Compliance .......................................... 126  SECTION 6.10 Annual Independent Public Accountant’s Servicing Reports .... 126  SECTION 6.11 The Servicer Not to Resign ........................................................ 127  





 






TABLE OF CONTENTS  (continued)  Page  #75870257_v11 iii   ARTICLE VII EVENTS OF DEFAULT .................................................................................. 127  SECTION 7.01 Events of Default ....................................................................... 127  SECTION 7.02 Additional Remedies of the Administrative Agent. ................... 131  ARTICLE VIII INDEMNIFICATION ...................................................................................... 134  SECTION 8.01 Indemnities by the Borrower. .................................................... 134  SECTION 8.02 Indemnities by Servicer. ............................................................ 138  SECTION 8.03 Legal Proceedings ...................................................................... 139  ARTICLE IX THE ADMINISTRATIVE AGENT ................................................................... 140  SECTION 9.01 The Administrative Agent.......................................................... 140  ARTICLE X COLLATERAL AGENT ..................................................................................... 144  SECTION 10.01 Designation of Collateral Agent. ............................................... 144  SECTION 10.02 Duties of Collateral Agent. ........................................................ 144  SECTION 10.03 Merger or Consolidation. ........................................................... 146  SECTION 10.04 Collateral Agent Expenses. ........................................................ 146  SECTION 10.05 Collateral Agent Removal.......................................................... 146  SECTION 10.06 Limitation on Liability. .............................................................. 147  SECTION 10.07 Collateral Agent Resignation. .................................................... 148  ARTICLE XI MISCELLANEOUS ........................................................................................... 148  SECTION 11.01 Amendments and Waivers. ........................................................ 148  SECTION 11.02 Notices, Etc ................................................................................ 149  SECTION 11.03 No Waiver; Remedies ................................................................ 151  SECTION 11.04 Binding Effect; Assignability; Multiple Lenders. ...................... 151  SECTION 11.05 Term of This Agreement ............................................................ 153  SECTION 11.06 GOVERNING LAW; JURY WAIVER..................................... 153  SECTION 11.07 Costs and Expenses. ................................................................... 154  SECTION 11.08 No Proceedings .......................................................................... 154  SECTION 11.09 Recourse Against Certain Parties............................................... 155  SECTION 11.10 Execution in Counterparts; Severability; Integration ................ 156  SECTION 11.11 Consent to Jurisdiction; Service of Process. .............................. 156  SECTION 11.12 Confidentiality. .......................................................................... 157  SECTION 11.13 Waiver of Set Off. ...................................................................... 158  





 






TABLE OF CONTENTS  (continued)  Page  #75870257_v11 iv   SECTION 11.14 Headings and Exhibits. .............................................................. 158  SECTION 11.15 Breaches of Representations, Warranties and Covenants. ......... 159  SECTION 11.16 Delivery of Termination Statements, Releases, etc. .................. 159  SECTION 11.17 Failure of Borrower or Servicer to Perform Certain  Obligations ................................................................................. 159  SECTION 11.18 USA Patriot Act ......................................................................... 159  SECTION 11.19 Adequacy of Monetary Damages............................................... 159  SECTION 11.20 No Proceedings .......................................................................... 160  SECTION 11.21 Interim Custody Agreement ....................................................... 160  ARTICLE XII COLLATERAL CUSTODIAN ......................................................................... 160  SECTION 12.01 Designation of Collateral Custodian. ......................................... 160  SECTION 12.02 Duties of Collateral Custodian. .................................................. 160  SECTION 12.03 Merger or Consolidation. ........................................................... 165  SECTION 12.04 Collateral Custodian, Collateral Administrator and Account  Bank Compensation. .................................................................. 165  SECTION 12.05 Collateral Custodian, Account Bank or Collateral  Administrator Removal. ............................................................. 166  SECTION 12.06 Limitation on Liability. .............................................................. 166  SECTION 12.07 Collateral Custodian or Collateral Administrator  Resignation. ............................................................................... 172  SECTION 12.08 Release of Documents................................................................ 172  SECTION 12.09 Return of Required Loan Documents. ....................................... 173  SECTION 12.10 Access to Certain Documentation and Information  Regarding the Collateral Portfolio; Audits of Servicer.............. 173  SECTION 12.11 Custodian as Agent of Collateral Agent. ................................... 174  





 






  #75870257_v11 v   LIST OF SCHEDULES AND EXHIBITS  SCHEDULES  SCHEDULE I Conditions Precedent Documents  SCHEDULE II Prior Names, Tradenames, Fictitious Names and “Doing Business As”  Names  SCHEDULE III Eligibility Criteria  SCHEDULE IV Agreed-Upon Procedures For Independent Public Accountants  SCHEDULE V Loan Asset Schedule  SCHEDULE VI Principal Collection Account – Wire Instructions  SCHEDULE VII Industry Classifications    EXHIBITS    EXHIBIT A  Form of Approval Notice  EXHIBIT B Form of Loan Assignment  EXHIBIT C  Form of Borrowing Base Certificate  EXHIBIT D Form of Disbursement Request  EXHIBIT E  Form of Joinder Supplement  EXHIBIT F Form of Notice of Borrowing  EXHIBIT G Form of Notice of Reduction (Reduction of Advances Outstanding)  EXHIBIT H Form of Notice of Reduction (Reduction of Maximum Facility Amount)  EXHIBIT I Form of Variable Funding Note  EXHIBIT J Form of Notice and Request for Consent  EXHIBIT K Form of Servicing Report  EXHIBIT L Form of Servicer’s Certificate (Servicing Report)  EXHIBIT M Form of Release of Required Loan Documents  EXHIBIT N Form of Assignment and Acceptance  EXHIBIT O Form of Conversion Notice  EXHIBIT P Form of Loan Sale and Contribution Agreement    





 






  #75870257_v11   This LOAN AND SERVICING AGREEMENT is made as of November 24, 2020,  by and among:  (1) NUVEEN CHURCHILL BDC SPV II, LLC, a Delaware limited liability  company (together with its successors and assigns in such capacity, the “Borrower”);  (2) NUVEEN CHURCHILL DIRECT LENDING CORP., a Maryland  corporation, as the Servicer (as defined herein);  (3) SUMITOMO MITSUI BANKING CORPORATION, a Japanese banking  corporation, as the Administrative Agent (together with its successors and assigns in such  capacity, the “Administrative Agent”), as the Collateral Agent (together with its successors  and assigns in such capacity, the “Collateral Agent”)  and as the Lender (as defined herein);  and  (4) U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), as the Account  Bank (as defined herein), as the Collateral Administrator (together with its successors and  assigns in such capacity, the “Collateral Administrator”) and as the Collateral Custodian  (together with its successors and assigns in such capacity, the “Collateral Custodian”).  PRELIMINARY STATEMENTS  WHEREAS, the Lender has agreed, on the terms and conditions set forth herein, to  provide a secured revolving credit facility which shall provide for Advances from time to time in  an aggregate principal amount not to exceed the Borrowing Base;  WHEREAS, the proceeds of the Advances will be used (a) to finance the  Borrower’s purchase or origination of Eligible Loan Assets, with such Eligible Loan Assets to be  approved by the Administrative Agent at the time of purchase, (b) to fund the Unfunded Exposure  Account and (c) to distribute such proceeds to the Borrower’s parent or indirect parent.  NOW THEREFORE, based upon the foregoing Preliminary Statements, the parties  agree as follows:  ARTICLE I    DEFINITIONS  SECTION 1.01 Certain Defined Terms.  (a) Certain capitalized terms used throughout this Agreement are defined above  or in this Section 1.01.  (b) As used in this Agreement and the exhibits and schedules thereto (each of  which is hereby incorporated herein and made a part hereof), the following terms shall have the  following meanings (such meanings to be equally applicable to both the singular and plural forms  of the terms defined):  





 






  #75870257_v11 2   “1940 Act” means the Investment Company Act of 1940, as amended, and the rules  and regulations promulgated thereunder.  “Account Bank” means U.S. Bank, not in its individual capacity, but solely as  account bank pursuant to the terms of this Agreement and as securities intermediary pursuant to  the Control Agreement, together with its successors and assigns.  “Accreted Interest” means Interest accrued on a Loan Asset that is added to the  principal amount of such Loan Asset instead of being paid as Interest as it accrues.  “Action” has the meaning assigned to that term in Section 8.03.  “Additional Amount” has the meaning assigned to that term in Section 2.11(a).  “Adjusted Borrowing Value” means for any Loan Asset, for any date of  determination, the Assigned Value of such Loan Asset at such time multiplied by the Outstanding  Balance of such Loan Asset (exclusive of Accreted Interest); provided that the parties hereby agree  that the Adjusted Borrowing Value of any Warranty Loan Asset or any Loan Asset that is no longer  an Eligible Loan Asset shall be zero.  “Administrative Agent” means Sumitomo Mitsui Banking Corporation, in its  capacity as administrative agent for the Lender, together with its successors and assigns, including  any successor appointed pursuant to Article IX.  “Advance” means each loan advanced by the Lender to the Borrower on an  Advance Date pursuant to Article II.  “Advance Date” means, with respect to any Advance, the Business Day on which  such Advance is made.  “Advances Outstanding” means, at any time, the sum of the principal amounts of  Advances loaned to the Borrower for the initial and any subsequent borrowings pursuant to  Sections 2.01 and 2.02 as of such time, reduced by the aggregate Available Collections received  and distributed as repayment of principal amounts of Advances Outstanding pursuant to  Section 2.04 at or prior to such time and any other amounts received by the Lender to repay the  principal amounts of Advances Outstanding pursuant to Section 2.18 or otherwise at or prior to  such time; provided that the principal amounts of Advances Outstanding shall not be reduced by  any Available Collections or other amounts if at any time such Available Collections or other  amounts are rescinded or must be returned for any reason.  “Affected Party” has the meaning assigned to that term in Section 2.10.  “Affiliate” when used with respect to a Person, means any other Person controlling,  controlled by or under common control with such Person.  For the purposes of this definition,  “control,” when used with respect to any specified Person, means the power to direct the  management and policies of such Person or to vote more than 50% of the voting securities of such  Person, directly or indirectly, whether through the ownership of voting securities, by contract or  otherwise; and the terms “controlling” and “controlled” have meanings correlative to the  





 






  #75870257_v11 3   foregoing; provided that for purposes of determining whether any Loan Asset is an Eligible Loan  Asset or for purposes of Section 5.01(b), the term Affiliate shall not include any Affiliate  relationship which may exist solely as a result of direct or indirect ownership of, or control by, a  common Financial Sponsor.   “Aggregate Adjusted Borrowing Value” means, as of any date of determination, an  amount equal to the sum of the Adjusted Borrowing Value of all Loan Assets in the Collateral  Portfolio, after giving effect to all Loan Assets added to and removed from the Collateral Portfolio  on such date.  “Agreement” means this Loan and Servicing Agreement, as the same may be  amended, restated, supplemented and/or otherwise modified from time to time hereafter.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Equityholder, the Servicer, the Borrower and its Affiliates from time to time  concerning or relating to bribery or corruption.  “Anti-Money Laundering Laws” means all laws, rules, and regulations of any  jurisdiction applicable to the Equityholder, the Servicer, the Borrower and its Affiliates from time  to time concerning or relating to anti-money laundering or terrorist financing.  “Applicable Law” means for any Person all existing and future laws, rules,  regulations, statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and  interpretations by any Governmental Authority which are applicable to such Person (including,  without limitation, predatory lending laws, usury laws, the Federal Truth-in Lending Act, the Equal  Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt  Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,  the Federal Reserve Board’s Regulations “B” and “Z”, the Servicemembers Civil Relief Act of  2003 and state adaptations of the National Consumer Act and of the Uniform Consumer Credit  Code and all other consumer credit laws and equal credit opportunity and disclosure laws) and  applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other  administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.  “Applicable Percentage” means, with respect to First Lien Loan Assets, 65%.  “Applicable Spread” means, (a) with respect to any rate based on LIBOR, 2.50%  per annum and (b) with respect to any rate based on the Base Rate, 1.50% per annum; provided  that, at any time after the occurrence and during the continuance of an Event of Default, upon the  election of the Administrative Agent, the Applicable Spread shall be (a) with respect to any rate  based on LIBOR, 4.50% per annum and (b) with respect to any rate based on the Base Rate, 3.50%  per annum.  “Approval Notice” means with respect to any Eligible Loan Asset, the written  notice, in substantially the form attached hereto as Exhibit A-1, evidencing the approval by the  Administrative Agent, in its sole discretion, of the acquisition or origination, as applicable, of such  Eligible Loan Asset by the Borrower.  





 






  #75870257_v11 4   “Approved Valuation Firm” shall mean (a) each of (i) Houlihan Lokey Howard &  Zukin, (ii) Lincoln International LLC (f/k/a Lincoln Partners LLC), (iii) Duff & Phelps Corp., (iv)  Valuation Research Corporation, (v) Murray, Devine & Co, Inc., (vi) Grant Thornton LLP, (vii)  Markit Ltd., and (viii) Thomson Reuters LPC, and (b) any other nationally recognized valuation  firm designated by the Borrower and approved by the Administrative Agent in its sole discretion  (such approval not to be unreasonably withheld, conditioned or delayed).   “Assigned Documents” has the meaning assigned to that term in Section 2.12.  “Assigned Value” means, with respect to each Loan Asset, as of any date of  determination and expressed as a percentage of the Outstanding Balance of such Loan Asset, (i)  on and after the Cut-Off Date but prior to the date the Assigned Value for such Loan Asset is first  modified pursuant to this definition, the lowest of the following:  (a) 100.0%; (b) the purchase  price for such Loan Asset paid by the Borrower (calculated without giving effect to any netting of  fees or expenses); provided that original issue discount shall be disregarded for purposes of  calculating the purchase price under this clause (b), and (c) the value assigned to such Loan Asset  by the Administrative Agent in its sole discretion as of the Cut-off Date; and (ii) after any  occurrence of a Value Adjustment Event with respect to such Loan Asset:  (a) If a Value Adjustment Event of the type described in clauses (a), (b), (d) or  (e) of the definition thereof with respect to such Loan Asset occurs, the Assigned Value of such  Loan Asset will be modified to zero.  (b) If a Value Adjustment Event other than of the type described in clauses (a),  (b), (d) or (e) of the definition thereof with respect to such Loan Asset occurs, the “Assigned  Value” may be modified by the Administrative Agent in its sole discretion upon each such  occurrence.  In the event the Borrower disagrees with the Administrative Agent’s determination  of the Assigned Value (i) the Borrower shall have the right to request that the Administrative Agent  revalue such Loan Asset on the basis of additional information provided by or on behalf of the  Borrower and, if it so requests, the Administrative Agent shall cooperate in good faith with the  Borrower in such revaluation and, if so applicable in its sole discretion of the Administrative  Agent, increase the Assigned Value of such Loan Asset; or (ii) the Borrower shall have the right  (at the Borrower’s expense) to retain any Approved Valuation Firm to value such Loan Asset;  provided, that the aggregate number of Loans Assets for which the Borrower has retain an  Approved Valuation Firm to have a value determined in any trailing twelve (12) month period  shall not exceed the product of 25% times the aggregate number of Eligible Loans Assets at such  time.  If the value determined by such firm is greater than the Administrative Agent’s  determination of the Assigned Value, such firm’s valuation shall become the Assigned Value of  such Loan Asset for purposes of clause (ii) in the lead in of this definition; provided that such  revised Assigned Value of such Loan Asset shall be the value as assigned by the Administrative  Agent until the Administrative Agent has revised the value in accordance with this Agreement;  provided further that (A) the Assigned Value of such Loan Asset shall be the value assigned by  the Administrative Agent until such firm has determined its value and (B) following a  determination of the Assigned Value by an Approved Valuation Firm pursuant to this clause (b),  the Administrative Agent shall have the right to request that such Loan Asset be independently  evaluated by an additional third-party pricing service or independent valuation firm at the expense  of the Administrative Agent so long as no Event of Default has occurred and is continuing and, if  





 






  #75870257_v11 5   the value of any Loan Asset determined by such independent valuation provider is less than the  value determined by the Approved Valuation Firm pursuant to this clause (b), then the Assigned  Value shall be the value determined by the pricing service or valuation firm selected by the  Administrative Agent; provided further that if the value determined by such firm is lower than the  Administrative Agent’s determination of the Assigned Value, the Administrative Agent in its sole  discretion may further modify the Assigned Value of such Loan Asset to reflect such lower value;  and provided further that such revised Assigned Value of such Loan Asset shall not exceed the  Assigned Value of such Loan Asset as of the Cut-Off Date.  (c) The Assigned Value of any Defaulted Loan Asset may be increased in the  reasonable discretion of the Administrative Agent upon (I) the cure of the Value Adjustment Event  that gave rise to the Defaulted Loan Asset and (II) the written request of the Borrower.  (d) The Assigned Value of a Loan Asset with an ongoing Value Adjustment  Event may be subject to additional adjustments upon the receipt of additional financial information  resulting in the determination by the Administrative Agent in good faith and in consultation with  the Servicer that the creditworthiness of the Obligor has deteriorated since the date the immediately  preceding Assigned Value was determined, or the occurrence of a concurrent or subsequent Value  Adjustment Event, in each case subject to the dispute rights set forth in clause (b).  (e) The Administrative Agent shall promptly notify the Servicer of any change  effected by the Administrative Agent of the Assigned Value of any Loan Asset.  “Assignment and Acceptance” has the meaning assigned to that term in  Section 11.04(a).  “Available Collections” means as of any date of determination all cash collections  and other cash proceeds actually received with respect to any Loan Asset, including without  limitation all Principal Collections, all Interest Collections, all proceeds of any sale or disposition  with respect to such Loan Asset, cash proceeds or other funds received by the Borrower or the  Servicer with respect to any Underlying Collateral (including from any guarantors), all other  amounts on deposit in the Collection Account from time to time, and all proceeds of Permitted  Investments with respect to the Controlled Accounts; provided that, for the avoidance of doubt,  “Available Collections” shall not include amounts on deposit in the Unfunded Exposure Account  which do not represent proceeds of Permitted Investments.  “Bankruptcy Code” means Title 11, United States Code, 11 U.S.C. §§ 101 et seq.,  as amended from time to time.  “Bankruptcy Event” shall be deemed to have occurred with respect to a Person if  either:  (a) a case or other proceeding shall be commenced, without the application or  consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement,  dissolution, winding up, or composition or readjustment of debts of such Person, the appointment  of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all  or substantially all of its assets or any similar action with respect to such Person, in each case,  under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or  





 






  #75870257_v11 6   adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in  effect, for a period of 60 consecutive days; or an order for relief in respect of such Person shall be  entered in an involuntary case under the federal bankruptcy laws or other similar laws now or  hereafter in effect; or  (b) such Person shall commence a voluntary case or other proceeding under any  Bankruptcy Laws now or hereafter in effect, or shall consent to the appointment of or taking  possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar  official) for such Person or all or substantially all of its assets under any Bankruptcy Laws, or shall  make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its  inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its  board of directors or members shall vote to implement any of the foregoing or the shareholders of  such Person pass a resolution to have such Person wound-up on a voluntary basis.  “Bankruptcy Laws” means the Bankruptcy Code and all other applicable  liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency,  winding up, reorganization, suspension of payments, or similar debtor relief laws, including those  of any other applicable jurisdiction from time to time in effect affecting the rights of creditors  generally.  “Bankruptcy Proceeding” means any case, action or proceeding before any court or  other Governmental Authority relating to any Bankruptcy Event.  “Base Rate” means, on any date, a fluctuating per annum interest rate equal to the  greater of (a) the Prime Rate and (b) the Federal Funds Rate plus 0.50%.  “Base Rate Advance” means any Advance (a) not made as a LIBOR Advance in  accordance with Section 2.02(b), or (b) converted into a Base Rate Advance in accordance with  Section 2.02(c), in either case during each period from and including any date such Advance is  made or converted to but excluding the first subsequent date on which such Advance is converted  into a LIBOR Advance in accordance with Section 2.02(c) or repaid.  “Base Rate Advances Outstanding” means, at any time, the outstanding Base Rate  Advances.  “Base Rate Yield Rate” means, as of any date of determination, an interest rate per  annum equal to the Base Rate for such date plus the Applicable Spread.  “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate  (which may include Term SOFR) that has been selected by the Administrative Agent and the  Borrower giving due consideration to (i) any selection or recommendation of a replacement rate  or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any  evolving or then-prevailing market convention for determining a rate of interest as a replacement  to LIBOR for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark  Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would  be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this  Agreement.  





 






  #75870257_v11 7   “Benchmark Replacement Adjustment” means, with respect to any replacement of  LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the  spread adjustment, or method for calculating or determining such spread adjustment, (which may  be a positive or negative value or zero) that has been selected by the Administrative Agent and the  Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment,  or method for calculating or determining such spread adjustment, for the replacement of LIBOR  with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or  (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or  method for calculating or determining such spread adjustment, for the replacement of LIBOR with  the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated syndicated credit  facilities at such time.  “Benchmark Replacement Conforming Changes” means, with respect to any  Benchmark Replacement, any technical, administrative or operational changes (including changes  to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of  determining rates and making payments of interest and other administrative matters) that the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of  such Benchmark Replacement and to permit the administration thereof by the Administrative  Agent in a manner substantially consistent with market practice (or, if the Administrative Agent  decides that adoption of any portion of such market practice is not administratively feasible or if  the Administrative Agent determines that no market practice for the administration of the  Benchmark Replacement exists, in such other manner of administration as the Administrative  Agent determines in consultation with the Borrower).  “Benchmark Replacement Date” means the earliest to occur of the following events  with respect to LIBOR:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the administrator of LIBOR permanently or indefinitely ceases  to provide LIBOR; or  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,”  the date of the public statement or publication of information referenced therein.  “Benchmark Transition Event” means the occurrence of one or more of the  following events with respect to LIBOR:  (1) a public statement or publication of information by or on behalf of the  administrator of LIBOR announcing that such administrator has ceased or will cease to provide  LIBOR, permanently or indefinitely; provided that, at the time of such statement or publication,  there is no successor administrator that will continue to provide LIBOR;  (2) a public statement or publication of information by the regulatory  supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official  with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over  the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority  





 






  #75870257_v11 8   over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will  cease to provide LIBOR permanently or indefinitely; provided that, at the time of such statement  or publication, there is no successor administrator that will continue to provide LIBOR; or  (3) a public statement or publication of information by the regulatory  supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.  “Benchmark Transition Start Date” means (a) in the case of a Benchmark  Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such  Benchmark Transition Event is a public statement or publication of information of a prospective  event, the 90th day prior to the expected date of such event as of such public statement or  publication of information (or if the expected date of such prospective event is fewer than 90 days  after such statement or publication, the date of such statement or publication) and (b) in the case  of an Early Opt-in Election, the date specified by the Administrative Agent or the Required  Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such  notice by the Required Lenders) and the Lenders.  “Benchmark Unavailability Period” means, if a Benchmark Transition Event and  its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the  extent that LIBOR has not been replaced with a Benchmark Replacement, the period (x) beginning  at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark  Replacement has replaced LIBOR for all purposes hereunder in accordance with Section 2.23 and  (y) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes  hereunder pursuant to Section 2.23.  “Borrower” has the meaning assigned to that term in the preamble hereto.  “Borrowing Base” means, as of any date of determination, an amount equal to the  lesser of:  (a) the aggregate sum of (i) for each Eligible Loan Asset as of such date, the  product of (A) the Applicable Percentage for such Eligible Loan Asset as of such date and (B) the  Adjusted Borrowing Value of such Eligible Loan Asset as of such date plus (ii) the amount on  deposit in the Principal Collection Account and the Pre-Funded Loan Asset Account as of such  date plus (iii) the aggregate amount on deposit in the Unfunded Exposure Account as of such date  minus (iv) the Unfunded Exposure Equity Amount as of such date minus (v) the Excess  Concentration Amount; and  (b) (i) the Maximum Facility Amount as of such date minus (ii) the Unfunded  Exposure Amount as of such date plus (iii) the aggregate amount on deposit in the Unfunded  Exposure Account as of such date; and  (c) the aggregate sum of (i) for each Eligible Loan Asset as of such date, the  Adjusted Borrowing Value of such Eligible Loan Asset as of such date plus (ii) the amount on  deposit in the Principal Collection Account and the Pre-Funded Loan Asset Account as of such  date minus (iii) the Minimum Required Equity Amount as of such date minus (iv) the amount of  the aggregate Unfunded Exposure Equity Amount that is not then on deposit in the Unfunded  





 






  #75870257_v11 9   Exposure Account; provided that, for the avoidance of doubt, any Loan Asset which at any time  is no longer an Eligible Loan Asset shall not be included in the calculation of “Borrowing Base”.  “Borrowing Base Certificate” means a certificate setting forth the calculation of the  Borrowing Base as of the applicable date of determination substantially in the form of Exhibit C  hereto, prepared by the Servicer.  “Borrowing Base Deficiency” means, as of any date of determination, the extent to  which the aggregate Advances Outstanding on such date exceed the Borrowing Base.  “Breakage Fee” means, for LIBOR Advances Outstanding which are repaid or  converted (to a Base Rate Advance or a different tenor of LIBOR) (in whole or in part) on any  date other than a Payment Date for the Interest Period on which such LIBOR Advance ends, the  breakage costs (other than lost profits), if any, related to such repayment, based upon the  assumption that the applicable Lender funded its loan commitment in the London Interbank  Eurodollar market and using any reasonable attribution or averaging methods which the Lender  deems appropriate and practical, it hereby being understood that the amount of any loss, costs or  expense payable by the Borrower to any Lender as Breakage Fee shall be determined in the  respective Lender’s reasonable discretion and shall be conclusive absent demonstrable error.  “Business Day” means a day of the year other than (a) Saturday or a Sunday or (b)  any other day on which commercial banks in New York, New York or any United States city in  which the offices of the Collateral Agent, the Collateral Administrator, the Collateral Custodian  or the Account Bank are located and are authorized or required by Applicable Law, regulation or  executive order to close; provided that, if any determination of a Business Day shall relate to a  LIBOR Advance, the term “Business Day” shall also exclude any day on which banks are not open  for dealings in Dollar deposits in the London interbank market.  For the avoidance of doubt, if the  offices of the Collateral Agent, the Collateral Administrator, the Collateral Custodian or the  Account Bank in any United States city are authorized by Applicable Law, regulation or executive  order to close but remain open, such day shall not be a “Business Day”.  “Capital Lease Obligations” means, with respect to any entity, the obligations of  such entity to pay rent or other amounts under any lease of (or other arrangement conveying the  right to use) real or personal property, or a combination thereof, which obligations are required to  be classified and accounted for as capital leases on a balance sheet of such entity under GAAP,  and the amount of such obligations shall be the capitalized amount thereof determined in  accordance with GAAP.  “Cash Interest Expense” means, with respect to any Obligor for any period, the  amount which, in conformity with GAAP, would be set forth opposite the caption “interest  expense” (exclusive of any Accreted Interest that, according to the terms of the Loan Agreement,  can never be converted to cash interest that is due and payable prior to maturity (except upon  default)) or any like caption reflected on the most recent financial statements delivered by such  Obligor to the Borrower for such period, as determined by the Servicer.  “Change of Control” means that (a) the creation or imposition of any Lien (other  than liens of custodians, bankers’ Liens, rights of setoff and other similar Liens) on the economic  





 






  #75870257_v11 10   interests and/or membership of the Borrower owned by the Equityholder, (b) the Equityholder or  the Servicer shall cease to be managed by Nuveen Churchill Advisors LLC or any Affiliate thereof,  or the Investment Management Agreement or the Investment Sub-Advisory Agreement (i) shall  fail to be in full force and effect or (ii) shall have been assigned by any party thereto to a Person  that is not an Affiliate of such assigning party without the prior written consent of the  Administrative Agent, (c) the failure of the Equityholder to own, directly (or through one or more  wholly-owned subsidiaries if approved by the Administrative Agent), 100% of the equity interests  of the Borrower, or (d) the dissolution, termination or liquidation in whole or in part, transfer or  other disposition, in each case, of all or substantially all of the assets of, the Borrower or Servicer,  other than as permitted under Section 5.04(a).  “Closing Date” means November 24, 2020.  “Code” means the Internal Revenue Code of 1986, as amended.  “Collateral Administrator” means U.S. Bank, not in its individual capacity, but  solely as collateral administrator pursuant to the terms of this Agreement.  “Collateral Agent” has the meaning assigned to that term in the preamble hereto.  “Collateral Agent Expenses” means all accrued and unpaid expenses (including  reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower  to the Collateral Agent under the Transaction Documents.  “Collateral Agent Termination Notice” has the meaning assigned to that term in  Section 10.05.  “Collateral Custodian” means U.S. Bank, not in its individual capacity, but solely  as collateral custodian pursuant to the terms of this Agreement.  “Collateral Custodian Expenses” means all accrued and unpaid expenses (including  reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower  or the Servicer to the Collateral Custodian, the Collateral Administrator and the Account Bank  under the Transaction Documents.  “Collateral Custodian Fees” means the fees set forth in the U.S. Bank Fee Letter  that are payable to the Collateral Custodian, the Collateral Administrator and the Account Bank,  as such letter may be amended, restated, supplemented, modified, waived and/or replaced from  time to time.  “Collateral Custodian Termination Notice” has the meaning assigned to that term  in Section 12.05.  “Collateral Portfolio” means all right, title, and interest (whether now owned or  hereafter acquired or arising, and wherever located) of the Borrower to and in the property  identified below in clauses (a) through (e) and all accounts, cash and currency, chattel paper,  tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures,  contract rights, general intangibles (including payment intangibles), instruments, certificates of  





 






  #75870257_v11 11   deposit, certificated securities, uncertificated securities, financial assets, securities entitlements,  commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights,  software, supporting obligations, accessions, or other property of the Borrower, including without  limitation all right, title and interest of the Borrower to and in any of the following (in each case  excluding the Retained Interest and the Excluded Amounts):  (a) the Loan Assets, and all monies due or to become due in payment under  such Loan Assets on and after the related Cut-Off Date, including, but not limited to, all Available  Collections;  (b) the Portfolio Assets with respect to the Loan Assets referred to in clause (a);  (c) the Controlled Accounts and all Permitted Investments purchased with  funds on deposit in the Controlled Accounts;  (d) Assigned Documents; and  (e) all income and Proceeds of the foregoing.  “Collection Account” means an account in the name of the Borrower subject at all  times to a Lien for the benefit of and under the control of the Collateral Agent for the benefit of  the Secured Parties (it being understood, however, that the Servicer shall be able to request  distributions and releases therefrom in accordance herewith and expressly permitted hereby);  provided that the funds deposited therein (including any interest and earnings thereon) from time  to time and subject to the terms thereof shall constitute the property and assets of the Borrower.  “Collection Date” means the date on which the aggregate outstanding principal  amount of the Advances Outstanding has been repaid in full and all Yield and Fees and all other  Obligations have been paid in full (other than any contingent obligations that are not due and that  survive the termination of this Agreement), and the Borrower shall have no further right to request  any additional Advances.  “Commitment Percentage” shall have the meaning assigned to that term in Section  11.04(b).  “Competitor” means any private investment fund that, as a material part of its  investment program, regularly invests primarily in first-lien senior secured loans and unitranche  loans to middle market companies, or any Affiliate thereof (excluding any commercial or  investment bank, which includes any commercial or investment bank that sponsors private equity  funds or private equity investments).  “Concentration Limitations” means, as of any date of determination, the following  limitations (calculated without duplication) as applied to the Eligible Loan Assets owned (or, in  relation to a proposed purchase of a Loan Asset, proposed to be owned, with respect to which, if  such purchase results in noncompliance with the limitations, the relevant requirements must be  maintained or improved after giving effect to the purchase) by the Borrower, unless a waiver is  provided in writing by the Administrative Agent specifying the agreed treatment of such Loan  Asset or Concentration Limitation:  





 






  #75870257_v11 12   (a) the Aggregate Adjusted Borrowing Value consisting of Loan Assets of a  single Obligor shall not exceed 3.5% of the Maximum Facility Amount; provided that with  respect to the two largest single Obligors the Aggregate Adjusted Borrowing Value shall  not exceed 5.0% of the Maximum Facility Amount;  (b) the Aggregate Adjusted Borrowing Value consisting of Qualified First Lien  Loan Assets shall not exceed 5.0% of the Maximum Facility Amount;  (c) the Aggregate Adjusted Borrowing Value consisting of Priority Revolver  First Lien Loan Assets shall not exceed 5.0% of the Maximum Facility Amount;  (d) For any date of determination following the expiration of the Initial Ramp  Period, the Aggregate Adjusted Borrowing Value consisting of consist of Loan Assets that  are issued by Obligors that belong to any single Industry Classification shall not exceed  15.0% of the Adjusted Borrowing Value of all Eligible Loan Assets, except that (i) up to  20.0% may consist of Loan Assets with Obligors in the largest Industry Classification, and  (ii) up to 17.0% may consist of Loan Assets with Obligors in the second largest Industry  Classification;  (e) the Aggregate Adjusted Borrowing Value consisting of Delayed Draw Loan  Assets and Revolving Loan Assets shall not exceed 15.0% of the Maximum Facility  Amount; and  (f) the Aggregate Adjusted Borrowing Value of Loan Assets of Obligors  having EBITDA of less than $15,000,000 shall not exceed 7.5% of the Maximum Facility  Amount.  “Control Agreement” means that certain account control agreement, dated as of the  date hereof, by and among the Borrower, the Servicer, the Collateral Agent and the Account Bank,  as such agreement may from time to time be amended, supplemented or otherwise modified in  accordance with the terms thereof.  “Controlled Accounts” means the Collection Account, the Pre-Funded Loan Asset  Account, the Unfunded Exposure Account and the Custody Account.  “Conversion Date” with respect to any Advance, the Business Day on which such  Advance was, or is to be, converted from (a) a Base Rate Advance to a LIBOR Advance, (b) a  LIBOR Advance to a Base Rate Advance, (c) a LIBOR Advance with a three-month maturity to a  LIBOR Advance with a one-month maturity or (d) a LIBOR Advance with a one-month maturity  to a LIBOR Advance with a three-month maturity, as applicable.  “Conversion Notice” means, with respect to any Advance, the written notice, in  substantially the form attached hereto as Exhibit O, evidencing the request of the Borrower to the  Administrative Agent to convert such Advance from (a) a Base Rate Advance to a LIBOR  Advance, (b) a LIBOR Advance to a Base Rate Advance, (c) a LIBOR Advance with a three- month maturity to a LIBOR Advance with a one-month maturity or (d) a LIBOR Advance with a  one-month maturity to a LIBOR Advance with a three-month maturity, as applicable.  





 






  #75870257_v11 13   “Custody Account” means an account in the name of the Borrower and under the  control of the Collateral Agent for the benefit of the Secured Parties, into which any portion of the  Collateral Portfolio that constitutes “security entitlements” or “financial assets” shall be deposited  from time to time; provided that the funds deposited therein (including any interest and earnings  thereon) from time to time shall constitute the property and assets of the Borrower and the  Borrower shall be solely liable for any Taxes payable with respect to the Custody Account.  “Cut-Off Date” means, with respect to each Loan Asset, the date such Loan Asset  is acquired by the Borrower.  “Defaulted Loan Asset” means a Loan Asset which has become subject to a Value  Adjustment Event of the type described in clauses (a), (b), (d) or (e) of the definition thereof;  provided that if the Value Adjustment Event which gave rise to a Defaulted Loan Asset is cured,  the Borrower may submit such Loan Asset for review by the Administrative Agent (in its sole  discretion) for the purpose of re-classifying such Loan Asset as a Loan Asset which is no longer a  Defaulted Loan Asset.  “Delayed Draw Loan Asset” means a Loan Asset that (a) is fully committed on the  initial funding date of such Loan Asset, (b) is required to be fully funded in one or more  installments or advances on draw dates to occur within thirty (30) months of the initial funding of  such Loan Asset (whether or not scheduled), (c) does not permit (as of the date of determination)  the re-borrowing of any amounts previously repaid by the Obligor and (d) has not been (or is no  longer required to be) fully funded.  A Loan Asset that is a funded portion of an obligation for  which a future advance or funding obligation is retained by the assignor will not be a Delayed  Draw Loan Asset if the Borrower as the owner of such Loan Asset is not obligated to make any  such future advances or fundings.  “Designated Entity” means the Competitors of the Borrower or the Equityholder.  “Designated Sale Proceeds” means Principal Collections received during the  Reinvestment Period in connection with discretionary sales pursuant to Section 2.07(b) or Optional  Sales pursuant to Section 2.07(c) designated to be applied to reduce Advances Outstanding in  accordance with Section 2.04(b) or Section 2.04(c).  “Determination Date” means, the 15th calendar day after the end of each calendar  month (or if such day is not a Business Day, the next succeeding Business Day).  “Disbursement Request” means a disbursement request from the Borrower to the  Administrative Agent, the Collateral Agent and the Account Bank in the form attached hereto as  Exhibit D in connection with a disbursement request from the Pre-Funded Loan Asset Account in  accordance with Section 2.04(e), a disbursement request from the Unfunded Exposure Account in  accordance with Section 2.04(f), or a disbursement request from the Principal Collection Account  in accordance with Section 2.21, as applicable.  “Dollar”, “USD” or “$” means a dollar or other equivalent unit in such coin or  currency of the United States as at the time shall be legal tender for all debts, public and private.  “Early Opt-in Election” means the occurrence of:  





 






  #75870257_v11 14   (1) (i) a determination by the Administrative Agent or (ii) a notification by the  Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required  Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed  at such time, or that include language similar to that contained in Section 2.23, are being executed  or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR,  and  (2) (i) the joint election by the Administrative Agent and the Borrower or (ii)  the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the  provision, as applicable, by the Administrative Agent of written notice of such election to the  Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.  “EBITDA” means, with respect to any period and any Loan Asset, the meaning of  “EBITDA”, “Adjusted EBITDA” or any comparable definition in the Loan Agreement for such  Loan Asset (together with all add-backs and exclusions as designated in such Loan Agreement),  and in any case that “EBITDA”, “Adjusted EBITDA” or such comparable definition is not defined  in such Loan Agreement, an amount, for the principal Obligor on such Loan Asset and any of its  parents that are obligated pursuant to the Loan Agreement for such Loan Asset and any of its  Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP)  equal to earnings from continuing operations for such period plus interest expense, income taxes  and depreciation and amortization for such period, other non-cash charges, and extraordinary,  unusual or non-recurring losses and charges (to the extent deducted in determining earnings from  continuing operations for such period), in each case as determined by the Servicer consistent with  the Servicing Standard, and any other items the Borrower and the Administrative Agent may  mutually deem to be appropriate.  “Effective Equity” means the greater of (x) the sum of (i) the Aggregate Adjusted  Borrowing Value and (ii) the aggregate amount of Principal Collections on deposit in the Principal  Collection Account minus the Advances Outstanding and (y) $0.  “Eligibility Criteria” has the meaning assigned to that term in Schedule III.   “Eligible Bid” means a bid made in good faith (and acceptable as a valid bid in the  Administrative Agent’s reasonable discretion) by a bidder for all or any portion of the Collateral  Portfolio in connection with a sale of the Collateral Portfolio in whole or in part pursuant to Section  7.02(i).  “Eligible Loan Asset” means at any time each Loan Asset (A) with respect to which  an Approval Notice has been executed by the Administrative Agent and (B) that satisfies each of  the Eligibility Criteria set forth in Schedule III (unless the Administrative Agent in its sole  discretion agrees to waive any such Eligibility Criteria with respect to such Loan Asset).  “Eligible Replacement” has the meaning assigned to that term in Section 6.01(c).  “Environmental Laws” means any and all foreign, federal, state and local laws,  statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations (with the force  of law) and orders of courts or Governmental Authorities, relating to the protection of human  health or the environment, including, but not limited to, requirements pertaining to the  





 






  #75870257_v11 15   manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,  reporting, licensing, permitting, investigation or remediation of Hazardous Materials.   Environmental Laws include, without limitation, the Comprehensive Environmental Response,  Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Material Transportation  Act (49 U.S.C. § 331 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et  seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42  U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Safe  Drinking Water Act (42 U.S.C. § 300, et seq.), the Environmental Protection Agency’s regulations  relating to underground storage tanks (40 C.F.R.  Parts 280 and 281), and the Occupational Safety  and Health Act (29 U.S.C. § 651 et seq.), and the rules and regulations thereunder, each as amended  or supplemented from time to time.  “Equityholder” means Nuveen Churchill Direct Lending Corp., a Maryland  corporation, or any successor or permitted assign thereof, in its capacity as the owner of 100% of  the equity interests of the Borrower.  “ERISA” means the United States Employee Retirement Income Security Act of  1974, as amended from time to time.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that,  together with the Borrower, is treated as a single employer under Section 414(b), (c), (m) or (o) of  the Code.  “ERISA Event” means (a) with respect to a Pension Plan, any of the events set forth  in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the  30-day notice period has been waived; (b) a withdrawal by the Borrower or any ERISA Affiliate  from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a  substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that  is treated as a termination under Section 4062(e) of ERISA; (c) the failure to satisfy the minimum  funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA),  whether or not waived, with respect to a Pension Plan; (d) the failure by the Borrower or any  ERISA Affiliate to make any required contribution to a Multiemployer Plan; (e) the incurrence by  the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to a  complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer  Plan, or receipt by the Borrower or any ERISA Affiliate of written notification from a  Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, that it is in  “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305  of ERISA), or that it intends to terminate or has terminated under Section 4041A or 4042 of  ERISA; (f) the filing by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of  ERISA of a notice of intent to terminate a Pension Plan under Section 4041(c) of ERISA, the  treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section  4041 or Section 4041A of ERISA, or the institution by the PBGC of proceedings to terminate a  Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA  with respect to any Pension Plan or Multiemployer Plan, other than for the payment of PBGC  premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA  Affiliate; (h) the filing by the PBGC of a notice of a Lien pursuant to Section 4068 of ERISA with  regard to any of the assets of the Borrower; or (i) the occurrence of a non-exempt prohibited  





 






  #75870257_v11 16   transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect  to a Pension Plan which could result in liability to the Borrower.  “Event of Default” has the meaning assigned to that term in Section 7.01.  “Excepted Persons” has the meaning assigned to that term in Section 11.13(a).  “Excess Concentration Amount” means, as of any date of determination, with  respect to all Loan Assets included in the Collateral Portfolio, the aggregate amount by which the  sum of the Adjusted Borrowing Values of all such Loan Assets exceeds any applicable  Concentration Limitations, to be calculated without duplication, after giving effect to any sales,  purchases or substitutions of Loan Assets as of such date; provided that with respect to any Eligible  Loan Asset or portion thereof, if more than one Concentration Limitation would be exceeded, the  Concentration Limitation that would result in the lowest Excess Concentration Amount shall be  used to determine the Excess Concentration Amount.  “Exchange Act” means the United States Securities Exchange Act of 1934, as  amended, and the rules and regulations promulgated thereunder.  “Excluded Amounts” means (a) any amount received in the Collection Account  with respect to any Loan Asset included as part of the Collateral Portfolio and which amount is  attributable to the payment of any Tax, fee or other charge imposed by any Governmental  Authority on such Loan Asset or on any Underlying Collateral and (b) any amount received in any  Controlled Account representing (i) any amount representing a reimbursement of insurance  premiums, (ii) any escrows relating to Taxes, insurance and other amounts in connection with  Loan Assets which are held in an escrow account for the benefit of the Obligor and the secured  party pursuant to escrow arrangements under a Loan Agreement, (iii) any amount received in the  Collection Account with respect to any Loan Asset re-transferred or substituted for upon the  occurrence of a Warranty Event or that is otherwise replaced by a Substitute Eligible Loan Asset,  or that is otherwise sold or transferred by the Borrower pursuant to Section 2.07, to the extent such  amount is attributable to a time after the effective date of such replacement or sale, (iv) any interest  accruing on a Loan Asset prior to the related Cut-Off Date that was not purchased by the Borrower  and is for the account of the Person from whom the Borrower purchased such Loan Asset and (v)  amounts deposited into the Collection Account in error as determined by the Administrative Agent.  “Excluded Taxes” means, (a) Taxes imposed on or measured by the overall net  income (however denominated) of the Administrative Agent, the Lender, or any other recipient of  any payment to be made hereunder, or profits, franchise and similar Taxes imposed on the  Administrative Agent or the Lender or other recipient by (i) the jurisdiction (or any political  subdivision thereof) under the laws of which such recipient is organized or in which its principal  office is located or, in the case of the Lender, in which its applicable lending office or the office to  which its interest in the Advances is assigned is located or (ii) any other jurisdiction (or any  political subdivision thereof) as a result of a present or former connection between the  Administrative Agent or the Lender or other recipient and such jurisdiction imposing such Tax  other than a connection arising as a result of any transaction contemplated under this Agreement,  (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other  jurisdiction described in clause (a) above; (c) in the case of a Lender, any withholding Tax that is  





 






  #75870257_v11 17   imposed on amounts payable (including, for the avoidance of doubt, consent, amendment or  similar fees) to the Lender at the time the Lender becomes a party hereto or designates a new  lending office (other than a designation made at the request of Borrower), except to the extent that  the Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office  (or assignment), to receive Additional Amounts from Borrower with respect to such withholding  Tax pursuant to Section 2.11(a); (d) any withholding Tax which would not have occurred but for  such recipient’s failure to comply with Section 2.11(d) or (e) and (e) any amounts withheld  pursuant to FATCA.  “Exposure Amount” means, as of any date of determination, with respect to any  Delayed Draw Loan Asset or Revolving Loan Asset (including any letter of credit participations)  owned by the Borrower, the unfunded commitment, if any, of the Borrower with respect to such  Loan Asset, excluding the aggregate amount of such unfunded commitments that are subject to  consents, approvals or achievement of financial metrics that are not certain to occur.  “Exposure Amount Shortfall” has the meaning assigned to that term in  Section 2.02(f).  “Extension Fee” has the meaning set forth in the SMBC Fee Letter.  “Facility Maturity Date” means the earliest to occur of (a) the Stated Maturity Date,  (b) the date of the declaration or automatic occurrence of the Facility Maturity Date pursuant to  Section 7.01, (c) the Collection Date and (d) the occurrence of the termination of this Agreement  pursuant to Section 2.18(b) hereof.  “FATCA” means Sections 1471 through 1474 of the Code and Treasury regulations  (and any notices, guidance or official pronouncements) promulgated thereunder and any  intergovernmental agreement entered into thereto, any law implementing an intergovernmental  agreement, any analogous provisions of non U.S. law or approach thereto.  “Federal Funds Rate” means, for any period, a fluctuating per annum interest rate  equal, for each day during such period, to the rate set forth for such day opposite the caption  “Federal funds (effective)” in Federal Reserve Board Statistical Release H.15(519) or any  successor or substitute publication selected by the Administrative Agent (or, if such day is not a  Business Day, for the next preceding Business Day), or, if for any reason such rate is not available  on any day, the rate determined, in the sole discretion of the Administrative Agent, to be the rate  at which overnight federal funds are being offered in the national federal funds market at 9:00 a.m.  (New York City time) on such day.  “Federal Reserve Bank” means any of the twelve regional Federal Reserve Banks  chartered under the laws of the United States.  “Federal Reserve Bank of New York’s Website” means the website of the Federal  Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.  “Federal Reserve Board” means the Board of Governors of the Federal Reserve  System.  





 






  #75870257_v11 18   “Fees” means (a) the Non-Usage Fee; (b) the fees payable to the Lender pursuant  to the terms of the SMBC Fee Letter; (c) the Collateral Custodian Fees; and (d) any Extension  Fees.  “Financial Asset” has the meaning specified in Section 8-102(a)(9) of the UCC.  “Financial Sponsor” means any Person, including any Subsidiary of such Person,  whose principal business activity is acquiring, holding, and selling investments (including  controlling interests) in otherwise unrelated companies that each are distinct legal entities with  separate management, books and records and bank accounts, whose operations are not integrated  with one another and whose financial condition and creditworthiness are independent of the other  companies so owned by such Person.  “First Lien Loan Asset” means any Loan Asset (a) that is secured by a valid and  perfected first priority Lien on substantially all of the Obligor’s assets constituting Underlying  Collateral for the Loan Asset, subject to any “permitted liens” as defined in the applicable Loan  Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined  therein, in each case, that are reasonable and customary for similar loans, and Liens accorded  priority by law in favor of the Unites States or any State or agency, (b) that provides that the  payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, all  other Indebtedness (other than any Permitted Priority Revolver Loan or a Permitted Working  Capital Facility) of such Obligor; and (c) as to which the Servicer has determined in good faith  that the value of the Underlying Collateral for the Loan Asset on or about the time of origination  equals or exceeds the Outstanding Balance of such Loan Asset plus the aggregate outstanding  balances of all other loans of equal or higher seniority secured by such Underlying Collateral.  “Foreign Plan” means each defined benefit plan (within the meaning of Section  3(35) of ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained  or sponsored by the Borrower.  “GAAP” means generally accepted accounting principles as in effect from time to  time in the United States.  “Governing Documents” means (a) with respect to any corporation, the certificate  or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents  with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the  certificate or articles of formation or organization and operating agreement, (c) with respect to any  exempted company, the certificate of incorporation and the memorandum and articles of  association, and (d) with respect to any partnership, joint venture, trust or other form of business  entity, the partnership, joint venture or other applicable agreement of formation or organization  and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in  connection with its formation or organization with the applicable Governmental Authority in the  jurisdiction of its formation or organization and, if applicable, any certificate or articles of  formation or organization of such entity.  “Governmental Authority” means, with respect to any Person, any nation or  government, any state or other political subdivision thereof, any central bank (or similar monetary  





 






  #75870257_v11 19   or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial,  regulatory or administrative functions of or pertaining to government and any court or arbitrator  having jurisdiction over such Person.  “Hague Securities Convention” means the Convention on the Law Applicable to  Certain Rights in Respect of Securities Held with an Intermediary, July 5, 2006, 17 U.S.T. 401,  46 I.L.M. 649 (entered into force April 1, 2017).  “Hazardous Materials” means all materials subject to any Environmental Law,  including, without limitation, materials listed in 49 C.F.R.  § 172.010, materials defined as  hazardous pursuant to § 101(14) of the Comprehensive Environmental Response, Compensation  and Liability Act of 1980, as amended, flammable, explosive or radioactive materials, hazardous  or toxic wastes or substances, lead-based materials, petroleum or petroleum distillates or asbestos  or material containing asbestos, polychlorinated biphenyls, radon gas, urea formaldehyde and any  substances classified as being “in inventory”, “usable work in process” or similar classification  that would, if classified as unusable, be included in the foregoing definition.  “Increased Amount Date” has the meaning assigned to that term in Section 2.22(a).  “Increasing Lender” has the meaning assigned to that term in Section 2.22(a).  “Indebtedness” means (i) with respect to any Obligor under any Loan Asset, the  meaning of “Indebtedness” or any comparable definition in the Loan Agreement for each such  Loan Asset, and in any case that “Indebtedness” or such comparable definition is not defined in  such Loan Agreement, as determined by the Servicer in accordance with the Servicing Standard;  and (ii) for all other purposes, with respect to any Person at any date, (a) all indebtedness of such  Person for borrowed money or for the deferred purchase price of property or services (other than  current liabilities incurred in the ordinary course of business and payable in accordance with  customary trade practices) or that is evidenced by a note, bond, debenture or similar instrument or  other evidence of indebtedness customary for indebtedness of that type, (b) all Capital Lease  Obligations of such Person, (c) all obligations of such Person in respect of acceptances issued or  created for the account of such Person, (d) all liabilities secured by any Lien on any property owned  by such Person even though such Person has not assumed or otherwise become liable for the  payment thereof, (e) all indebtedness, obligations or liabilities of that Person in respect of  derivatives, and (f) all obligations under direct or indirect guaranties in respect of obligations  (contingent or otherwise) to purchase or otherwise acquire, or to otherwise assure a creditor against  loss in respect of, indebtedness or obligations of others of the kind referred to in clauses (a)  through (e) of this clause (ii), but expressly excluding indebtedness of the Borrower on account of  the sale by the Borrower of the first out tranche of any Loan Asset that arises solely as an  accounting matter under ASC 860, provided that such indebtedness (x) is nonrecourse to the  Borrower and (y) would not represent a claim against the Borrower in a bankruptcy, insolvency or  liquidation proceeding of the Borrower, in each case in excess of the amount sold or purportedly  sold.  “Indemnified Amounts” has the meaning assigned to that term in Section 8.01.  “Indemnified Party” has the meaning assigned to that term in Section 8.01.  





 






  #75870257_v11 20   “Indemnifying Party” has the meaning assigned to that term in Section 8.03.  “Independent Director” means a natural Person who, (a) for the five-year period  prior to his or her appointment as Independent Director, has not been, and during the continuation  of his or her service as Independent Director is not: (i) an employee, director, stockholder, member,  manager, partner or officer of the Borrower or any of its Affiliates (other than his or her service as  an Independent Director or officer of the Borrower or other Affiliates that are structured to be  “bankruptcy remote”); (ii) a customer or supplier of the Borrower or any of its Affiliates (other  than his or her service as an Independent Director or officer of the Borrower or other Affiliates  that are structured to be “bankruptcy remote”); or (iii) any member of the immediate family of a  Person described in (i) or (ii), and (b) has, (i) prior experience as an Independent Director for a  corporation or limited liability company whose charter documents required the unanimous consent  of all Independent Directors thereof before such corporation or limited liability company could  consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition  seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three  years of employment experience with one or more entities that provide, in the ordinary course of  their respective businesses, advisory, management or placement services to issuers of  securitization or structured finance instruments, agreements or securities.  For the avoidance of  doubt, any Independent Director serving as an officer of the Borrower shall not be employed by  the Borrower or any of its Affiliates.  “Indorsement” has the meaning specified in Section 8-102(a)(11) of the UCC, and  “Indorsed” has a corresponding meaning.  “Industry Classification” means any of the industry categories set forth in Schedule  VII hereto, including any modifications that may be made thereto or additional categories that may  be subsequently established by Moody’s Credit Policy group.   “Initial Advance” means the first Advance made pursuant to Article II.  “Initial Payment Date” means the 27th day of January, 2021 (or if such day is not a  Business Day, the next succeeding Business Day).  “Initial Ramp Period” means the period commencing on the Closing Date and  ending on the six-month anniversary of the Closing Date.  “Instrument” has the meaning specified in Section 9-102(a)(47) of the UCC.  “Insurance Policy” means, with respect to any Loan Asset, an insurance policy  covering liability and physical damage to, or loss of, the Underlying Collateral.  “Insurance Proceeds” means any amounts received on or with respect to a Loan  Asset under any Insurance Policy or with respect to any condemnation proceeding or award in lieu  of condemnation which is neither required to be used to restore, improve or repair the related real  estate nor required to be paid to the Obligor under the Loan Agreement.  “Interest” means, with respect to any period and any Loan Asset, for the Obligor  on such Loan Asset and any of its parents or Subsidiaries that are obligated under the Loan  





 






  #75870257_v11 21   Agreement for such Loan Asset (determined on a consolidated basis without duplication in  accordance with GAAP), the meaning of “Interest” or any comparable definition in the Loan  Agreement for each such Loan Asset and in any case that “Interest” or such comparable definition  is not defined in such Loan Agreement, all interest in respect of Indebtedness (including the interest  component of any payments in respect of Capital Lease Obligations) accrued or capitalized during  such period (whether or not actually paid during such period).  “Interest Collection Account” means a subaccount, linked to and constituting part  of the Collection Account into which Interest Collections shall be deposited, in the name of the  Borrower for the benefit of and under the control of the Collateral Agent for the benefit of the  Secured Parties; provided that the funds deposited therein (including any interest and earnings  thereon) from time to time shall constitute the property and assets of the Borrower, and the  Borrower shall be solely liable for any Taxes payable with respect to the Interest Collection  Account.  “Interest Collections” means, (a) with respect to any Loan Asset, all payments and  collections attributable to Interest on such Loan Asset, including, without limitation, all scheduled  payments of Interest and payments of Interest relating to principal prepayments, all guaranty  payments attributable to Interest and proceeds of any liquidations, sales, dispositions or  securitizations attributable to Interest on such Loan Asset and (b) amendment fees, late fees, waiver  fees, prepayment fees or other amounts received in respect of Loan Assets.  “Interest Coverage Ratio” means, with respect to any Loan Asset for any Relevant  Test Period, either (a) the meaning of “Interest Coverage Ratio” or comparable definition set forth  in the related Loan Agreement, or (b) in the case of any Loan Asset with respect to which the  related Loan Agreement does not include a definition of “Interest Coverage Ratio” or comparable  definition, the ratio of (i) EBITDA to (ii) Cash Interest Expense of such Obligor and its  consolidated subsidiaries as of such Relevant Test Period, as calculated by the Servicer in good  faith, and, with respect to any Loan Asset with respect to which the Obligor has undergone a  material acquisition, merger or other similar material corporate event within the Relevant Test  Period, calculated on a pro forma basis as if such event had occurred at the beginning of the  Relevant Test Period so long as such pro forma calculation is provided for in the related Loan  Agreement.  “Interest Period” means with respect to any LIBOR Advance (i) the period  beginning on, and including, the Advance Date or Conversion Date, as applicable, with respect to  such LIBOR Advance and ending on, but excluding, the earlier of (a) the first succeeding Payment  Date or (b)(x)  for any LIBOR Advance with a one month maturity the numerically corresponding  day in the calendar month that is one month thereafter, or if such day is not a Business Day, the  next succeeding Business Day or (y) for any LIBOR Advance maturing in a month with a Payment  Date, the corresponding Payment Date, and (ii) thereafter, for so long as such LIBOR Advance or  any portion thereof remains outstanding, each period beginning on, and including, the day after  the immediately preceding Interest Period with respect to such LIBOR Advance ended and ending  on, but excluding, the earlier of (a) the next succeeding Payment Date or (b)(x) for any LIBOR  Advance with a one month maturity on the numerically corresponding day in the calendar month  that is one month thereafter for such LIBOR Advance, or if such day is not a Business Day, the  





 






  #75870257_v11 22   next succeeding Business Day or (y) for any LIBOR Advance maturing in a month with a Payment  Date, the corresponding Payment Date.  “Interim Custody Agreement” means the Custody Agreement dated as of  September 3, 2020 between the Borrower and U.S. Bank, as custodian and document custodian.  “Investment Management Agreement” means that certain Investment Advisory  Agreement, dated as of December 31, 2019, by and between the Investment Manager and the  Servicer, as amended, restated, supplemented, modified, superseded or replaced from time to time  in a manner not prohibited hereunder.  “Investment Manager” means Nuveen Churchill Advisors LLC, in its capacity as  investment advisor pursuant to the Investment Management Agreement, together with its  successors or assigns to the extent not prohibited hereunder.  “Investment Sub-Advisor” means Churchill Asset Management LLC in its capacity  as sub-advisor pursuant to the Investment Sub-Advisor Agreement, together with its successors or  assigns to the extent not prohibited hereunder.  “Investment Sub-Advisory Agreement” means that certain Sub-Advisory  Agreement, dated as of December 31, 2019, by and between the Investment Sub-Advisor and the  Investment Manager, as amended, restated, supplemented, modified, superseded or replaced from  time to time in a manner not prohibited hereunder.  “Joinder Supplement” means an agreement by and among the Borrower, a Lender  and the Administrative Agent in the form of Exhibit E to this Agreement (appropriately completed)  delivered in connection with a Person becoming a Lender hereunder after the Closing Date.  “Lender” means, collectively, SMBC and/or any other Person to whom SMBC  assigns any part of its rights and obligations under this Agreement and the other Transaction  Documents in accordance with the terms of Section 11.04.  “LIBOR” means, for any day during any Interest Period, with respect to any LIBOR  Advance (or portion thereof), the rate per annum for (x) a one-month maturity or (y) a three-month  maturity (such maturity to be determined at the beginning of such Interest Period by the Borrower  in its discretion), in each case, appearing on the Reuters Screen LIBOR01 Page (or any successor  or substitute page) (the “LIBOR Page”) as the London interbank offered rate for deposits in Dollars  at approximately 11:00 a.m., London time, on the LIBOR Determination Date for such Interest  Period; provided that for the initial Interest Period with respect to any LIBOR Advance, if such  Interest Period is shorter than one month or longer than one month, the Administrative Agent shall  have the right to determine LIBOR for such Interest Period as the rate per annum for a period of  the same duration as such Interest Period appearing on the LIBOR Page as the London interbank  offered rate for deposits in Dollars at approximately 11:00 a.m., London time, on the LIBOR  Determination Date for such Interest Period, or if no rate per annum for deposits in Dollars for a  period of such duration is set forth on the LIBOR Page at such time on such LIBOR Determination  Date, the Administrative Agent shall have the right to determine LIBOR for such Interest Period  by linear interpolation between the rate per annum for deposits in Dollars for the next shorter  period and the rate per annum for deposits in Dollars for the next longer period set forth on the  





 






  #75870257_v11 23   LIBOR Page at such time on such LIBOR Determination Date; provided further that if the rates  that are described above in this definition are not set forth on the LIBOR Page as of such times,  the Administrative Agent shall determine LIBOR (a) by reference to such other comparable  publicly available information service for displaying rates for Dollar deposits in the London  interbank market as may be selected by the Administrative Agent, in its sole discretion, or (b) if  no such service is available, as the rate per annum at which Dollar deposits of $5,000,000 for a  relevant maturity are offered by the principal London office of Sumitomo Mitsui Banking  Corporation Europe Limited at approximately 11:00 a.m., London time on such LIBOR  Determination Date for delivery on the first day of such Interest Period to other banks in the  Eurocurrency market; provided further that if the LIBOR Page rate shall be less than zero, such  rate shall be deemed to be zero for purposes of this Agreement.   “LIBOR Advance” means (a) any Advance made as a LIBOR Advance in  accordance with Section 2.02(b) and (b) any Advance converted from a Base Rate Advance to a  LIBOR Advance in accordance with Section 2.02(c).  “LIBOR Advances Outstanding” means, at any time, the outstanding LIBOR  Advances.  “LIBOR Determination Date” means, with respect to each Interest Period, the day  that is two Business Days prior to the first day of such Interest Period.  “LIBOR Disruption Event” means the occurrence of any of the following: (a)  SMBC shall have notified the Borrower and the Servicer of a determination by SMBC or any of  its assignees or participants that it would be contrary to law or to the directive of any central bank  or other Governmental Authority (whether or not having the force of law) to obtain Dollars in the  London interbank market to fund any Advance, (b) SMBC shall have notified the Borrower and  the Servicer of the inability, for any reason, of SMBC or any of its respective assignees or  participants to determine LIBOR, (c) SMBC shall have notified the Borrower and the Servicer of  a determination by SMBC or any of its respective assignees or participants that the rate at which  deposits of Dollars are being offered to SMBC or any of its respective assignees or participants in  the London interbank market does not accurately reflect the cost to SMBC or any such assignee  or any such participant of making, funding or maintaining any Advance or (d) SMBC shall have  notified the Borrower and the Servicer of the inability of SMBC or any of its respective assignees  or participants to obtain Dollars in the London interbank market to make, fund or maintain any  Advance.  Notwithstanding the foregoing, upon the occurrence of a Benchmark Transition Event  or an Early Opt-in Election, as applicable, the provisions in this Agreement relating to LIBOR  shall be subject to amendment pursuant to Section 2.23.  “LIBOR Page” has the meaning assigned to that term in the definition of “LIBOR”.  “LIBOR Yield” means, for any LIBOR Advances Outstanding, and any Interest  Period for each such LIBOR Advance, the sum of the amounts determined for each day in such  Interest Period in accordance with the following formula:  





 






  #75870257_v11 24   YR x L  D  where: YR = the LIBOR Yield Rate applicable to such LIBOR  Advance during such Interest Period;   L = the outstanding principal amount of such LIBOR  Advance on such day; and    D = 360.  “LIBOR Yield Rate” means, for any LIBOR Advance, as of any date of  determination during any Interest Period applicable to such LIBOR Advance, an interest rate per  annum equal to LIBOR for such LIBOR Advance during such Interest Period plus the Applicable  Spread; provided that, subject to Section 2.23, if the Administrative Agent determines that a  LIBOR Disruption Event has occurred, at the election of the Administrative Agent, the LIBOR  Yield Rate shall be equal to the Base Rate plus the Applicable Spread until the Administrative  Agent determines that such LIBOR Disruption Event has ceased, at which time the LIBOR Yield  Rate shall again be equal to LIBOR for such LIBOR Advance for such date plus the Applicable  Spread.  “Lien” means any mortgage or deed of trust, pledge, hypothecation, collateral  assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, claim, preference,  priority or other security interest or preferential arrangement in the nature of a security interest of  any kind or nature whatsoever (including any conditional sale, lease or other title retention  agreement, sale subject to a repurchase obligation, any easement, right of way or other  encumbrance on title to real property, and any financing lease having substantially the same  economic effect as any of the foregoing) or the filing of any UCC financing statement perfecting  a security interest under the UCC or comparable law of any jurisdiction; provided that “Lien” shall  not include (x) in the case of investments that are loans or other debt obligations, customary  restrictions on assignments or transfers thereof on customary and market based terms pursuant to  the underlying documentation relating to such investment; and (y) in the case of investments that  are equity securities, customary drag-along, tag-along, right of first refusal and other similar rights  in favor of other equity holders of the same issuer.  “Lien Release Dividend” has the meaning assigned to that term in Section 2.07(d).  “Lien Release Dividend Date” means the date specified by the Borrower, which  date may be any Business Day, provided written notice is given in accordance with Section 2.07(d).  “Loan Agreement” means the loan agreement, credit agreement or other agreement  pursuant to which a Loan Asset has been issued or created and each other agreement that governs  the terms of or secures the obligations represented by such Loan Asset or of which the holders of  such Loan Asset are the beneficiaries.  “Loan Asset” means any commercial loan, or portion thereof, individually or  collectively, funded or acquired by the Borrower in the ordinary course of its business, which loan  includes, without limitation, (a) the Required Loan Documents and Loan Asset File, and (b) all  





 






  #75870257_v11 25   right, title and interest of the Borrower, in and to the loan and any Underlying Collateral (but  excluding, in each case, the Retained Interest and Excluded Amounts) owned by the Borrower on  the initial Advance Date (as set forth on the Loan Asset Schedule delivered on the initial Advance  Date) or funded or acquired by the Borrower after the initial Advance Date.  “Loan Asset Checklist” means an electronic or hard copy, as applicable, of a  checklist delivered by or on behalf of the Borrower to the Collateral Custodian, for each Loan  Asset, of all Required Loan Documents to be included within the respective Loan Asset File, which  shall specify whether such document is an original or a copy.  “Loan Asset File” means, with respect to each Loan Asset, a file containing (a) each  of the documents and items as set forth on the Loan Asset Checklist with respect to such Loan  Asset and (b) duly executed originals (to the extent required by the Servicing Standard) and copies  of any other Records relating to such Loan Assets and Portfolio Assets pertaining thereto.  “Loan Asset Register” means, with respect to each Noteless Loan Asset, a register  (which may be in physical or electronic form and readily identifiable as the loan asset register)  setting forth (v) the amount of such Noteless Loan Asset, (w) the amount of any principal or  Interest due and payable or to become due and payable from the Obligor thereunder, (x) the amount  of any sum in respect of such Noteless Loan Asset received from the Obligor, (y) the date of  origination of such Noteless Loan Asset and (z) the maturity date of such Noteless Loan Asset.  “Loan Asset Schedule” means the schedule of Loan Agreements evidencing Loan  Assets delivered by the Borrower to the Collateral Custodian and the Administrative Agent.  Each  such schedule shall set forth, as to any Eligible Loan Asset to be acquired by the Borrower, the  applicable information specified on Schedule V, which shall also be provided to the Collateral  Custodian in electronic format acceptable to the Collateral Custodian.  “Loan Assignment” means a Loan Assignment executed by the Borrower and any  applicable transferor, substantially in the form of Exhibit B attached hereto or otherwise in form  and substance customary for assignments or participations of commercial loans as approved by the  Administrative Agent.  “Margin Stock” means “margin stock” as such term is defined in Regulation T, U  or X of the Federal Reserve Board.  “Material Adverse Effect” means, with respect to any event or circumstance, a  material adverse effect on (a) the business, financial condition, operations, performance or  properties of the Servicer or the Borrower, (b) the validity, enforceability or collectability of this  Agreement or any other Transaction Document or the validity, enforceability or collectability of  the Loan Assets generally or any material portion of the Loan Assets, (c) the rights and remedies  of the Collateral Agent, the Collateral Administrator, the Collateral Custodian, the Account Bank,  the Administrative Agent, the Lender or the Secured Parties with respect to matters arising under  this Agreement or any other Transaction Document, (d) the ability of each of the Borrower and  the Servicer to perform their respective obligations under this Agreement or any other Transaction  Document to which such entity is a party, or (e) the status, existence, perfection, priority or  





 






  #75870257_v11 26   enforceability of the Collateral Agent’s, the Administrative Agent’s or the other Secured Parties’  Lien on the Collateral Portfolio.  “Material Modification” means any amendment or waiver of, or modification or  supplement to, a Loan Agreement governing a Loan Asset executed or effected on or after the Cut- Off Date for such Loan Asset which:  (a) reduces or forgives any or all of the principal amount due under such Loan  Asset;  (b) delays or extends the maturity date or any principal payment date for such  Loan Asset;  (c) waives one or more Interest payments, permits any Interest due in cash to  be deferred or capitalized and added to the principal amount of such Loan Asset (other than any  deferral or capitalization or the application of any pricing grid already allowed or contemplated by  the terms of the Loan Agreement existing on the Cut-Off Date for such Loan Asset);  (d) in the case of a First Lien Loan Asset, contractually or structurally  subordinates such Loan Asset, or the Lien of such Loan Asset, by operation of a priority of  payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor  or the granting of Liens (other than (x) “permitted liens” as defined in the applicable Loan  Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined  therein, so long as such definition is reasonable and customary, or (y) purchase money liens on a  portion of the Underlying Collateral for such Loan Asset incurred in the ordinary course of the  Obligor’s business) on any of the Underlying Collateral securing such Loan Asset;    (e) substitutes, alters or releases a portion of the Underlying Collateral securing  such Loan Asset and such substitution, alteration or release materially and adversely affects the  value of such Loan Asset as determined in the sole discretion of the Administrative Agent; or   (f) amends, waives, forbears, supplements or otherwise modifies (x) the  meaning of “Senior Leverage Ratio,” “Senior Net Leverage Ratio,” “Net Leverage Ratio,”  “Interest Coverage Ratio,” “Cash Interest Coverage Ratio” or “Permitted Liens” or any respective  comparable definitions in the Loan Agreement for such Loan Asset, or (y) any term or provision  of such Loan Agreement referenced in or utilized in the calculation of any financial covenant,  including the “Senior Leverage Ratio,” “Senior Net Leverage Ratio,” “Net Leverage Ratio,”  “Interest Coverage Ratio,” “Cash Interest Coverage Ratio” or “Permitted Liens” or any respective  comparable definitions for such Loan Asset, in either case, in a manner that in the sole discretion  of the Administrative Agent materially and adversely affects the value of such Loan Asset.  “Maximum Facility Amount” means, initially, $150,000,000, as such amount may  be increased pursuant to Section 2.22 or reduced pursuant to Section 2.18, provided that at any  time after the Reinvestment Period, the Maximum Facility Amount shall mean the aggregate  Advances Outstanding at such time.  “Minimum Equity Condition” means a test that will be satisfied on any date of  determination if the Effective Equity is at least equal to the Minimum Required Equity Amount.  





 






  #75870257_v11 27   “Minimum Required Equity Amount” means, as of any date of determination, the  Aggregate Adjusted Borrowing Value plus the Unfunded Exposure Amounts of all Eligible Loan  Assets attributable to the four largest Obligors.  “Moody’s” means Moody’s Investors Service, Inc. (or its successors in interest).  “Multiemployer Plan” means a “multiemployer plan” as defined in Section  4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate contributes or has any  obligation to contribute, or with respect to which the Borrower or any ERISA Affiliate has any  liability (whether actual or contingent).  “New Advance” has the meaning assigned to that term in Section 2.22(b).  “New Commitments” has the meaning assigned to that term in Section 2.22(a).  “Non-Approval Event” means, as of any date of determination, an event that (x)  will be deemed to have occurred if the ratio (measured on a rolling six-month basis) of (i) the  number of commercial loans submitted for approval by the Borrower that the Administrative Agent  has not approved as required in item 2 of the Eligibility Criteria but that otherwise satisfy the  Eligibility Criteria in the previous six months to (ii) the total number of commercial loans  submitted for approval by the Borrower in the previous six months, is greater than 50% and (y)  will be continuing until the conditions set forth in clause (x) of this definition are no longer true;  provided that, at any date of determination, unless at least ten (10) loans have been submitted to  the Administrative Agent by the Borrower in the previous six months, the ratio of clause (x)(i)  over clause (x)(ii) shall be deemed to be zero.  “Non-Excluded Taxes” means Taxes, other than Excluded Taxes, imposed on or  with respect to any payment by or on account of any obligation of the Borrower under this  Agreement.  “Non-Performing Loan Asset” means a Loan Asset with respect to which (a) the  Obligor has commenced restructuring or workout negotiations or has completed a debt-for-equity  swap with any creditor thereof or (b) the Servicer has determined in accordance with the Servicing  Standard that such Loan Asset is on non-accrual status or not collectible, or all or any portion of  the outstanding principal balance thereof is permanently reduced or forgiven (other than as a result  of payment thereof).  “Non-Usage Fee” has the meaning set forth in the SMBC Fee Letter.  “Noteless Loan Asset” means a Loan Asset with respect to which the Loan  Agreements (a) do not require the Obligor to execute and deliver a promissory note to evidence  the Indebtedness created under such Loan Asset or (b) require the Obligor to execute and deliver  such promissory note to any holder of the Indebtedness created under such Loan Asset only if such  holder requests the Obligor to deliver such promissory note, and the Obligor has not been requested  to deliver such promissory note with respect to such Loan Asset held by the Borrower.  “Notice and Request for Consent” has the meaning assigned to that term in Section  2.07(d)(i).  





 






  #75870257_v11 28   “Notice of Borrowing” means an irrevocable written notice of borrowing from the  Borrower to the Administrative Agent in the form attached hereto as Exhibit F.  “Notice of Exclusive Control” means a “Notice of Exclusive Control” as defined  in the Control Agreement.  “Notice of Reduction” means a notice of a reduction of the Advances Outstanding  or a reduction of the Maximum Facility Amount, as applicable, pursuant to Section 2.18, in the  form attached hereto as Exhibit G or Exhibit H, as applicable.  “Obligations” means all present and future Indebtedness and other liabilities and  obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or  contingent, or due or to become due) of the Borrower to the Lender, the Administrative Agent, the  Secured Parties, the Account Bank, the Collateral Administrator, the Collateral Agent or the  Collateral Custodian arising under this Agreement and/or any other Transaction Document and  shall include, without limitation, all liability for principal of and interest on the Advances  Outstanding, Breakage Fees, indemnifications and other amounts due or to become due by the  Borrower to the Lender, the Administrative Agent, the Secured Parties, the Account Bank, the  Collateral Administrator, the Collateral Agent and the Collateral Custodian under this Agreement  and/or any other Transaction Document, including without limitation the SMBC Fee Letter, the  U.S. Bank Fee Letter, any Prepayment Premium and costs and expenses required to be paid  hereunder by the Borrower to the Lender, the Administrative Agent, the Secured Parties, the  Account Bank, the Collateral Administrator, the Collateral Agent or the Collateral Custodian,  including reasonable attorneys’ fees, costs and expenses, including without limitation, interest,  fees and other obligations that accrue after the commencement of an insolvency proceeding (in  each case whether or not allowed as a claim in such insolvency proceeding).  “Obligor” means, collectively, each Person obligated to make payments under a  Loan Agreement, including any guarantor thereof.  “Officer’s Certificate” means a certificate signed by the president, a director, a  manager, the secretary, an assistant secretary, the chief financial officer, authorized signatory or  any vice president, as an authorized officer, of any Person.  “Opinion of Counsel” means a written opinion of counsel, which opinion and  counsel are acceptable to the Administrative Agent in its reasonable discretion; provided that  Dechert LLP shall be considered acceptable counsel for purposes of this definition.  “Optional Sale” has the meaning assigned to that term in Section 2.07(c).  “Optional Sale Date” means any Business Day, provided 30 days’ prior written  notice is given in accordance with Section 2.07(c).  “Outstanding Balance” means, with respect to any Loan Asset as of any date of  determination, the outstanding principal balance of any advances or loans made to the related  Obligor pursuant to the related Loan Agreement as of such date of determination (exclusive of any  Interest and Accreted Interest); provided that amortization payments on a Loan Asset shall first be  applied to Accreted Interest when determining the Outstanding Balance of such Loan Asset.  For  





 






  #75870257_v11 29   the avoidance of doubt, the Outstanding Balance with respect to a Revolving Loan Asset or a  Delayed Draw Loan Asset shall be equal to the funded amount of such Revolving Loan Asset or  Delayed Draw Loan Asset.  “Participant Register” has the meaning assigned to that term in Section 11.04(a).  “Payment Date” means the 27th day of each January, April, July and October, or if  such day is not a Business Day, the next succeeding Business Day, commencing on the Initial  Payment Date; provided that the final Payment Date shall occur on the Collection Date.  “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to  Subtitle A of Title IV of ERISA (or any successor).  “Pension Plan” means an “employee pension benefit plan” as such term is defined  in Section 3(2) of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA  or Section 412 of the Code and is sponsored or maintained by the Borrower or any ERISA Affiliate  or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or  has any liability (whether actual or contingent).  “Permitted Distributions” means, provided that Equityholder is a validly electing  RIC, amounts not to exceed the higher of (x) the net investment income of the Borrower for the  applicable year determined in accordance with GAAP and as specified in the annual financial  statements most recently delivered pursuant to Section 6.08(d) and (y) 115% of the amounts that,  had Borrower been classified as a RIC, would be required to be distributed to: (i) allow the  Borrower to satisfy the minimum distribution requirements imposed by Section 852(a) of the Code  (or any successor thereto) to maintain its eligibility to be taxed as a RIC for any such taxable year,  (ii) reduce to zero for any such taxable year the Borrower’s liability for federal income taxes  imposed on (A) its investment company taxable income pursuant to Section 852(b)(1) of the Code  (or any successor thereto) and (B) its net capital gain pursuant to Section 852(b)(3) of the Code  (or any successor thereto), and (iii) reduce to zero the Borrower’s liability for federal excise taxes  for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor  thereto).  “Permitted Investments” means, at any time:  (a) either cash or direct interest bearing obligations of, and interest bearing  obligations guaranteed as to timely payment of principal and interest by, the United States or any  agency or instrumentality of the United States, the obligations of which are backed by the full faith  and credit of the United States;  (b) demand or time deposits in, certificates of deposit of, demand notes of, or  bankers’ acceptances issued by any depository institution or trust company organized under the  laws of the United States or any State thereof (including any federal or state branch or agency of  a foreign depository institution or trust company) and subject to supervision and examination by  federal and/or state banking authorities (including, if applicable, the Collateral Agent, the Account  Bank or the Administrative Agent or any agent thereof acting in its commercial capacity); provided  that the short term unsecured debt obligations of such depository institution or trust company at  





 






  #75870257_v11 30   the time of such investment, or contractual commitment providing for such investment, are rated  at least “A-1” by S&P and “P-1” by Moody’s;  (c) commercial paper that (i) is payable in Dollars and (ii) is rated at least “A-2”  by S&P and “P-2” by Moody’s; and  (d) units of money market funds rated in the highest credit rating category by  each of S&P and Moody’s.   No Permitted Investment shall have an “f”, “r”, “p”, “pi”, “q”, “sf” or “t” subscript  affixed to its S&P rating.  Any such investment may be made or acquired from or through the  Collateral Agent or the Administrative Agent or any of their respective affiliates, or any entity for  whom the Collateral Agent, the Administrative Agent, the Collateral Custodian, the Collateral  Administrator, the Account Bank or any of their respective affiliates provides services and receives  compensation (so long as such investment otherwise meets the applicable requirements of the  foregoing definition of Permitted Investment at the time of acquisition).  “Permitted Liens” means any of the following: (a) Liens for Taxes if such Taxes  shall not at the time be due and payable or if a Person shall currently be contesting the validity  thereof in good faith by appropriate proceedings and with respect to which reserves in accordance  with GAAP have been provided on the books of such Person; (b) Liens imposed by law, such as  materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and  other similar Liens, arising by operation of law in the ordinary course of business for sums that are  not overdue or are being contested in good faith; (c) Liens granted pursuant to or by the  Transaction Documents; (d) bankers’ Liens, rights of setoff and other similar Liens existing solely  with respect to cash and cash equivalents on deposit in one or more accounts maintained by such  Person, in each case granted in the ordinary course of business in favor of the bank or banks with  which such accounts are maintained, securing amounts owing to such bank with respect to cash  management, operating account arrangements and netting arrangements; (e) with respect to  collateral underlying any Loan Asset, the Lien in favor of the Borrower herein and Liens permitted  under the related Loan Agreement; (f) as to any agented Loan Asset, Liens in favor of the agent  on behalf of all the lenders to the related obligor; (g) with respect to the Underlying Collateral,  customary Liens consistent with the Servicing Standard and (h) Liens of clearing agencies, broker- dealers and similar Liens incurred in the ordinary course of business, provided that such Liens (x)  attach only to the securities (or proceeds) being purchased or sold and (y) secure only obligations  incurred in connection with such purchase or sale, and not any obligation in connection with  financing.  “Permitted Priority Revolver Loan” means a revolving lending facility associated  with a First Lien Loan Asset that is incurred by the same Obligor and which is prior in right of  payment to such First Lien Loan Asset, so long as the outstanding principal balance and unfunded  commitments of such senior secured revolving facility do not exceed 20% of the sum of (a) the  aggregate commitment amount of such Permitted Priority Revolver Loan, (b) the aggregate  commitment amount of such Loan Asset and (c) the aggregate commitment amount of any other  Indebtedness that is pari passu with, or senior to, such Loan Asset.  





 






  #75870257_v11 31   “Permitted Refinancing” means any refinancing transaction undertaken by the  Borrower or an Affiliate of the Borrower that is secured, directly or indirectly, by any Loan Asset  formerly included in the Collateral Portfolio or any portion thereof or any interest therein released  from the Lien of this Agreement.  “Permitted Securitization” means any private or public term or conduit  securitization transaction (a) undertaken by the Equityholder, the Borrower or an Affiliate of the  Equityholder, that is secured, directly or indirectly, by any Loan Asset formerly included in the  Collateral Portfolio or any portion thereof or any interest therein released from the Lien of this  Agreement in connection with an Optional Sale, including, without limitation, any collateralized  loan obligation or collateralized debt obligation offering or other asset securitization and (b) in the  case of a term securitization in which the Equityholder or an Affiliate thereof or underwriter or  placement agent has agreed to purchase or place 100% of the equity and non-investment grade  tranches of notes issued in such term securitization transaction.  For the avoidance of doubt,  notwithstanding any agreement by the Equityholder or an Affiliate to purchase or place 100% of  the equity in such term securitization transaction, any such party agreeing to so purchase or place  may designate other Persons as purchasers of such equity provided such party or parties remain  primarily liable therefor if such designees fail to purchase or place in connection with the closing  date of such term securitization and/or, after the closing of such term securitization, may transfer  equity it purchases at the closing thereof.  “Permitted Working Capital Facility” means a revolving lending facility associated  with a First Lien Loan Asset that is secured by all or a portion of the current assets of the related  Obligor and otherwise unsecured or that has a junior-lien security interest with respect to the other  assets of the related Obligor, so long as: (i) such revolving lending facility has an aggregate  commitment equal to not more than 20% of the sum of (a) the aggregate commitment amount of  such revolving lending facility, (b) the aggregate commitment amount of such Loan Asset and (c)  the aggregate commitment amount of any other Indebtedness that is pari passu with, or senior to,  such Loan Asset; (ii) such revolving lending facility has a ratio of the aggregate commitment  amount of such revolving lending facility to EBITDA of such Obligor (based on the most recently  available quarterly financial statements of such Obligor) not greater than 1.0x; and (iii) the  Administrative Agent in its sole and absolute discretion has consented to the treatment of such  revolving lending facility as a Permitted Working Capital Facility.  “Person” means an individual, partnership, corporation (including a statutory or  business trust), limited liability company, joint stock company, trust, unincorporated association,  sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or  other entity.  “Portfolio Assets” means all Loan Assets owned by the Borrower, together with all  proceeds thereof and other assets or property related thereto, including all right, title and interest  of the Borrower in and to:  (a) any amounts on deposit in any cash reserve, collection, custody or lockbox  accounts securing the Loan Assets;  





 






  #75870257_v11 32   (b) all rights with respect to the Loan Assets to which the Borrower is entitled  as lender of record under the applicable Loan Agreement;  (c) the Controlled Accounts, together with all cash and investments in each of  the foregoing other than amounts earned on investments therein;  (d) any Underlying Collateral securing a Loan Asset and all Recoveries related  thereto, all payments paid in respect thereof and all monies due, to become due and paid in respect  thereof accruing after the applicable Cut-Off Date and all liquidation proceeds;  (e) all Required Loan Documents, the Loan Asset Files related to any Loan  Asset, any Records, and the documents, agreements, and instruments included in the Loan Asset  Files or Records;  (f) all Insurance Policies with respect to any Loan Asset;  (g) all Liens, guaranties, indemnities, warranties, letters of credit, accounts,  bank accounts and property subject thereto from time to time purporting to secure or support  payment of any Loan Asset, together with all UCC financing statements, mortgages or similar  filings signed or authorized by an Obligor relating thereto;  (h) all records (including computer records) with respect to the foregoing,  including without limitation any Records; and  (i) all collections, income, payments, proceeds and other benefits of each of  the foregoing.  “Pre-Funded Loan Asset” means an Eligible Loan Asset funded from a  disbursement of the proceeds of an Advance made into the Pre-Funded Loan Asset Account prior  to (but in no event earlier than three Business Days prior to) the closing Date of such Eligible Loan  Asset.  “Pre-Funded Loan Asset Account” means an account in the name of the Borrower  for the benefit of and under the control of the Collateral Agent for the benefit of the Secured  Parties, into which proceeds of Advances may be deposited for the purpose of funding a Pre- Funded Loan Asset; provided that the funds deposited therein (including an interest and earnings  thereon) from time to time and subject to the terms thereof shall constitute the property and assets  of the Borrower and the Borrower shall be solely liable for any Taxes payable with respect to the  Pre-Funded Loan Asset Account.  “Prepayment Premium” means an amount, payable to the Lender, equal to (x) to  the extent the Prepayment Premium is required to be paid pursuant to this Agreement after the  Closing Date but on or prior to the one year anniversary of the Closing Date, 1.00% of the  Maximum Facility Amount or the amount by which the Maximum Facility Amount is reduced, as  applicable, (y) to the extent the Prepayment Premium is required to be paid pursuant to this  Agreement after the one year anniversary of the Closing Date but on or prior to the two year  Closing Date, 0.75% of the Maximum Facility Amount or the amount by which the Maximum  Facility Amount is reduced, as applicable, and (z) after the two year anniversary of the Closing  





 






  #75870257_v11 33   Date, 0.00% of the Maximum Facility Amount or the amount by which the Maximum Facility  Amount is reduced, as applicable; provided that the Prepayment Premium shall be calculated  without giving effect to the proviso in the definition of “Maximum Facility Amount”.  “Prime Rate” means the rate announced by SMBC from time to time as its prime  rate in the United States at its New York Branch, such rate to change as and when such designated  rate changes.  The Prime Rate is not intended to be the lowest rate of interest charged by SMBC  or any other specified financial institution in connection with extensions of credit to debtors.  “Principal Collection Account” means a subaccount, linked to and constituting part  of the Collection Account into which Principal Collections shall be deposited, and into which  Advances may be funded, in the name of the Borrower for the benefit of and under the control of  the Collateral Agent for the benefit of the Secured Parties, for which the wire instructions as of the  Closing Date are set forth on Schedule VI (as such wire instructions may be updated from time to  time by designation of the Borrower to the Administrative Agent in writing); provided that the  funds deposited therein (including any interest and earnings thereon) from time to time shall  constitute the property and assets of the Borrower, and the Borrower shall be solely liable for any  Taxes payable with respect to the Principal Collection Account.  “Principal Collections” means (a) any amounts deposited by the Borrower (or  Equityholder on its behalf) in accordance with Section 2.06(a)(i) or Section 2.07(e)(i) and (b) with  respect to any Loan Asset, all amounts received which are not Interest Collections, including  without limitation all Recoveries, all Insurance Proceeds, all scheduled payments of principal and  principal prepayments and all guaranty payments and proceeds of any liquidations, sales,  dispositions or securitizations, in each case, not attributable to the interest on such Loan Asset;  provided that, for the avoidance of doubt, “Principal Collections” shall not include amounts on  deposit in the Unfunded Exposure Account or amounts withdrawn pursuant to Section 2.21 once  such amounts have been applied as set forth therein.  “Priority Revolver First Lien Loan Asset” means a First Lien Loan Asset with  respect to which there exists a Permitted Priority Revolver Loan.  “Proceeds” means, with respect to any property included in the Collateral Portfolio,  all property that is receivable or received when such property is collected, sold, liquidated,  foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or  involuntary, and includes all rights to payment with respect to any insurance relating thereto.  “Qualified First Lien Loan Asset” means a First Lien Loan Asset with respect to  which there exists a Permitted Working Capital Facility.  “Records” means all documents relating to the Loan Assets, including books,  records and other information executed in connection with the origination or acquisition of the  Collateral Portfolio or maintained with respect to the Collateral Portfolio and the related Obligors  that the Borrower or the Servicer have generated, in which the Borrower has acquired or obtained  an interest.  “Recoveries” means, as of the time any Underlying Collateral with respect to any  Loan Asset subject to a payment default, or other default, by the related Obligor is sold, discarded  





 






  #75870257_v11 34   or abandoned (after a determination by the Servicer that such Underlying Collateral has little or  no remaining value) or otherwise determined to be fully liquidated by the Servicer in accordance  with the Servicing Standard, the proceeds from the sale of the Underlying Collateral, the proceeds  of any related Insurance Policy, any other recoveries with respect to such Loan Asset, as  applicable, the Underlying Collateral, and amounts representing late fees and penalties, net of any  amounts received that are required under such Loan Asset, as applicable, to be refunded to the  related Obligor.  “Register” has the meaning assigned to that term in Section 2.14.  “Reinvestment Period” means the date commencing on the Closing Date and  ending on the earliest to occur of (a) November 24, 2023 (or such later date as is agreed to in  writing by the Borrower, the Servicer, the Administrative Agent and the Lender pursuant to  Section 2.19(a)), (b) the date on which the Administrative Agent elects in writing to terminate the  Reinvestment Period after the occurrence and during the continuance of an Event of Default and  (c) the date of any voluntary termination by the Borrower pursuant to Section 2.18(b); provided  that if any of the foregoing is not a Business Day, the Reinvestment Period shall end on the next  succeeding Business Day.  “Reinvestment Period Extension” has the meaning assigned to that term in Section  2.19(a).  “Release Date” has the meaning assigned to that term in Section 2.07(e).  “Relevant Governmental Body” means the Federal Reserve Board and/or the  Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal  Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.  “Relevant Test Period” means, with respect to any Loan Asset, the relevant test  period for the reporting and calculation of the applicable financial covenants included in the Loan  Agreement for each such Loan Asset, including financial covenants comparable to Total Leverage  Ratio, as applicable, for such Loan Asset in the applicable Loan Agreement or, if no such period  is provided for therein, for Obligors delivering monthly financial statements, each period of the  last 12 consecutive reported calendar months, and for Obligors delivering quarterly financial  statements, each period of the last four consecutive reported fiscal quarters of the principal Obligor  on such Loan Asset; provided that with respect to any Loan Asset for which the relevant test period  is not provided for in the Loan Agreement, if an Obligor is a newly-formed entity or such Loan  Asset has been newly issued or amended and restated as to which twelve (12) consecutive calendar  months or four (4) fiscal quarters have not yet elapsed (such date of formation, new issue or  amendment and restatement a “Start Date”), “Relevant Test Period” shall initially include the  period from the Start Date to the end of the twelfth calendar month or fourth fiscal quarter (as the  case may be) from the Start Date, and shall subsequently include each period of the last 12  consecutive reported calendar months or four consecutive reported fiscal quarters (as the case may  be) of such Obligor.  “Remittance Period” means, (a) as to the Initial Payment Date, the period beginning  on the Closing Date and ending on, and including, the Determination Date immediately preceding  





 






  #75870257_v11 35   such Payment Date and (b) as to any subsequent Payment Date, the period beginning on the first  day after the most recently ended Remittance Period and ending on, and including, the  Determination Date immediately preceding such Payment Date, or, with respect to the final  Remittance Period, the Collection Date.  “Replacement Servicer” has the meaning assigned to that term in Section 6.01(d).  “Reporting Date” means the 27th day of each calendar month, commencing  December 27, 2020.  “Required Lenders” has the meaning assigned to that term in Section 11.01(a).  “Required Loan Documents” means, for each Loan Asset, the following documents  or instruments, all as specified on the related Loan Asset Checklist:  (a) (i) other than in the case of a Noteless Loan Asset, the original or, if  accompanied by an original “lost note” affidavit and indemnity, a copy of, the underlying  promissory note, endorsed by the Borrower in blank or to the Collateral Agent (and evidencing an  unbroken chain of endorsements from each prior holder of such promissory note to the Borrower),  and (ii) in the case of a Noteless Loan Asset (x) a copy of each transfer document or instrument  relating to such Noteless Loan Asset evidencing the assignment of such Noteless Loan Asset from  the Borrower either to the Collateral Agent or in blank, and (y) a copy of the Loan Asset Register  with respect to such Noteless Loan Asset; and  (b) originals or copies of each of the following, to the extent applicable to the  related Loan Asset; any related loan agreement, credit agreement or note purchase agreement, any  security agreement (if separate from any mortgage), sale and servicing agreement, acquisition  agreement, subordination agreement, intercreditor agreement or similar instruments, guarantee,  Insurance Policy, assumption or substitution agreement or similar material operative document, in  each case together with any amendment or modification thereto, as set forth on the Loan Asset  Checklist.  (c) either (i) copies of the UCC-1 financing statements, if any, and any related  continuation statements, each showing the Obligor as debtor and the Collateral Agent as total  assignee or showing the Obligor as debtor and the Borrower or the relevant agent for the lenders  as secured party and each with evidence of filing thereon or (ii) copies of any such UCC financing  statement certified by the Servicer to be true and complete copies thereof in instances where the  original UCC financing statements have been sent to the appropriate public office filing.  “Required Reports” means collectively, the Servicing Reports required pursuant to  Section 6.08(b), the Servicer’s Certificate required pursuant to Section 6.08(c), the financial  statements of the Equityholder required pursuant to Section 6.08(d), the tax returns of the Borrower  (if applicable) required pursuant to Section 6.08(e), the financial statements and valuation reports  of each Obligor required pursuant to Section 6.08(f), the annual statements as to compliance  required pursuant to Section 6.09, and the annual independent public accountant’s report required  pursuant to Section 6.10.  





 






  #75870257_v11 36   “Responsible Officer” means, with respect to any Person, any duly authorized  officer of such Person with direct responsibility for the administration of this Agreement and also,  with respect to a particular matter, any other duly authorized officer of such Person to whom such  matter is referred because of such officer’s knowledge of and familiarity with the particular  subject.  “Restricted Junior Payment” means (a) any dividend or other distribution (other  than Permitted Distributions), direct or indirect, on account of any class of membership interests  of the Borrower now or hereafter outstanding, except a dividend paid solely in interests of that  class of membership interests or in any junior class of membership interests of the Borrower; (b)  any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for  value, direct or indirect, of any class of membership interests of the Borrower now or hereafter  outstanding, (c) any payment made to redeem, purchase, repurchase or retire, or to obtain the  surrender of, any outstanding warrants, options or other rights to acquire membership interests of  the Borrower now or hereafter outstanding, and (d) any payment of management fees by the  Borrower.  For the avoidance of doubt, (x) payments and reimbursements due to the Servicer in  accordance with this Agreement or any other Transaction Document do not constitute Restricted  Junior Payments, and (y) distributions by the Borrower to holders of its membership interests of  Loan Assets or of cash or other proceeds relating thereto which have been substituted by the  Borrower or transferred in connection with a Lien Release Dividend in accordance with this  Agreement shall not constitute Restricted Junior Payments.  “Retained Interest” means, with respect to any Loan Asset, (a) all obligations of the  Borrower to make advances thereon after the related Cut-Off Date, (b) all of the obligations of the  Borrower, if any, of or owing to the agent(s) under the documentation evidencing such Loan Asset  and (c) the applicable portion of the interests, rights and obligations under the documentation  evidencing such Loan Asset that relate to such portion(s) of the indebtedness that is owned by  another lender.  “Review Criteria” has the meaning assigned to that term in Section 12.02(b)(i).  “Revolving Loan Asset” means a Loan Asset that is a line of credit or contains an  unfunded commitment arising from an extension of credit to an Obligor, pursuant to the terms of  which amounts borrowed may be repaid and subsequently reborrowed; provided that any such  Loan Asset will no longer be a Revolving Loan Asset once all commitments by the Borrower to  make advances to the related Obligor expire or are terminated or reduced to zero.  “RIC” means a person qualifying for treatment as a “regulated investment  company” within the meaning of section 851 of the Code.  “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial  Services LLC business (or its successors in interest).  “Scheduled Payment” means each scheduled payment of principal and/or Interest  required to be made by an Obligor on the related Loan Asset, as adjusted pursuant to the terms of  the related Loan Agreement.  





 






  #75870257_v11 37   “Secured Party” means each of the Administrative Agent, the Lender (together with  its successors and permitted assigns), the Collateral Agent, the Collateral Custodian, the Collateral  Administrator, the Account Bank and, to the extent of any Obligations owing to such Person  hereunder or under any other Transaction Document, each of their respective Affiliates, assigns,  officers, directors, employees and agents.  “Senior Net Leverage Ratio” means, with respect to any Loan Asset for any  Relevant Test Period, the meaning of “Senior Net Leverage Ratio” or any comparable definition  relating to first lien senior secured (or such applicable lien or applicable level within the capital  structure) indebtedness (including, without limitation, such Loan Asset) in the Loan Agreement  for each such Loan Asset, and in any case that “Senior Net Leverage Ratio” or such comparable  definition is not defined in such Loan Agreement, the ratio of (a) first lien senior secured (or such  applicable lien or applicable level within the capital structure) Indebtedness of the applicable  Obligor as of the date of determination minus the Unrestricted Cash of such Obligor and its  consolidated subsidiaries as of such date to (b) EBITDA of such Obligor with respect to the  applicable Relevant Test Period, in each case as calculated by the Servicer in good faith using  information from and calculations consistent with relevant compliance statements and financial  reporting packages provided by the relevant Obligor and, with respect to any Loan Asset with  respect to which the Obligor has undergone a material acquisition, merger or other similar material  corporate event within the Relevant Test Period, calculated on a pro forma basis as if such event  had occurred at the beginning of the Relevant Test Period so long as such pro forma calculation is  provided for in the related Loan Agreement.  “Senior Servicing Fees” means the senior portion of the fee payable to the Servicer  on each Payment Date in arrears in respect of each Remittance Period, which fee shall be equal to  the product of (a) 0.25%, (b) the arithmetic mean of the aggregate Outstanding Balance of all  Eligible Loan Assets and Defaulted Loan Assets on the first day and on the last day of the related  Remittance Period and (c) the actual number of days in such Remittance Period divided by 360;  provided, the Servicer may, from time to time, waive all or any portion of the Senior Servicing  Fee on any Payment Date.  “Servicer” means at any time the Person then authorized, pursuant to Section 6.01  to service, administer, and collect on the Loan Assets and exercise rights and remedies in respect  of the same.  “Servicer Cause Event” means (i) the conviction (or plea of no contest) for a felony  of the Servicer, (ii) the conviction (or plea of no contest) for a felony of an officer or a member of  the board of directors (or equivalent governing body) of the Servicer following which such Person  may no longer serve in a management capacity with respect to a registered investment company  pursuant to the Investment Company Act and related rules and regulations, if the employment or  other affiliation of such Person so convicted is not terminated by the Servicer within 30 days of  such conviction, or (iii) the Servicer or an officer or a member of the board of directors (or  equivalent governing body) of the Servicer has engaged in gross negligence or willful misconduct  with respect to the Borrower that has resulted in a Material Adverse Effect, or has committed a  knowing material violation of securities laws, each as determined by a final decision of a court of  competent jurisdiction unless, in the case of such natural persons, their employment or other  





 






  #75870257_v11 38   affiliation with the Servicer is terminated or suspended within 30 days after discovery by the  Servicer.  “Servicer Default” means the occurrence of any one or more of the following  events:   (a) any failure by the Servicer to make any payment, transfer or deposit into the  Collection Account (including, without limitation, with respect to bifurcation and remittance of  Interest Collections and Principal Collections) or the Unfunded Exposure Account, as required by  this Agreement or any Transaction Document which continues unremedied for a period of three  Business Days (or, if such failure is solely due to administrative error by the Collateral Agent,  within two Business Days following the earlier of notice to the Servicer or actual knowledge of  the Servicer);  (b) any failure on the part of the Servicer duly to observe or perform in any  material respect any other covenants or agreements of the Servicer set forth in this Agreement or  the other Transaction Documents to which the Servicer is a party (including, without limitation,  any material delegation of the Servicer’s duties that is not permitted by Section 6.01 of this  Agreement) and the same continues unremedied for a period of 30 days (if such failure can be  remedied) after the earlier to occur of (x) the date on which written notice of such failure requiring  the same to be remedied shall have been given to the Servicer by the Administrative Agent or the  Collateral Agent (at the direction of the Administrative Agent) and (y) the date on which a  Responsible Officer of the Servicer acquires knowledge thereof;  (c) the failure of the Servicer to make any payment of principal, interest or  recurring fees when due (after giving effect to any related grace period) under one or more  agreements for borrowed money to which it is a party and for which there is recourse to the  Servicer or the property of the Servicer for such debt in an aggregate amount in excess of  $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has  resulted in the acceleration of such amount of recourse debt whether or not waived;  (d) a Bankruptcy Event shall occur with respect to the Servicer or Equityholder;  (e) Nuveen Churchill Direct Lending Corp. or an Affiliate thereof shall cease  to be the Servicer (other than with the prior written consent of the Lender and the Administrative  Agent);  (f) any failure by the Servicer to deliver (i) any required Servicing Report or  any other Required Reports hereunder on or before the date occurring five Business Days after the  date such report is required to be made or given as the case may be, in each case under the terms  of this Agreement;  (g) any representation, warranty or certification made by the Servicer in any  Transaction Document or in any document or report delivered pursuant to any Transaction  Document shall prove to have been incorrect when made, which has a Material Adverse Effect on  the Administrative Agent or any of the Secured Parties and continues to be unremedied for a period  of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness  requiring the same to be remedied shall have been given to the Servicer by the Administrative  





 






  #75870257_v11 39   Agent or the Collateral Agent and (ii) the date on which a Responsible Officer of the Servicer  acquires knowledge thereof;   (h) any financial or other information reasonably requested by the  Administrative Agent or the Collateral Agent pursuant to the terms hereof and required to be  provided hereunder is not so provided as requested within a reasonable amount of time following  such requests (subject to the availability of such information to the Servicer and any applicable  obligations of confidentiality, including redaction, with respect thereto);  (i) the rendering against the Servicer of one or more final judgments, decrees  or orders for the payment of money in excess of $5,000,000, individually or in the aggregate  (excluding, in each case, any amounts covered by insurance to the extent coverage has not been  denied in writing), and the continuance of such judgment, decree or order unsatisfied and in effect  for any period of more than 60 consecutive days after the later of (i) the date on which the right to  appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to  appeal have been extinguished, without such judgment, decree or order being vacated, stayed or  discharged during such 60 day period;  (j) the occurrence of a Change of Control;  (k) the declaration or automatic occurrence of the Facility Maturity Date;  (l) or the occurrence of an Event of Default;  (m) reserved;   (n) the occurrence of an event that would (i) result in the termination of its  status as a RIC under section 851 of the Code (and the United States Treasury regulations issued  thereunder) or (ii) cause it to fail to meet the requirements under section 852(a) of the Code (and  the United States Treasury regulations issued thereunder), in either case, that could reasonably be  expected to cause a Material Adverse Effect in accordance with clause (d) of such term;  (o) (a) the Governing Documents of the Servicer or the Equityholder, or any  Transaction Document to which the Servicer is a party or any Lien or security interest granted  thereunder, shall (except in accordance with its terms), in whole or in part, terminate, ceased to be  effective or cease to be the legal, valid, binding and enforceable obligation of the Servicer or (b)  the Servicer shall, directly or indirectly, contest in any manner the effectiveness, validity, binding  nature or enforceability of any Transaction Document to which it is a party or any Lien or security  interest thereunder; or  (p) a Servicer Cause Event shall have occurred.  “Servicer Termination Notice” has the meaning assigned to that term in  Section 6.01(c).  “Servicing Expenses” means reasonable expenses (except allocated overhead)  incurred by the Servicer in connection with the performance of its duties under the Transaction  Documents.  





 






  #75870257_v11 40   “Servicing Fees” means, collectively, the Senior Servicing Fees and the  Subordinated Servicing Fees.  “Servicing File” means, for each Loan Asset, (a) copies of each of the Required  Loan Documents and (b) any other portion of the Loan Asset File which is not part of the Required  Loan Documents.  “Servicing Report” has the meaning assigned to that term in Section 6.08(b).  “Servicing Standard” means, with respect to any Loan Assets included in the  Collateral Portfolio, to service and administer such Loan Assets on behalf of the Secured Parties  with reasonable care (i) using no less degree of care, skill and attention as it employs with respect  to similar collateral that it manages for itself and its Affiliates having similar investment objectives  and restrictions and (ii) without limiting the clause (i), in a manner it reasonably believes consistent  with customary standards, policies and procedures followed by institutional managers of national  standing relating to assets of the nature and character of the Loan Assets.  “SMBC” means Sumitomo Mitsui Banking Corporation, a Japanese banking  corporation, in its individual capacity, together with its successors and assigns.  “SMBC Fee Letter” means that certain lender fee letter, dated as of November 24,  2020, by and among the Borrower, the Servicer, the Administrative Agent and SMBC, as may be  amended, restated, supplemented, modified, waived and/or replaced from time to time.  “SOFR” with respect to any day means the secured overnight financing rate  published for such day by the Federal Reserve Bank of New York, as the administrator of the  benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.  “Solvent” means, as to any Person at any time, having a state of affairs such that all  of the following conditions are met:  (a) the fair market value of the property of such Person is  greater than the amount of such Person’s liabilities (including disputed, contingent and  unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section  101(32) of the Bankruptcy Code; (b) the present fair saleable value of the property of such Person  in an orderly liquidation of such Person is not less than the amount that will be required to pay the  probable liability of such Person on its debts and other liabilities as they become absolute and  matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities  (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of  business; (d) such Person does not intend to, and does not believe that it will, incur debts or  liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such  Person is not engaged in a business or a transaction, and does not propose to engage in a business  or a transaction, for which such Person’s property assets would constitute unreasonably small  capital.  “State” means one of the fifty states of the United States or the District of Columbia.  “Stated Maturity Date” means November 24, 2025 (or, if such day is not a Business  Day, the next succeeding Business Day) or such later date as is agreed to in writing by the  Borrower, the Servicer, the Administrative Agent and the Lender pursuant to Section 2.19(b).  





 






  #75870257_v11 41   “Stated Maturity Extension” has the meaning assigned to that term in Section  2.19(b).  “Subordinated Servicing Fees” means the subordinated portion of the fee payable  to the Servicer on each Payment Date in arrears in respect of each Remittance Period, which fee  shall be equal to the product of (a) 0.125%, (b) the arithmetic mean of the aggregate Outstanding  Balance of all Eligible Loan Assets and Defaulted Loan Assets on the first day and on the last day  of the related Remittance Period and (c) the actual number of days in such Remittance Period  divided by 360; provided, the Servicer may, from time to time, waive all or any portion of the  Senior Servicing Fee on any Payment Date.  “Subsidiary” means with respect to a Person, a corporation, partnership or other  entity of which shares of stock or other ownership interests having ordinary voting power (other  than stock or such 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 managers of such  corporation, partnership or other entity are at the time owned, or the management of which is  otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such  Person; provided, that “Subsidiary” shall not include any Person that constitutes a Portfolio Asset  held by the Borrower and that is not consolidated on the financial statements of the Borrower under  GAAP.  “Substitute Eligible Loan Asset” means each Eligible Loan Asset transferred to, or  acquired by, the Borrower, as contemplated by Section 2.07(a) or Section 2.07(e)(ii).  “Tax Blocker Subsidiary” means any wholly-owned subsidiary of the Borrower  from time to time designated in writing by the Borrower as a “Tax Blocker Subsidiary”; provided  that no Tax Blocker Subsidiary shall hold any assets other than in connection with the receipt of  equity securities with respect to a Loan Asset or Portfolio Asset.  “Taxes” means any present or future taxes, levies, imposts, deductions,  withholdings, duties, charges, assessments or fees of any nature, including, without limitation,  present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise  from any payment made under, from the execution, delivery, performance, enforcement, or  registration of, from the receipt or perfection of a security interest under or otherwise with respect  to any Transaction Document (including interest, penalties and additions thereto) that are imposed  by any Governmental Authority.  “Term SOFR” means the forward-looking term rate based on SOFR that has been  selected or recommended by the Relevant Governmental Body.  “Total Leverage Ratio” means, with respect to any Loan Asset for any Relevant  Test Period, the meaning of “Total Leverage Ratio” or any comparable definition in the Loan  Agreement for each such Loan Asset, and in any case that “Total Leverage Ratio” or such  comparable definition is not defined in such Loan Agreement, the ratio of (a) Indebtedness minus  Unrestricted Cash to (b) EBITDA of the applicable Obligor and its consolidated subsidiaries, in  each case for such Relevant Test Period, as calculated by the Servicer in good faith using  information from and calculations consistent with the relevant compliance statements and financial  





 






  #75870257_v11 42   reporting packages provided by the relevant Obligor as per the requirements of the related Loan  Agreement and, with respect to any Loan Asset with respect to which the Obligor has undergone  a material acquisition, merger or other similar material corporate event within the Relevant Test  Period, calculated on a pro forma basis as if such event had occurred at the beginning of the  Relevant Test Period so long as such pro forma calculation is provided for in the related Loan  Agreement.  “Transaction Documents” means this Agreement, any Variable Funding Note (if  delivered hereunder), any Joinder Supplement, the Control Agreement, the U.S. Bank Fee Letter,  the SMBC Fee Letter, and each document, instrument or agreement executed by the Borrower or  the Servicer and delivered to the Administrative Agent or any Secured Party related to any of the  foregoing.  “U.S. Bank” has the meaning assigned to that term in the preamble hereto.  “U.S. Bank Fee Letter” means the Schedule of Fees, dated on or about August 19,  2020, between U.S. Bank and the Investment Sub-Advisor, on behalf of the Borrower, as such  letter may be amended, modified, supplemented, restated or replaced from time to time.  “UCC” means the Uniform Commercial Code as from time to time in effect in the  relevant jurisdiction.  “Unadjusted Benchmark Replacement” means the Benchmark Replacement  excluding the Benchmark Replacement Adjustment.  “Underlying Collateral” means, with respect to a Loan Asset, any property or other  assets designated and pledged or mortgaged as collateral to secure repayment of such Loan Asset,  as applicable, including, without limitation, mortgaged property and/or a pledge of the stock,  membership or other ownership interests in the related Obligor and all proceeds from any sale or  other disposition of such property or other assets.  “Underlying Instruments” means the loan agreement, credit agreement, indenture  or other agreement pursuant to which a Loan Asset or Permitted Investment has been issued or  created and each other agreement that governs the terms of or secures the obligations represented  by such Loan Asset or Permitted Investment or of which the holders of such Loan Asset or  Permitted Investment are the beneficiaries.  “Unfunded Exposure Account” means an account in the name of the Borrower and  under the control of the Collateral Agent for the benefit of the Secured Parties; provided that the  funds deposited therein (including any interest and earnings thereon) from time to time shall  constitute the property and assets of the Borrower and the Borrower shall be solely liable for any  Taxes payable with respect to the Unfunded Exposure Account.  “Unfunded Exposure Amount” means, as of any date of determination, an amount  equal to the aggregate amount of all Exposure Amounts.  “Unfunded Exposure Equity Amount” means, as of any date of determination, with  respect to any Revolving Loan Asset or Delayed Draw Loan Asset, an amount equal to (a) the  





 






  #75870257_v11 43   Exposure Amount for such Revolving Loan Asset or Delayed Draw Loan Asset multiplied by (b)  the difference of (i) 100% minus (ii) the Applicable Percentage for such Revolving Loan Asset or  Delayed Draw Loan Asset.  “United States” means the United States of America.  “Unmatured Event of Default” means any event that, if it continues uncured, will,  with lapse of time, notice or lapse of time and notice, constitute an Event of Default.  “Unrestricted Cash” means with respect to any Loan Asset, the meaning of  “Unrestricted Cash” or any comparable definition in the Loan Agreement for each such Loan  Asset, and in any case that “Unrestricted Cash” or such comparable definition is not defined in  such Loan Asset, all cash available for use for general corporate purposes and not held in any  reserve account or legally or contractually restricted for any particular purposes or subject to any  lien (other than blanket liens permitted under or granted in accordance with such Loan Agreement),  in each case as determined by the Servicer consistent with the Servicing Standard and subject to  the Servicer’s standard practices for adjusting unrestricted cash as reported by borrowers.  “Upfront Fee” has the meaning set forth in the SMBC Fee Letter.  “Value Adjustment Event” means, with respect to any Loan Asset, the occurrence  of any one or more of the following events after the related Cut-Off Date:   (a) an Obligor payment default with respect to any portion of principal or  interest (including in respect of acceleration) under such Loan Asset (after giving effect to any  applicable grace or cure periods, but in any case not to exceed five Business Days, in accordance  with the applicable Loan Agreement);  (b) the occurrence of a Bankruptcy Event with respect to the related Obligor;   (c) the occurrence of a Material Modification with respect to such Loan Asset;  (d) a payment default with respect to any portion of principal or interest  (including in respect of acceleration) under any indebtedness for borrowed money of an Obligor  that is senior or pari passu to a Loan Asset of such Obligor and has not been cured for five Business  Days after the applicable date due under the applicable underlying loan documents (without giving  effect to any applicable grace or cure periods (including in respect of the acceleration of the debt)  in accordance with the applicable underlying loan documents);   (e) the Servicer has deemed such Loan Asset to be a Non-Performing Loan  Asset;  (f) the related Obligor (x) fails to deliver any periodic annual financial reporting  required to be delivered under the related Loan Agreement after the end of each fiscal year with the  applicable number of days as allowed by the underlying loan documents (including any grace  periods thereunder, but which shall in no case exceed 150 days after the end of each fiscal year or  such longer period as to which the Administrative Agent shall have given its consent) or (y) fails to  provide notice of any other Obligor default under any Loan Asset (after giving effect to any  





 






  #75870257_v11 44   applicable grace or cure periods in accordance with the Loan Agreement) that could reasonably be  expected in Servicer’s discretion (consistent with the Servicing Standard and in consultation with  the Administrative Agent) to have a material and adverse effect on the creditworthiness of such  Obligor or on the collectability of any amount required to be paid under the related Loan Agreement  for such Loan Asset;  (g) with respect to any First Lien Loan Asset, the Senior Net Leverage Ratio for  any Relevant Test Period of the related Obligor with respect to such Loan Asset is (A) more than  0.50x higher than such Senior Net Leverage Ratio as calculated on the applicable Cut-Off Date  (provided that if any other positions in such Loan Asset existed on its Cut-Off Date then the Senior  Net Leverage Ratio utilized for the position with the earliest of such other Cut-Off Dates shall  apply, unless the Administrative Agent agrees otherwise) and (B) 3.50 to 1.00; and  (h) the Interest Coverage Ratio for any Relevant Test Period of the related  Obligor with respect to such Loan Asset is (a) less than 85% of the Interest Coverage Ratio with  respect to such Loan Asset as calculated on the applicable Cut-Off Date (provided that, if any other  positions in such Loan Asset by the Borrower existed on its Cut-Off Date, then the Interest  Coverage Ratio utilized for the position with the earliest of such other Cut-Off Dates shall apply,  unless the Administrative Agent agrees otherwise) and (b) less than 1.50 to 1.00.  “Variable Funding Note” has the meaning assigned to such term in Section 2.01(a).  “Warranty Event” means, as to any Loan Asset, the discovery that as of the related  Cut-Off Date for such Loan Asset there existed a breach of any representation or warranty relating  to such Loan Asset, solely to the extent such representation or warranty relates to the  Equityholder’s title to the applicable Loan Asset or its ability to transfer or assign such Loan Asset  hereunder or that the Loan Asset failed to satisfy the criteria of the definition of “Eligible Loan  Asset”, and the failure of Borrower to cure such breach, or cause the same to be cured, within 30  days after the earlier to occur of the Borrower’s receipt of notice thereof from the Administrative  Agent or the Borrower becoming aware thereof; provided that, if such breach is not cured within  10 days after the earlier to occur of the Borrower’s receipt of notice thereof from the  Administrative Agent or the Borrower becoming aware thereof, then such Loan Asset shall no  longer be an Eligible Loan Asset and, so long as such breach remains uncured, shall not be included  in the calculation of “Borrowing Base”.  “Warranty Loan Asset” means a Loan Asset with respect to which a Warranty  Event has occurred.  “Yield” means the sum of the following payable on each Payment Date:  (a) the aggregate LIBOR Yield for all LIBOR Advances Outstanding that have  an Interest Period that ends on such Payment Date and for any part of the outstanding principal  amount of a LIBOR Advance that was prepaid on a day other than a day on which an Interest  Period for such LIBOR Advance ended, to the extent that LIBOR Yield with respect to such  prepaid principal remains accrued and unpaid,  





 






  #75870257_v11 45   plus,  (b) with respect to any previously ended Remittance Period during which any  Base Rate Advances were outstanding, the sum for each day in such Remittance Period of amounts  determined in accordance with the following formula (but only to the extent that such amounts  were not previously paid to the Lender):  YR x L  D  where: YR  = the Base Rate Yield Rate applicable on such  day;  L = the aggregate principal amount of the Base Rate  Advances Outstanding on such day; and   D = 365 or 366, as applicable;  provided that (i) no provision of this Agreement shall require the payment or permit the collection  of Yield in excess of the maximum permitted by Applicable Law and (ii) Yield shall not be  considered paid by any distribution if at any time such distribution is later required to be rescinded  by the Lender to the Borrower or any other Person for any reason including, without limitation,  such distribution becoming void or otherwise avoidable under any statutory provision or common  law or equitable action, including, without limitation, any provision of the Bankruptcy Code.  SECTION 1.02 Other Terms.  All accounting terms used but not specifically defined  herein shall be construed in accordance with GAAP; provided that, unless otherwise expressly  stated in this Agreement, if at any time any change in GAAP (including the adoption of the  International Financial Reporting Standards) would affect the computation of any covenant set  forth in this Agreement or any other Transaction Document, the Borrower and the Administrative  Agent shall negotiate in good faith to amend such covenant to preserve the original intent in light  of such change.  All terms used in Article 9 of the UCC in the State of New York, and used but  not specifically defined herein, are used herein as defined in such Article 9.  SECTION 1.03 Computation of Time Periods.  Unless otherwise stated in this  Agreement, in the computation of a period of time from a specified date to a later specified date,  the word “from” means “from and including” and the words “to” and “until” each mean “to but  excluding.”  SECTION 1.04 Interpretation.  In each Transaction Document, unless a contrary intention appears:  (a) the singular number includes the plural number and vice versa;  (b) reference to any Person includes such Person’s successors and assigns, but  only if such successors and assigns are not prohibited by the Transaction Documents;  





 






  #75870257_v11 46   (c) reference to any gender includes each other gender;  (d) reference to day or days without further qualification means a calendar day  or calendar days;  (e) reference to any time means New York, New York time;  (f) reference to the words “include”, “includes” and “including” shall be  deemed to be followed by the phrase “without limitation”;  (g) reference to any agreement (including any Transaction Document),  document or instrument means such agreement, document or instrument as amended, modified,  waived, supplemented, restated or replaced and in effect from time to time in accordance with the  terms thereof and, if applicable, the terms of the other Transaction Documents and reference to  any promissory note includes any promissory note that is an extension or renewal thereof or a  substitute or replacement therefor;  (h) reference to any Applicable Law means such Applicable Law as amended,  modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time,  including rules and regulations promulgated thereunder and reference to any section or other  provision of any Applicable Law means that provision of such Applicable Law from time to time  in effect and constituting the substantive amendment, modification, codification, replacement or  reenactment of such section or other provision;   (i) reference to the “occurrence” of an Event of Default means after any grace  period applicable to such Event of Default and shall not include any Event of Default that has been  cured or expressly waived in writing in accordance with the terms of this Agreement;   (j) if any date for compliance with the terms or conditions of any Transaction  Document falls due on a day which is not a Business Day, then such due date shall be deemed to  be the immediately following Business Day;   (k) unless otherwise expressly set forth herein, all calculations required to be  made hereunder with respect to any Loan Asset and the Borrowing Base shall be made on a trade  date basis; and  (l) any reference to “execute”, “executed”, “sign”, “signed”, “signature” or any  other like term hereunder shall include execution by electronic signature (including, with-out  limitation, any .pdf file, .jpeg file, or any other electronic or image file, or any “electronic  signature” as defined under the U.S. Electronic Signatures in Global and National Commerce Act  or the New York Electronic Signatures and Records Act, which includes any electronic signature  provided using Orbit, Adobe Fill & Sign, Adobe Sign, DocuSign, or any other similar platform  identified by any party hereto and reasonably available at no undue burden or expense to any party  hereto), except to the extent the Collateral Custodian, the Collateral Administrator or the Account  Bank hereto requests otherwise.  Any such electronic signatures shall be valid, effective and legally  binding as if such electronic signatures were handwritten signatures and shall be deemed to have  been duly and validly delivered for all purposes hereunder.  





 






  #75870257_v11 47   ARTICLE II    THE FACILITY  SECTION 2.01 Variable Funding Note and Advances.  (a) Variable Funding Note.  Upon the written request of the Lender, the  Borrower shall (on the terms and subject to the conditions hereinafter set forth) deliver to the  Lender, at the address set forth in Section 11.02, a duly executed variable funding note (as  amended, restated, supplemented and/or otherwise modified from time to time, the “Variable  Funding Note”), in substantially the form of Exhibit I, in an aggregate face amount equal to the  Maximum Facility Amount, and otherwise duly completed.  If any Variable Funding Note is  issued, interest shall accrue on such Variable Funding Note, and such Variable Funding Note shall  be payable, as described herein.  (b) Advances.  On the terms and conditions hereinafter set forth, from time to  time from the Closing Date until the end of the Reinvestment Period, the Borrower may request  that the Lender make Advances secured by the Collateral Portfolio, (w) to be paid to the Borrower  for the purpose of purchasing Eligible Loan Assets, (x) to be deposited in the Unfunded Exposure  Account in an amount up to the Unfunded Exposure Amount, (y) to be deposited in the Pre-Funded  Loan Asset Account for the purpose of funding a Pre-Funded Loan Asset, or (z) to be paid to the  Borrower for distributions to the Equityholder (so long as such distribution is permitted pursuant  to Section 5.02(l)).  Other than pursuant to (and to the extent required by) Section 2.02(f), under  no circumstances shall the Lender be required to make any Advance if after giving effect to such  Advance and the addition to the Collateral Portfolio of the Eligible Loan Assets being acquired by  the Borrower using the proceeds of such Advance, (i) an Event of Default has occurred and is  continuing or would result therefrom or an Unmatured Event of Default exists or would result  therefrom or (ii) the aggregate Advances Outstanding would exceed the Borrowing Base.   Notwithstanding anything to the contrary herein (including without limitation Section 2.02(f)), the  Lender shall not be obligated to provide the Borrower (or to the Unfunded Exposure Account or  Pre-Funded Loan Asset Account, if applicable) with aggregate funds in connection with an  Advance if upon making such Advance, the Advances Outstanding would exceed the Maximum  Facility Amount.    (c) Notations on Variable Funding Note.  The Lender is hereby authorized to  enter on a schedule attached to any Variable Funding Note evidencing the loan made hereunder a  notation (which may be computer generated) with respect to each Advance under such Variable  Funding Note made by the Lender of:  (i) the date and principal amount thereof, and (ii) each  repayment of principal thereof, and any such recordation shall constitute prima facie evidence of  the accuracy of the information so recorded.  The failure of the Lender to make any such notation  on the schedule attached to any Variable Funding Note shall not limit or otherwise affect the  obligation of the Borrower to repay the Advances Outstanding in accordance with their respective  terms as set forth herein.  SECTION 2.02 Procedure for Advances.  





 






  #75870257_v11 48   (a) During the Reinvestment Period, the Lender will make Advances on any  Business Day at the request of the Borrower, subject to and in accordance with the terms and  conditions of Sections 2.01 and this 2.02 and subject to the provisions of Article III hereof.  (b) For each Advance that is a LIBOR Advance, the Borrower shall deliver an  irrevocable written notice in the form of a Notice of Borrowing to the Administrative Agent, with  a copy to the Account Bank, no later than 1:00 p.m. (New York City time) at least three Business  Days before the Business Day on which the LIBOR Advance is to be made; provided that if such  Notice of Borrowing is delivered later than 1:00 p.m. (New York City time) on such Business Day,  such Notice of Borrowing shall be deemed to have been received on the following Business Day.   For each Base Rate Advance, the Borrower shall deliver an irrevocable written notice in the form  of a Notice of Borrowing to the Administrative Agent no later than 1:00 p.m. (New York City  time) at least one Business Day before the Business Day on which the Base Rate Advance is to be  made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. (New York City  time) on such Business Day, such Notice of Borrowing shall be deemed to have been received on  the following Business Day.  The Borrower or the Servicer shall post all Loan Agreements and  other required loan documents and information with respect to each proposed Eligible Loan Asset,  if any, to a data room (or other replacement) website to which the Administrative Agent has access;  provided that such posting shall be accompanied by e-mail or other written notification (or as  otherwise provided herein) to the intended recipient of any such document.  Each Notice of  Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such  Advance is requested and giving pro forma effect to the Advance requested and the use of the  proceeds thereof), and shall specify:  (i) the aggregate amount of such Advance, which amount shall not  cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with  respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at  least equal to $500,000;  (ii) the proposed Advance Date and whether such Advance will be a  LIBOR Advance or a Base Rate Advance;  (iii) a representation that all conditions precedent for an Advance  described in Article III hereof have been satisfied or shall be satisfied on or prior to the  applicable Advance Date;  (iv) the amount of cash that will be funded into the Unfunded Exposure  Account in connection with any Revolving Loan Asset or Delayed Draw Loan Asset  funded by such Advance, if applicable;   (v) the amount of cash that will be funded into the Pre-Funded Loan  Asset Account in connection with any Pre-Funded Loan Asset funded by such Advance, if  applicable; and  (vi) whether such Advance should be remitted to the Principal  Collection Account, the Unfunded Exposure Account or the Pre-Funded Loan Asset  Account.  





 






  #75870257_v11 49   On the applicable Advance Date, upon satisfaction of the applicable conditions set forth in Article  III, the Lender shall, in accordance with instructions received by the Administrative Agent, either  (i) make available to the Borrower, in same day funds, the amount of such Advance, by payment  into the Principal Collection Account and/or (ii) remit in same day funds the amount of such  Advance into the Unfunded Exposure Account or the Pre-Funded Loan Asset Account, as  applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), the  Lender shall remit (to the extent required thereby) the Advance equal to the Exposure Amount  Shortfall in same day funds to the Unfunded Exposure Account.  (c) Each LIBOR Advance shall bear interest at the applicable LIBOR Yield  Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long  as no Event of Default has occurred and is continuing, the Borrower may request that the  Administrative Agent convert (i) any Base Rate Advance, in whole and not in part, to a LIBOR  Advance, (ii) any LIBOR Advance, in whole and not in part, to a Base Rate Advance, (iii) any  LIBOR Advance with a three-month maturity, in whole and not in part, to a LIBOR Advance with  a one-month maturity or (iv) any LIBOR Advance with a one-month maturity, in whole and not in  part, to a LIBOR Advance with a three-month maturity, in each case, by (A) delivering a  Conversion Notice to the Administrative Agent (with a copy to the Account Bank) no later than  1:00 p.m. (New York City time) at least three Business Days before the Conversion Date on which  (w) such Base Rate Advance is to be converted into a LIBOR Advance, such (x) LIBOR Advance  is to be converted into a Base Rate Advance, (y) such LIBOR Advance with a three-month maturity  is to be converted into a LIBOR Advance with a one-month maturity or (z) such LIBOR Advance  with a one-month maturity is to be converted into a LIBOR Advance with a three-month maturity,  as applicable and (B) paying in full any Breakage Fees (solely to the extent the Conversion Date  occurs on any day other than a Payment Date). All Advances and all interest thereon shall be due  and payable in full on the Facility Maturity Date.   (d) Subject to Section 2.18 and the other terms, conditions, provisions and  limitations set forth herein (including without limitation the payment of the Prepayment Premium  and Breakage Fees, as applicable), the Borrower may (i) borrow, repay or prepay and reborrow  Advances without any penalty, fee or premium on and after the Closing Date and prior to the end  of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, fee or premium  after the end of the Reinvestment Period and prior to the Facility Maturity Date.  (e) A determination by SMBC of the existence of any LIBOR Disruption Event  (any such determination to be communicated to the Borrower by written notice from the  Administrative Agent promptly after the Administrative Agent learns of such event), or of the  effect of any LIBOR Disruption Event on its making or maintaining Advances at LIBOR, shall be  conclusive absent manifest error.  (f) If, on the last day of the Reinvestment Period (or within three Business Days  after the Borrower receives written notice from the Administrative Agent of the termination of the  Reinvestment Period after the occurrence of an Event of Default), the amount on deposit in the  Unfunded Exposure Account is less than the Unfunded Exposure Amount, the Borrower shall  request an Advance in the amount of such shortfall after taking into account the amounts required  to be deposited into the Unfunded Exposure Account in accordance with clause (iii) below (the  “Exposure Amount Shortfall”).  Following receipt of a Notice of Borrowing (as described in clause  





 






  #75870257_v11 50   (ii) below), the Lender shall fund such Exposure Amount Shortfall in accordance with Section  2.02(b), notwithstanding anything to the contrary herein (including without limitation (a) the  Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the  occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y)  a Borrowing Base Deficiency); provided that:  (i) the Lender may fund such Exposure Amount Shortfall in its sole  discretion to the extent that doing so would cause the Lender to make an Advance that  would result in the aggregate outstanding principal amount of the Advances to exceed the  Maximum Facility Amount;  (ii) the Borrower shall have caused a properly completed Notice of  Borrowing (which shall specify the account details of the Unfunded Exposure Account  where the funds will be made available) to be delivered to the Administrative Agent (with  a copy from the Administrative Agent to the Lender) on a timely basis; and  (iii) to the extent the Reinvestment Period has ended due to the  occurrence of an Event of Default, the Lender shall have a funding obligation with respect  to the Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (1) the  Borrower shall have, prior to the date of such funding obligation, deposited an amount not  less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account  pursuant to Section 2.04(d)(vi) or by an equity contribution by the Equityholder into the  Unfunded Exposure Account or by any combination of those two methods and (2) such  funds, as of the date of such funding, remain on deposit in the Unfunded Exposure Account.  For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure  Account unless and until the occurrence of an Event of Default that is continuing or the last day  of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base  Deficiency.  For the further avoidance of doubt, any obligation of the Lender to make an Advance  pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure  any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.  SECTION 2.03 Determination of Yield.  The Lender shall determine the Yield for  the Advances Outstanding (including unpaid Yield related thereto, if any, due and payable on a  prior Payment Date) to be paid by the Borrower on each Payment Date and shall advise the  Servicer thereof on the fourth Business Day prior to such Payment Date (with a copy to the  Account Bank).  SECTION 2.04 Remittance Procedures.  The Servicer, as agent for the  Administrative Agent and the Lender, shall instruct the Account Bank and, if the Servicer fails to  do so, the Administrative Agent or the Collateral Agent may instruct the Account Bank, to apply  funds on deposit in the Controlled Accounts as described in this Section 2.04; provided that, at any  time after delivery of Notice of Exclusive Control that has not been rescinded by the Collateral  Agent, the Collateral Agent shall instruct the Account Bank to apply funds on deposit in the  Controlled Accounts as described in this Section 2.04.  





 






  #75870257_v11 51   (a) Interest Payments Absent an Event of Default.  On each Payment Date  during and after the Reinvestment Period, but so long as no Event of Default has occurred and is  continuing and, in any case, prior to the declaration or automatic occurrence of the Facility  Maturity Date in accordance with the terms hereof, the Servicer shall, pursuant to the first  paragraph of this Section 2.04, transfer Interest Collections held by the Account Bank in the  Interest Collection Account, in accordance with the Servicing Report, to the following Persons in  the following amounts and priority, calculated as of the Determination Date immediately prior to  such Payment Date:  (i) first, to the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued and unpaid Collateral Custodian Fees  and the Collateral Custodian Expenses, and second to the Collateral Agent, in payment in  full of all accrued and unpaid Collateral Agent Expenses; provided that amounts payable  to the Collateral Custodian, the Collateral Administrator and the Account Bank for the  Collateral Custodian Fees and Collateral Custodian Expenses pursuant to the foregoing  shall not exceed $100,000 for any 12-month period; provided further that amounts payable  to the Collateral Agent for the Collateral Agent Expenses pursuant to the foregoing shall  not exceed $25,000 for any Payment Date;  (ii) first, to the Servicer, in payment in full of all accrued and unpaid  Senior Servicing Fees (solely to the extent not waived in accordance with the terms hereof),  and second to the Servicer, to reimburse the Servicer for any Servicing Expenses in an  amount not to exceed $50,000 for any 12-month period;    (iii) to the Administrative Agent, all accrued and unpaid fees, expenses  (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable  by the Borrower to the Administrative Agent under the Transaction Documents;  (iv) to the Lender, (a) all Yield payable on such Payment Date in  accordance with the definition of “Yield”, (b) the Non-Usage Fee to the extent that such  Non-Usage Fee is accrued and unpaid as of the last day of the related Remittance Period;  (v) to pay all accrued and unpaid fees (including Breakage Fees and  Prepayment Premiums), expenses (including reasonable attorneys’ fees, costs and  expenses), indemnity amounts and other amounts (other than with respect to the repayment  of Advances Outstanding) payable by the Borrower to the Indemnified Parties or to the  Administrative Agent on behalf of the Indemnified Parties, as applicable, under the  Transaction Documents;  (vi) at the discretion of the Servicer, to fund the Unfunded Exposure  Account in an amount not to exceed the amount necessary to cause the amount on deposit  in the Unfunded Exposure Account to equal the Unfunded Exposure Equity Amount;  (vii) to pay the Advances Outstanding to the extent required to satisfy  any outstanding Borrowing Base Deficiency or to prevent a Borrowing Base Deficiency or  to satisfy the Minimum Equity Condition (on a pro forma basis after giving effect to the  payment to be made on such Payment Date);  





 






  #75870257_v11 52   (viii) to any applicable Governmental Authority, any Tax or withholding  for or on account of any Tax which could result in a Lien on any of the Collateral Portfolio;  (ix) first to (a) the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued and unpaid Collateral Custodian Fees  and Collateral Custodian Expenses, and second to (b) the Collateral Agent, in payment in  full of all accrued and unpaid Collateral Agent Expenses, each to the extent not paid  pursuant to Section 2.04(a)(i);  (x) first, to the Servicer, in payment in full of all accrued and unpaid  Subordinated Servicing Fees, and second, to the Servicer, in payment in full of all accrued  and unpaid Servicing Expenses to the extent not paid pursuant to Section 2.04(a)(ii), plus  any outstanding deferred reimbursement amount plus interest thereon as further set forth  in Section 6.07; and  (xi) to the Borrower, any remaining amounts for payment as directed by  the Borrower, including (1) as a distribution to the Equityholder or (2) for deposit in the  Collection Account as Interest Collections or Principal Collections; provided that on a pro  forma basis after giving effect to the payment to be made on such Payment Date, no  Borrowing Base Deficiency would exist.  (b) Payment Date Principal Payments Absent an Event of Default.  On each  Payment Date during and after the Reinvestment Period, but so long as no Event of Default has  occurred and, in any case, prior to the declaration or automatic occurrence of the Facility Maturity  Date the Servicer shall, pursuant to the first paragraph of this Section 2.04, transfer Principal  Collections held by the Account Bank in the Principal Collection Account, in accordance with the  Servicing Report, to the following Persons in the following amounts and priority, calculated as of  the Determination Date immediately prior to such Payment Date:  (i) to pay amounts due under Section 2.04(a)(i) through (v), to the  extent not paid thereunder;  (ii) at the discretion of the Servicer, to fund the Unfunded Exposure  Account in an amount not to exceed the amount necessary to cause the amount on deposit  in the Unfunded Exposure Account to equal the Unfunded Exposure Equity Amount;  (iii) the extent there are Principal Collections that are to be applied as  Designated Sale Proceeds that have not been previously applied pursuant to Section 2.04(c)  to pay Advances Outstanding, to apply all such Designated Sale Proceeds to pay Advances  Outstanding (until such Advances Outstanding are reduced to zero);  (iv) in the case of all other distributions of Principal Collections not  constituting Designated Sale Proceeds, to pay the Advances Outstanding to the extent  required to satisfy any outstanding Borrowing Base Deficiency or to prevent a Borrowing  Base Deficiency or to satisfy the Minimum Equity Condition (on a pro forma basis after  giving effect to the payment to be made on such Payment Date);  





 






  #75870257_v11 53   (v) after the Reinvestment Period, to the Administrative Agent, to  reduce the Advances Outstanding to zero and pay the Obligations of the Secured Parties  until paid in full;  (vi) to any applicable Governmental Authority, any Tax or withholding  for or on account of any Tax which could result in a Lien on any of the Collateral Portfolio;  (vii) first to (a) the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued and unpaid Collateral Custodian Fees  and Collateral Custodian Expenses and second (b) the Collateral Agent, in payment in full  of all accrued and unpaid Collateral Agent Expenses, each to the extent not paid pursuant  to Section 2.04(b)(i);  (viii) to the Servicer, in payment in full of all accrued and unpaid  Servicing Fees and Servicing Expenses, each to the extent not paid pursuant to Section  2.04(b)(i); and  (ix) to the Borrower, any remaining amounts; provided that on a pro  forma basis after giving effect to the payment to be made on such Payment Date, no  Borrowing Base Deficiency would exist.  (c) Non-Payment Date Principal Payments Absent an Event of Default.  On any  Business Day during the Reinvestment Period (other than any Payment Date), but so long as no  Event of Default has occurred and, in any case, prior to the declaration or automatic occurrence of  the Facility Maturity Date the Servicer may, but shall not be obligated to, with at least one Business  Day’s prior written notice to the Administrative Agent and Account Bank, pursuant to the first  paragraph of this Section 2.04, transfer Designated Sale Proceeds held by the Account Bank in the  Principal Collection Account, to the following Persons in the following amounts and priority,  calculated as of the fifth Business Day prior to the date of such distribution:  (i) to pay amounts due under Section 2.04(a)(iii) and (v);  (ii) to pay the Advances Outstanding (until such Advances Outstanding  are reduced to zero);  (iii) at the discretion of the Servicer, to fund the Unfunded Exposure  Account in an amount not to exceed the amount necessary to cause the amount on deposit  in the Unfunded Exposure Account to equal the Unfunded Exposure Equity Amount;  (iv) to any applicable Governmental Authority, any Tax or withholding  for or on account of any Tax which could result in a Lien on any of the Collateral Portfolio;  (v) first to (a) the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued and unpaid Collateral Custodian Fees  and Collateral Custodian Expenses and second (b)  the Collateral Agent, in payment in full  of all accrued and unpaid Collateral Agent Expenses, each to the extent not paid pursuant  to Section 2.04(c)(i);  





 






  #75870257_v11 54   (vi) to the Servicer, in payment in full of all accrued and unpaid  Servicing Fees and Servicing Expenses; and  (vii) to the Borrower, any remaining amounts, including, for distributions  to the Equityholder (so long as such distribution is permitted pursuant to Section 5.02(l)).  (d) Payment Date Transfers Upon the Occurrence of an Event of Default.  On  each Payment Date following the occurrence and during the continuance of an Event of Default  or, in any case, on and after the declaration or automatic occurrence of the Facility Maturity Date,  the Servicer or Administrative Agent shall pursuant to the first paragraph of this Section 2.04  transfer collected funds held by the Account Bank in the Collection Account, in accordance with  the Servicing Report, to the following Persons in the following amounts and priority, calculated  as of the Determination Date immediately prior to such Payment Date:  (i) first to (a) the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued Collateral Custodian Fees and the  Collateral Custodian Expenses and second (b) the Collateral Agent, in payment in full of  all accrued and unpaid Collateral Agent Expenses; provided that amounts payable to the  Collateral Custodian, the Collateral Administrator and the Account Bank for the Collateral  Custodian Fees and Collateral Custodian Expenses pursuant to the foregoing shall not  exceed $100,000 for any 12-month period; provided further that amounts payable to the  Collateral Agent for the Collateral Agent Expenses pursuant to the foregoing shall not  exceed $25,000 for any Payment Date;  (ii) to the Servicer, in payment in full of all accrued and unpaid Senior  Servicing Fees (solely to the extent not waived in accordance with the terms hereof) and  Servicing Expenses; provided that amounts payable in respect of any Servicing Expenses  pursuant to this clause (ii) (and Section 2.04(a)(ii) and (b)(i), if applicable) shall not,  collectively, exceed $50,000 for any 12-month period;  (iii) to the Administrative Agent, all accrued and unpaid fees, expenses  (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable  by the Borrower to the Administrative Agent under the Transaction Documents;  (iv) to the Lender (A) all Yield payable on such Payment Date in  accordance with the definition of “Yield”, and (B) the Non-Usage Fee to the extent that  such Non-Usage Fee is accrued and unpaid as of the last day of the related Remittance  Period;  (v) to pay all accrued and unpaid fees (including Breakage Fees and  Prepayment Premiums), expenses (including reasonable attorneys’ fees, costs and  expenses), indemnity amounts and other amounts (other than with respect to the repayment  of Advances Outstanding) payable by the Borrower to the Indemnified Parties or to the  Administrative Agent on behalf of the Indemnified Parties, as applicable, under the  Transaction Documents;  





 






  #75870257_v11 55   (vi) to the Unfunded Exposure Account in an amount necessary to cause  the amount on deposit in the Unfunded Exposure Account to equal the Unfunded Exposure  Amount;  (vii) to pay the Advances Outstanding until paid in full and to pay the  Obligations of the Secured Parties until paid in full;  (viii) to any applicable Governmental Authority, any Tax or withholding  for or on account of any Tax which could result in a Lien on any of the Collateral Portfolio;  (ix) first to (a) the Collateral Custodian, the Collateral Administrator and  the Account Bank, in payment in full of all accrued and unpaid Collateral Custodian Fees  and the Collateral Custodian Expenses, and second to (b) the Collateral Agent, in payment  in full of all accrued and unpaid Collateral Agent Expenses, each to the extent not paid  pursuant to Section 2.04(d)(i);  (x) to the Servicer, in payment in full of all accrued and unpaid  Servicing Fees and Servicing Expenses, each to the extent not paid pursuant to Section  2.04(d)(ii), plus any outstanding deferred reimbursement amount plus interest thereon as  further set forth in Section 6.07; and  (xi) to the Borrower, any remaining amounts.  (e) Pre-Funded Loan Asset Account.  Funds on deposit in the Pre-Funded Loan  Asset Account as of any date of determination may be withdrawn to fund Pre-Funded Loan Assets;  provided that (i) no funds shall be disbursed from the Pre-Funded Loan Asset Account prior to the  closing date of the applicable Eligible Loan Asset, (ii) any Disbursement Request shall identify  the Eligible Loan Asset to be acquired by the Borrower and shall include wiring instructions with  respect to the Pre-Funded Loan Asset, and such Disbursement Request shall be forwarded by the  Borrower or the Servicer to the Account Bank (with a copy to the Administrative Agent and the  Collateral Agent) no later than 3:00 p.m. on the applicable disbursement date, and the Borrower  or the Servicer shall instruct the Account Bank to fund such draw request in accordance with such  Disbursement Request, and (iii) no Event of Default has occurred before or after giving effect to  such disbursement of proceeds from the Pre-Funded Loan Asset Account.  At any time, the  Servicer (or, after delivery of Notice of Exclusive Control, the Administrative Agent or the  Collateral Agent) may, and in the case that such amounts remain on deposit for longer than three  Business Days shall, cause any amounts on deposit in the Pre-Funded Loan Asset Account to be  deposited into the Principal Collection Account as Principal Collections.  (f) Unfunded Exposure Account.  Funds on deposit in the Unfunded Exposure  Account as of any date of determination may be withdrawn to fund draw requests of the relevant  Obligors under any Revolving Loan Asset or Delayed Draw Loan Asset.  Any such draw request  made by an Obligor, along with wiring instructions for the applicable Obligor, shall be forwarded  by the Borrower or the Servicer to the Administrative Agent (with a copy to the Collateral Agent  and the Account Bank) in the form of a Disbursement Request, and the Servicer or the Borrower  shall instruct the Account Bank to fund such draw request in accordance with such Disbursement  Request.  At any time, the Servicer (or, after delivery of Notice of Exclusive Control, the  





 






  #75870257_v11 56   Administrative Agent or the Collateral Agent) may cause any amounts on deposit in the Unfunded  Exposure Account which exceed the Unfunded Exposure Amount as of any date of determination  to be deposited into the Principal Collection Account as Principal Collections.  (g) Insufficiency of Funds.  For the sake of clarity, the parties hereby agree that  if the funds on deposit in the Collection Account are insufficient to pay any amounts due and  payable on a Payment Date or otherwise, the Borrower shall nevertheless remain responsible for,  and shall pay when due, all amounts payable under this Agreement and the other Transaction  Documents in accordance with the terms of this Agreement and the other Transaction Documents.  SECTION 2.05 Instructions to the Account Bank.  All instructions and directions  given to the Account Bank by the Servicer, the Borrower, the Administrative Agent or the  Collateral Agent pursuant to Section 2.04 shall be in writing (including instructions and directions  transmitted to the Account Bank by telecopy or e-mail), and such written instructions and  directions shall be delivered with a written certification (which shall be deemed given upon receipt  by the Account Bank of any such written instructions or directions) that such instructions and  directions are in compliance with the provisions of Section 2.04 and Section 5 of the Control  Agreement.  The Servicer and the Borrower shall promptly transmit to the Administrative Agent  by telecopy or e-mail a copy of all instructions and directions given to the Account Bank by such  party pursuant to Section 2.04 or Section 5 of the Control Agreement.  To the extent permitted by  Applicable Law, the Administrative Agent shall promptly transmit to the Servicer and the  Borrower by telecopy or e mail a copy of all instructions and directions given to the Account Bank  by the Administrative Agent, pursuant to Section 2.04.  If either the Administrative Agent, the  Collateral Administrator or the Collateral Agent disagrees with the computation of any amounts  to be paid or deposited by the Borrower or the Servicer under Section 2.04 or otherwise pursuant  to this Agreement, or upon their respective instructions, it shall so notify the Borrower, the  Servicer, the Account Bank, the Administrative Agent and the Collateral Agent (to the extent the  Collateral Agent is not the same party as the Administrative Agent), as applicable, in writing and  in reasonable detail to identify the specific disagreement.  If such disagreement cannot be resolved  within two Business Days, the determination of the Administrative Agent as to such amounts shall  be conclusive and binding on the parties hereto absent manifest error.  In the event the Account  Bank receives instructions from the Servicer or the Borrower which conflict with any instructions  received from the Administrative Agent or the Collateral Agent, the Account Bank shall rely on  and follow the instructions given by the Administrative Agent or the Collateral Agent, as  applicable; provided that in the event any instructions given by the Administrative Agent and the  Collateral Agent conflict, the Account Bank shall rely on and follow the instructions given by the  Administrative Agent; provided further that the Account Bank shall promptly provide notification  to the Servicer, the Borrower and/or the Administrative Agent, as applicable, of such conflicting  instructions; provided further that any such failure on the part of the Account Bank to deliver such  notice shall not render such action by the Account Bank invalid.  SECTION 2.06 Borrowing Base Deficiency Payments.  (a) In addition to any other obligation of the Borrower to cure any Borrowing  Base Deficiency pursuant to the terms of this Agreement, if, on any day prior to the Collection  Date, any Borrowing Base Deficiency exists, then the Borrower shall, within five (5) Business  Days of the existence of such Borrowing Base Deficiency, provided that, if within such five (5)  





 






  #75870257_v11 57   Business Day period the Borrower provides to the Administrative Agent a valid capital call notice  or credit facility draw notice or other plan to remedy such condition acceptable to Administrative  Agent in its sole discretion, then such period shall be extended by an additional ten (10) Business  Days, eliminate such Borrowing Base Deficiency in its entirety by effecting one or more (or any  combination thereof) of the following actions in order to eliminate such Borrowing Base  Deficiency as of such date of determination: (i) deposit cash in Dollars into the Principal Collection  Account or Unfunded Exposure Account in the amount necessary to eliminate such Borrowing  Base Deficiency, (ii) repay Advances Outstanding (together with any Breakage Fees and all  accrued and unpaid costs and expenses of the Administrative Agent and the Lender, in each case  in respect of the amount so prepaid) in the amount necessary to eliminate such Borrowing Base  Deficiency, and/or (iii) acquire additional Eligible Loan Assets.  (b) In the event a Borrowing Base Deficiency is not cured within the time  period set forth in Section 2.06(a), an Event of Default will occur.  (c) No later than 1:00 p.m. (New York City time) on the Business Day prior to  the proposed repayment of Advances Outstanding or transfer to the Borrower of additional Eligible  Loan Assets pursuant to Section 2.06(a), the Borrower (or the Servicer on its behalf) shall deliver  (i) to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Custodian),  notice of such repayment or transfer and a duly completed Borrowing Base Certificate, updated to  the date such repayment or transfer is being made and giving pro forma effect to such repayment  or transfer, and (ii) to the Administrative Agent, if applicable, a description of any Eligible Loan  Asset and each Obligor of such Eligible Loan Asset to be transferred to the Borrower and added  to the updated Loan Asset Schedule.  Any notice pertaining to any repayment or any transfer  pursuant to this Section 2.06 shall be irrevocable.  SECTION 2.07 Substitution and Sale of Loan Assets; Affiliate Transactions.  (a) Substitutions.  The Borrower may replace any Loan Asset, including  without limitation Defaulted Loan Assets, with an Eligible Loan Asset so long as (i) no event has  occurred and is continuing, or would result from such substitution, which constitutes an Event of  Default and no event has occurred and is continuing, or would result from such substitution, which  constitutes an Unmatured Event of Default or a Borrowing Base Deficiency, provided that a  Borrowing Base Deficiency (and any Unmatured Event of Default arising therefrom) shall not  impair the right of the Borrower to effect an otherwise permitted substitution as necessary to  facilitate a cure of such Borrowing Base Deficiency (and any Unmatured Event of Default arising  therefrom) so long as immediately after giving effect to such substitution and any other sale or  transfer substantially contemporaneous therewith, such Borrowing Base Deficiency shall be cured  or closer to being cured and (ii) simultaneously therewith, the Borrower shall acquire a Substitute  Eligible Loan Asset.  Any such replacement of a Loan Asset with an Eligible Loan Asset effected  in accordance with this Section 2.07(a) shall require the prior written consent of the Administrative  Agent, which may be granted or withheld in its sole discretion.  (b) Discretionary Sales.  The Borrower shall be permitted to sell Loan Assets  to Persons other than the Equityholder or its Affiliates from time to time (it being understood that  sales to Affiliates shall be permitted in accordance with Section 2.07(g) and Section 2.07(h)),  subject to the following terms and conditions:  





 






  #75870257_v11 58   (A) the proceeds of such sale shall be deposited into the Principal  Collection Account to be disbursed in accordance with Section 2.04 hereof (subject  to clause (D) below) or reinvested, prior to the end of the Reinvestment Period, in  additional Eligible Loan Assets in accordance with (and to the extent permitted  under) Section 2.21 hereof;  (B) no Event of Default has occurred and is continuing, or would result  from such sale, and no Unmatured Event of Default or Borrowing Base Deficiency  exists or would result from such sale;  (C) the prior written consent of the Administrative Agent (in its sole  discretion) shall be required if   (i) at any time during the term of this Agreement, the proceeds of the  sale of such Loan Asset will be less than the Adjusted Borrowing Value of such  Loan Asset;   (ii) at any time from and after the end of the Reinvestment Period,  immediately after the sale of such Loan Asset, the value of the Collateral Portfolio  is less than 50% of the value of the Collateral Portfolio as of the end of the  Reinvestment Period; or  (iii) less than $3,000,000 in Outstanding Balance of such Loan Asset  (but, for the avoidance of doubt, more than $0) will remain in the Collateral  Portfolio after such sale;   (D) no selection procedure adverse to the interests of the Secured Parties  was utilized by the Borrower or Servicer in the selection of Loan Asset that would  be subject to such sale; and:  (E) at any time prior to the end of the Reinvestment Period, if the  proceeds of the sale of such Loan Asset will be equal to or greater than the Adjusted  Borrowing Value of such Loan Asset:  (i) if the Borrower shall request consent from the Administrative Agent  to any such sale and the Administrative Agent shall grant such consent (such  consent not to be unreasonably withheld, conditioned or delayed), then Principal  Collections received by the Borrower from such sale in an amount equal to the  product of (1) the Applicable Percentage for such Loan Asset as of the date of such  sale and (2) the Adjusted Borrowing Value of such Loan Asset as of the date of  such sale shall be applied as Designated Sale Proceeds to reduce Advances  Outstanding in accordance with (x) Section 2.21, (y) Section 2.04(b), to the extent  such Principal Collections are distributed from the Principal Collection Account on  a Payment Date, or (z)  Section 2.04(c), to the extent such Principal Collections are  distributed from the Principal Collection Account on a date other than a Payment  Date; or  





 






  #75870257_v11 59   (ii) if the Borrower does not request or requests but does not receive the  prior written consent of the Administrative Agent for any such sale, then all of the  Principal Collections received by the Borrower from such sale shall be applied as  Designated Sale Proceeds to reduce Advances Outstanding in accordance with  Section 2.04(b), to the extent such Principal Collections are distributed from the  Principal Collection Account on a Payment Date, or Section 2.04(c), to the extent  such Principal Collections are distributed from the Principal Collection Account on  a date other than a Payment Date.  (c) Optional Sales.  On any Optional Sale Date and subject to Section 2.18, the  Borrower shall have the right to prepay all or a portion of the Advances Outstanding in connection  with the sale and assignment by the Borrower of all or a portion of the Loan Assets, as the case  may be in connection with a Permitted Securitization or a Permitted Refinancing (each, an  “Optional Sale”), subject to the following terms and conditions:  (A) the Borrower shall have given the Administrative Agent (with a  copy to the Collateral Agent and the Account Bank) at least 30 days’ prior written  notice of its intent to effect an Optional Sale in connection with a Permitted  Securitization or a Permitted Refinancing, unless such 30 days’ notice requirement  is waived or reduced by the Administrative Agent and the Administrative Agent (in  its sole discretion) shall have consented in writing thereto; and the Administrative  Agent shall have consented in writing in its sole discretion to any Optional Sale as  a result of such Permitted Securitization, such consent not to be unreasonably  withheld, unless such Optional Sale is pursuant to a Permitted Securitization  arranged by SMBC, in which case such consent shall be deemed to be given;  (B) unless an Optional Sale is to be effected on a Payment Date (in  which case the relevant calculations with respect to such Optional Sale shall be  reflected on the applicable Servicing Report), the Servicer shall deliver to the  Administrative Agent (with a copy to the Collateral Agent and the Account Bank)  a certificate and evidence to the reasonable satisfaction of the Administrative Agent  (which evidence may consist solely of a certificate from the Servicer) that the  Borrower shall have sufficient funds on the related Optional Sale Date to effect the  contemplated Optional Sale in accordance with this Agreement.  In effecting an  Optional Sale, the Borrower may use the Proceeds of sales of the Loan Assets to  repay all or a portion of the Obligations;  (C) no Event of Default has occurred and is continuing, or would result  from such Optional Sale, and no Borrowing Base Deficiency or, in the case of an  Optional Sale of less than all the Loan Assets, Unmatured Event of Default exists  or would result from such Optional Sale (after taking into account any deposit made  pursuant to clause (D) below);  (D) on the related Optional Sale Date, the Borrower shall have deposited  into the Principal Collection Account, in immediately available funds, the proceeds  of such Optional Sale, which shall at least equal the sum of (x) the aggregate  Adjusted Borrowing Value of the Loan Assets being sold and (y) any expenses or  





 






  #75870257_v11 60   fees incurred by the Administrative Agent or by the Lender in connection with such  Optional Sale;  (E) the prior written consent of the Administrative Agent (in its sole  discretion) shall be required if:  (I) in the case of an Optional Sale of less than all  the Loan Assets, (i) at any time during the term of this Agreement, the aggregate  proceeds of the sale of the Loan Assets to be sold in the Optional Sale will be less  than the aggregate Adjusted Borrowing Value of such Loan Assets being sold; or  (ii) at any time from and after the end of the Reinvestment Period, immediately  after the sale of such Loan Asset, the value of the Collateral Portfolio is less than  50% of the value of the Collateral Portfolio as of the end of the Reinvestment  Period, and (II) in the case of an Optional Sale of all of the Loan Assets, the  aggregate proceeds of the Loan Assets to be sold in the Optional Sale will be less  than the amount necessary to repay the Obligations in full;   (F) no selection procedure adverse to the interests of the Secured Parties  was utilized by the Borrower or Servicer in the selection of Loan Asset that would  be subject to such Optional Sale; and  (G) at any time prior to the end of the Reinvestment Period, if the  proceeds of the sale of such Loan Assets will be equal to or greater than the  Adjusted Borrowing Value of such Loan Assets, then:  (i) if the Borrower shall request consent from the Administrative Agent  to any such sale and the Administrative Agent shall grant such consent (such  consent not to be unreasonably withheld or delayed), then Principal Collections  received by the Borrower from such sale in an amount equal to the product of (1)  the Applicable Percentage for such Loan Asset as of the date of such sale and (2)  the Adjusted Borrowing Value of such Loan Asset as of the date of such sale shall  be applied as Designated Sale Proceeds to reduce Advances Outstanding in  accordance with (x) Section 2.21, (y) Section 2.04(b), to the extent such Principal  Collections are distributed from the Principal Collection Account on a Payment  Date, or (z) Section 2.04(c), to the extent such Principal Collections are distributed  from the Principal Collection Account on a date other than a Payment Date; or  (ii) if the Borrower does not request or requests but does not receive the  prior written consent of the Administrative Agent for any such sale, then all of the  Principal Collections received by the Borrower from such sale shall be applied as  Designated Sale Proceeds to reduce Advances Outstanding in accordance with  Section 2.04(b), to the extent such Principal Collections are distributed from the  Principal Collection Account on a Payment Date, or Section 2.04(c), to the extent  such Principal Collections are distributed from the Principal Collection Account on  a date other than a Payment Date.  (d) Lien Release Dividend.  Notwithstanding any provision contained in this  Agreement to the contrary, provided no Event of Default has occurred and is continuing and no  Unmatured Event of Default exists, on a Lien Release Dividend Date, the Borrower may dividend  





 






  #75870257_v11 61   to the Equityholder a portion of those Loan Assets that were originated or acquired by the  Borrower, or portions thereof (each, a “Lien Release Dividend”), subject to the following terms  and conditions, as certified by the Borrower to the Administrative Agent (with a copy to the  Collateral Agent and the Account Bank):  (i) The Borrower shall have given the Administrative Agent, with a  copy to the Collateral Agent and the Account Bank, at least five Business Days’ prior  written notice requesting that the Administrative Agent consent to the effectuation of a  Lien Release Dividend, in the form of Exhibit J hereto (a “Notice and Request for  Consent”), which each such consent shall be given in the sole and absolute discretion of  the Administrative Agent;  (ii) On any Lien Release Dividend Date, no more than four Lien Release  Dividends shall have been made during the 12-month period immediately preceding the  proposed Lien Release Dividend Date;  (iii) After giving effect to the Lien Release Dividend on the Lien Release  Dividend Date, (A) no Borrowing Base Deficiency, Event of Default or Unmatured Event  of Default shall exist, (B) the representations and warranties contained in Sections 4.01,  4.02 and 4.03 hereof shall continue to be correct in all material respects, except to the extent  relating to an earlier date and except for such representations and warranties as are qualified  by materiality, a Material Adverse Effect or any similar qualifiers which representation and  warranties shall be true and correct in all respects, (C) the eligibility of any Loan Asset  remaining as part of the Collateral Portfolio after the Lien Release Dividend will be  redetermined as of the Lien Release Dividend Date, (D) no claim shall have been asserted  or proceeding commenced challenging the enforceability or validity of any of the Required  Loan Documents and (E) there shall have been no Material Adverse Effect as to the  Servicer or the Borrower;  (iv) Such Lien Release Dividend must be in compliance with Applicable  Law and may not (A) be made with the intent to hinder, delay or defraud any creditor of  the Borrower or (B) leave the Borrower, immediately after giving effect to the Lien Release  Dividend, not Solvent;  (v) On or prior to the Lien Release Dividend Date, the Borrower shall  have (A) delivered to the Administrative Agent, with a copy to the Collateral Agent and  the Account Bank, a list specifying all Loan Assets or portions thereof to be transferred  pursuant to such Lien Release Dividend and the Administrative Agent shall have approved  the same in its sole discretion and (B) obtained all authorizations, consents and approvals  required to effectuate the Lien Release Dividend;  (vi) A portion of a Loan Asset may be transferred pursuant to a Lien  Release Dividend; provided that (A) such transfer does not have an adverse effect on the  portion of such Loan Asset remaining as a part of the Collateral Portfolio, any other aspect  of the Collateral Portfolio, the Lender, the Administrative Agent or any other Secured Party  and (B) a new promissory note (other than with respect to a Noteless Loan Asset) for the  portion of the Loan Asset remaining as a part of the Collateral Portfolio has been executed,  





 






  #75870257_v11 62   and the original thereof has been endorsed to the Collateral Agent and delivered to the  Collateral Custodian;  (vii) Each Loan Asset, or portion thereof, as applicable, shall be  transferred at a value equal to the Outstanding Balance thereof, exclusive of any accrued  and unpaid Interest or Accreted Interest thereon;  (viii) The Borrower shall deliver a Borrowing Base Certificate (including  a calculation of the Borrowing Base after giving effect to such Lien Release Dividend) to  the Administrative Agent;  (ix) The Borrower shall have paid in full an aggregate amount equal to  the sum of all amounts due and owing to the Administrative Agent, the Lender, the  Collateral Agent, the Account Bank or the Collateral Custodian, as applicable, under this  Agreement and the other Transaction Documents, to the extent accrued to such date  (including without limitation Breakage Fees) with respect to the Loan Assets to be  transferred pursuant to such Lien Release Dividend and incurred in connection with the  transfer of such Loan Assets pursuant to such Lien Release Dividend;  (x) No selection procedures adverse to the interests of the  Administrative Agent or the Lender were utilized by the Borrower and the Servicer in the  selection of the Loan Assets to subject to the Lien Release Dividend; and  (xi) Subject to Section 11.07, the Borrower and the Servicer (on behalf  of the Borrower) shall pay the reasonable legal fees and expenses of the Administrative  Agent, the Lender, the Collateral Agent, the Account Bank and the Collateral Custodian in  connection with any Lien Release Dividend (including, but not limited to, expenses  incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the  Secured Parties, and any other party having an interest in the Loan Assets in connection  with such Lien Release Dividend).  (e) Repurchase or Substitution of Warranty Loan Assets.  If on any day a Loan  Asset is (or becomes) a Warranty Loan Asset, no later than 30 days following the earlier of  knowledge by the Borrower of such Loan Asset becoming a Warranty Loan Asset, as applicable,  or receipt by the Borrower from the Administrative Agent or the Servicer of written notice thereof,  the Borrower shall either:  (i) make a deposit to the Principal Collection Account (as Principal  Collections for allocation pursuant to Section 2.04) in immediately available funds in an  amount equal to the sum of (x) the initial Assigned Value with respect to such Loan Asset  multiplied by the Outstanding Balance of such Loan Asset and (y) any expenses or fees  with respect to such Loan Asset and costs and damages incurred by the Administrative  Agent or by the Lender in connection with any violation by such Loan Asset of any  predatory or abusive lending law which is an Applicable Law (a notification regarding the  amount of such expenses or fees to be provided by the Administrative Agent to the  Borrower); provided that, solely with respect to this clause (i), the Administrative Agent  





 






  #75870257_v11 63   shall have the right to reasonably determine whether the amount so deposited is sufficient  to satisfy the foregoing requirements; or  (ii) with the prior written consent of the Administrative Agent, in its  sole discretion, substitute for such Warranty Loan Asset, as applicable, a Substitute Eligible  Loan Asset.  Upon confirmation of the deposit of the amounts set forth in Section 2.07(e)(i) into  the Principal Collection Account or the delivery by the Borrower of a Substitute Eligible Loan  Asset for each Warranty Loan Asset (the date of such confirmation or delivery, the “Release  Date”), such Warranty Loan Asset and related Portfolio Assets shall be removed from the  Collateral Portfolio and, as applicable, the Substitute Eligible Loan Asset and related Portfolio  Assets shall be included in the Collateral Portfolio.  On the Release Date of each Warranty Loan  Asset, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without  further action be deemed to be released to the Borrower, without recourse, representation or  warranty, all the right, title and interest and any Lien of the Collateral Agent, for the benefit of the  Secured Parties in, to and under the Warranty Loan Asset, and, in each case, any related Portfolio  Assets and all future monies due or to become due with respect thereto.  (f) Conditions to Sales, Substitutions and Repurchases.  Any sales,  substitutions or repurchases effected pursuant to Sections 2.07(a), (b), (c) (e) or (g) shall be subject  to the satisfaction of the following conditions (as certified in writing to the Administrative Agent  and Collateral Agent by the Borrower, with a copy to the Account Bank):  (i) the Borrower shall deliver a Borrowing Base Certificate to the  Administrative Agent in connection with such sale, substitution or repurchase;  (ii) the Borrower shall deliver a list of all Loan Assets to be sold,  substituted or repurchased;  (iii) no selection procedures adverse to the interests of the  Administrative Agent or the Lender were utilized by the Borrower and the Servicer in the  selection of the Loan Assets to be sold, repurchased or substituted;  (iv) the Borrower shall give prior notice to the Administrative Agent of  such sale (other than in the case of an Optional Sale), substitution or repurchase;  (v) the Borrower shall notify the Administrative Agent of any amount  to be deposited into the Principal Collection Account in connection with any sale,  substitution or repurchase;  (vi) reserved;  (vii) any repayment of Advances Outstanding in connection with any  sale, substitution or repurchase of Loan Assets hereunder shall comply with the  requirements set forth in Section 2.18;  





 






  #75870257_v11 64   (viii) subject to Section 11.07, the Borrower and the Servicer (on behalf  of the Borrower) shall pay the reasonable legal fees and expenses of the Administrative  Agent, the Lender, the Collateral Agent, the Collateral Administrator, the Collateral  Custodian and the Account Bank in connection with any such sale, substitution or  repurchase (including, but not limited to, expenses incurred in connection with the release  of the Lien of the Collateral Agent on behalf of the Secured Parties in connection with such  sale, substitution or repurchase); and  (ix) other than in the case of Section 2.07(e) and solely in the event that  Nuveen Churchill Direct Lending Corp. or an Affiliate is no longer the Servicer and the  Facility Maturity Date has not yet occurred, the Borrower shall have consented to such sale  or substitution.  (g) Affiliate Transactions.  Notwithstanding anything to the contrary set forth  herein or in any other Transaction Document, the Equityholder (or an Affiliate thereof) shall be  permitted to acquire from the Borrower and the Borrower shall be permitted to transfer to the  Equityholder or to Affiliates of the Equityholder, and the Equityholder or any Affiliates thereof  shall have a right or ability to purchase, the Loan Assets; provided that such acquisition, transfer  or purchase (i) is not prohibited by Section 2.07(h) is in compliance with all provisions relating to  sales hereunder, including Section 2.07(f) and (ii) in sales on an arms’ length basis and for fair  market value or at a price specified herein; provided further that (x) the proceeds of such sale shall  be deposited into the Principal Collection Account to be disbursed in accordance with Section  2.04, and (y) no event has occurred and is continuing, or would result from such sale, which  constitutes an Event of Default and no event has occurred and is continuing, or would result from  such sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency  unless such Borrowing Base Deficiency would be cured as a result of the sale.  For the avoidance  of doubt, nothing in this clause (g) shall prohibit the Borrower from transferring or distributing its  Loan Assets to the holders of its equity or Affiliates, as applicable, in accordance with Sections  2.07(a), (c), (d) or (e) and subject to the limitations, if applicable, of Section 2.07(h).  (h) Limitations on Sales, Substitutions and Repurchases.  (i) The Outstanding Balance of all Loan Assets (excluding Defaulted  Loan Assets and Warranty Loan Assets removed from the Collateral Portfolio pursuant to  Section 2.07(c) or (e)) substituted pursuant to Section 2.07(a), sold pursuant to Sections  2.07(b), (c) and (g) or released pursuant to Section 2.07(d) during any 12-month period (or  such lesser number of months as shall have elapsed as of such date of determination) shall  not exceed 20% of the highest aggregate Outstanding Balance of all Loan Assets at any  time during such 12-month period.  (ii) The Outstanding Balance of all Defaulted Loan Assets (other than  Warranty Loan Assets removed from the Collateral Portfolio pursuant to Section 2.07(e))  substituted pursuant to Section 2.07(a), sold pursuant to Sections 2.07(c) and (g) or released  pursuant to Section 2.07(d) during any 12-month period (or such lesser number of months  as shall have elapsed as of such date of determination) shall not exceed 15% of the highest  aggregate Outstanding Balance of all Loan Assets at any time during such 12-month  period.  





 






  #75870257_v11 65   (iii) With respect to any sale or transfer of any Loan Asset from a  Borrower to an Affiliate of the Borrower (including, for the avoidance of doubt under  Sections 2.07(b), (c), (d) and (g) hereunder), consent of the Administrative Agent shall be  required for any such sale or transfer unless the aggregate proceeds of such sale or transfer  will be greater than or equal to the aggregate Adjusted Borrowing Value of such Loan  Asset being sold or transferred.  SECTION 2.08 Payments and Computations, Etc.  (a) All amounts to be paid or deposited by the Borrower or the Servicer  hereunder shall be paid or deposited in accordance with the terms hereof no later than 5:00 p.m.  (New York City time)  on the day when due in Dollars in immediately available funds to the  Collection Account or such other account as is designated by the Administrative Agent.  The  Borrower or the Servicer, as applicable, shall, to the extent permitted by Applicable Law, pay to  the Secured Parties interest on all amounts not paid or deposited when due hereunder (taking into  account any grace period provided for herein related to such payments) to any of the Secured  Parties hereunder at an interest rate of 2.00% per annum above the Base Rate (other than with  respect to any Advances Outstanding, which shall accrue at the LIBOR Yield Rate or Base Rate  Yield Rate, as applicable), payable on demand, from the date of such nonpayment until such  amount is paid in full (as well after as before judgment); provided that such interest rate shall not  at any time exceed the maximum rate permitted by Applicable Law. Any Obligation hereunder  shall not be reduced by any distribution of any portion of Available Collections if at any time such  distribution is rescinded or required to be returned by the Lender to the Borrower or any other  Person for any reason.  Each LIBOR Advance shall accrue interest at the applicable LIBOR Yield  Rate for such LIBOR Advance during each applicable Interest Period.  All computations of interest  and all computations with respect to the Yield, the LIBOR Yield and the LIBOR Yield Rate with  respect to LIBOR Advances shall be computed on the basis of a year of 360 days for the actual  number of days elapsed.  Payments of Yield with respect to each LIBOR Advance shall be payable  on each Payment Date on which an Interest Period for such LIBOR Advance ends.  Each Base  Rate Advance shall accrue interest at the Base Rate Yield Rate for each day beginning on, and  including, the Advance Date or Conversion Date, as applicable, with respect to such Base Rate  Advance and ending on, but excluding, the Conversion Date for such Base Rate Advance or the  date such Base Rate Advance is repaid in full at the Base Rate Yield Rate.  All computations of  interest and all computations with respect to the Yield with respect to Base Rate Advances shall  be computed on the basis of a year of 365 or 366 days, as the case may be, for the actual number  of days elapsed.  Payments of Yield with respect to Base Rate Advances shall be payable on each  Payment Date.  (b) Whenever any payment hereunder shall be stated to be due on a day other  than a Business Day, such payment shall be made on the next succeeding Business Day, and such  extension of time shall in such case be included in the computation of payment of Yield or any fee  payable hereunder, as the case may be.  (c) If any Advance requested by the Borrower and approved by the Lender and  the Administrative Agent pursuant to Section 2.02 is not made or effectuated, as the case may be,  on the date specified therefor, whether due to the conditions to such Advance not being satisfied  or due to the Borrower failing to accept such Advance, the Borrower shall indemnify the Lender  





 






  #75870257_v11 66   against any loss, cost or expense incurred by the Lender related thereto (other than any such loss,  cost or expense solely due to the gross negligence or willful misconduct or failure to fund such  Advance on the part of the Lender, the Administrative Agent or an Affiliate thereof), including  without limitation any loss (including cost of funds and reasonable and documented out-of-pocket  expenses, but excluding lost profits) cost or expense incurred by reason of the liquidation or  reemployment of deposits or other funds acquired by the Lender to fund Advances or maintain the  Advances Outstanding.  The Lender shall provide to the Borrower documentation setting forth the  amounts of any loss, cost or expense referred to in the previous sentence, such documentation to  be conclusive absent manifest error.  SECTION 2.09 Fees.  The Borrower shall pay to the Lender (either directly or  through the Administrative Agent) and the Administrative Agent certain fees in the amounts and  on the dates set forth in the SMBC Fee Letter.  SECTION 2.10 Increased Costs; Capital Adequacy.  (a) If, due to either (i) the introduction of or any change following the Closing  Date (including without limitation any change by way of imposition or increase of reserve  requirements) in or in the interpretation, administration or application following the Closing Date  of any Applicable Law (including without limitation any law or regulation resulting in any interest  payments paid to the Lender under this Agreement being subject to any Tax, except for Taxes on  the overall net income of the Lender), in each case whether foreign or domestic or (ii) the  compliance with any guideline or request following the Closing Date from any central bank or  other Governmental Authority (whether or not having the force of law), there shall be any increase  in the cost to the Administrative Agent, the Lender or any Affiliate, participant (provided that a  participant shall not be entitled to receive any greater payment under this Section 2.10 than the  Lender would have been entitled to receive with respect to the participation sold to such  participant), successor or assign thereof (each of which shall be an “Affected Party”) of agreeing  to make or making, funding or maintaining any Advance (or any reduction of the amount of any  payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Party  hereunder), as the case may be, or there shall be any reduction in the amount of any sum received  or receivable by an Affected Party under this Agreement, the Borrower shall, from time to time,  after written demand by the Administrative Agent (which demand shall be accompanied by a  statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected  Party, pay to the Administrative Agent, on behalf of such Affected Party, additional amounts  sufficient to compensate such Affected Party for such increased costs or reduced payments in  accordance with the priority of payments set forth in Section 2.04; provided that the amounts  payable under this Section 2.10 shall be without duplication of amounts payable under Section  2.11 and shall not include any Excluded Taxes.  (b) If either (i) the introduction of or any change following the Closing Date in  or in the interpretation, administration or application following the Closing Date of any law,  guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Party with  any law, guideline, rule, regulation, directive or request following the Closing Date, from any  central bank, any Governmental Authority or agency, including, without limitation, compliance  by an Affected Party with any request or directive regarding capital adequacy, has or would have  the effect of reducing the rate of return on the capital of any Affected Party, as a consequence of  





 






  #75870257_v11 67   its obligations hereunder or any related document or arising in connection herewith or therewith  to a level below that which any such Affected Party could have achieved but for such introduction,  change or compliance (taking into consideration the policies of such Affected Party with respect  to capital adequacy), by an amount deemed by such Affected Party to be material, then, from time  to time, after demand by such Affected Party (which demand shall be accompanied by a statement  setting forth in reasonable detail the basis for such demand), the Borrower shall pay the  Administrative Agent on behalf of such Affected Party such additional amounts as will compensate  such Affected Party for such reduction in accordance with the priority of payments set forth in  Section 2.04.  (c) In determining any amount provided for in this Section 2.10, the Affected  Party may use any reasonable averaging and attribution methods.  The Administrative Agent, on  behalf of any Affected Party making a claim under this Section 2.10, shall submit to the Borrower  a certificate setting forth in reasonable detail the basis for and the computations of such additional  or increased costs, which certificate shall be conclusive absent manifest error.  (d) Failure or delay on the part of any Affected Party to demand compensation  pursuant to this Section 2.10 shall not constitute a waiver of such Affected Party’s right to demand  or receive such compensation; provided that the Borrower shall not be required to compensate  such Affected Party pursuant to this Section 2.10 for any increased costs incurred or reductions  suffered more than 180 days prior to the date that such Affected Party notifies the Borrower of any  change set forth in clauses (a) and (b) above giving rise to such increased costs or reductions and  of such Affected Party’s intention to claim compensation therefor (except that, if such change  giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to  above shall be extended to include the period of retroactive effect thereof).  (e) If at any time the Borrower shall be liable for the payment of any additional  amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate  this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of  any Prepayment Premium); provided that such option to terminate shall in no event relieve the  Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms  hereof.  (f) Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall  Street Reform and Consumer Protection Act, (ii) all requests, rules, guidelines or directives  promulgated by the Account Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States regulatory authorities, in  each case pursuant to Basel III, and (iii) all rules and regulations promulgated thereunder or issued  in connection therewith shall be deemed to have been introduced after the Closing Date, thereby  constituting a change for which a claim for increased costs or additional amounts may be made  hereunder with respect to the Affected Parties, regardless of the date enacted, adopted or issued.  SECTION 2.11 Taxes.   (a) All payments made by the Borrower or made by the Servicer on behalf of  the Borrower under this Agreement will be made free and clear of and without deduction or  withholding for or on account of any Taxes, except as required by law.  If any Non-Excluded Taxes  





 






  #75870257_v11 68   are required to be withheld from any amounts payable to any Affected Party, then the amount  payable to such Person will be increased (the amount of such increase, the “Additional Amount”)  such that every net payment made under this Agreement after withholding for or on account of  any Non-Excluded Taxes (including without limitation any Non-Excluded Taxes on such increase)  is not less than the amount that would have been paid had no such deduction or withholding been  made.  (b) The Borrower will indemnify, from funds available to it pursuant to Section  2.04 (and, to the extent the funds available for indemnification provided by the Borrower are  insufficient, the Servicer, on behalf of the Borrower, will indemnify) each Affected Party for the  full amount of Non-Excluded Taxes payable by such Person in respect of Additional Amounts and  any liability (including penalties, interest and expenses) arising therefrom or with respect thereto.   All payments in respect of this indemnification shall be made in accordance with the priority of  payments set forth in Section 2.04.  (c) Within 30 days after the date of any payment by the Borrower or by the  Servicer on behalf of the Borrower of any Non-Excluded Taxes, the Borrower or the Servicer, as  applicable, will furnish to the Administrative Agent at the applicable address set forth on this  Agreement, appropriate evidence of payment thereof, a copy of the return reporting such payment,  or other evidence of such payment reasonably satisfactory to the Administrative Agent.  (d) Each Lender shall deliver to the Borrower, with a copy to the Administrative  Agent, on or prior to the date that such Lender becomes a Lender under this Agreement whichever  of the following is applicable:  (A) in the case of a Lender claiming the benefits of an income tax treaty  to which the United States is a party (x) with respect to payments of interest  hereunder, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable,  establishing an exemption from, or reduction of, U.S. federal withholding Tax  pursuant to the “interest” article of such tax treaty and (y) with respect to any other  applicable payments, IRS Form W-8BEN or W-8BEN-E, as applicable,  establishing an exemption from, or reduction of, U.S. federal withholding Tax  pursuant to the “business profits” or “other income” article of such tax treaty;  (B) an executed original of IRS Form W-8ECI;  (C) in the case of a Lender claiming the benefits of the exemption for  portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect  that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the  Code, a “10 percent shareholder” of the Borrower within the meaning of Section  881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section  881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed  originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or  (D) to the extent a Lender is not the beneficial owner, executed originals  of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN  or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate, IRS Form W-9,  





 






  #75870257_v11 69   and/or other certification documents from each beneficial owner, as applicable;  provided that if the Lender is a partnership and one or more direct or indirect  partners of such Lender are claiming the portfolio interest exemption, such Lender  may provide a U.S. Tax Compliance Certificate on behalf of each such direct and  indirect partner.  (E) A duly completed copy of Internal Revenue Service Form W-9 (or  any successor forms or other certificates or statements that may be required from  time to time by the relevant United States taxing authorities or Applicable Law) as  will enable the Borrower and the Administrative Agent to determine whether such  Lender is exempt from or subject to backup withholding or information reporting  requirements.  The Lender shall deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient), at the time or times reasonably requested  by the Borrower or the Administrative Agent, executed copies of any other form prescribed by  Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding  Tax, duly completed, together with such supplementary documentation as may be prescribed by  Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding  or deduction required to be made.  The Lender agrees that if any form or certification it previously  delivered pursuant to this Section 2.11(d) or (e) expires or becomes obsolete or inaccurate in any  respect, it shall update such form or certification or promptly notify the Borrower and the  Administrative Agent in writing of its legal inability to do so.  (e) The Lender shall deliver to the Borrower and Administrative Agent  documentation reasonably requested by the Borrower and Administrative Agent sufficient for the  Borrower and Administrative Agent to comply with their obligations under FATCA and to  determine that the Lender has complied with such applicable reporting requirements.  (f) If the Administrative Agent or the Lender determines, in its sole discretion  exercised in good faith, that it has received a refund or credit (in lieu of such refund) of any  amounts as to which it has been indemnified by a Borrower or with respect to which such Borrower  has paid additional amounts pursuant to this Section 2.11, it shall pay to the Borrower an amount  equal to such refund (but only to the extent of indemnity payments made, or additional amounts  paid, by the Borrower under this Section 2.11 with respect to the amounts giving rise to such  refund), together with any interest paid by the relevant Governmental Authority with respect to  such refund; provided that the Borrower, upon the request of the Administrative Agent or the  Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Borrower  (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to  the Administrative Agent or the Lender in the event the Administrative Agent or the Lender is  required to repay such refund to such Governmental Authority.  This subsection shall not be  construed to require the Administrative Agent or the Lender to make available its Tax returns or  its books or records (or any other information relating to its Taxes that it deems confidential) to  the Borrower or any other Person.  (g) The Borrower and the Servicer shall timely pay, or at the option of the  Lenders and Administrative Agent timely reimburse the Lenders and Administrative Agent for the  





 






  #75870257_v11 70   payment of, any and all stamp, sales, excise and other Taxes and fees payable or determined to be  payable to any Governmental Authority in connection with the execution, delivery, filing and  recording of this Agreement, the other documents to be delivered hereunder or any other  Transaction Document or the funding or maintenance of Advances hereunder except any such  Taxes imposed with respect to an assignment that are imposed as a result of a present or former  connection between the Administrative Agent, the Lender, or any other recipient of any payment  to be made hereunder and such jurisdiction imposing such a Tax.  Without prejudice to the survival of any other agreement of the Borrower and the  Servicer hereunder, the agreements and obligations of the Borrower, the Servicer, the  Administrative Agent and the Lender contained in this Section 2.11 shall survive the termination  of this Agreement.  SECTION 2.12 Collateral Assignment of Agreements.  The Borrower hereby  collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, all of the  Borrower’s right and title to and interest in, to and under (but not any obligations under) the  underlying sale agreement pursuant to which the Borrower purchases the Loan Assets, the Loan  Agreements related to each Loan Asset, all other agreements, documents and instruments  evidencing, securing or guarantying any Loan Asset and all other agreements, documents and  instruments related to any of the foregoing but excluding any Excluded Amounts or Retained  Interest (the “Assigned Documents”).  In furtherance and not in limitation of the foregoing, the  Borrower hereby collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties,  its right to indemnification under the applicable underlying sale agreement pursuant to which the  Borrower purchases the Loan Assets; provided that, unless an Event of Default shall have occurred  and be continuing, the Borrower shall have the sole right to enforce the Borrower’s rights and  remedies under the applicable underlying sale agreement pursuant to which the Borrower  purchases the Loan Assets for the benefit of the Secured Parties.  The parties hereto agree that such  collateral assignment to the Collateral Agent, for the benefit of the Secured Parties, shall terminate  upon the Collection Date.  SECTION 2.13 Grant of a Security Interest.  To secure the prompt, complete and  indefeasible payment in full when due, whether by lapse of time, acceleration or otherwise, of the  Obligations and the performance by the Borrower of all of the covenants and obligations to be  performed by it pursuant to this Agreement and each other Transaction Document, whether now  or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, the  Borrower hereby (a) collaterally assigns and pledges to the Collateral Agent, on behalf of the  Secured Parties, and (b) grants a security interest to the Collateral Agent, on behalf of the Secured  Parties, in all of the Borrower’s right, title and interest in, to and under (but none of the obligations  under) all of the Collateral Portfolio, whether now existing or hereafter arising or acquired by the  Borrower, and wherever the same may be located.  For the avoidance of doubt, the Collateral  Portfolio shall not include any Excluded Amounts, and the Borrower does not hereby assign,  pledge or grant a security interest in any such amounts.  Anything herein to the contrary  notwithstanding, (a) the Borrower shall remain liable under the Collateral Portfolio to the extent  set forth therein to perform all of its duties and obligations thereunder to the same extent as if this  Agreement had not been executed, (b) the exercise by the Collateral Agent, for the benefit of the  Secured Parties, of any of its rights in the Collateral Portfolio shall not release the Borrower from  any of its duties or obligations under the Collateral Portfolio, and (c) none of the Administrative  





 






  #75870257_v11 71   Agent, the Collateral Agent, the Lender (including without limitation its successors and assigns)  or any Secured Party shall have any obligations or liability under the Collateral Portfolio by reason  of this Agreement, and none of the Administrative Agent, the Collateral Agent or the Lender  (including its successors and assigns) nor any Secured Party be obligated to perform any of the  obligations or duties of the Borrower thereunder or to take any action to collect or enforce any  claim for payment assigned hereunder.  The Borrower authorizes the Collateral Agent to file all  such financing statements and amendments thereto pursuant to the UCC or other notices  appropriate under applicable law, as the Collateral Agent may require, each in form satisfactory to  the Collateral Agent.  Such financing statements and amendments may contain a description of the  Collateral Portfolio as set forth herein or in any generic manner and may describe the Collateral  Portfolio as “all assets” or words of similar effect.  SECTION 2.14 Evidence of Debt.  The Administrative Agent shall maintain, solely  for this purpose as the agent of the Borrower, at its address set forth in Section 11.02 (or such other  address as the Administrative Agent may designate in writing to the other parties to this  Agreement) a copy of each assignment and acceptance agreement and participation agreement  delivered to and accepted by it and a register for the recordation of the names and addresses and  interests of the Lenders (the “Register”).  The entries in the Register shall be conclusive and  binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and  each Lender shall treat each Person whose name is recorded in the Register as a Lender under this  Agreement for all purposes of this Agreement.  The Register shall be available for inspection by  the Borrower, the Account Bank or any Lender at any reasonable time and from time to time upon  reasonable prior notice.  SECTION 2.15 Survival of Representations and Warranties.  It is understood and  agreed that the representations and warranties set forth in Sections 4.01, 4.02 and 4.03 are made  and are true, complete and correct in all material respects on the date of this Agreement and on  each Advance Date unless such representations and warranties are made as of a specific date and  except for such representations and warranties as are qualified by materiality, a Material Adverse  Effect or any similar qualifiers which representation and warranties shall be true and correct in all  respects.   SECTION 2.16 Release of Loan Assets.  (a) The Borrower may obtain the release of (i) any Loan Asset (and the related  Portfolio Assets pertaining thereto) released pursuant to a Lien Release Dividend, sold or  substituted in accordance with the applicable provisions of Section 2.07 or liquidated in  accordance with Sections 6.05 and 12.08(a) and any Portfolio Assets pertaining to such Loan Asset  and (ii) any Collateral Portfolio that expires by its terms and all amounts in respect thereof (other  than contingent and unasserted expense reimbursement or indemnification obligations) then due  and owing thereunder have been paid in full by the related Obligor and deposited in the Collection  Account.  The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of  the Servicer and at the direction of the Administrative Agent, execute such documents and  instruments of release as may be prepared by the Servicer on behalf of the Borrower, give notice  of such release to the Collateral Custodian (in the form of Exhibit M) (unless the Collateral  Custodian and the Collateral Agent are the same Person) and take other such actions as shall  reasonably be requested by the Borrower to effect such release of the Lien created pursuant to this  





 






  #75870257_v11 72   Agreement.  Upon receiving such notification by the Collateral Agent as described in the  immediately preceding sentence, if applicable, the Collateral Custodian shall deliver to the  Borrower (or its designee) the Required Loan Documents relating to the Loan Asset subject to  such release within two Business Days of receipt of such notification and request.  (b) Upon the occurrence of the Collection Date, the respective remaining  interests in the Portfolio Assets of each Lender, the Administrative Agent and the other Secured  Parties shall be automatically released to the Borrower, for no consideration but at the sole expense  of the Borrower, their respective remaining interests in the Portfolio Assets, free and clear of any  Lien resulting solely from an act by the Collateral Agent, the Lender, the Administrative Agent or  any other Secured Party, but without any other representation or warranty, express or implied, by  or recourse against the Lender or the Administrative Agent.  SECTION 2.17 Treatment of Amounts Received by the Borrower.  Amounts  received by the Borrower in connection with sales and substitutions of Loan Assets pursuant to  Section 2.07 on account of such Loan Assets shall be treated as payments of Principal Collections  or Interest Collections, as applicable, on Loan Assets hereunder.  SECTION 2.18 Prepayment; Termination.  (a) Except as expressly permitted or required herein, including without  limitation any application of proceeds pursuant to Section 2.07 or any other repayment necessary  to cure a Borrowing Base Deficiency, Advances Outstanding may only be reduced in whole or in  part at the option of the Borrower at any time by delivering a Notice of Reduction (which notice  shall include a Borrowing Base Certificate) to the Administrative Agent and the Collateral Agent  (with a copy to the Account Bank, Collateral Administrator and Collateral Custodian) at least three  Business Days prior to such reduction.  Upon any prepayment, the Borrower shall also pay in full  any applicable Breakage Fees and other accrued and unpaid costs and expenses of the  Administrative Agent and the Lender related to such prepayment, provided that no reduction in  Advances Outstanding shall be given effect unless (i) sufficient funds have been remitted to make  the amount of such payment in full, as determined by the Administrative Agent, in its sole  discretion and (ii) no event would result from such prepayment which would constitute an Event  of Default or an Unmatured Event of Default.  The Administrative Agent shall apply amounts  received from the Borrower pursuant to this Section 2.18(a) to the payment of any Breakage Fees,  to the pro rata reduction of the Advances Outstanding and to the payment of any accrued and  unpaid costs and expenses of the Administrative Agent and the Lender related to such prepayment  and required to be paid hereunder.  Any notice relating to any repayment pursuant to this Section  2.18(a) shall be irrevocable; provided that any such notice in connection with a refinancing in full  of the Advances Outstanding and the termination of this Agreement and all Obligations hereunder,  may state that such notice is conditioned upon the effectiveness of other events, in which case such  notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the  specified effective date) if such condition is not satisfied.  (b) (i) The Borrower may, at its option, after providing three (3) Business Days’  prior written notice of its intention to do so, terminate this Agreement and the other Transaction  Documents upon indefeasible payment in full of all Advances Outstanding, all accrued and unpaid  Yield, any Breakage Fees, all accrued and unpaid costs and expenses of the Collateral Agent, the  





 






  #75870257_v11 73   Administrative Agent and the Lender, the Prepayment Premium (if applicable) and all other  Obligations (other than unmatured contingent indemnification and expense reimbursement  obligations) and (ii) the Borrower may permanently reduce the Maximum Facility Amount to an  amount at any time that is not less than $150,000,000 upon delivery of a Notice of Reduction at  least one Business Day prior to such reduction; provided that no Borrowing Base Deficiency,  Event of Default or Unmatured Event of Default would result from such reduction in the Maximum  Facility Amount.  Any termination of this Agreement shall be subject to Section 11.05.   (c) Notwithstanding anything to the contrary herein, no Prepayment Premium  shall be due and payable in connection with any prepayment or repayment in any of the following  circumstances:  (i) if the facility hereunder is refinanced with a credit facility, collateralized loan  obligation transaction or other take-out for which SMBC is an arranger, bookrunner,  administrative agent or lender, (ii) on or after November 24, 2023, (iii) if such prepayment or  repayment is pursuant to Section 2.18(a), (iv) the Advances bear interest by reference to an index  other than LIBOR or a Benchmark Replacement approved by the Borrower and the Administrative  Agent, (v) any Lender makes a claim for increased costs or indemnification pursuant to Sections  2.10, 2.11, 8.01 or 8.02, or (vi) during the continuance of a Non-Approval Event.  SECTION 2.19 Extension of Stated Maturity Date and Reinvestment Period.    (a) The Borrower may, at any time after the first anniversary of the Closing  Date, make a request to the Administrative Agent to extend the date set forth in clause (a) of the  definition of “Reinvestment Period” for an additional period not to exceed one year (but not less  than six months).  Such date may be extended by up to one year by mutual agreement among the  Administrative Agent, SMBC (so long as SMBC is the Collateral Agent, the Lender or the  Replacement Servicer), the Borrower and the Servicer (any such extension, a “Reinvestment  Period Extension”).  Following the initial Reinvestment Period Extension, the Borrower may from  time to time, at any time thereafter, make a request to the Administrative Agent to further extend  the date set forth in clause (a) of the definition of “Reinvestment Period” (as revised by all prior  Reinvestment Period Extensions) for an additional periods of up to one-year (but not less than six  months) increments.  Such date may be extended by up to one year (but not less than six months)  upon the mutual agreement among the Administrative Agent, SMBC (so long as SMBC is the  Collateral Agent, the Lender or the Replacement Servicer) for each such Reinvestment Period  Extension, the Borrower and the Servicer.  The Borrower confirms that SMBC (so long as SMBC  is the Collateral Agent, the Lender or the Replacement Servicer) or the Administrative Agent, each  in its sole and absolute discretion, without regard to the value or performance of the Loan Assets  or any other factor, may elect not to extend the date set forth in clause (a) of the definition of  “Reinvestment Period”.  (b) From time to time, in connection with any Reinvestment Period Extension,  the Borrower may make a request to the Administrative Agent to extend the date set forth in the  definition of “Stated Maturity Date” for an additional period not to exceed one year (but not less  than six months).  The Stated Maturity Date may be extended by up to one year (but not less than  six months) by mutual agreement among the Administrative Agent, SMBC (so long as SMBC is  the Collateral Agent, the Lender or the Replacement Servicer), the Borrower and the Servicer (such  extension, a “Stated Maturity Extension”).  Following the initial Stated Maturity Extension, the  Borrower may, in connection with any Reinvestment Period Extension, make a request for an  





 






  #75870257_v11 74   additional Stated Maturity Extension to the Administrative Agent.  The Stated Maturity Date (as  revised by each Stated Maturity Extension) may be extended by up to one year (but not less than  six months) upon the mutual agreement among the Administrative Agent, SMBC (so long as  SMBC is the Collateral Agent, the Lender or the Replacement Servicer), the Borrower and the  Servicer, and the payment of the Borrower of the applicable Extension Fee.  The Borrower  confirms that SMBC (so long as SMBC is the Collateral Agent, the Lender or the Replacement  Servicer) or the Administrative Agent, each in its sole and absolute discretion, without regard to  the value or performance of the Loan Assets or any other factor, may elect not to extend the Stated  Maturity Date.  SECTION 2.20 Collections and Allocations.  (a) The Account Bank with the assistance and cooperation of the Servicer shall  promptly identify all Available Collections received in the Collection Account as being on account  of Interest Collections or Principal Collections and shall segregate all Principal Collections and  Interest Collections and transfer the same to the Principal Collection Account and the Interest  Collection Account, respectively.  On or prior to the Cut-Off Date with respect to any Loan Asset,  the Borrower (or Servicer on Borrower’s behalf) shall instruct the underlying administrative agents  or paying agents on the underlying Loan Assets to deposit into the Collection Account all  Available Collections for such Eligible Loan Assets being transferred to and included as part of  the Collateral Portfolio on such Cut-Off Date; provided that, to the extent the Servicer  inadvertently receives any Available Collections directly, the Servicer shall transfer, or cause to  be transferred, any such collections received directly by it to the Collection Account by the close  of business within two Business Days after such collections are received; provided further that the  Servicer shall identify to the Administrative Agent, the Collateral Agent and the Account Bank  any collections received directly by the Servicer as being on account of Interest Collections or  Principal Collections.  The Account Bank shall further provide to the Servicer, the Administrative  Agent and the Collateral Agent a statement as to the amount of Principal Collections and Interest  Collections on deposit in the Principal Collection Account and the Interest Collection Account, as  well as the amount on deposit in the Unfunded Exposure Account, no later than three Business  Days after each Determination Date.   (b) On the Cut-Off Date with respect to any Loan Asset, the Servicer will cause  to be deposited (or instruct the underlying administrative agents or paying agents, as applicable,  to deposit) into the Collection Account all Available Collections received in respect of Eligible  Loan Assets being transferred to and included as part of the Collateral Portfolio on such date.  (c) With the prior written consent of the Administrative Agent (a copy of which  will be provided by the Servicer to the Collateral Agent), the Servicer may withdraw from the  Collection Account any deposits thereto constituting Excluded Amounts if the Servicer has, prior  to such withdrawal and consent, delivered to the Administrative Agent a report setting forth the  calculation of such Excluded Amounts.  (d) Prior to a Notice of Exclusive Control, the Servicer may, pursuant to written  instruction (which may be in the form of standing instructions), or, if the Servicer fails to do so,  the Administrative Agent may, direct the Account Bank to invest, or cause the investment of, funds  on deposit in the Controlled Accounts in Permitted Investments (as designated by the Servicer),  





 






  #75870257_v11 75   from the date of this Agreement until the Collection Date.  Absent any such written instruction,  such funds shall not be invested.  A Permitted Investment acquired with funds deposited in the  Collection Account shall mature not later than the Business Day immediately preceding any  Payment Date (unless such Permitted Investment is issued by U.S. Bank or one or more of its  Affiliates in its capacity as a banking institution, in which case such Permitted Investment may  mature on such Payment Date), and shall not be sold or disposed of prior to its maturity unless the  Servicer determines there is a substantial risk of material deterioration of such Permitted  Investment, in its commercially reasonable discretion.  A Permitted Investment acquired with  funds deposited in the Principal Collection Account, the Unfunded Exposure Account or the Pre- Funded Loan Asset Account shall mature not later than the next Business Day succeeding the day  of investment, and shall not be sold or disposed of prior to its maturity unless the Servicer  determines there is a substantial risk of material deterioration of such Permitted Investment, in its  commercially reasonable discretion.  All such Permitted Investments shall be held by the Account  Bank subject to the Lien of the Collateral Agent for the benefit of the Secured Parties; provided  that compliance shall be the responsibility of the Borrower and the Servicer and not the Collateral  Agent and the Account Bank.  All income and gain realized from any such investment, as well as  any interest earned on deposits in any Controlled Account shall be distributed in accordance with  the provisions of Article II.  The Borrower (or the Servicer on its behalf) shall deposit in the  Collection Account, the Pre-Funded Loan Asset Account or the Unfunded Exposure Account, as  the case may be (with respect to investments made hereunder of funds held therein), an amount  equal to the amount of any actual loss incurred, in respect of any such investment, immediately  upon realization of such loss.  None of the Account Bank, the Collateral Agent, the Administrative  Agent or the Lender shall be liable for the amount of any loss incurred, in respect of any  investment, or lack of investment, of funds held in any Controlled Account other than, in the case  of the Account Bank, with respect to any loss that directly results from the Account Bank’s failure  to act as instructed by the Servicer or Borrower, which failure constitutes fraud, gross negligence  or willful misconduct.  The parties hereto acknowledge that the Account Bank, the Collateral  Agent or any of their Affiliates may receive compensation with respect to the Permitted  Investments.  (e) Until the Collection Date, neither the Borrower nor the Servicer shall have  any rights of direction or withdrawal, with respect to amounts held in any Controlled Account,  except to the extent explicitly set forth in Section 2.04 or Section 2.21.  SECTION 2.21 Reinvestment of Principal Collections.  On the terms and conditions hereinafter set forth as certified in writing to the  Collateral Agent and Administrative Agent (with a copy to the Account Bank), the Servicer may,  to the extent of any Principal Collections (other than Designated Sale Proceeds) on deposit in the  Principal Collection Account:  (a) prior to the end of the Reinvestment Period, withdraw such funds for the  purpose of reinvesting in additional Eligible Loan Assets to be acquired hereunder and to be  included in the Collateral Portfolio; provided that the following conditions are satisfied:  (i) all conditions precedent set forth in Section 3.04 have been satisfied  or waived;  





 






  #75870257_v11 76   (ii) no Event of Default has occurred and is continuing, or would result  from such withdrawal and reinvestment, and no Unmatured Event of Default or Borrowing  Base Deficiency exists or would result from such withdrawal and reinvestment;  (iii) the representations and warranties contained in Sections 4.01, 4.02  and 4.03 hereof shall be correct in all material respects, except to the extent relating to an  earlier date and except for such representations and warranties as are qualified by  materiality, a Material Adverse Effect or any similar qualifiers which representation and  warranties shall be true and correct in all respects,;  (iv) the Account Bank provides to the Administrative Agent by facsimile  or email (to be received no later than 1:30 p.m. (New York City time) on that same day) a  statement reflecting the total amount on deposit as of the opening of business on such day  in the Principal Collection Account;  (v) the Administrative Agent and the Account Bank shall have received  a Disbursement Request and a Borrowing Base Certificate, each executed by the Borrower  and a Responsible Officer of the Servicer;   (vi) such Loan Assets satisfies the Eligibility Criteria as set forth on  Schedule III herein; and  (vii) if such funds are to be withdrawn within three Business Days prior  to any Payment Date or within three Business Days after notice of the application of  Designated Sale Proceeds on any other date in accordance with Section 2.04(c), the  Principal Collections on deposit in the Principal Collection Account are sufficient to be  applied in the amounts designated in the related Servicing Report on each Payment Date  in accordance with Section 2.04 and to be applied as Designated Sale Proceeds in the  amounts designated on any other date by notice to the Administrative Agent in accordance  with Section 2.04(c); or  (b) prior to the Facility Maturity Date, withdraw such funds for the purpose of  making payments in respect of the Advances Outstanding at such time in accordance with and  subject to the terms of Section 2.18(a).  Upon the satisfaction (or waiver by the Administrative Agent) of the applicable  conditions set forth in this Section 2.21 (as certified by the Borrower to the Collateral Agent and  the Administrative Agent (with a copy to the Account Bank)), the Servicer or the Collateral Agent  (after delivery of a Notice of Exclusive Control) will instruct the Account Bank to release funds  from the Principal Collection Account to the Servicer in an amount not to exceed the lesser of (A)  the amount requested by the Servicer and (B) the amount on deposit in the Principal Collection  Account on such day.  SECTION 2.22 Incremental Facilities.  (a) The Borrower may, by written notice to the Administrative Agent and each  Lender, elect to request, prior to the last day of the Reinvestment Period, an increase to the  Maximum Facility Amount (any such increase, the “New Commitments”) by an amount with the  





 






  #75870257_v11 77   consent of the Administrative Agent in its sole discretion and subject to any internal approvals;  provided that, (i) following such New Commitments, the Maximum Facility Amount shall not  exceed $225,000,000 and (ii) any New Commitment shall be in a minimum amount of  $75,000,000.  Such notice shall specify (i) the date (each, an “Increased Amount Date”) on which  the Borrower proposes that the New Commitments shall be effective and approved in writing by  the Administrative Agent and (ii) the identity of each Lender or other Person (each, an “Increasing  Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and  the amounts of such allocations (if then known).  Subject to each Increasing Lender’s sole and  absolute discretion, such New Commitments shall become effective as of such Increased Amount  Date; provided that (A) no Unmatured Event of Default, Event of Default or Borrowing Base  Deficiency shall exist on such Increased Amount Date before or after giving effect to such New  Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and  Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any  new Lender executed and delivered by the Borrower, such new Lender and the Administrative  Agent, and each of which shall be recorded in the Register and each new Lender shall be subject  to the requirements set forth in Section 2.10; (C) the Borrower shall pay any required fees in  connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered  any customary closing documents (substantially consistent with the applicable documents set forth  in Section 3.01) reasonably requested by the Administrative Agent or an Increasing Lender in  connection with any such transaction; and (E) the effectiveness of any allocation of New  Commitments to a non-Lender shall be subject to the prior written consent of the Administrative  Agent.  Prior to the effectiveness of any such New Commitment, if requested by Administrative  Agent or any Lender, the Borrower shall execute and deliver to the applicable Lender a revised  Variable Funding Note in an aggregate face amount equal to such Lender’s Commitment  Percentage of the increased Maximum Facility Amount.  The Borrower confirms that each Lender,  in its sole and absolute discretion, without regard to the value or performance of the Advances or  any other factor, may elect not to provide any New Commitment.  (b) On any Increased Amount Date on which New Commitments are effected,  subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders  shall assign to each of the Increasing Lenders, and each of the Increasing Lenders shall purchase  from each of the existing Lenders, at the principal amount thereof (together with accrued interest),  such interests in the Advances Outstanding on such Increased Amount Date as shall be necessary  in order that, after giving effect to all such assignments and purchases, such Advances will be held  by existing Lenders and Increasing Lenders ratably in accordance with their Commitment  Percentage after giving effect to the addition of such New Commitments to the Maximum Facility  Amount, (ii) each Advance made under the New Commitment (a “New Advance”) shall be  deemed, for all purposes, an Advance and (iii) each new Lender shall become a Lender with respect  to the Advances all matters relating thereto.  (c) The Administrative Agent shall notify the Lenders promptly upon receipt  of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New  Commitments and the Increasing Lenders and (ii) in the case of each notice to any Lender, the  respective interests in such Lender’s Advances, in each case subject to the assignments  contemplated by this Section 2.22.  





 






  #75870257_v11 78   (d) Except for upfront fees payable to Lenders providing any New  Commitment, the terms and provisions of the New Advances shall be identical to the Advances.   Each Assignment and Acceptance or each Joinder Supplement, as applicable, may, without the  consent of any other Lenders, effect such amendments to this Agreement and the other Transaction  Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and  consented to by the Borrower (such consent not to be unreasonably withheld), to effect the  provisions of this Section 2.22.  SECTION 2.23 Benchmark Replacement Setting.  (a) Benchmark Replacement.  Notwithstanding anything to the contrary herein  or in any other Transaction Document, upon the occurrence of a Benchmark Transition Event or  an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower shall work in  good faith to amend this Agreement to replace LIBOR with a Benchmark Replacement.  Any such  amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on  the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment  to all Lenders and the Borrower so long as the Administrative Agent has not received, by such  time, written notice of objection to such amendment from Lenders comprising the Required  Lenders.  Any such amendment with respect to an Early Opt-in Election will become effective on  the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent  written notice that such Required Lenders accept such amendment.  No replacement of LIBOR  with a Benchmark Replacement pursuant to this Section 2.23 will occur prior to the applicable  Benchmark Transition Start Date.  (b) Benchmark Replacement Conforming Changes.  In connection with the  implementation of a Benchmark Replacement, the Administrative Agent will have the right to  make Benchmark Replacement Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other Transaction Document, any amendments  implementing such Benchmark Replacement Conforming Changes will become effective without  any further action or consent of any other party to this Agreement.  (c) Notices; Standards for Decisions and Determinations.  The Administrative  Agent will promptly notify the Borrower, the Account Bank and the Lenders of (i) any occurrence  of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related  Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of  any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming  Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.  Any  determination, decision or election that may be made by the Administrative Agent or Lenders  pursuant to this Section 2.23, including any determination with respect to a tenor, rate or  adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any  decision to take or refrain from taking any action, will be conclusive and binding absent manifest  error and may be made in its or their sole discretion and without consent from any other party  hereto, except, in each case, as expressly required pursuant to this Section 2.23.  (d) Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice  of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any  request for LIBOR Advances, conversion to or continuation of LIBOR Advances to be made,  





 






  #75870257_v11 79   converted or continued during any Benchmark Unavailability Period and, failing that, the  Borrower will be deemed to have converted any such request into a request for an Advance of or  conversion to Base Rate Advances.  During any Benchmark Unavailability Period, the component  of Base Rate based upon LIBOR will not be used in any determination of Base Rate.  ARTICLE III    CONDITIONS PRECEDENT  SECTION 3.01 Conditions Precedent to Effectiveness.  (a) This Agreement shall be effective upon satisfaction of the conditions  precedent that:  (i) any and all fees and expenses (including legal fees and any fees  required under the SMBC Fee Letter and the U.S. Bank Fee Letter) required to be paid on  the Closing Date pursuant to the Transaction Documents and that are invoiced not less than  one Business Day prior to the Closing Date shall have been paid in full;  (ii) reserved;  (iii) the Administrative Agent shall have received all documentation and  other information requested by the Administrative Agent in its reasonable discretion and/or  required by regulatory authorities with respect to the Borrower and the Servicer under  applicable “know your customer” and anti-money laundering rules and regulations,  including without limitation the USA PATRIOT Act, all in form and substance reasonably  satisfactory to the Administrative Agent;  (iv) the Administrative Agent shall have received on or before the date  of the effectiveness of this Agreement the items listed in Schedule I hereto, each in form  and substance reasonably satisfactory to the Administrative Agent;  (v) the Administrative Agent shall have received approval from its  internal credit committee and all other necessary approvals, as required by the  Administrative Agent, in its sole discretion;  (vi) no event, change or condition has occurred that has had, or could  reasonably be expected to have, a Material Adverse Effect on the Borrower or the Servicer  since December 31, 2019;  (vii) the Lender, if the Lender has requested a Variable Funding Note,  shall have received a duly executed Variable Funding Note, in a principal amount equal to  the Maximum Facility Amount; and  (viii) the results of Administrative Agent’s financial, legal, Tax and  accounting due diligence relating to the Borrower, the Equityholder, the Servicer, the  Eligible Loan Assets to be included in the Collateral Portfolio on the date hereof and the  transactions contemplated hereunder are satisfactory to Administrative Agent.   





 






  #75870257_v11 80   (b) By its execution and delivery of this Agreement, each of the Borrower and  the Servicer hereby certifies, and (except with respect to the condition set forth in clauses (a)(vi)  above) the Administrative Agent hereby acknowledges, that each of the conditions precedent to  the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.  SECTION 3.02 Conditions Precedent to All Advances.  Each Advance (including  the Initial Advance, except as explicitly set forth below) to the Borrower from the Lender shall be  subject to the further conditions precedent that:  (a) On the Advance Date of such Advance, the following statements shall be  true and correct, and the Borrower by accepting any amount of such Advance shall be deemed to  have certified that:  (i) the Servicer (on behalf of the Borrower) shall have delivered to the  Administrative Agent (with a copy to the Account Bank and, with respect to the Borrowing  Base Certificate only, the Collateral Agent), with respect to LIBOR Advances no later than  1:00 p.m. (New York City time) on the date that is three Business Days prior to the related  Advance Date and with respect to Base Rate Advances no later than 1:00 p.m. (New York  City time) on the date that is one Business Day prior to the related Advance Date: (A) a  Notice of Borrowing, (B) a Borrowing Base Certificate and (C) a Loan Asset Schedule  containing such additional information as may be reasonably requested by the  Administrative Agent;  (ii) in the case of any Advance made for the purpose of purchasing or  originating Eligible Loan Assets, (A) the Servicer and the Borrower (1) shall have caused  the Borrower to become the lender of record under the Eligible Loan Assets to be purchased  or originated by executing the relevant Loan Agreement or any assignment or novation  instruments contemplated by each such relevant Loan Agreement and performing any other  actions which the Obligor or administrative agent in respect of each such Eligible Loan  Asset may require, (2) shall have delivered to the Administrative Agent and the Collateral  Agent all documents (or copies thereof) evidencing each such origination, assignment or  novation no later than (x) the date proceeds are disbursed from the Pre-Funded Loan Asset  Account to acquire any Pre-Funded Loan Asset (in the case of any Pre-Funded Loan Asset),  or (y) the related Advance Date (in the case of all other Loan Assets), as applicable, and  (3) shall have delivered to the Administrative Agent and the Collateral Agent, with respect  to LIBOR Advances no later than 1:00 p.m. (New York City time) on the date that is three  Business Days prior, and with respect to Base Rate Advances no later than 1:00 p.m. (New  York City time) on the date that is one Business Day prior to, (x) the date proceeds are  disbursed from the Pre-Funded Loan Asset Account to acquire any Pre-Funded Loan Asset  (in the case of any Pre-Funded Loan Asset), or (y) the related Advance Date (in the case of  all other Loan Assets), but in each case prior to such proceeds being disbursed from the  Pre-Funded Loan Asset Account or such Advance being made, as applicable, a draft of all  Loan Agreements in respect of the Eligible Loan Assets to be purchased or originated and  (B) the Borrower shall have delivered to the Collateral Custodian (with a copy to the  Administrative Agent) no later than on or prior to (x) the date proceeds are disbursed from  the Pre-Funded Loan Asset Account to acquire any Pre-Funded Loan Asset (in the case of  any Pre-Funded Loan Asset), or (y) the related Advance Date (in the case of all other Loan  





 






  #75870257_v11 81   Assets), but in each case prior to such proceeds being disbursed from the Pre-Funded Loan  Asset Account or such Advance being made, as applicable, a faxed or e-mailed copy of the  duly executed original promissory notes of the Loan Assets (and, in the case of any  Noteless Loan Asset, a fully executed assignment agreement or Loan Agreement, as  applicable); provided that, notwithstanding the foregoing, the Borrower shall cause (x) the  Loan Asset Checklist and the Required Loan Documents to be in the possession of the  Collateral Custodian within 5 Business Days of any related Advance Date as to any Loan  Assets.   (iii) the representations and warranties contained in Sections 4.01, 4.02  and 4.03 are true and correct in all material respects (except for such representations and  warranties as are qualified by materiality, a Material Adverse Effect or any similar  qualifiers which representation and warranties shall be true and correct in all respects), and,  in the case of any Advance made for the purpose of purchasing Eligible Loan Assets, there  exists no breach of any covenant contained in Sections 5.01, 5.02, 5.03 and 5.04 before and  after giving effect to the Advance to take place on such Advance Date and to the application  of proceeds therefrom, on and as of such day as though made on and as of such date (other  than any representation and warranty that is made as of a specific date);  (iv) on and as of such Advance Date, after giving effect to such Advance  and the addition to the Collateral Portfolio of the Eligible Loan Assets being acquired by  the Borrower using the proceeds of such Advance (except with respect to an Advance made  as contemplated by Section 2.02(f)), there shall exist no Borrowing Base Deficiency;  provided that in the case of an Advance made as contemplated by Section 2.02(f), nothing  set forth in this Section 3.02(a)(iv) shall relieve the Borrower of its obligations elsewhere  hereunder to cure any Borrowing Base Deficiency that exists prior to such Advance or  results therefrom;  (v) except with respect to an Advance made as contemplated by  Section 2.02(f), no Event of Default has occurred and is continuing, or would result from  such Advance, and no Unmatured Event of Default or Borrowing Base Deficiency exists  or would result from such Advance; provided that, in the case of an Advance made as  contemplated by Section 2.02(f), nothing set forth in this Section 3.02(a)(v) shall relieve  the Borrower of its obligations elsewhere hereunder to cure any Borrowing Base  Deficiency that exists prior to such Advance or results therefrom;  (vi) no event has occurred and is continuing, or would result from such  Advance, which constitutes a Servicer Default or any event which, if it continues uncured,  will, with notice or lapse of time, constitute a Servicer Default;  (vii) since the Closing Date, no material adverse change has occurred in  the ability of the Servicer, the Equityholder or the Borrower to perform its obligations  under any Transaction Document;  (viii) no Liens exist in respect of Taxes (other than Permitted Liens) which  are prior to the Lien of the Collateral Agent on the Eligible Loan Assets to be acquired by  the Borrower (if any) on such Advance Date; and  





 






  #75870257_v11 82   (ix) all filings (including without limitation UCC filings) required to be  made by any Person and all actions required to be taken or performed by any Person in any  jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first  priority perfected security interest (subject only to Permitted Liens) in such Eligible Loan  Assets and the Portfolio Assets related thereto and the proceeds thereof shall have been  made, taken or performed on or prior to the related Advance Date.  (b) The Administrative Agent shall have approved as of the applicable Cut-Off  Date in its sole and absolute discretion each of the Eligible Loan Assets identified on Annex I to  the Borrowing Base Certificate for inclusion in the Borrowing Base.  (c) No Applicable Law shall prohibit, and no order, judgment or decree of any  federal, state or local court or governmental body, agency or instrumentality shall prohibit or  enjoin, the making of such Advances by the Lender or the proposed acquisition by the Borrower,  if applicable.  (d) The Advance Date with respect to such Advance shall occur prior to the end  of Reinvestment Period, except with respect to an Advance made pursuant by Section 2.02(f), and  in no event shall occur after the Facility Maturity Date.  (e) The Borrower shall have paid all fees then required to be paid, in accordance  with the provisions of the Transaction Documents, including all fees required hereunder and under  the SMBC Fee Letter (it being understood that the Upfront Fee shall be paid in accordance with  the terms thereof on or prior to the date of the Initial Advance) and the U.S. Bank Fee Letter and  shall have, in accordance with the provisions of the Transaction Documents and subject to the  limitations set forth therein, reimbursed the Lender, the Administrative Agent, the Collateral  Custodian, the Collateral Administrator, the Account Bank and the Collateral Agent for all fees,  costs and expenses of closing the transactions contemplated hereunder and under the other  Transaction Documents, including (i) the reasonable attorney fees and (ii) any other invoiced legal  and document preparation costs incurred by the Administrative Agent, the Lender and the  Collateral Agent.  SECTION 3.03 Advances Do Not Constitute a Waiver.  No Advance made  hereunder shall constitute a waiver of any condition to the Lender’s obligation to make such an  Advance unless such waiver is in writing and executed by the Lender.  SECTION 3.04 Conditions to Acquisitions of Loan Assets.  Each acquisition of an  additional Eligible Loan Asset by the Borrower pursuant to Section 2.06, a Substitute Eligible  Loan Asset pursuant to Section 2.07(a) or (e), an additional Eligible Loan Asset pursuant to  Section 2.21 or any other acquisition of a Loan Asset by the Borrower shall be subject to the further  conditions precedent that (as certified to the Administrative Agent and the Collateral Agent by the  Borrower, with a copy to the Account Bank):  (a) the Servicer (on behalf of the Borrower) shall have delivered to the  Administrative Agent (with a copy to the Collateral Custodian and, with respect to the Borrowing  Base Certificate only, the Collateral Agent) no later than 5:00 p.m. (New York City time) on the  date that is one Business Day prior to the related Cut-Off Date, completed on a projected pro forma  





 






  #75870257_v11 83   basis giving effect to such acquisition: (A) a Borrowing Base Certificate and (B) a Loan Asset  Schedule;  (b) the Borrower shall have delivered to the Collateral Custodian (with a copy  to the Administrative Agent), each of the documents (no later than the applicable date and time)  specified in Section 3.02(a)(ii);  (c) no Liens exist in respect of Taxes (other than Permitted Liens) which are  prior to the Lien of the Collateral Agent on the Eligible Loan Assets to be acquired by the Borrower  on such Cut-Off Date;  (d) all terms and conditions required to be satisfied in connection with the  acquisition of each Eligible Loan Asset by the Borrower on such Cut-Off Date (and the collateral  security related thereto), including without limitation the perfection of the Borrower’s interests  therein, shall have been satisfied in full, and all filings (including without limitation UCC filings)  required to be made by any Person and all actions required to be taken or performed by any Person  in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority  perfected security interest (subject only to Permitted Liens) in such Eligible Loan Assets and the  collateral security related thereto and the proceeds thereof shall have been made, taken or  performed;  (e) the Administrative Agent shall have approved in its sole and absolute  discretion each of the Eligible Loan Assets identified in the applicable Loan Asset Schedule for  inclusion in the Collateral Portfolio on the applicable Cut-Off Date;  (f) no Event of Default has occurred and is continuing, or would result from  such acquisition to the Borrower, and no Unmatured Event of Default exists, or would result from  such acquisition (other than, with respect to any transfer of an Eligible Loan Asset necessary to  cure a Borrowing Base Deficiency in accordance with Sections 2.06 or 2.07, an Unmatured Event  of Default arising solely pursuant to such Borrowing Base Deficiency); and  (g) the representations and warranties contained in Sections 4.01, 4.02 and 4.03  are true and correct in all material respects (except for such representations and warranties as are  qualified by materiality, a Material Adverse Effect or any similar qualifiers which representation  and warranties shall be true and correct in all respects), and there exists no breach of any covenant  contained in Sections 5.01, 5.02, 5.03 and 5.04 before and after giving effect to the acquisition of  each Eligible Loan Asset by the Borrower to take place on such Cut-Off Date, on and as of such  day as though made on and as of such date (other than any representation and warranty that is  made as of a specific date).  ARTICLE IV    REPRESENTATIONS AND WARRANTIES  SECTION 4.01 Representations and Warranties of the Borrower.  The Borrower  hereby represents and warrants, as of the Closing Date, as of each applicable Cut-Off Date, as of  each applicable Advance Date, as of each Payment Date and as of each other date provided under  





 






  #75870257_v11 84   this Agreement or the other Transaction Documents on which such representations and warranties  are made or required to be (or deemed to be) made (unless a specific date is specified below):  (a) Organization, Good Standing and Due Qualification.  The Borrower is a  limited liability company, validly existing and in good standing under the laws of the State of  Delaware (subject to Section 5.02(m)) and has the power and all licenses necessary to own its  assets and to transact the business in which it is engaged and is duly qualified and in good standing  under the laws of each jurisdiction where the transaction of such business or its ownership of the  Loan Assets and the Collateral Portfolio requires such qualification; except in each case, to the  extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.    (b) Power and Authority; Due Authorization; Execution and Delivery.  The  Borrower has the limited liability company power, authority and legal right to make, deliver and  perform this Agreement, each of the Transaction Documents and the Loan Assignments to which  it is a party and all of the transactions contemplated hereby and thereby, and has taken all necessary  action to authorize the execution, delivery and performance of this Agreement, each of the  Transaction Documents and the Loan Assignments to which it is a party, and to grant to the  Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest  in the Collateral Portfolio on the terms and conditions of this Agreement, subject only to Permitted  Liens.  (c) Binding Obligation.  This Agreement, each of the Transaction Documents  and the Loan Assignments to which the Borrower is a party constitutes the legal, valid and binding  obligation of the Borrower, enforceable against it in accordance with their respective terms, except  as the enforceability hereof and thereof may be limited by Bankruptcy Laws and by general  principles of equity (whether such enforceability is considered in a proceeding in equity or at law).  (d) All Consents Required.  No consent of any other party and no consent,  license, approval or authorization of, or registration or declaration with, any Governmental  Authority, bureau or agency is required in connection with the execution, delivery or performance  by the Borrower of this Agreement or any Transaction Document to which it is a party or the  validity or enforceability of this Agreement or any such Transaction Document or the Loan Assets  or the transfer of an ownership interest or security interest in such Loan Assets, other than such as  have been met or obtained and are in full force and effect, except where the failure to do so could  not reasonably be expected to have a Material Adverse Effect.  (e) No Violation.  The execution, delivery and performance by the Borrower of  this Agreement, the other Transaction Documents to which it is a party and all other agreements  and instruments executed and delivered or to be executed and delivered pursuant hereto or thereto  in connection with the acquisition by the Borrower of the Collateral Portfolio will not (i) create  any Lien on the Collateral Portfolio (other than Permitted Liens) pursuant to the terms of any such  contractual obligation, other than this Agreement and the other Transaction Documents to which  the Borrower is a party, (ii) violate any Applicable Law or the Governing Documents of the  Borrower or (iii) violate any material contract or other material agreement to which the Borrower  is a party or by which the Borrower or any property or assets of the Borrower may be bound.  





 






  #75870257_v11 85   (f) No Proceedings.  There is no litigation or administrative proceeding or  investigation pending or, to the knowledge of the Borrower, threatened in writing against the  Borrower or any properties of the Borrower, before any Governmental Authority (i) asserting the  invalidity of this Agreement, any other Transaction Document or any Loan Assignment to which  the Borrower is a party, (ii) seeking to prevent the consummation of any of the transactions  contemplated by this Agreement, any other Transaction Document or any Loan Assignment to  which the Borrower is a party or (iii) that could reasonably be expected to have a Material Adverse  Effect.  (g) Selection Procedures; Origination of Loan Assets.  In selecting the Loan  Assets to be acquired by the Borrower, no selection procedures were employed which are intended  to be adverse to the interests of the Lender.  (h) Bulk Sales.  The grant of the security interest in the Collateral Portfolio by  the Borrower to the Collateral Agent, for the benefit of the Secured Parties, pursuant to this  Agreement, is in the ordinary course of business for the Borrower and is not subject to the bulk  transfer or any similar statutory provisions in effect in any applicable jurisdiction.  (i) No Alienation of Collateral Portfolio.  Except as otherwise expressly  permitted by the terms of this Agreement and other than the security interest granted to the  Collateral Agent, on behalf of the Secured Parties, pursuant to this Agreement, no item of  Collateral Portfolio has been sold, transferred, assigned or pledged by the Borrower to any Person.  (j) Indebtedness.  The Borrower has no Indebtedness, secured or unsecured,  direct or contingent (including guaranteeing any obligation), other than (i) Indebtedness incurred  under the terms of the Transaction Documents, (ii) Indebtedness incurred pursuant to certain  ordinary business expenses arising pursuant to the transactions contemplated by this Agreement  and the other Transaction Documents, or (iii) any obligation to fund any Loan Asset constituting  a Delayed Draw Loan Asset or Revolving Loan Asset.  (k) Sole Purpose.  The Borrower has been formed solely for the purpose of  engaging in transactions of the types contemplated by this Agreement, and has not engaged in any  business activity other than the negotiation, execution and to the extent applicable, performance  of this Agreement and the transactions contemplated by the Transaction Documents.  (l) No Injunctions.  No injunction, writ, restraining order or other order of any  nature adversely affects the Borrower’s performance of its obligations under this Agreement or  any Transaction Document to which the Borrower is a party.  (m) Taxes.  The Borrower is an entity disregarded as separate from its owner for  U.S. federal income tax purposes.  The Borrower has filed or caused to be filed on a timely basis  all U.S. federal and other material Tax returns required to be filed by it, and has timely paid all  U.S. federal and other material Taxes, except Permitted Liens.  Other than a Permitted Lien, no  Tax lien or similar adverse claim has been filed with respect to the income or property of the  Borrower.  (n) Location.  The Borrower’s jurisdiction of formation (within the meaning of  Article 9 of the UCC) as of the Closing Date is the State of Delaware.  The chief executive office  





 






  #75870257_v11 86   of the Borrower (and the location of the Borrower’s records (including without limitation the  Records) regarding the Collateral Portfolio (other than those delivered to the Collateral  Custodian)) is located at the address set forth in Section 11.02 (or at such other address as shall be  designated by such party in a written notice to the other parties hereto).  (o) Tradenames.  Except as permitted hereunder, the Borrower’s legal name is  as set forth in this Agreement.  Except as permitted hereunder, the Borrower has not changed its  name since its formation; does not have tradenames, fictitious names, assumed names or “doing  business as” names other than as disclosed on Schedule II hereto (as such schedule may be updated  from time to by the Administrative Agent upon receipt of a notice delivered to the Administrative  Agent pursuant to Section 5.02(m)); the Borrower’s only jurisdiction of formation is the State of  Delaware (or such other jurisdiction as permitted hereunder), and, except as permitted hereunder,  the Borrower has not changed its jurisdiction of formation.   (p) Solvency.  The Borrower is not the subject of any Bankruptcy Proceedings  or Bankruptcy Event.  The Borrower is Solvent, and the transactions contemplated by this  Agreement and any other Transaction Document to which the Borrower is a party do not and will  not render the Borrower not Solvent.  (q) No Subsidiaries.  The Borrower has no Subsidiaries except Tax Blocker  Subsidiaries not otherwise prohibited hereunder and other than in connection with retaining equity  pursuant to Section 6.05.  (r) Value Given.  The Borrower has given fair consideration and reasonably  equivalent value to the applicable transferor in exchange for the purchase of the Loan Assets (or  any number of them).  No such transfer has been made for or on account of an antecedent debt  owed by the Borrower to the relevant transferor and no such transfer is or may be voidable or  subject to avoidance under any section of the Bankruptcy Code or any other Bankruptcy Laws.  (s) Reports Accurate.  No written information, financial statements, statements  or reports (other than financial projections, pro forma financial information, other forward-looking  information, information of a general economic or general industry nature and all third party  memos or reports), in each case furnished by the Borrower to any Secured Party pursuant to any  Transaction Document contain any material misstatement of fact, or omit to state any fact  necessary to be stated such that the statements set forth therein are not misleading in a material  respect, in each case as of dates delivered or otherwise expressly referenced therein (when taken  as a whole and after giving effect to all written updates provided by the Borrower or on its behalf  to the Administrative Agent for delivery to the Lenders from time to time); provided that solely  with respect to information furnished by the Borrower or on its behalf which was provided to the  Borrower from an Obligor with respect to a Loan Asset, such information only needs to be true,  complete and correct in all material respects to the actual knowledge of the Borrower; provided  further that the Borrower makes no representation with respect to any information furnished by an  Obligor or any third party which is not an Affiliate of the Borrower or the Servicer; provided  further that, with respect to financial projections, pro forma financial information and other  forward-looking information that has been delivered to any Secured Party by the Borrower, the  Borrower represents only that such information represents the Borrower’s good faith estimates as  of the date of preparation thereof, based upon assumptions the Borrower and, if applicable, the  





 






  #75870257_v11 87   Servicer believed to be reasonable and accurate at the time made, it being recognized by the  Secured Parties that such projections are as to future events and are not to be viewed as facts, the  projections are subject to significant uncertainties and contingencies, many of which are beyond  the control of the Borrower and any of its Affiliates, that no assurance can be given that any  particular projections will be realized and that actual results during the period or periods covered  by such projections may differ from such projections and such differences may be material.  (t) Exchange Act Compliance; Regulations T, U and X.  None of the  transactions contemplated herein or in the other Transaction Documents (including, without  limitation, the use of the Proceeds from the sale of the Collateral Portfolio) will violate or result in  a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including,  without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve  System, 12 C.F.R., Chapter II.  The Borrower does not own or intend to carry or purchase, and no  proceeds from the Advances will be used to carry or purchase, any “margin stock” within the  meaning of Regulation U or to extend “purpose credit” within the meaning of Regulation U.  (u) No Adverse Agreements.  The Borrower is not party to any agreements  adversely affecting the rights of the Borrower to make, or cause to be made, the grant of the  security interest in the Collateral Portfolio contemplated by Section 2.13.  (v) Event of Default/Unmatured Event of Default.  No event has occurred and  is continuing which constitutes an Event of Default, and no event has occurred and is continuing  which constitutes an Unmatured Event of Default (other than any Event of Default or Unmatured  Event of Default which has previously been disclosed to the Administrative Agent as such).  (w) Servicing Standard.  Each of the Loan Assets was underwritten or acquired  and is being serviced in conformance with the standard underwriting, credit, collection, operating  and reporting procedures and systems of the Servicer or the Borrower, as applicable.  (x) ERISA.  Except as would not reasonably be expected to result in a Material  Adverse Effect: (i) each Pension Plan is in compliance in all material respects with the applicable  provisions of ERISA, the Code and other Federal or state laws; (ii) each Pension Plan that is  intended to be a qualified plan under Section 401(a) of the Code has received a favorable  determination, opinion or advisory letter from the Internal Revenue Service to the effect that the  form of such Pension Plan is qualified under Section 401(a) of the Code and the trust related thereto  has been determined by the Internal Revenue Service to be exempt from federal income tax under  Section 501(a) of the Code, or an application for such a letter is currently being processed by the  Internal Revenue Service, and to the best knowledge of the Borrower, nothing has occurred that  would prevent or cause the loss of such tax-qualified status and (iii) the present value of all benefits  vested under each Pension Plan does not exceed the value of the assets of the Pension Plan  allocable to such vested benefits (based on the value of such assets as of the last annual valuation  date) determined in accordance with the assumptions used for funding such Pension Plan pursuant  to Sections 412 and 430 of the Code.  Except as would not reasonably be expected to result in a  Material Adverse Effect: (i) no ERISA Event has occurred, and the Borrower is not aware of any  fact, event or circumstance that would reasonably be expected to constitute or result in an ERISA  Event with respect to any Pension Plan; (ii) neither the Borrower nor any ERISA Affiliate has  engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and  





 






  #75870257_v11 88   (iii) no Pension Plan has been terminated by the PBGC, and no event or circumstance has occurred  or exists that would reasonably be expected to cause the PBGC to institute proceedings under Title  IV of ERISA to terminate any Pension Plan.  The Borrower does not maintain or have any  obligation in respect of any Foreign Plan that would reasonably be expected to result in a Material  Adverse Effect.  (y) Broker-Dealer.  The Borrower is not a broker-dealer under the provisions  of the Exchange Act.  (z) Collection Account.  The Collection Account is the only account to which  Obligors (or, as applicable, the underlying administrative agent with respect to such Loan Assets)    have been instructed by the Borrower, or the Servicer on the Borrower’s behalf, to send Principal  Collections and Interest Collections on the Collateral Portfolio.  The Borrower has not granted any  Person other than the Collateral Agent, for the benefit of the Secured Parties, a Lien on the  Collection Account (other than Permitted Liens).  (aa) Allocation of Charges.  There is no agreement or understanding between  the Servicer and the Borrower (other than as expressly set forth herein), providing for the allocation  or sharing of obligations to make payments or otherwise in respect of any Taxes, fees, assessments  or other governmental charges.  (bb) Investment Company Act.  The Borrower is not required to register as an  “investment company” under the provisions of the 1940 Act.  (cc) Compliance with Law.  The Borrower has complied with all Applicable  Law to which it is subject, and no item of the Collateral Portfolio contravenes any Applicable Law  (including, without limitation, all applicable predatory and abusive lending laws, laws, rules and  regulations relating to licensing, truth in lending, fair credit billing, fair credit reporting, equal  credit opportunity, fair debt collection practices and privacy), in each case except as such non- compliance would not reasonably be expected to have a Material Adverse Effect.  (dd) Collections.  The Borrower acknowledges that all Available Collections  received by it or its Affiliates with respect to the Collateral Portfolio are held and shall be held in  trust for the benefit of the Collateral Agent, on behalf of the Secured Parties, until deposited into  the Collection Account within two Business Days after receipt as required herein.  (ee) Set-Off, etc.  No Loan Asset has been compromised, adjusted, extended,  satisfied, subordinated, rescinded, set-off or modified by the Borrower, the Servicer or the Obligor  thereof, and no Collateral Portfolio, including any Loan Assets therein, is subject to compromise,  adjustment, extension, satisfaction, subordination, rescission, set-off, counterclaim, defense,  abatement, suspension, deferment, deduction, reduction, termination or modification, whether  arising out of transactions concerning the Collateral Portfolio or otherwise, by the Borrower, the  Servicer or the Obligor with respect thereto, except, in each case, for any compromise, adjustment,  extension, satisfaction, subordination, rescission, set-off or modification, if any, to such Collateral  Portfolio otherwise permitted pursuant to Section 6.04(a) and in accordance with the Servicing  Standard.  





 






  #75870257_v11 89   (ff) Full Payment.  As of the applicable Cut-Off Date thereof, the Borrower has  no knowledge of any fact which should lead it to expect that any Loan Asset will not be paid in  full.  (gg) Reserved.    (hh) USA PATRIOT Act.  Neither the Borrower nor, to the knowledge of the  Borrower, any Affiliate of the Borrower is (i) a country, territory, organization, Person or entity  named on an Office of Foreign Asset Control (OFAC) list; (ii) a Person that resides or has a place  of business in a country or territory named on such lists or which is designated as a “Non- Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose  subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank”  within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical  presence in any country and that is not affiliated with a bank that has a physical presence and an  acceptable level of regulation and supervision; or (iv) a Person or entity that resides in or is  organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury  under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money  laundering concerns.  (ii) Reserved.  (jj) Reserved.  (kk) Security Interest.  (i) This Agreement creates a valid and continuing security interest (as  defined in the applicable UCC) in the Collateral Portfolio in favor of the Collateral Agent,  on behalf of the Secured Parties, which security interest is prior to all other Liens (except  for Permitted Liens), and is enforceable as such against creditors of and purchasers from  the Borrower;  (ii) the Collateral Portfolio is comprised of “instruments”, “security  entitlements”, “general intangibles” (including “payment intangibles”), “tangible chattel  paper”, “accounts”, “certificated securities”, “uncertificated securities”, “securities  accounts”, “deposit accounts”, “supporting obligations” or “insurance” (each as defined in  the applicable UCC), real property and/or such other category of collateral under the  applicable UCC as to which the Borrower has complied with its obligations under this  Section 4.01(kk);  (iii) with respect to any portion of the Collateral Portfolio that constitutes  “security entitlements”:  (A) all of such security entitlements have been credited to one of the  Controlled Accounts and the securities intermediary for each Controlled Account  has agreed to treat all assets credited to such Controlled Account as “financial  assets” within the meaning of the applicable UCC;  





 






  #75870257_v11 90   (B) the Borrower has taken all steps necessary to cause the securities  intermediary to identify in its records the Borrower, subject to the Lien of the  Collateral Agent, for the benefit of the Secured Parties, as the Person having a  security entitlement against the securities intermediary in each of the Controlled  Accounts; and  (C) the Controlled Accounts are solely in the name of Borrower and are  subject to the Lien of the Collateral Agent, for the benefit of the Secured Parties.   The securities intermediary of any Controlled Account which is a “securities  account” under the UCC has agreed to comply with the entitlement orders and  instructions of the Borrower, the Servicer and the Collateral Agent (acting at the  direction of the Administrative Agent) in accordance with the Transaction  Documents, including causing cash to be invested in Permitted Investments;  provided that, upon the delivery of a Notice of Exclusive Control under the Control  Agreement (acting at the direction of the Administrative Agent), the securities  intermediary has agreed to only follow the entitlement orders and instructions of  the Collateral Agent, on behalf of the Secured Parties, including with respect to the  investment of cash in Permitted Investments;  (iv) all Controlled Accounts constitute “securities accounts” or “deposit  accounts” as defined in the applicable UCC;  (v) with respect to any Controlled Account which constitutes a “deposit  account” as defined in the applicable UCC, the Borrower, the Account Bank and the  Collateral Agent, on behalf of the Secured Parties, have entered into an account control  agreement which permits the Collateral Agent on behalf of the Secured Parties and at the  direction of the Administrative Agent to direct disposition of the funds in such deposit  account;  (vi) the Borrower owns and has good and marketable title to (or with  respect to assets securing any Loan Assets, a valid security interest in) the Collateral  Portfolio free and clear of any Lien (other than Permitted Liens) of any Person;  (vii) the Borrower has received all consents and approvals required by  the terms of any Loan Asset to the granting of a security interest in the Loan Assets  hereunder to the Collateral Agent, on behalf of the Secured Parties;  (viii) the Borrower has authorized the filing of all appropriate UCC  financing statements in the proper filing office in the appropriate jurisdictions under  Applicable Law in order to perfect the security interest in the Collateral Portfolio and that  portion of the Loan Assets in which a security interest may be perfected by any filing of a  UCC financing statement granted to the Collateral Agent, on behalf of the Secured Parties,  under this Agreement, in each case to the extent a security interest may be perfected by  filing a UCC financing statement; provided that filings in respect of real property shall not  be required;  





 






  #75870257_v11 91   (ix) except as otherwise expressly permitted by the terms of this  Agreement and other than the security interest granted to the Collateral Agent, on behalf  of the Secured Parties, pursuant to this Agreement, the Borrower has not pledged, assigned,  sold, granted a security interest in or otherwise conveyed any of the Collateral Portfolio.   The Borrower has not authorized the filing of and is not aware of any UCC financing  statements against the Borrower that include a description of collateral covering the  Collateral Portfolio other than any UCC financing statement that has been terminated  and/or fully and validly assigned to the Collateral Agent on or prior to the Closing Date.   The Borrower is not aware of the filing of any judgment or Tax lien filings (other than  Permitted Liens) against the Borrower;  (x) all original executed copies of each underlying promissory note  issued to the Borrower or copies of each Loan Asset Register including the Borrower, as  applicable, that constitute or evidence each Loan Asset have been, or subject to the delivery  requirements contained herein, will be delivered to the Collateral Custodian;  (xi) other than in the case of Noteless Loan Assets, the Borrower has  received, or subject to the delivery requirements contained herein will receive, a written  acknowledgment from the Collateral Custodian that the Collateral Custodian, as the agent  of the Collateral Agent, is holding the underlying promissory notes that constitute or  evidence the Loan Assets solely on behalf of and for the Collateral Agent, for the benefit  of the Secured Parties; provided that the acknowledgment of the Collateral Custodian set  forth in Section 12.11 may serve as such acknowledgment;  (xii) none of the underlying promissory notes issued to the Borrower, or  Loan Asset Registers that include the Borrower, as applicable, that constitute or evidence  the Loan Assets has any marks or notations indicating that they have been pledged,  assigned or otherwise conveyed to any Person other than to the Borrower and to the  Collateral Agent, on behalf of the Secured Parties;  (xiii) with respect to any Collateral Portfolio that constitutes a  “certificated security,” such certificated security has been delivered to the Account Bank,  on behalf of the Secured Parties and, if in registered form, has been specially Indorsed to  the Collateral Agent, for the benefit of the Secured Parties, or in blank by an effective  Indorsement or has been registered in the name of the Collateral Agent, for the benefit of  the Secured Parties, upon original issue or registration of transfer by the Borrower of such  certificated security, or has been credited to a Controlled Account or another securities  account for which a securities intermediary has agreed in a control agreement in form and  substance reasonably satisfactory to the Collateral Agent that the Collateral Agent has  Control (as defined in the UCC) over such securities account; and  (xiv) with respect to any Collateral Portfolio that constitutes an  “uncertificated security”, that the Borrower shall cause the issuer of such uncertificated  security to register the Collateral Agent, on behalf of the Secured Parties, as the registered  owner of such uncertificated security, or has caused such uncertificated security to be  credited to a Controlled Account or another securities account for which a securities  intermediary has agreed in a control agreement in form and substance reasonably  





 






  #75870257_v11 92   satisfactory to the Collateral Agent that the Collateral Agent has Control (as defined in the  UCC) over such securities account.  SECTION 4.02 Representations and Warranties of the Borrower Relating to the  Agreement and the Collateral Portfolio.  The Borrower hereby represents and warrants, as of the  Closing Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each  Reporting Date and as of each other date provided under this Agreement or the other Transaction  Documents on which such representations and warranties are made or required to be (or deemed  to be) made that:  (a) Valid Transfer and Security Interest.  This Agreement constitutes a grant of  a security interest in all of the Collateral Portfolio to the Collateral Agent, for the benefit of the  Secured Parties, which upon the delivery of the Required Loan Documents to the Collateral  Custodian, the filing of the UCC financing statements and the execution and delivery of the Control  Agreement, shall be a valid and first priority perfected security interest in the Loan Assets forming  a part of the Collateral Portfolio and in that portion of the Loan Assets in which a security interest  may be perfected by any filing of a UCC financing statement subject only to Permitted Liens.   Neither the Borrower nor any Person claiming through or under Borrower shall have any claim to  or interest in the Controlled Accounts and, nothing in this Agreement constitutes the grant of a  security interest in such property, except for the interest referenced in this Section 4.02(a) and for  the interest of the Borrower in such property as a debtor for purposes of the UCC.  (b) Eligibility of Collateral Portfolio.  (i) The Loan Asset Schedule and the  information contained in each Notice of Borrowing (including, but not limited to, Annex I to the  Borrowing Base Certificate) is an accurate and complete listing of all the Loan Assets contained  in the Collateral Portfolio as of the related Cut-Off Date or Advance Date and the information  contained therein with respect to the identity of such item of Collateral Portfolio and the amounts  owing thereunder is true and correct as of the related Cut-Off Date or Advance Date, (ii) each Loan  Asset designated on any Borrowing Base Certificate as an Eligible Loan Asset and each Loan  Asset included as an Eligible Loan Asset in any calculation of the Borrowing Base or any  Borrowing Base Deficiency is an Eligible Loan Asset, and (iii) with respect to each item of  Collateral Portfolio, all consents, licenses, approvals or authorizations of or registrations or  declarations of any Governmental Authority or any Person required to be obtained, effected or  given by the Borrower in order for the Borrower to grant a security interest in each item of  Collateral Portfolio to the Collateral Agent, for the benefit of the Secured Parties, have been duly  obtained, effected or given and are in full force and effect.  For the avoidance of doubt, any  inaccurate representation that a Warranty Loan Asset is an Eligible Loan Asset hereunder or under  any other Transaction Document shall not constitute an Event of Default solely on the basis of  such inaccurate representation if the Borrower complies with Section 2.07(e) hereunder with  respect thereto.   (c) No Fraud.  To the best of the Borrower’s knowledge, each Loan Asset was  originated or acquired without any fraud or material misrepresentation by the relevant seller or on  the part of the Obligor.  SECTION 4.03 Representations and Warranties of the Servicer.  The Servicer  hereby represents and warrants, as of the Closing Date, as of each applicable Cut-Off Date, as of  





 






  #75870257_v11 93   each applicable Advance Date, as of each Reporting Date and as of each other date provided under  this Agreement or the other Transaction Documents on which such representations and warranties  are required to be (or deemed to be) made (unless a specific date is specified below):  (a) Organization and Good Standing.  The Servicer has been duly organized  and is validly existing as a corporation in good standing under the laws of the State of Maryland  (except as such jurisdiction is changed as permitted hereunder), with all requisite corporate power  and authority necessary to own or lease its properties and to conduct its business as such business  is presently conducted and to enter into and perform its obligations pursuant to this Agreement.    (b) Due Qualification.  The Servicer is duly qualified to do business as a  corporation and is in good standing as a corporation, and has obtained all necessary licenses and  approvals in all jurisdictions in which the ownership or lease of its property and/or the conduct of  its business requires such qualification, licenses or approvals; except in each case, to the extent  that the failure to do so could not reasonably be expected to have a Material Adverse Effect.  (c) Power and Authority; Due Authorization; Execution and Delivery.  The  Servicer (i) has all necessary power, authority and legal right to (a) execute and deliver this  Agreement and the other Transaction Documents to which it is a party and (b) carry out the terms  of this Agreement and the other Transaction Documents to which it is a party and (ii) has duly  authorized by all necessary corporate action the execution, delivery and performance of this  Agreement and the other Transaction Documents to which it is a party.  This Agreement and each  other Transaction Document to which the Servicer is a party have been duly executed and delivered  by the Servicer.  (d) Binding Obligation.  This Agreement and each other Transaction Document  to which the Servicer is a party constitutes a legal, valid and binding obligation of the Servicer  enforceable against the Servicer in accordance with its respective terms, except as such  enforceability may be limited by Bankruptcy Laws and general principles of equity (whether  considered in a suit at law or in equity).  (e) No Violation.  The consummation of the transactions contemplated by this  Agreement and the other Transaction Documents to which the Servicer is a party and the  fulfillment of the terms hereof and thereof will not (i) conflict with, result in any breach of any of  the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default  under, the Servicer’s Governing Documents or any contractual obligation of the Servicer, (ii) result  in the creation or imposition of any Lien (other than Permitted Liens) upon any of the Servicer’s  properties pursuant to the terms of any such contractual obligation, other than this Agreement and  the other Transaction Documents to which it is a party, or (iii) violate any Applicable Law, except  as would not reasonably be expected to have a Material Adverse Effect.  (f) No Proceedings.  There is no litigation or administrative proceeding or  investigation pending or, to the knowledge of the Servicer, threatened against the Servicer, before  any Governmental Authority (i) asserting the invalidity of this Agreement or any other Transaction  Document to which the Servicer is a party, (ii) seeking to prevent the consummation of any of the  transactions contemplated by this Agreement or any other Transaction Document to which the  Servicer is a party or (iii) that could reasonably be expected to have a Material Adverse Effect.  





 






  #75870257_v11 94   (g) All Consents Required.  All approvals, authorizations, consents, orders,  licenses or other actions of any Person or of any Governmental Authority (if any) required for the  due execution, delivery and performance by the Servicer of this Agreement and any other  Transaction Document to which the Servicer is a party have been obtained, other than where the  failure to do so would not reasonably be expected to have a Material Adverse Effect.  (h) Reports Accurate.  No written information, financial statements, statements  or reports (other than financial projections, pro forma financial information, other forward-looking  information, information of a general economic or general industry nature and all third party  memos or reports), in each case furnished by the Servicer to any Secured Party pursuant to any  Transaction Document contain any material misstatement of fact, or omit to state any fact  necessary to be stated such that the statements set forth therein are not misleading in a material  respect, in each case as of dates delivered or otherwise expressly referenced therein (when taken  as a whole and after giving effect to all written updates provided by the Servicer or on its behalf  to the Administrative Agent for delivery to the Lenders from time to time); provided that solely  with respect to information furnished by the Servicer or on its behalf which was provided to the  Servicer from an Obligor with respect to a Loan Asset, such information only needs to be true,  complete and correct in all material respects to the actual knowledge of the Servicer; provided  further that the Servicer makes no representation with respect to any information furnished by an  Obligor or any third party which is not an Affiliate of the Borrower or the Servicer; provided  further that, with respect to financial projections, pro forma financial information and other  forward-looking information that has been delivered to any Secured Party by the Servicer, the  Servicer represents only that such information represents the Servicer’s good faith estimates as of  the date of preparation thereof, based upon assumptions the Servicer believed to be reasonable and  accurate at the time made, it being recognized by the Secured Parties that such projections are as  to future events and are not to be viewed as facts, the projections are subject to significant  uncertainties and contingencies, many of which are beyond the control of the Servicer and any of  its Affiliates, that no assurance can be given that any particular projections will be realized and  that actual results during the period or periods covered by such projections may differ from such  projections and such differences may be material.  (i) Servicing Standard.  The Servicer has complied in all material respects with  the Servicing Standard with regard to the servicing of the Loan Assets.  (j) Collections.  The Servicer acknowledges that all Available Collections  received by it or its Affiliates with respect to the Collateral Portfolio transferred to the Borrower  are held and shall be held in trust, for the benefit of the Secured Parties, until deposited into the  Collection Account within two Business Days from receipt as required herein.  (k) Bulk Sales.  The execution, delivery and performance of this Agreement  and the transactions contemplated hereby do not require compliance with any “bulk sales” act or  similar law by the Servicer.  (l) Solvency.  The Servicer is not the subject of any Bankruptcy Proceedings  or Bankruptcy Event.  The transactions contemplated by this Agreement and any other Transaction  Document to which the Servicer is a party do not and will not render the Servicer not Solvent.  





 






  #75870257_v11 95   (m) Reserved.  (n) Exchange Act Compliance; Regulations T, U and X.  None of the  transactions contemplated herein or in the other Transaction Documents (including, without  limitation, the use of the Proceeds from the sale of the Collateral Portfolio) will violate or result in  a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including,  without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve  System, 12 C.F.R., Chapter II.  (o) Security Interest.  The Servicer will take all steps necessary to ensure that  the Borrower has granted a security interest (as defined in the UCC) to the Collateral Agent, for  the benefit of the Secured Parties, in the Collateral Portfolio, which is enforceable in accordance  with Applicable Law upon execution and delivery of this Agreement.  Upon the filing of UCC-1  financing statements naming the Collateral Agent as secured party and the Borrower as debtor, the  Collateral Agent, for the benefit of the Secured Parties, shall have a valid and first priority  perfected security interest in the Loan Assets and that portion of the Collateral Portfolio in which  a security interest may be perfected by any filing of a UCC financing statement (except for any  Permitted Liens).  All UCC filings as are necessary for the perfection of the Secured Parties’  security interest in the Loan Assets and that portion of the Collateral Portfolio in which a security  interest may be perfected by such filing have been (or prior to the applicable Advance will be)  made.  (p) Reserved.  (q) USA PATRIOT Act.  Neither the Servicer nor, to the knowledge of the  Servicer, any Affiliate of the Servicer is (i) a country, territory, organization, Person or entity  named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory  named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial  Action Task Force on Money Laundering, or whose subscription funds are transferred from or  through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT  Act, i.e., a foreign bank that does not have a physical presence in any country and that is not  affiliated with a bank that has a physical presence and an acceptable level of regulation and  supervision; or (iv) a Person or entity that resides in or is organized under the laws of a jurisdiction  designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA  PATRIOT Act as warranting special measures due to money laundering concerns.  (r) Environmental.  With respect to each item of Underlying Collateral, to the  actual knowledge of a Responsible Officer of the Servicer:  (a) the related Obligor’s operations  comply in all material respects with all applicable Environmental Laws; (b) none of the related  Obligor’s operations is the subject of a Federal or state investigation evaluating whether any  remedial action, involving expenditures, is needed to respond to a release of any Hazardous  Materials into the environment; and (c) the related Obligor does not have any material contingent  liability in connection with any release of any Hazardous Materials into the environment, in each  case except as would not reasonably be expected to have a Material Adverse Effect.  The Servicer  has not received any written or verbal notice of, or inquiry from any Governmental Authority  regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding  environmental matters or compliance with Environmental Laws with regard to any of the  





 






  #75870257_v11 96   Underlying Collateral, nor does the Servicer have knowledge that any such notice will be received  or is being threatened, except as would not reasonably be expected to have a Material Adverse  Effect.  (s) No Injunctions.  No injunction, writ, restraining order or other order of any  nature materially and adversely affects the Servicer’s performance of its obligations under this  Agreement or any Transaction Document to which the Servicer is a party.  (t) Allocation of Charges.  There will not be any agreement or understanding  between the Servicer and the Borrower (other than as expressly set forth herein or as consented to  by the Administrative Agent), providing for the allocation or sharing of obligations to make  payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges.  (u) Instructions to Obligors.  The Collection Account is the only account to  which Obligors (or the underlying administrative agents or paying agents, as applicable) have been  instructed by the Servicer on the Borrower’s behalf to send Principal Collections and Interest  Collections on the Collateral Portfolio.  The Servicer has not granted any Person other than the  Collateral Agent, on behalf of the Secured Parties, an interest in the Collection Account.  (v) Servicer Default.  No event has occurred which constitutes a Servicer  Default.  (w) Broker-Dealer.  The Servicer is not a broker-dealer under the provisions of  the Exchange Act.  (x) Compliance with Applicable Law.  The Servicer has complied in all  material respects with all Applicable Law to which it may be subject, and no Loan Asset in the  Collateral Portfolio contravenes in any respect any Applicable Law, in each case except as would  not reasonably be expected to have a Material Adverse Effect.  SECTION 4.04 Reserved.  SECTION 4.05 Representations and Warranties of the Collateral Custodian.  The  Collateral Custodian, in its individual capacity and as Collateral Custodian, represents and  warrants as follows:  (a) Organization; Power and Authority.  It is a duly organized and validly  existing national banking association in good standing under the laws of the United States.  It has  full corporate power, authority and legal right to execute, deliver and perform its obligations as  Collateral Custodian under this Agreement.  (b) Due Authorization.  The execution and delivery of this Agreement and the  consummation of the transactions provided for herein have been duly authorized by all necessary  association action on its part, either in its individual capacity or as Collateral Custodian, as the  case may be.  (c) No Conflict.  The execution and delivery of this Agreement, the  performance of the transactions contemplated hereby and the fulfillment of the terms hereof will  





 






  #75870257_v11 97   not conflict with, result in any breach of its articles of incorporation or bylaws or any of the  material terms and provisions of, or constitute (with or without notice or lapse of time or both) a  default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument to  which the Collateral Custodian is a party or by which it or any of its property is bound.  (d) No Violation.  The execution and delivery of this Agreement, the  performance of the transactions contemplated hereby and the fulfillment of the terms hereof will  not conflict with or violate, in any material respect, any Applicable Law.  (e) All Consents Required.  All approvals, authorizations, consents, orders or  other actions of any Person or Governmental Authority applicable to the Collateral Custodian,  required in connection with the execution and delivery of this Agreement, the performance by the  Collateral Custodian of the transactions contemplated hereby and the fulfillment by the Collateral  Custodian of the terms hereof have been obtained.  (f) Validity, Etc.  The Agreement constitutes the legal, valid and binding  obligation of the Collateral Custodian, enforceable against the Collateral Custodian in accordance  with its terms, except as such enforceability may be limited by applicable Bankruptcy Laws and  general principles of equity (whether considered in a suit at law or in equity).  ARTICLE V    GENERAL COVENANTS  SECTION 5.01 Affirmative Covenants of the Borrower.  From the Closing Date until the Collection Date:  (a) Organizational Procedures and Scope of Business.  The Borrower will  observe all organizational procedures required by its Governing Documents and will comply in all  material respects with the laws of its jurisdiction of formation.  Without limiting the foregoing, the  Borrower will limit the scope of its business to: (i) the origination and acquisition of Eligible Loan  Assets and the ownership and management of the Portfolio Assets and the related assets in the  Collateral Portfolio; (ii) the sale, transfer or other disposition of Loan Assets as and when permitted  under the Transaction Documents; (iii) entering into and performing under the Transaction  Documents; (iv) consenting or withholding consent as to proposed amendments, waivers and other  modifications of the Loan Agreements to the extent not in conflict with the terms of this Agreement  or any other Transaction Document; (v) exercising any rights (including but not limited to voting  rights and rights arising in connection with a Bankruptcy Event with respect to an Obligor or the  consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in  connection with the Loan Assets and participating in the committees (official or otherwise) or  other groups formed by creditors of an Obligor to the extent not in conflict with the terms of this  Agreement or any other Transaction Document; and (vi) engaging in any activity and to exercise  any powers that are related to the foregoing and necessary, convenient or advisable to accomplish  the foregoing.  (b) Special Purpose Entity Requirements.  The Borrower acknowledges that the  Administrative Agent and the Lenders are entering into the transactions contemplated by this  





 






  #75870257_v11 98   Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from the  Equityholder and its Affiliates.  Therefore, from and after the date of execution and delivery of  this Agreement, the Borrower shall take all reasonable steps to maintain the Borrower’s separate  legal identity and to make it manifest to third parties that the Borrower is an entity with assets and  liabilities distinct from those of the Equityholder or any Affiliate thereof and not just a division  thereof.  Without limiting the generality of the foregoing and in addition to the other covenants set  forth herein, the Borrower will not hold itself out to third parties as liable for the debts of the  Equityholder or any Affiliate thereof.  In addition, the Borrower will at all times:    (i) maintain at least one Independent Director and ensure that all  limited liability company actions relating to the selection, maintenance or replacement of  the Independent Director are authorized;  (ii) maintain its own separate books and records and bank accounts;   (iii) hold itself out to the public and all other Persons as a legal entity  separate and distinct from any other Person and conduct its business solely in its own name  (other than for U.S. federal income tax purposes) in order not to, including but not limited  to, (a) mislead others as to the identity of the Person with which such other party is  transacting business, or (b) suggest that it is responsible for the debts of any third party  (including any of its principals or Affiliates);  (iv) file its own Tax returns, if any, as may be required under Applicable  Law, to the extent (1) not part of a consolidated group filing a consolidated return or returns  or (2) not treated as a division for Tax purposes of another taxpayer, and pay any material  Taxes so required to be paid under Applicable Law in accordance with the terms of this  Agreement;   (v) except as contemplated by Section 2.20(a), not commingle its assets  with assets of any other Person;  (vi) conduct business in its own name and strictly comply with all  organizational formalities to maintain its separate existence and good standing under the  laws of the jurisdiction of its formation;   (vii) maintain separate financial records showing its assets and liabilities  separate and apart from those of any other Person, except to the extent that the Borrower’s  financial and operating results are consolidated with those of the Equityholder or any  Affiliate thereof in consolidated financial statements;   (viii) pay its own liabilities and expenses only out of its own funds;   (ix) other than as expressly contemplated hereunder (including without  limitation the receipt of any capital contributions from or making of any distributions to  the Equityholder and the servicing arrangements set forth herein), maintain an arm’s-length  relationship with its Affiliates;   (x) pay the salaries of its own employees, if any;   





 






  #75870257_v11 99   (xi) not hold out its credit or assets as being available to satisfy the  obligations of others;   (xii) allocate fairly and reasonably any overhead for shared office space,  including paying for office space and services performed by any employee of an Affiliate;   (xiii) use separate stationery, invoices and checks;   (xiv) except as expressly permitted by this Agreement, not pledge its  assets as security for the obligations of any other Person;   (xv) correct any known misunderstanding regarding its separate identity  or any Affiliate or any principal thereof or any other Person;   (xvi) maintain adequate capital in light of its contemplated business  purpose, transactions and liabilities and pay its operating expenses and liabilities from its  own assets;   (xvii) keep minutes or records of meetings and actions of its sole member  or board of directors (or equivalent) and observe in all material respects all other limited  liability company formalities, including providing that the unanimous consent of its sole  member or board of directors (or equivalent) and the Independent Director is required for  the Borrower to admit in writing its inability to pay its debts generally as they become due;   (xviii) not acquire the obligations or any securities of its Affiliates or  stockholders except as contemplated by the Transaction Documents;   (xix) refrain from filing or consenting to the filing of any petition, either  voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy,  liquidation or reorganization statute, or making an assignment for the benefit of creditors,  in each case, without the written consent of one or more Independent Directors in  accordance with the Borrower’s Governing Documents;   (xx) refrain from incurring any Indebtedness, secured or unsecured,  direct or contingent (including guaranteeing any obligation), other than (i) Indebtedness  incurred under the terms of the Transaction Documents, (ii) Indebtedness incurred pursuant  to certain ordinary business expenses arising pursuant to the transactions contemplated by  this Agreement and the other Transaction Documents, or (iii) any obligation to fund any  Loan Asset constituting a Delayed Draw Loan Asset or Revolving Loan Asset;   (xxi) refrain from owning any Subsidiaries except Tax Blocker  Subsidiaries not otherwise prohibited hereunder and other than in connection with retaining  equity pursuant to Section 6.05; and  (xxii) cause its directors, officers, agents and other representatives to act  at all times consistently and in furtherance of the foregoing and its best.  





 






  #75870257_v11 100   Where necessary, the Borrower will obtain proper authorization from its members or directors (or  equivalent) for company action.  (c) Preservation of Company Existence.  The Borrower will maintain its limited  liability company existence in good standing under the laws of its jurisdiction of formation and  will promptly obtain and thereafter maintain qualifications to do business as a foreign limited  liability company in any other jurisdiction in which it does business and in which it is required to  so qualify under Applicable Law.  (d) Compliance with Legal Opinions.  The Borrower shall take all actions  necessary to maintain in all material respects the accuracy of the factual assumptions set forth in  the legal opinion of Dechert LLP, as counsel to the Borrower, relating to the issue of non- consolidation of the Borrower with the Equityholder.  (e) Deposit of Collections.  The Borrower shall promptly (but in no event later  than two Business Days after receipt thereof), deposit or cause to be deposited into the Collection  Account any and all Available Collections received by the Borrower, the Servicer or any of their  Affiliates.  (f) Disclosure of Purchase Price.  The Borrower shall disclose to the  Administrative Agent the purchase price for each Loan Asset proposed to be purchased by the  Borrower.  (g) Obligor Defaults and Bankruptcy Events.  The Borrower shall give, or shall  cause Servicer to give, notice to the Administrative Agent within two Business Days of the  Borrower’s or the Servicer’s actual knowledge of the occurrence of any default by an Obligor  under any Loan Asset or any Bankruptcy Event with respect to any Obligor under any Loan Asset.   Together with such notification, the Borrower or the Servicer shall inform the Administrative  Agent whether, to the knowledge of the Borrower or Servicer, as applicable, such event constitutes  a Value Adjustment Event.  (h) Required Loan Documents.  The Borrower shall deliver to the Collateral  Custodian a hard copy or electronic copy of the Required Loan Documents and the Loan Asset  Checklist pertaining to each Loan Asset within 5 Business Days of any related Cut-Off Date.  (i) Taxes.  The Borrower will file or cause to be filed its material Tax returns  and pay any and all material Taxes imposed on it or its property as required by the Transaction  Documents.  (j) Notice of Event of Default.  The Borrower will provide the Administrative  Agent (with a copy to the Collateral Agent and the Collateral Custodian), within two Business  Days, written notice of the occurrence of each Event of Default of which the Borrower has  knowledge or has received notice, other than notice received from the Administrative Agent.  In  addition, no later than two Business Days following the Borrower’s knowledge or notice of the  occurrence of any Event of Default, the Borrower will provide to the Collateral Agent and the  Administrative Agent a written statement of a Responsible Officer of the Borrower setting forth  the details of such event and the action that the Borrower proposes to take with respect thereto.   Notwithstanding the foregoing, the Borrower’s obligations under this Section 5.01(j) shall not  





 






  #75870257_v11 101   require it to provide such notice and statement to the extent the same have already been provided  by the Servicer pursuant to Section 5.03(h).  (k) Notice of Material Events.  The Borrower shall promptly, upon becoming  aware thereof, notify the Administrative Agent of any event or other circumstance that is  reasonably likely to have a Material Adverse Effect.  (l) Notice of Income Tax Liability.  The Borrower shall furnish to the  Administrative Agent telephonic or facsimile notice, or notice by e-mail, within 10 Business Days  (confirmed in writing within five Business Days thereafter) of the receipt of revenue agent reports  or other written proposals, determinations or assessments of the Internal Revenue Service or any  other taxing authority which propose, determine or otherwise set forth positive adjustments to the  Tax liability of the Borrower itself in an amount equal to or greater than $1,000,000 in the  aggregate.  Any such notice shall specify the nature of the items giving rise to such adjustments  and the amounts thereof.  (m) Notice of Auditors’ Management Letters.  The Borrower shall promptly  notify the Administrative Agent after the receipt of any auditors’ final management letters received  by the Borrower or by its accountants.  (n) Reserved.  (o) Reserved.  (p) Notice of Proceedings.  The Borrower shall notify the Administrative Agent  within three Business Days after the Borrower receives notice or obtains knowledge thereof, of  any settlement of, judgment (including a judgment with respect to the liability phase of a bifurcated  trial) in or commencement of any labor controversy, litigation, action, suit or proceeding before  any court or governmental department, commission, board, bureau, agency or instrumentality,  domestic or foreign, that could reasonably be expected to have a Material Adverse Effect on the  Collateral Portfolio, the Transaction Documents, the Collateral Agent’s, for the benefit of the  Secured Parties, security interest in the Collateral Portfolio, or the Borrower or the Servicer or any  of their Affiliates.  For purposes of this Section 5.01(p), (i) any settlement, judgment, labor  controversy, litigation, action, suit or proceeding affecting the Collateral Portfolio, the Transaction  Documents, the Collateral Agent’s, for the benefit of the Secured Parties, security interest in the  Collateral Portfolio, or the Borrower that could reasonably be expected to result in liability to such  Person or reduce the value of the Collateral Portfolio, in each case, in excess of $1,000,000 (after  any expected insurance proceeds) shall be deemed to be reasonably expected to have such a  Material Adverse Effect and (ii) any settlement, judgment, labor controversy, litigation, action,  suit or proceeding affecting (x) the Servicer, or (y) the Investment Manager or the Investment Sub- Advisor to the extent pertaining to its management or advisory activities with respect to the  Borrower or Servicer, in each case, that could, subject to the Borrower’s reasonable determination,  reasonably be expected to result in liability to such Person in excess of $5,000,000 (after any  expected insurance proceeds) shall be deemed to be reasonably expected to have such a Material  Adverse Effect.    





 






  #75870257_v11 102   (q) Notice of ERISA Events.  The Borrower shall promptly, but in any event  within seven (7) Business Days after the Borrower receives notice or obtains knowledge thereof,  notify the Administrative Agent in the event that any ERISA Event occurs that would reasonably  be expected result in a Material Adverse Effect.  (r) Accounting Changes.  Within three Business Days after the effective date  thereof, the Borrower will provide to the Administrative Agent notice of any material change in  the accounting policies of the Borrower.  (s) Reserved.  (t) Protection of Security Interest.  With respect to the Collateral Portfolio  acquired by the Borrower, the Borrower will (i) (at the expense of the Borrower) take all action  necessary to perfect and protect the Borrower’s ownership of such Collateral Portfolio free and  clear of any Lien other than the Lien created hereunder and Permitted Liens, including without  limitation executing or causing to be executed such instruments or notices as may be necessary or  appropriate, (ii) (at the expense of the Borrower) take all action necessary to cause a valid,  subsisting and enforceable first priority perfected security interest, subject only to Permitted Liens,  to exist in favor of the Collateral Agent (for the benefit of the Secured Parties) in the Borrower’s  interests in all of the Collateral Portfolio including the filing of a UCC financing statement in the  applicable jurisdiction adequately describing the Collateral Portfolio (which may include an “all  asset” filing), and naming the Borrower as debtor and the Collateral Agent as the secured party,  and authorizing the filing of continuation statements, amendments or assignments with respect  thereto in such filing offices, (including any amendments thereto or assignments thereof), (iii)  permit the Administrative Agent or its agents or representatives to visit the offices of the Borrower  during normal office hours and upon reasonable advance notice examine and make copies of all  documents, books, records and other information concerning the Collateral Portfolio, including  without limitation the Records, and discuss matters related thereto with any of the officers or  employees of the Borrower having knowledge of such matters (provided that the Borrower shall  not be liable for the costs and expenses of more than one such visit in any twelve calendar month  period unless an Event of Default has occurred and is continuing hereunder, in which event the  number of visits for which the Borrower shall be liable for the costs and expenses shall not be  limited), and (iv) take all additional action that the Administrative Agent or the Collateral Agent  may reasonably request to perfect and protect the respective first priority perfected security  interests of the Collateral Agent, subject to Permitted Liens, on behalf of the Secured Parties, in  the Collateral Portfolio, or to enable the Administrative Agent or the Collateral Agent to exercise  or enforce any of their respective rights hereunder.  (u) Liens.  The Borrower will promptly notify the Administrative Agent of the  existence of any Lien on the Collateral Portfolio (other than Permitted Liens) and the Borrower  shall use commercially reasonable efforts to defend the right, title and interest of the Collateral  Agent, for the benefit of the Secured Parties, in, to and under the Collateral Portfolio against all  claims of third parties (other than with respect to Permitted Liens).  (v) Other Documents.  At any time from time to time upon prior written request  of the Administrative Agent, at the sole expense of the Borrower, the Borrower will promptly and  duly execute and deliver such further instruments and documents (to the extent available to the  





 






  #75870257_v11 103   Borrower and redacted to the extent not subject to confidentiality restrictions that limit such  disclosure) and take such further actions as the Administrative Agent may reasonably request for  the purposes of obtaining or preserving the full benefits of this Agreement including the first  priority security interest (subject only to Permitted Liens) granted hereunder and of the rights and  powers herein granted (including, among other things, authorizing the filing of such UCC  financing statements as the Administrative Agent may reasonably request).  (w) Compliance with Law.  The Borrower shall at all times comply with all  Applicable Law applicable to Borrower or any of its assets (including without limitation  Environmental Laws, and all federal securities laws), and Borrower shall do or cause to be done  all things necessary to preserve and maintain in full force and effect its legal existence, and all  licenses material to its business, in each case except as would not reasonably be expected to have  a Material Adverse Effect.  (x) Compliance with Anti-Money Laundering Laws and Anti-Corruption  Laws.  The Borrower, its Subsidiaries and their respective Affiliates shall: (i) comply with all  applicable Anti-Money Laundering Laws and Anti-Corruption Laws, and shall maintain or be  subject to policies and procedures reasonably designed to ensure compliance with the Anti-Money  Laundering Laws and Anti-Corruption Laws, (ii) conduct the requisite due diligence in connection  with the transactions contemplated herein for purposes of complying with the Anti-Money  Laundering Laws, (iii) ensure it does not use any of the credit in violation of any Anti-Corruption  Laws or Anti-Money Laundering Law, and (iv) ensure it does not fund any repayment of the credit  in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.  The Borrower shall,  upon the request of the Administrative Agent from time to time, provide certification and other  evidence of the Borrower’s compliance with this Section 5.01(x).  (y) Proper Records.  The Borrower shall at all times keep proper books of  records and accounts in which full, true and correct entries in all material respects shall be made  of its transactions in accordance with GAAP.  (z) Satisfaction of Obligations.  The Borrower shall pay, discharge or otherwise  satisfy at or before maturity or before they become delinquent, as the case may be, all its material  obligations of whatever nature, except where the amount or validity thereof is currently being  contested in good faith by appropriate proceedings and reserves with respect thereto have been  provided on the books of the Borrower.  (aa) Reserved.    (bb) Payment of Taxes.  The Borrower shall pay and discharge all material  Taxes, levies, liens and other charges on it or its assets and on the Collateral Portfolio that, in each  case, in any manner would create any Lien or charge upon the Collateral Portfolio, except for any  such Taxes which shall not at the time be due and payable or 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.  





 






  #75870257_v11 104   (cc) Tax Treatment.  Except as required by Applicable Law, the Borrower and  the Lender shall treat the Advances advanced hereunder as indebtedness of the Borrower for U.S.  federal income tax purposes and to file any and all Tax forms in a manner consistent therewith.  (dd) Maintenance of Records.  The Borrower will maintain records with respect  to the Collateral Portfolio, including without limitation the Records, and the conduct and operation  of its business with no less a degree of prudence than if the Collateral Portfolio were held by the  Borrower for its own account and will furnish the Administrative Agent, upon the reasonable  request by the Administrative Agent, information with respect to the Collateral Portfolio and the  conduct and operation of its business.  (ee) Obligor Notification Forms.  The Borrower shall furnish or shall cause the  Servicer to furnish the Collateral Agent and the Administrative Agent with an appropriate power  of attorney to send, Obligor notification forms to give notice to the Obligors of the Collateral  Agent’s interest in the Collateral Portfolio and the obligation to make payments as directed by the  Administrative Agent on the Collateral Agent’s behalf.  For the avoidance of doubt, such power  of attorney shall only be exercisable by the Collateral Agent or Administrative Agent, as  applicable, after the occurrence of and during the continuance of an Event of Default or the  occurrence or declaration of the Facility Maturity Date).  (ff) Acquisition of Loan Assets.  The Borrower shall originate or acquire all  Loan Assets in compliance with its standard and customary practices as permitted hereunder.  (gg) Notice of Defaulted Loan Assets.  The Borrower or the Servicer shall  provide the Administrative Agent (with a copy to the Collateral Agent), within two Business Days  after notice or knowledge thereof, written notice of any Loan Asset becoming a Defaulted Loan  Asset.  (hh) Continuation Statements.  The Borrower shall, not earlier than six months  prior to, and not later than the fifth anniversary of, the date of filing of the UCC financing statement  referred to in Schedule I hereto or any other UCC financing statement filed pursuant to this  Agreement or in connection with any Advance hereunder, unless the Collection Date shall have  occurred, authorize and deliver and file or cause to be filed an appropriate continuation statement  with respect to such UCC financing statement.  (ii) Officer’s Certificate.  On each date on which the Servicer delivers the  consolidated audited financial statements of the Equityholder pursuant to Section 6.08(d)(ii), the  Borrower shall deliver an Officer’s Certificate, in form and substance acceptable to the  Administrative Agent, providing (i) a certification, based upon a review and summary of UCC  search results, that there is no other interest in the Collateral Portfolio perfected by filing of a UCC  financing statement other than in favor of the Collateral Agent and (ii) a certification, based upon  a review and summary of tax and judgment Lien searches satisfactory to the Administrative Agent,  that there is no other interest in the Collateral Portfolio based on any tax or judgment Lien.  (jj) Disregarded Entity.  The Borrower will be disregarded as an entity separate  from its owner pursuant to Treas. Reg. § 301.7701-3(b), and neither the Borrower nor any other  





 






  #75870257_v11 105   Person on its behalf shall make an election to be treated as other than an entity disregarded from  its owner under Treas. Reg. § 301.7701-3(c).  (kk) Audits.  Subject to the proviso hereto, once during any 12-month period (or  more frequently as the Administrative Agent, for itself and as agent for the Lenders may require  after the occurrence of and during the continuance of an Event of Default) and at the sole cost and  expense of the Borrower, during normal office hours and, so long as there exists no Event of  Default, upon reasonable prior notice, (i) cause an independent nationally recognized accounting  firm or an independent audit and consulting firm specializing in securitization transactions  reasonably satisfactory to the Administrative Agent, to enter the premises of the Borrower and any  Person to whom the Borrower delegates all or any portion of its duties under any Transaction  Document to which it is a party and examine and audit the books, records and accounts of the  Borrower and such other Person relating to its business, financial condition and operations (in each  case, relating to or impacting the transactions contemplated under the Transaction Documents) and  the Borrower’s and such other Person’s performance under the Transaction Documents to which  it is a party, (ii) permit such firm to discuss the Borrower’s and such other Person’s affairs and  finances (in each case, relating to or impacting the transactions contemplated under the Transaction  Documents) with the officers, partners, employees and accountants of any of them, (iii) cause such  firm to provide to the Administrative Agent and each Lender, with a report in respect of the  foregoing, which shall be in form and scope reasonably satisfactory to the Administrative Agent,  and (iv) authorize such firm to discuss such affairs, finances and performance with representatives  of the Administrative Agent and its designees; provided that (x) so long as the Borrower’s financial  and operating results are consolidated with those of the Equityholder in consolidated financial  statements, (y) the Administrative Agent, each Lender and the Collateral Agent have received all  audited consolidated financial statements required to be delivered pursuant to Section 6.08(d) that  consolidate the Borrower’s financial and operating results with those of Equityholder, and (z) there  exists no Event of Default, the Administrative Agent agrees that it will not request, commence or  cause an audit and examination of the Borrower pursuant to this Section 5.01(kk).  (ll) Access to Records.  No more than once during any 12-month period (or  more frequently as the Administrative Agent, for itself and as agent for the Lenders may require  after the occurrence of and during the continuance of an Unmatured Event of Default or an Event  of Default) the Borrower shall permit the Administrative Agent or any Person designated by the  Administrative Agent, and at the sole cost and expense of the Borrower, to, during normal hours  and unless a Servicer Default, Unmatured Event of Default or Event of Default has occurred and  is continuing upon reasonable advance notice, visit and inspect at reasonable intervals its and any  Person to which it delegates any of its duties under the Transaction Documents to which it is a  party books, records and accounts relating to its business, financial condition, operations and assets  (in each case, relating to or impacting the transactions contemplated under the Transaction  Documents) and its performance under the Transaction Documents to which it is a party and to  discuss the foregoing with its and such Person’s officers, employees and accountants, all as often  as the Administrative Agent may reasonably request; provided, that, the Administrative Agent  shall use all reasonable efforts to conduct its inspections at a time that is reasonably acceptable to  the Borrower; provided however that, if under the terms of any agreement with any Person which  is not an Affiliate of the Borrower or the Equityholder to whom the Borrower has delegated any  of its duties under any Transaction Document, only the Borrower or the Equityholder, as the case  may be, is permitted to visit and inspect such Person’s books, records and accounts, it shall at the  





 






  #75870257_v11 106   request of the Administrative Agent, exercise or cause the Equityholder or the Borrower, as the  case may be, to exercise the rights specified in this Section 5.01(ll) on behalf of such requesting  parties, as frequently as the terms of any such agreement permit, but in no event less frequently  than annually.  SECTION 5.02 Negative Covenants of the Borrower.  From the Closing Date until the Collection Date:  (a) Special Purpose Entity Requirements.  Except as otherwise permitted by  this Agreement, the Borrower shall not violate the provisions of Section 5.01(b).  (b) Requirements for Material Actions.  The Borrower shall not fail to provide  (and at all times the Borrower’s Governing Documents shall reflect) that the unanimous consent  of all directors (or other relevant governing body) (including the consent of the Independent  Director(s)) is required for the Borrower to (i) dissolve or liquidate, in whole or part, or institute  proceedings to be adjudicated bankrupt or not Solvent, (ii) institute or consent to the institution of  bankruptcy or insolvency proceedings against it, (iii) file a petition seeking or consent to  reorganization or relief under any applicable federal or state law relating to bankruptcy or  insolvency, (iv) seek or consent to the appointment of a receiver, liquidator, assignee, trustee,  sequestrator, custodian or any similar official for the Borrower, (v) make any assignment for the  benefit of the Borrower’s creditors, (vi) admit in writing its inability to pay its debts generally as  they become due, or (vii) take any action in furtherance of any of the foregoing.  (c) Protection of Title.  The Borrower shall not take any action which would  directly or indirectly impair or adversely affect the Borrower’s title to the Collateral Portfolio,  except in connection with a transaction not otherwise prohibited hereunder.  (d) Transfer Limitations.  The Borrower shall not transfer, assign, convey,  grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or  indirectly, any interest in the Collateral Portfolio to any Person other than the Collateral Agent for  the benefit of the Secured Parties, or engage in financing transactions or similar transactions with  respect to the Collateral Portfolio with any Person other than the Administrative Agent and the  Lender, in each case, except as otherwise expressly permitted by the terms of this Agreement.  (e) Liens.  The Borrower shall not create, incur or permit to exist any Lien,  encumbrance or security interest in or on any of the Collateral Portfolio subject to the security  interest granted by the Borrower pursuant to this Agreement, other than Permitted Liens.  (f) Organizational Documents.  The Borrower shall not amend, modify, waive  or terminate any of the special purpose entity provisions of the Governing Documents of the  Borrower and will not otherwise amend, modify, waive or terminate any of the Governing  Documents in any manner that is materially adverse to the Lenders or otherwise prohibited under  this Agreement without the prior written consent of the Administrative Agent.  (g) Merger, Acquisitions, Sales, etc.  The Borrower shall not change its  organizational structure, enter into any transaction of merger or consolidation or amalgamation, or  asset sale (other than pursuant to Section 2.07), or liquidate, wind up or dissolve itself (or suffer  





 






  #75870257_v11 107   any liquidation, winding up or dissolution) without the prior written consent of the Administrative  Agent.  (h) Use of Proceeds.  The Borrower shall not use the proceeds of any Advance  other than (x) to finance the origination and purchase by the Borrower of the Collateral Portfolio  and to pay fees and expenses related to the Transaction Documents, (y) to fund the Unfunded  Exposure Account in order to establish reserves for unfunded commitments of Revolving Loan  Assets and Delayed Draw Loan Assets included in the Collateral Portfolio or (z) to distribute such  proceeds to the Equityholder (so long as such distribution is permitted pursuant to Section 5.02(l)).  (i) Limited Assets.  The Borrower shall not hold or own any assets that are not  part of the Collateral Portfolio (other than Excluded Amounts) other than with respect to any assets  released from the Lien of the Collateral Agent hereunder following (i) a substitution effected in  accordance with Section 2.07(a) (so long as a Substitute Eligible Loan Asset has been transferred  to the Borrower), (ii) an Optional Sale in connection with a Permitted Refinancing effected in  accordance with Section 2.07(e), (iii) a Lien Release Dividend effected in accordance with Section  2.07(d); (iv) the repurchase or substitution of a Warranty Loan Asset effected in accordance with  Section 2.07(e); (v) a transaction in accordance with Section 2.07(f), or (vi) any other sale or  disposal of a Loan Asset that is effected pursuant to a participation prior to the elevation of such  participation to an outright assignment in connection with a transaction that would otherwise be  permitted by Section 2.07.  (j) Tax Treatment.  The Borrower shall not elect to be treated as a corporation  for U.S. federal income tax purposes and shall take all reasonable steps necessary to avoid being  treated as a corporation for U. S. federal income tax purposes.  (k) Extension or Amendment of Collateral Portfolio.  The Borrower will not,  except as otherwise permitted in Section 6.04(a) and in accordance with the Servicing Standard,  extend, amend or otherwise modify the terms of any Loan Asset (including the related Underlying  Collateral).  (l) Restricted Junior Payments.  The Borrower shall not make any Restricted  Junior Payment, except that, so long as no Event of Default or Unmatured Event of Default has  occurred and is continuing or would result therefrom, the Borrower may declare and make  distributions to its member on its membership interests.  (m) ERISA.  The Borrower will not become “plan assets” subject to Title I of  ERISA or Section 4975 of the Code, and, except as would not reasonably be expected to result in  a Material Adverse Effect, the Borrower will not (a) with respect to any Pension Plan, engage in  any prohibited transaction (within the meaning of Sections 406(a) or (b) of ERISA or Section 4975  of the Code) for which an exemption is not available or has not previously been obtained from the  United States Department of Labor, (b) fail to meet the minimum funding standard set forth in  Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Pension Plan, (c) fail  to make any payments to a Multiemployer Plan that the Borrower or any ERISA Affiliate may be  required to make under the agreement relating to such Multiemployer Plan or any law pertaining  thereto, (d) terminate any Pension Plan so as to result, directly or indirectly, in any material liability  to the Borrower, or (e) permit to occur any “reportable event”  (within the meaning of ERISA  





 






  #75870257_v11 108   section 4043(c)), other than any event for which the 30-day notice period has been waived, with  respect to any Pension Plan.  (n) Instructions to Agents and Obligors.  The Borrower will not make any  change, or permit the Servicer to make any change, in its instructions to Obligors (or any agents  with respect to the Loan Agreements regarding payments to be made with respect to the Collateral  Portfolio to the Collection Account), unless the Administrative Agent has consented to such  change (such consent not to be unreasonably withheld, conditioned or delayed, it being understood  that any such account to which the Obligors may be instructed to make payments shall be subject  to an account control agreement which provides the Collateral Agent with a first priority perfected  security interest in such account, as evidenced by an Opinion of Counsel reasonably acceptable to  the Administrative Agent).    (o) Change of Jurisdiction, Location, Names or Location of Loan Asset Files.   The Borrower shall not change the jurisdiction of its formation, make any change to its corporate  name or use any tradenames, fictitious names, assumed names, “doing business as” names or other  names (other than those listed on Schedule II hereto, as such schedule may be revised from time  to time to reflect name changes and name usage permitted under the terms of this Section 5.02(o)  after compliance with all terms and conditions of this Section 5.02(o) related thereto) unless, prior  to the effective date of any such change in the jurisdiction of its formation, name change or use,  the Borrower receives prior written consent from the Administrative Agent of such change and  delivers to the Administrative Agent such UCC financing statements as the Administrative Agent  may request to reflect such name change or use, together with such Opinions of Counsel and other  documents and instruments as the Administrative Agent may reasonably request in connection  therewith.  The Borrower will not change the location of its chief executive office unless prior to  the effective date of any such change of location, the Borrower notifies the Administrative Agent  of such change of location in writing.  Subject to Section 2.16, the Borrower will not move, or  consent to the Collateral Custodian or the Servicer moving, the Loan Asset Files from the location  thereof on the initial Advance Date, unless the Servicer shall have provided the Administrative  Agent with 30 days’ written notice of such move and such Opinions of Counsel and other  documents and instruments as the Administrative Agent may reasonably request in connection  therewith and shall have taken all actions required under the UCC of each relevant jurisdiction in  order to continue the first priority perfected security interest of the Collateral Agent, for the benefit  of the Secured Parties, in the Collateral Portfolio.  SECTION 5.03 Affirmative Covenants of the Servicer.  From the Closing Date until the Collection Date:  (a) Compliance with Law.  The Servicer will comply with all Applicable Law,  including those with respect to servicing the Collateral Portfolio or any part thereof pursuant to  the terms hereof, except as would not reasonably be expected to have a Material Adverse Effect.  (b) Preservation of Company Existence.  The Servicer will preserve and  maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its  formation, and qualify and remain qualified in good standing as a corporation in each jurisdiction  





 






  #75870257_v11 109   where the failure to preserve and maintain such existence, rights, franchises, privileges and  qualification could reasonably be expected to have a Material Adverse Effect.  (c) Obligations and Compliance with Collateral Portfolio.  The Servicer will  take all actions within its control so as to permit the Borrower to fulfill and comply in all material  respects with all obligations on the part of the Borrower to be fulfilled or complied with under or  in connection with the administration of each item of Collateral Portfolio and will do nothing to  impair the rights of the Collateral Agent, for the benefit of the Secured Parties, or of the Secured  Parties in, to and under the Collateral Portfolio.  It is understood and agreed that the Servicer does  not hereby assume any obligations of the Borrower in respect of any Advances or assume any  responsibility for the performance by the Borrower of any of its obligations hereunder or under  any other agreement executed in connection herewith that would be inconsistent with the limited  recourse undertaking of the Servicer of Section 8.02(e).  (d) Keeping of Records and Books of Account.  (i) The Servicer will maintain and implement administrative and  operating procedures (including, without limitation, an ability to recreate records  evidencing the Collateral Portfolio, including without limitation the Records, in the event  of the destruction of the originals thereof), and keep and maintain all documents, books,  records and other information reasonably necessary or advisable for the collection of all  Collateral Portfolio and the identification of the Collateral Portfolio, including without  limitation the Records.  (ii) The Servicer shall permit the Administrative Agent and its agents or  representatives to visit the offices of the Servicer during normal office hours and upon  reasonable advance notice and examine and make copies of all documents, books, records  and other information concerning the Collateral Portfolio, including without limitation the  Records, and the Servicer’s servicing thereof and discuss matters related thereto with any  of the officers or employees of the Servicer having knowledge of such matters (provided  that the Servicer shall not be liable for the costs and expenses of more than one such visit  in any calendar year unless an Event of Default has occurred hereunder, in which event the  number of visits for which the Servicer shall be liable for the costs and expenses shall not  be limited).  (iii) The Servicer will on or prior to the Closing Date, mark its master  data processing records and other books and records relating to the Collateral Portfolio, in  a manner that accurately ensures all assets which constitute the Collateral Portfolio are  clearly marked as being held in the Borrower’s name.  (e) Preservation of Security Interest.  The Servicer (at its own expense, on  behalf of the Borrower) will file such financing and continuation statements and any other  documents that may be required by any law or regulation of any Governmental Authority to  preserve and protect fully the first priority perfected security interest of the Collateral Agent  (subject to Permitted Liens), for the benefit of the Secured Parties, in, to and under the Loan Assets  and that portion of the Collateral Portfolio in which a security interest may be perfected by filing.  





 






  #75870257_v11 110   (f) Servicing Standard.  The Servicer will comply in all material respects with  the Servicing Standard in regard to the Collateral Portfolio.  (g) Compliance With Documentation.  The Servicer will act in conformity with  all material terms and conditions of the Underlying Instruments and Required Loan Documents  required to be observed by it, except as permitted by the Servicing Standard and this Agreement.  (h) Notice of Event of Default.  The Servicer will provide the Administrative  Agent (with a copy to the Collateral Agent and the Collateral Custodian), within two Business  Days, written notice of the occurrence of each Event of Default of which the Servicer has  knowledge or has received notice, other than notice received from the Administrative Agent.  In  addition, no later than two Business Days following the Servicer’s knowledge or notice of the  occurrence of any Event of Default, the Servicer will provide to the Collateral Agent and the  Administrative Agent a written statement of the chief financial officer or chief accounting officer  of the Servicer setting forth the details of such event and the action that the Servicer proposes to  take with respect thereto.  Notwithstanding the foregoing, the Servicer’s obligations under this  Section 5.03(h) shall not require it to provide such notice and statement to the extent the same have  already been provided by the Borrower pursuant to Section 5.01(j).  (i) Reserved.    (j) Other.  The Servicer will promptly furnish to the Collateral Agent and the  Administrative Agent, to the extent available to Borrower and redacted to the extent subject to  confidentiality restrictions that limit such disclosure, such other information, documents, records  or reports respecting the Collateral Portfolio, including without limitation the Records, or the  condition or operations, financial or otherwise, of the Borrower or the Servicer as the Collateral  Agent and the Administrative Agent may from time to time reasonably request in order to protect  the interests of the Administrative Agent and the Collateral Agent or Secured Parties under or as  contemplated by this Agreement.  (k) Proceedings Related to the Borrower, the Equityholder, the Servicer and the  Transaction Documents.  The Servicer shall notify the Administrative Agent within three Business  Days after any Responsible Officer of the Servicer receives notice or obtains actual knowledge  thereof of any settlement of, judgment (including a judgment with respect to the liability phase of  a bifurcated trial) in or commencement of any labor controversy, litigation, action, suit or  proceeding before any court or governmental department, commission, board, bureau, agency or  instrumentality, domestic or foreign, that could reasonably be expected to have a Material Adverse  Effect.  Solely for purposes of this Section 5.03(k), (i) any settlement, judgment, labor controversy,  litigation, action, suit or proceeding affecting the Transaction Documents or the Borrower that  could reasonably be expected to result in liability to the Borrower or reduce the value of the  Collateral Portfolio, in each case, in excess of $1,000,000 (after any expected insurance proceeds)  shall be deemed to be reasonably expected to have such a Material Adverse Effect and (ii) any  settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting (x) the  Servicer, or (y) the Investment Manager or the Investment Sub-Advisor to the extent pertaining to  its management or advisory activities with respect to the Borrower or Servicer, in each case, that  could, subject to the Borrower’s reasonable determination, reasonably be expected to result in  





 






  #75870257_v11 111   liability to such Person in excess of $5,000,000 (after any expected insurance proceeds) shall be  deemed to be reasonably expected to have such a Material Adverse Effect.  (l) Deposit of Collections.  The Servicer shall promptly (but in no event later  than two Business Days after receipt) deposit or cause to be deposited into the Collection Account  any and all Available Collections received by the Borrower, the Servicer or any of their Affiliates.  (m) Acquisition of Loan Assets.  The Servicer shall ensure that each Loan Asset  originated or acquired by the Borrower is originated or acquired in compliance with its standard  and customary practices as permitted hereunder.  (n) Reserved.  (o) Accounting Changes.  As soon as possible and in any event within three  Business Days after the effective date thereof, the Servicer will provide to the Administrative  Agent notice of any material change in the accounting policies of the Servicer.  (p) Proceedings Related to the Collateral Portfolio.  The Servicer shall notify  the Administrative Agent within three Business Days after any Responsible Officer of the Servicer  receives notice or has actual knowledge of any settlement of, judgment (including a judgment with  respect to the liability phase of a bifurcated trial) in or commencement of any labor controversy,  litigation, action, suit or proceeding before any court or governmental department, commission,  board, bureau, agency or instrumentality, domestic or foreign, that could reasonably be expected  to have a Material Adverse Effect on the interests of the Collateral Agent or the Secured Parties  in, to and under the Collateral Portfolio.  Solely, for purposes of this Section 5.03(p), any  settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the  Collateral Portfolio or the Collateral Agent’s or the Secured Parties’ interest in the Collateral  Portfolio that could reasonably be expected to reduce the value of the Collateral Portfolio in excess  of $2,500,000 (after any expected insurance proceeds) or more shall be deemed to be expected to  have such a Material Adverse Effect.  (q) Compliance with Legal Opinions.  The Servicer shall take all other actions  necessary to maintain the accuracy of the factual assumptions set forth in the legal opinion Dechert  LLP, as counsel to the Borrower, issued in connection with and relating to the issue of non- consolidation of the Borrower with the Equityholder.  (r) Instructions to Administrative Agents and Obligors.  The Servicer shall  direct any agent or administrative agent for any Loan Asset to remit all payments and collections  with respect to such Loan Asset directly to the Collection Account.  The Borrower and the Servicer  shall take commercially reasonable steps to ensure that only funds constituting payments and  collections relating to Loan Assets shall be deposited into the Collection Account.  (s) Capacity as Servicer.  The Servicer will ensure that, at all times when it is  dealing with or in connection with the Loan Assets in its capacity as Servicer, it holds itself out as  Servicer, and not in any other capacity.  (t) Eligible Loan Status.  On each Determination Date, the Servicer (on behalf  of the Borrower) shall confirm the status of each Eligible Loan Asset as of such date and provide  





 






  #75870257_v11 112   notice of any change in the status of any Eligible Loan Asset to the Collateral Agent and, as a  consequence thereof, Loan Assets that were previously Eligible Loan Assets on a prior  Determination Date may be excluded from the aggregate Adjusted Borrowing Value and  Borrowing Base on such Determination Date.  (u) Audits.  At the discretion of the Administrative Agent, the Servicer shall  periodically allow the Administrative Agent (during normal office hours and upon reasonable  advance notice) to review the Servicer’s collection and administration of the Collateral Portfolio  in order to assess compliance by the Servicer with the Servicing Standard, as well as with the  Transaction Documents and to conduct an audit of the Collateral Portfolio and Required Loan  Documents in conjunction with such a review.  Such review shall be reasonable in scope and shall  be completed in a reasonable period of time; provided that, at the Servicer’s expense, (i) prior to  the occurrence and during the continuance of an Event of Default, the Administrative Agent shall  be entitled to one (1) such audit during each calendar year and, (ii) after the occurrence and during  the continuance of an Event of Default, the Administrative Agent shall be entitled to such number  of audits per annum and at such times as it shall require in its reasonable discretion.  (v) Compliance with Anti-Money Laundering Laws and Anti-Corruption  Laws.  The Servicer, its Subsidiaries and, to the knowledge of the Servicer, their respective  Affiliates shall: (i) comply with all applicable Anti-Money Laundering Laws and Anti-Corruption  Laws, and shall maintain or be subject to policies and procedures reasonably designed to ensure  compliance with the Anti-Money Laundering Laws and Anti-Corruption Laws, (ii) conduct the  requisite due diligence in connection with the transactions contemplated herein for purposes of  complying with the Anti-Money Laundering Laws, (iii) ensure it does not use any of the credit in  violation of any Anti-Corruption Laws or Anti-Money Laundering Law, and (iv) ensure it does  not fund any repayment of the credit in violation of any Anti-Corruption Laws or Anti-Money  Laundering Laws.  The Servicer shall, upon the request of the Administrative Agent from time to  time, provide certification and other evidence of the Servicer’s compliance with this Section  5.03(v).  (w) Insurance Policies.  The Servicer has caused, and will cause, to be  performed any and all acts reasonably required to be performed to preserve the rights and remedies  of the Collateral Agent and the Secured Parties in any Insurance Policies applicable to Loan Assets  (to the extent the Servicer or an Affiliate of the Servicer is the agent or servicer under the applicable  Loan Agreement) in accordance with the Servicing Standard.  (x) Reserved.  (y) Investment Management Agreement and Investment Sub-Advisory  Agreement.  (i) The Servicer shall not permit the Investment Management  Agreement or the Investment Sub-Advisory Agreement to be modified or amended in a  manner that materially and adversely affects any Secured Party without the prior written  consent of the Administrative Agent.  





 






  #75870257_v11 113   (ii) The Servicer shall not permit the Investment Management  Agreement or the Investment Sub-Advisory Agreement to be assigned by any party thereto  to a Person that is not an Affiliate of such assigning party without giving the Administrative  Agent at least 10 Business Days prior written notice.  (iii) No party to the Investment Management Agreement or the  Investment Sub-Advisory Agreement shall be in breach of any of its representations,  warranties, agreements and/or covenants thereunder or shall waive any material duties or  obligations thereunder, in each case in a manner that materially and adversely affects the  ability of the Servicer to perform its obligations under the Transaction Documents.  SECTION 5.04 Negative Covenants of the Servicer.  From the Closing Date until the Collection Date:  (a) Mergers, Acquisition, Sales, etc.  The Servicer will not consolidate with or  merge into any other Person or convey or transfer its properties and assets substantially as an  entirety to any Person, unless the Servicer is the surviving entity and unless:  (i) the Servicer has delivered to the Administrative Agent an Officer’s  Certificate stating that any such consolidation, merger, conveyance or transfer and any  supplemental agreement executed in connection therewith comply with this Section 5.04  and that all conditions precedent herein provided for relating to such transaction have been  complied with;  (ii) the Servicer shall have delivered notice of such consolidation,  merger, conveyance or transfer to the Administrative Agent; and  (iii) after giving effect thereto, no Event of Default or Servicer Default  or event that with notice or lapse of time would constitute either an Event of Default or a  Servicer Default shall have occurred.  (b) Change of Name or Location of Loan Asset Files.  The Servicer shall not  (x) change its name, move the location of its principal place of business and chief executive office,  change the offices where it keeps records concerning the Collateral Portfolio, including without  limitation the Records, from the address set forth in Section 11.02, or change the jurisdiction of its  formation, or (y) subject to Section 2.16, move, or consent to the Collateral Custodian moving, the  Required Loan Documents and the Loan Asset Files from the location thereof on the initial  Advance Date, unless the Servicer shall have provided the Administrative Agent with 30 days  written notice of such move and such Opinions of Counsel and other documents and instruments  as the Administrative Agent may reasonably request in connection therewith and shall have taken  all actions required under the UCC of each relevant jurisdiction in order to continue the first  priority perfected security interest of the Collateral Agent, for the benefit of the Secured Parties,  in the Collateral Portfolio.  (c) Change in Payment Instructions to Administrative Agents.  The Servicer  will not make any change in its instructions to Obligors or to any administrative agent under a  Loan Agreement regarding payments to be made with respect to the Collateral Portfolio to the  





 






  #75870257_v11 114   Collection Account, unless the Administrative Agent has consented to such change (such consent  not to be unreasonably withheld, conditioned or delayed, it being understood that any such account  to which the Obligors or such administrative agent may be instructed to make payments shall be  subject to an account control agreement which provides the Collateral Agent with a first priority  perfected security interest in such account, which upon request of the Administrative Agent shall  be as evidenced by an Opinion of Counsel reasonably acceptable to the Administrative Agent  (except with respect to priority)).  (d) Extension or Amendment of Loan Assets.  The Servicer will not, except as  otherwise permitted in Section 6.04(a), extend, amend or otherwise modify the terms of any Loan  Asset (including the Underlying Collateral).  (e) Allocation of Charges.  There will not be any agreement or understanding  between the Servicer and the Borrower (other than as expressly set forth herein or as consented to  by the Administrative Agent), providing for the allocation or sharing of obligations to make  payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges.  SECTION 5.05 Affirmative Covenants of the Collateral Custodian.  From the Closing Date until the Collection Date:  (a) Compliance with Law.  The Collateral Custodian will comply in all material  respects with all Applicable Law.  (b) Preservation of Existence.  The Collateral Custodian will preserve and  maintain its existence, rights, franchises and privileges in the jurisdiction of its formation and  qualify and remain qualified in good standing in each jurisdiction where failure to preserve and  maintain such existence, rights, franchises, privileges and qualification could reasonably be  expected to have a Material Adverse Effect.  (c) Location of Required Loan Documents.  Subject to Article XII, the  Required Loan Documents shall remain at all times in the possession of the Collateral Custodian  at its address located at 1719 Otis Way, Florence, SC 29501 unless notice of a different address is  given in accordance with the terms hereof or unless the Administrative Agent agrees to allow  certain Required Loan Documents to be released to the Servicer on a temporary basis in accordance  with the terms hereof, except as such Required Loan Documents may be released pursuant to the  terms of this Agreement.  SECTION 5.06 Negative Covenants of the Collateral Custodian.  From the Closing Date until the Collection Date:  (a) Required Loan Documents.  The Collateral Custodian will not dispose of  any documents constituting the Required Loan Documents in any manner that is inconsistent with  the performance of its obligations as the Collateral Custodian pursuant to this Agreement and will  not dispose of any Collateral Portfolio except as contemplated by this Agreement.  





 






  #75870257_v11 115   (b) No Changes in Collateral Custodian Fees.  The Collateral Custodian, the  Collateral Administrator and the Account Bank will not make any changes to the Collateral  Custodian Fees without the prior written approval of the Administrative Agent.  SECTION 5.07 Affirmative Covenants of the Account Bank.  From the Closing  Date until the Collection Date:  (a) Compliance with Applicable Law.  The Account Bank will comply in all  material respects with all Applicable Law.  (b) Preservation of Existence.  The Account Bank will preserve and maintain  its existence, rights, franchises and privileges in the jurisdiction of its formation and qualify and  remain qualified in good standing in each jurisdiction where failure to preserve and maintain such  existence, rights, franchises, privileges and qualification could reasonably be expected to have a  Material Adverse Effect.  ARTICLE VI    ADMINISTRATION AND SERVICING OF CONTRACTS  SECTION 6.01 Appointment and Designation of the Servicer.  (a) Initial Servicer.  The Lender and the Administrative Agent hereby appoint  Nuveen Churchill Direct Lending Corp., pursuant to the terms and conditions of this Agreement,  as Servicer, with the authority to service, administer and exercise rights and remedies, on behalf  of the Borrower, in respect of the Collateral Portfolio.  Until the Administrative Agent gives  Nuveen Churchill Direct Lending Corp. a Servicer Termination Notice in accordance with the  terms of this Agreement, Nuveen Churchill Direct Lending Corp. hereby accepts such appointment  and agrees to perform the duties and responsibilities of the Servicer pursuant to the terms hereof.   The Servicer and the Borrower hereby acknowledge that the Administrative Agent and the Secured  Parties are third party beneficiaries of the obligations undertaken by the Servicer hereunder.   (b) Servicer Termination Notice.  The Borrower, the Servicer, the Lender and  the Administrative Agent hereby agree that, after the occurrence and during the continuance of a  Servicer Default, the Administrative Agent, by immediate written notice to the Servicer (with a  copy to the Collateral Agent) (a “Servicer Termination Notice”), may terminate all of the rights,  obligations, power and authority of the Servicer under this Agreement other than with respect to  the rights of the Servicer under Section 7.02(h).  On and after the receipt by the Servicer of a  Servicer Termination Notice pursuant to this Section 6.01(b), the Servicer shall continue to  perform all servicing functions under this Agreement until the date specified in the Servicer  Termination Notice or otherwise specified by the Administrative Agent in writing or, if no such  date is specified in such Servicer Termination Notice or otherwise specified by the Administrative  Agent, until a date mutually agreed upon by the Servicer and the Administrative Agent and shall  be entitled to receive, to the extent of funds available therefor pursuant to Section 2.04, the  Servicing Fees therefor accrued until such date.  After such date, the Servicer agrees that it will  terminate its activities as Servicer hereunder in a manner that the Administrative Agent believes  will facilitate the transition of the performance of such activities to a Replacement Servicer, and  





 






  #75870257_v11 116   the Replacement Servicer shall assume each and all of the Servicer’s obligations to service and  administer the Collateral Portfolio, on the terms and subject to the conditions herein set forth, and  the Servicer shall use its commercially reasonable efforts to assist the Replacement Servicer in  assuming such obligations.  (c) Appointment of Replacement Servicer.  At any time following the delivery  of a Servicer Termination Notice, the Administrative Agent may, at its discretion, with notice to  the Borrower appoint a new Servicer which shall be an Eligible Replacement (as defined below)  (the “Replacement Servicer”), which appointment shall take effect upon the Replacement Servicer  accepting such appointment by a written assumption in a form satisfactory to the Administrative  Agent in its sole discretion.  In the event a Replacement Servicer has not accepted its appointment  at the time when the Servicer ceases to act as Servicer, the Administrative Agent shall petition a  court of competent jurisdiction to appoint any established financial institution, having a net worth  of not less than $50,000,000 and whose regular business includes the servicing of assets similar to  the Collateral Portfolio (each, an “Eligible Replacement”), as the Replacement Servicer hereunder.   Subject to Section 11.07, the Servicer shall pay all costs associated with the transition of the  obligations hereunder to an Replacement Servicer if the Administrative Agent terminates the  Servicer following a Servicer Default.  (d) Liabilities and Obligations of Replacement Servicer.  Upon its appointment,  the Replacement Servicer, as applicable, shall be the successor in all respects to the Servicer with  respect to servicing functions under this Agreement and shall be subject to all the responsibilities,  duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof,  and all references in this Agreement to the Servicer shall be deemed to refer to the Replacement  Servicer; provided that the Replacement Servicer shall have (i) no liability with respect to any  action performed by the terminated Servicer prior to the date that the Replacement Servicer  becomes the successor to the Servicer or any claim of a third party based on any alleged action or  inaction of the terminated Servicer, (ii) no obligation to perform any advancing obligations, if any,  of the Servicer unless it elects to in its sole discretion, (iii) no obligation to pay any Taxes required  to be paid by the Servicer (provided that the Replacement Servicer shall pay any income taxes for  which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the  transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer  indemnification obligations of any prior Servicer, including the original Servicer.  The  indemnification obligations of the Replacement Servicer upon becoming a Replacement Servicer,  are expressly limited to those arising on account of its failure to act in good faith and with  reasonable care under the circumstances.  In addition, the Replacement Servicer shall have no  liability relating to the representations and warranties of the Servicer contained in Section 4.03.  (e) Authority and Power.  All authority and power granted to the Servicer under  this Agreement shall automatically cease and terminate upon termination of this Agreement and  shall pass to and be vested in the Borrower and, without limitation, the Borrower is hereby  authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or  otherwise, all documents and other instruments, and to do and accomplish all other acts or things  necessary or appropriate to effect the purposes of such transfer of servicing rights.  The Servicer  agrees to cooperate with the Borrower in effecting the termination of the responsibilities and rights  of the Servicer to conduct servicing of the Collateral Portfolio.  





 






  #75870257_v11 117   (f) Subcontracts.  The Servicer may, with the prior written consent of the  Administrative Agent, subcontract with any other Person for servicing, administering or collecting  the Collateral Portfolio; provided that (i) the Servicer shall select any such Person with reasonable  care and shall be solely responsible for the fees and expenses payable to any such Person, (ii) the  Servicer shall not be relieved of, and shall remain liable for, the performance of the duties and  obligations of the Servicer pursuant to the terms hereof without regard to any subcontracting  arrangement and (iii) any such subcontract shall be terminable upon the occurrence of a Servicer  Default; provided, further that no Administrative Agent consent shall be required to enter into any  subcontract with the Investment Manager, the Investment Sub-Advisor, or any Affiliate of the  Investment Manager, the Investment Sub-Advisor or the Servicer; provided, further, that in the  event of any such subcontract, (A) the Servicer shall be and remain primarily liable to the  Administrative Agent, the Collateral Agent and the Lender for the full and prompt performance of  all duties and responsibilities of the Servicer hereunder and (B) the Administrative Agent and the  Collateral Agent shall be entitled to deal exclusively with the Servicer in matters relating to the  discharge by the Servicer of its duties and responsibilities hereunder.  (g) Reserved.  (h) Waiver.  The Borrower acknowledges that the Administrative Agent or any  of its Affiliates may act as the Collateral Agent and/or the Servicer after the occurrence of a  Servicer Default, and the Borrower waives any and all claims against the Administrative Agent,  the Lender or any of their respective Affiliates, the Collateral Agent and the Servicer (other than  claims relating to such party’s bad faith, gross negligence or willful misconduct) relating in any  way to the custodial or collateral administration functions having been performed by the  Administrative Agent or any of its Affiliates in accordance with the terms and provisions  (including the standard of care) set forth in the Transaction Documents.  SECTION 6.02 Duties of the Servicer.  (a) Duties.  The Servicer shall take or cause to be taken all such actions as may  be necessary or advisable to service, and collect on the Collateral Portfolio from time to time, all  in accordance with Applicable Law and the Servicing Standard.  Prior to the occurrence and  continuance of a Servicer Default, but except as otherwise provided herein and subject to the terms  of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and  exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take  or refrain from taking any and all actions with respect to the Collateral Portfolio.  Without limiting  the foregoing, the duties of the Servicer shall include the following:  (i) supervising the Collateral Portfolio, including communicating with  Obligors, executing amendments, providing consents and waivers, enforcing and collecting  on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of  the Borrower;  (ii) maintaining all necessary servicing records with respect to the  Collateral Portfolio, including without limitation the Records, and providing such records  to the Administrative Agent (with a copy to the Account Bank) in respect of the servicing  of the Collateral Portfolio (including information relating to its performance under this  





 






  #75870257_v11 118   Agreement) as may be required hereunder or as the Administrative Agent may reasonably  request;  (iii) maintaining and implementing administrative and operating  procedures (including without limitation an ability to recreate servicing records evidencing  the Collateral Portfolio, including without limitation the Records, in the event of the  destruction of the originals thereof) and keeping and maintaining all documents, books,  records and other information reasonably necessary or advisable for the collection of the  Collateral Portfolio, including without limitation the Records;  (iv) promptly delivering to the Administrative Agent, the Collateral  Agent, the Collateral Administrator, the Account Bank and the Collateral Custodian from  time to time, such information and servicing records (including information relating to its  performance under this Agreement) as the Administrative Agent, the Collateral Agent, the  Collateral Administrator, the Account Bank or the Collateral Custodian may from time to  time reasonably request, including without limitation the Records;  (v) identifying each Loan Asset clearly and unambiguously in its  servicing records, including without limitation the Records, to reflect that such Loan Asset  is owned by the Borrower and that the Borrower has granted a perfected security interest  therein to the Collateral Agent for the benefit of the Secured Parties pursuant to this  Agreement;  (vi) notifying the Administrative Agent of any material action, suit,  proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened  to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which  it has knowledge or has received notice; or (2) that could reasonably be expected to have a  Material Adverse Effect;  (vii) maintaining the perfected security interest of the Collateral Agent,  for the benefit of the Secured Parties, in the Collateral Portfolio;  (viii) maintaining the Loan Asset File with respect to Loan Assets  included as part of the Collateral Portfolio; provided that, so long as the Servicer is in  possession of physical copies, if any, of any original Required Loan Documents, the  Servicer will hold such original Required Loan Documents in a fireproof safe or fireproof  file cabinet, except while such Required Loan Documents are in the process of being  delivered to or received from the Collateral Custodian;  (ix) directing the Account Bank to make payments pursuant to the terms  of the Servicing Report in accordance with Section 2.04;  (x) directing the sale or substitution of Collateral Portfolio in  accordance with Section 2.07;  (xi) providing administrative assistance and advice to the Borrower with  respect to the purchase and sale of and payment for the Loan Assets;  





 






  #75870257_v11 119   (xii) instructing the Obligors and the administrative agents on the Loan  Assets to make payments directly into the Collection Account established and maintained  with the Account Bank;  (xiii) delivering the Loan Asset Files and the Loan Asset Schedule to the  Collateral Custodian;  (xiv) with respect to each Loan Asset included as part of the Collateral  Portfolio, making the Loan Asset File available for inspection by the Administrative Agent,  upon reasonable advance notice, at the offices of the Servicer during normal business  hours;   (xv) complying with such other duties and responsibilities as may be  required of the Servicer by this Agreement; and  (xvi) instructing the Account Bank to make payments pursuant to the  terms of the Servicing Report or as otherwise directed in accordance with Sections 2.04 or  2.05.  It is acknowledged and agreed that in circumstances in which a Person other than  the Borrower or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall  perform its servicing duties hereunder only to the extent a lender under the related loan syndication  Loan Agreements has the right to do so.  Notwithstanding anything to the contrary contained  herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder  shall be limited insofar as such performance would conflict with or result in a breach of any of the  express terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt  written notice to the Administrative Agent upon becoming aware of such conflict or breach, (b)  have determined that there is no other commercially reasonable performance that it could render  consistent with the express terms of the Loan Agreements which would result in all or a portion of  the servicing duties being performed in accordance with this Agreement, and (c) undertake all  commercially reasonable efforts to mitigate the effects of such non-performance including  performing as much of the servicing duties as possible and performing such other commercially  reasonable and/or similar duties consistent with the terms of the Loan Agreements.  (b) Notwithstanding anything to the contrary contained herein, the exercise by  the Administrative Agent, the Collateral Agent, the Lender and the Secured Parties of their rights  hereunder shall not release the Servicer or the Borrower from any of their duties or responsibilities  with respect to the Collateral Portfolio.  The Secured Parties, the Administrative Agent, the Lender  and the Collateral Agent shall not have any obligation or liability with respect to any Collateral  Portfolio, nor shall any of them be obligated to perform any of the obligations of the Servicer  hereunder.  (c) Any payment by an Obligor in respect of any Indebtedness owed by it to  the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract  or law, be applied in accordance with the Servicing Standard.  SECTION 6.03 Authorization of the Servicer.  





 






  #75870257_v11 120   (a) Each of the Borrower, the Administrative Agent and the Lender hereby  authorizes the Servicer (including any successor thereto) to take any and all reasonable steps in its  name and on its behalf necessary or desirable in the determination of the Servicer, to collect all  amounts due under any and all Collateral Portfolio, including without limitation endorsing any of  their names on checks and other instruments representing Interest Collections and Principal  Collections, executing and delivering any and all instruments of satisfaction or cancellation, or of  partial or full release or discharge, and all other comparable instruments, with respect to the  Collateral Portfolio and, after the delinquency of any Loan Asset in the Collateral Portfolio and to  the extent permitted under and in compliance with Applicable Law, to commence proceedings  with respect to enforcing payment thereof, to the same extent as the seller of such Loan Asset  could have done if it had continued to own such Collateral Portfolio.  The Borrower and the  Collateral Agent on behalf of the Secured Parties shall furnish the Servicer (and any successors  thereto) with any powers of attorney and other documents necessary or appropriate to enable the  Servicer to carry out its servicing and administrative duties hereunder, and shall cooperate with  the Servicer to the fullest extent in order to ensure the collectability of the Loan Asset.  In no event  shall the Servicer be entitled to make the Secured Parties, the Administrative Agent, the Collateral  Agent or the Lender a party to any litigation without such party’s express prior written consent, or  to make the Borrower a party to any litigation (other than any routine foreclosure or similar  collection procedure) without the Administrative Agent’s consent.  (b) After the occurrence or declaration of the Facility Maturity Date but prior  to the occurrence of the Collection Date, at the direction of the Administrative Agent, the Servicer  shall take such action as the Administrative Agent may deem necessary or advisable to enforce  collection of the Collateral Portfolio; provided that the Administrative Agent may, at any time  after the occurrence and during the continuance of an Event of Default, notify any Obligor with  respect to any Collateral Portfolio of the assignment of such Collateral Portfolio to the Collateral  Agent on behalf of the Secured Parties and direct that payments of all amounts due or to become  due be made directly to the Administrative Agent or any servicer, collection agent or account  designated by the Administrative Agent and, upon such notification and at the expense of the  Borrower, the Administrative Agent may enforce collection of any such Collateral Portfolio, and  adjust, settle or compromise the amount or payment thereof.  SECTION 6.04 Collection of Payments; Accounts.  (a) Collection Efforts, Modification of Collateral Portfolio.  The Servicer will  use its commercially reasonable efforts and judgment to collect or cause to be collected, all  payments called for under the terms and provisions of the Loan Assets included in the Collateral  Portfolio as and when the same become due, all in accordance with the Servicing Standard.  The  Servicer may not waive, modify or otherwise vary any provision of an item of Collateral Portfolio  in any manner contrary to the Servicing Standard; provided that, on and after the occurrence and  during the continuance of an Event of Default, the prior written consent of the Administrative  Agent shall be required for any waiver, modification or variance that would impair the  collectability of the Collateral Portfolio.  In addition, after the occurrence and during the  continuance of an Event of Default, neither the Borrower nor the Servicer shall, without the prior  written consent of the Administrative Agent, agree to waive, modify or otherwise vary any  provision of a Loan Agreement related to a Loan Asset in the Collateral Portfolio if such waiver,  modification or variation would increase the Borrower’s commitment or outstanding loans  





 






  #75870257_v11 121   thereunder or extend the maturity of any outstanding or committed loans of the Borrower  thereunder beyond the Stated Maturity Date.  (b) Acceleration.  If consistent with the Servicing Standard, the Servicer shall  accelerate or vote to accelerate, as applicable, the maturity of all or any Scheduled Payments and  other amounts due under any Loan Asset promptly after such Loan Asset becomes a Defaulted  Loan Asset.  (c) Taxes and Other Amounts.  The Servicer will use its best efforts to collect  all payments with respect to amounts due for Taxes, assessments and insurance premiums relating  to each Loan Asset to the extent required to be paid to the Borrower for such application under the  applicable Loan Agreement and remit such amounts to the appropriate Governmental Authority or  insurer as required by such Loan Agreement.  (d) Payments to Collection Account.  If the Borrower or the Servicer receive  any payments in respect of the Collateral Portfolio other than directly into the Collection Account,  the Servicer on behalf of the Borrower shall cause such payment to be transferred or deposited into  the Collection Account, as required by any Transaction Documents, within two (2) Business Days  from the date on which Servicer receives notice of such payment.  (e) Controlled Accounts.  Each of the parties hereto hereby agrees that (i) each  Controlled Account is intended to be a “securities account” or “deposit account” within the  meaning of the UCC and of the Hague Securities Convention and (ii) except as otherwise expressly  provided herein and in the Control Agreement prior to the delivery of a Notice of Exclusive  Control, the Borrower and the Servicer shall be entitled to exercise the rights that comprise each  Financial Asset held in each Controlled Account which is a securities account and have the right  to direct the disposition of funds in any Controlled Account which is a deposit account; provided  that after the delivery of a Notice of Exclusive Control, such rights shall be exclusively held by  the Collateral Agent (acting at the direction of the Administrative Agent).  Each of the parties  hereto hereby agrees to cause the securities intermediary that holds any money or other property  for the Borrower in a Controlled Account that is a securities account to agree with the parties  hereto that (A) the cash and other property (subject to Section 6.04(f) below with respect to any  property other than investment property, as defined in Section 9-102(a)(49) of the UCC) is to be  treated as a Financial Asset under Article 8 of the UCC and (B) regardless of any provision in any  other agreement, for purposes of the UCC, with respect to the Controlled Accounts, New York  shall be deemed to be the Account Bank’s jurisdiction (within the meaning of Section 9-304 of the  UCC) and the securities intermediary’s jurisdiction (within the meaning of Section 8-110 of the  UCC).  All securities or other property underlying any Financial Assets credited to the Controlled  Accounts in the form of securities or instruments shall be registered in the name of the Account  Bank or if in the name of the Borrower or the Collateral Agent, Indorsed to the Account Bank,  Indorsed in blank, or credited to another securities account maintained in the name of the Account  Bank, and in no case will any Financial Asset credited to the Controlled Accounts be registered in  the name of the Borrower, payable to the order of the Borrower or specially Indorsed to the  Borrower, except to the extent the foregoing have been specially Indorsed to the Account Bank or  Indorsed in blank.  





 






  #75870257_v11 122   (f) Loan Agreements.  Notwithstanding any term hereof (or any term of the  UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined  in the UCC) to the contrary, none of the Collateral Agent, the Collateral Custodian, the Collateral  Administrator, the Account Bank or any securities intermediary shall be under any duty or  obligation in connection with the acquisition by the Borrower, or the grant by the Borrower to the  Collateral Agent, of any Loan Asset in the nature of a loan or a participation in a loan to examine  or evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the  Borrower under the related Loan Agreements, or otherwise to examine the Loan Agreements, in  order to determine or compel compliance with any applicable requirements of or restrictions on  transfer (including without limitation any necessary consents).  The Collateral Custodian shall hold  any Instrument delivered to it which evidences any Loan Asset acquired by the Borrower as  collateral custodian for the Collateral Agent in accordance with the terms of the Control  Agreement.  (g) Adjustments.  If (i) the Servicer makes a deposit into the Collection Account  in respect of an Interest Collection or a Principal Collection of a Loan Asset and such Interest  Collection or Principal Collection was received by the Servicer in the form of a check that is not  honored for any reason or (ii) the Servicer makes a mistake with respect to the amount of any  Interest Collection or Principal Collection and deposits an amount that is less than or more than  the actual amount of such Interest Collection or Principal Collection, the Servicer shall  appropriately adjust the amount subsequently deposited into the Collection Account to reflect such  dishonored check or mistake and promptly notify the Administrative Agent and the Collateral  Agent of such adjustment.  Any Scheduled Payment in respect of which a dishonored check is  received shall be deemed not to have been paid.  SECTION 6.05 Realization Upon Loan Assets.  The Servicer may, in its discretion  consistent with the Servicing Standard, foreclose upon or repossess, as applicable, or otherwise  comparably convert the ownership of any Underlying Collateral relating to a Defaulted Loan Asset  as to which no satisfactory arrangements can be made for collection of delinquent payments.  In  addition, the Servicer may, consistent with the Servicing Standard, sell or otherwise transfer, or if  it deems advisable to maximize recoveries, hold or cause the Borrower to hold any Defaulted Loan  Asset, equity security or other security (so long as such equity security or other security was  received in lieu or otherwise on account of debt previously contracted with respect to a Loan Asset)  received by the Borrower in connection with a default, workout, restructuring or plan of  reorganization or similar event under a Loan Asset.  The Servicer will comply with the Servicing  Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices  and procedures, including without limitation reasonable efforts consistent with the Servicing  Standard, (x) to enforce all obligations of the Obligors under the Loan Agreements and other legal  documentation related to such Defaulted Loan Asset and (y) to foreclose upon, repossess and cause  the sale of such Underlying Collateral at public or private sales other than with respect to any  Defaulted Loan Asset, equity or other securities that the Servicer may hold as described in the  preceding sentence of this Section 6.05.  Without limiting the generality of the foregoing, the  Servicer may cause the sale of any such Underlying Collateral to the Servicer or its Affiliates for  a purchase price equal to the then fair market value thereof, any such sale to be evidenced by a  certificate of a Responsible Officer of the Servicer delivered to the Administrative Agent setting  forth the Loan Asset, the Underlying Collateral, the sale price of the Underlying Collateral and  certifying that such sale price is at least equal to the fair market value of such Underlying  





 






  #75870257_v11 123   Collateral.  In any case in which any such Underlying Collateral has suffered damage, the Servicer  will not expend funds in connection with any repair or toward the foreclosure or repossession of  such Underlying Collateral unless such actions are consistent with the Servicing Standard.  The  Servicer will remit to the Principal Collection Account the Recoveries received in connection with  the sale or disposition of Underlying Collateral relating to a Defaulted Loan Asset.  SECTION 6.06 Servicing Compensation.  As compensation for its activities  hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the  Servicing Fees and reimbursed the Servicing Expenses as provided in Section 2.04.  SECTION 6.07 Payment of Certain Expenses by Servicer.  The Servicer will be  required to pay all expenses incurred by it in connection with its activities under this Agreement,  including without limitation fees and disbursements of its independent accountants, Taxes imposed  on the Servicer, expenses incurred by the Servicer in connection with payments and reports  pursuant to this Agreement, and all other fees and expenses not expressly stated under this  Agreement for the account of the Borrower.  The Servicer, on behalf of the Borrower, will be  required to pay all reasonable fees and expenses owing to any bank or trust company in connection  with this Agreement or the maintenance of the Controlled Accounts.  The Borrower will reimburse  the Servicer for any reasonable expenses incurred hereunder or on behalf of the Borrower, subject  to the availability of funds pursuant to Section 2.04; provided that, to the extent funds are not so  available on any Payment Date to reimburse such expenses incurred during the immediately ended  Remittance Period, such reimbursement amount shall be deferred and payable on the next Payment  Date on which funds are available therefor pursuant to Section 2.04 and such deferred  reimbursement amount shall bear interest beginning on the Payment Date immediately following  the Remittance Period in which such expenses were incurred until paid at an annual rate equal to  the LIBOR Yield Rate.  For the avoidance of doubt, the Servicer shall remain liable for, and shall  pay in accordance with the terms hereof, all expenses payable by it as set forth in this Section 6.07  or otherwise under this Agreement, notwithstanding any failure of the Servicer to be reimbursed  on any Payment Date due to the insufficiency of funds.  Following realization of the Collateral  Portfolio and distribution of proceeds in the manner provided in Section 2.04, any claims of the  Servicer against the Borrower in respect of any deferred reimbursement amount or otherwise shall  be extinguished and shall not thereafter revive.  SECTION 6.08 Reports to the Administrative Agent; Account Statements;  Servicing Information.  (a) Notice of Borrowing or Notice of Reduction.  Not later than 1:00 p.m. on  the third Business Day before the Advance Date for a LIBOR Advance and not later than 1:00  p.m. on the Business Day prior to the Advance Date for a Base Rate Advance and upon each  reduction of Advances Outstanding pursuant to Section 2.18, the Borrower (or the Servicer on its  behalf) will provide a Notice of Borrowing or a Notice of Reduction, as applicable, and a  Borrowing Base Certificate, each updated as of such date, to the Administrative Agent and each  Lender (with a copy to the Collateral Agent).  (b) Servicing Reports.    





 






  #75870257_v11 124   (i) No later than the Reporting Date of each calendar month, the  Servicer will provide (or shall cause the Collateral Administrator to provide, pursuant to  Section 12.02A(b)), on behalf of the Borrower, to each Lender, the Administrative Agent,  the Collateral Agent and the Collateral Custodian a monthly statement including the  following information, as of the last Business Day of the preceding calendar month, (A)  the current list of Obligors and the Outstanding Balance of each Loan Asset with respect  to each such Obligor, (B) a list of all Defaulted Loan Assets, (C) an accounting of amounts  on deposit in each Controlled Account, (D) the aggregate Outstanding Balance of all Loan  Assets as of such day, (E) the Advances Outstanding as of such day, (F) each Loan Asset  which the Borrower acquired or disposed of during the prior month, (G) the difference  between the aggregate Outstanding Balance and the Advances Outstanding as of such day,  (H) all scheduled and unscheduled repayments with respect to any Loan Assets during the  related month, (I) an accounting of collections with respect to the Loan Assets (including  amounts on deposit in each Controlled Account), and (J) amounts to be remitted pursuant  to Section 2.04 to the applicable parties (which shall include any applicable wiring  instructions of the parties receiving payment) (such monthly statement, a “Monthly  Report”), such Monthly Report to be signed by a Responsible Officer of the Servicer and  the Borrower and substantially in the form of Exhibit K.  (ii) No later than the three (3) Business Days prior to each Payment  Date, the Servicer will provide to the Borrower, each Lender, the Administrative Agent,  the Collateral Agent and the Collateral Custodian, a quarterly statement including the  information required to be in the Monthly Report pursuant to Section 6.08(b)(i) and (A) a  Borrowing Base Certificate calculated as of the most recent Reporting Date, and (B) a  summary prepared with respect to each Obligor and with respect to each Loan Asset for  such Obligor prepared as of the most recent Reporting Date that will be required to set  forth (x) covenant compliance for each such Loan Asset, (y) whether or not each such Loan  Asset shall have become subject to an amendment, restatement, supplement, waiver or  other modification that constitutes a Material Modification (if applicable); and (z) the  purchase price of each such Loan Asset (such quarterly statement, a “Quarterly Report”  and, together with the Monthly Report, the “Servicing Reports”), such Quarterly Report to  be signed by a Responsible Officer of the Servicer and the Borrower and substantially in  the form of Exhibit K.  (c) Servicer’s Certificate.  Together with each Servicing Report, the Servicer  shall submit to the Administrative Agent, each Lender and the Collateral Agent, a certificate  substantially in the form of Exhibit L (a “Servicer’s Certificate”), signed by a Responsible Officer  of the Servicer, which shall include a certification by such Responsible Officer that no Event of  Default or Unmatured Event of Default has occurred and is continuing or, in the event that an  Event of Default or Unmatured Event of Default has occurred and is continuing, a description of  such Event of Default or Unmatured Event of Default.  (d) Financial Statements.  The Equityholder, will submit to the Administrative  Agent, each Lender and the Collateral Agent, (i) within 90 days after the end of each of its first  three fiscal quarters (excluding the fiscal quarter ending on the date specified in clause (ii)),  commencing for the fiscal quarter ending December 31, 2020, consolidated unaudited financial  statements of the Equityholder for the most recent fiscal quarter, and (ii) within 150 days after the  





 






  #75870257_v11 125   end of each fiscal year, commencing with the fiscal year ended December 31, 2020, consolidated  audited financial statements of the Equityholder, audited by a firm of nationally recognized  independent public accountants, as of the end of such fiscal year.  (e) Tax Returns.  Upon demand by the Administrative Agent or any Lender,  the Equityholder, on behalf of the Borrower, shall deliver, copies of all federal, state and local tax  returns and reports filed by the Borrower (excluding sales, use and similar Taxes); provided that  there shall be no obligation to deliver any tax returns of the Equityholder or any other tax returns  in which the Borrower was included on a consolidated or combined basis.  (f) Obligor Financial Statements; Valuation Reports; Other Reports.  The  Servicer, Equityholder or Borrower, as applicable, will deliver to the Administrative Agent, the  Lenders and the Collateral Agent, with respect to each Obligor, (i) prior to making an Advance  with respect thereto, three years’ historical audited or unaudited financial statements and related  information (or, if less than three years’ worth of historical financial statements are available to  the Servicer, the Equityholder or the Borrower, all such historical financial statements which are  available) and, to the extent available, a copy of the underwriting memoranda utilized by the  Equityholder or the Borrower, as applicable, in evaluating and approving such Loan Asset for  investment (with redactions subject to confidentiality requirements); provided, that such  underwriting memoranda will be kept confidential by the Administrative Agent (and not shared  with any other Person, including any other party hereunder, but excluding any of the  Administrative Agent’s Excepted Persons) (ii) to the extent received by the Borrower or the  Servicer pursuant to the Underlying Instruments, the complete financial reporting package with  respect to such Obligor and with respect to each Loan Asset for such Obligor provided to the  Borrower or the Servicer either monthly or quarterly, as the case may be, by such Obligor, which  delivery shall be made prior to the later of (x) 60 days after of the end of each quarter end (or such  longer period provided therein with respect to the end of an Obligor’s fiscal quarter or fiscal year),  and (y) five (5) Business Days after receipt by the Borrower or Servicer thereof, which reporting  package shall include any covenant compliance certificates under the related Underlying  Instruments and (iii) asset and portfolio level monitoring reports prepared by the Servicer with  respect to the Loan Assets, which delivery shall be made within 75 days of the end of each quarter  end (or such longer period provided therein with respect to the end of an Obligor’s fiscal quarter  or fiscal year) which would include, at a minimum, covenant and financial covenant testing as  required hereunder.  The Servicer will promptly deliver to the Administrative Agent and any  Lender, upon reasonable request and to the extent received by the Borrower or the Servicer, all  other documents and information required to be delivered by the Obligors to the Borrower with  respect to any Loan Asset included in the Collateral Portfolio.  (g) Amendments to Loan Assets.  The Servicer will deliver to the  Administrative Agent and the Collateral Custodian a copy of any material amendment,  restatement, supplement, waiver or other modification to the Underlying Instruments of any Loan  Asset (along with any internal documents prepared by the Servicer and provided to the Borrower’s  or Equityholder’s investment committee in connection with such amendment, restatement,  supplement, waiver or other modification) (i) within five (5) Business Days of the effective date  of any such amendment, restatement, supplement, waiver or other modification which constitutes  a Material Modification and (ii) with respect to any other material amendment, restatement,  





 






  #75870257_v11 126   supplement, waiver or other modification which is not a Material Modification, within 45 days  after the end of the quarter during which such modification was made.  (h) Website Access to Information.  Notwithstanding anything to the contrary  contained herein, information required to be delivered or submitted to any Secured Party (other  than, with respect to clauses (ii) and (iii) below, the Account Bank, the Collateral Administrator  or the Collateral Custodian) pursuant to this Article VI shall be deemed to have been delivered on  the date upon which such information is (i) received through e-mail (with confirmation of receipt),  (ii) posted on a password protected website maintained by the Servicer to which the Administrative  Agent will have access or (iii) otherwise received via another delivery method acceptable to the  Administrative Agent.  SECTION 6.09 Annual Statement as to Compliance.  The Servicer will provide to  the Administrative Agent and the Collateral Agent within 120 days following the end of each fiscal  year of the Servicer, commencing with the fiscal year ending on December 31, 2020, a fiscal report  signed by a Responsible Officer of the Servicer certifying that (a) a review of the activities of the  Servicer, and the Servicer’s performance pursuant to this Agreement, for the fiscal period ending  on the last day of such fiscal year has been made under such Person’s supervision and (b) the  Servicer has performed or has caused to be performed in all material respects all of its obligations  under this Agreement throughout such year and no Servicer Default has occurred and is continuing.  SECTION 6.10 Annual Independent Public Accountant’s Servicing Reports.  The  Servicer will cause a firm of nationally recognized independent public accountants (who may also  render other services to the Servicer) to furnish to the Administrative Agent and the Collateral  Agent within 120 days following the end of each fiscal year of the Servicer, commencing with the  fiscal year ending on December 31, 2021, a report covering such fiscal year to the effect that such  accountants (i) have applied certain agreed-upon procedures (a copy of which procedures are  attached hereto as Schedule IV, it being understood that the Servicer and the Administrative Agent  will provide an updated Schedule IV reflecting any further amendments to such Schedule IV prior  to the issuance of the first such agreed-upon procedures report, a copy of which shall replace the  then existing Schedule IV) to certain documents and records relating to the Collateral Portfolio  under any Transaction Document, (ii) have compared the information contained in the Servicing  Reports and the Servicer’s Certificates delivered during the period covered by such report with  such documents and records and (iii) have concluded that no matters came to the attention of such  accountants that caused them to believe that such servicing was not conducted in compliance with  this Article VI, except for such exceptions as such accountants shall believe to be immaterial and  such other exceptions as shall be set forth in such statement.  In the event such firm requires the  Account Bank and/or the Collateral Administrator to agree (whether in writing or otherwise) to  the procedures performed by such firm, the Borrower hereby directs the Account Bank and/or the  Collateral Administrator to so agree and directs the Account Bank and/or the Collateral  Administrator to execute a specified user agreement, access letter or agreement of similar import  requested by such accountants, which may include among other things, (i) acknowledgement that  the Borrower has agreed that the procedures to be performed by such accountants are sufficient  for the Borrower's purposes, (ii) releases by the Account Bank or Collateral Administrator, as  applicable, (on behalf of itself and the Lenders, the Collateral Agent and Administrative Agent) of  claims against the firm and acknowledgement of other limitations of liability in favor of the firm  and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it  





 






  #75870257_v11 127   by such firm (including to the Lenders, the Collateral Agent and Administrative Agent).  Neither  the Account Bank nor the Collateral Administrator shall have any responsibility to the Borrower,  the Servicer or any other party to make any inquiry or investigation as to, and shall have no  obligation, liability or responsibility in respect of, the terms of any engagement of any such firm,  or the validity or correctness of such procedures or content of such letter (including without  limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or  other information or documents) prepared or delivered by any such accountants pursuant to any  such engagement.  In no event shall the Account Bank or the Collateral Administrator be required  to execute any agreement in respect of the accountants that it reasonably determines adversely  affects it.  SECTION 6.11 The Servicer Not to Resign.  The Servicer shall not resign from the  obligations and duties hereby imposed on it except upon the Servicer’s determination that (i) the  performance of its duties hereunder is or becomes impermissible under Applicable Law and (ii)  there is no reasonable action that the Servicer could take to make the performance of its duties  hereunder permissible under Applicable Law.  No such resignation shall become effective until a  Replacement Servicer shall have assumed the responsibilities and obligations of the Servicer in  accordance with Section 6.02.  ARTICLE VII    EVENTS OF DEFAULT  SECTION 7.01 Events of Default.  If any of the following events (each, an “Event  of Default”) shall occur:  (a) (i) the Borrower shall enter into one or more agreements for borrowed  money (or any guarantee of borrowed money) other than this Agreement or (ii) the Servicer  defaults in making any payment required to be made under one or more agreements (other than  this Agreement) for borrowed money to which it is a party in an aggregate principal amount in  excess of $5,000,000 (with respect to this clause (ii) only, after giving effect to any related grace  period contained in such agreements); or  (b) the Borrower or the Equityholder defaults in making any payment required  to be made under one or more agreements (which in the case of the Equityholder shall only include  agreements for borrowed money) to which it is a party (other than this Agreement and the  Transaction Documents) in an aggregate principal amount in excess of $5,000,000 with respect to  the Equityholder and $250,000 with respect to the Borrower and any such default is not cured  within the applicable cure period, if any, provided for under such agreement; or  (c) any failure on the part of the Borrower or the Equityholder duly to observe  or perform any other covenants or agreements (other than those specifically described in this  Section 7.01) of the Borrower or the Equityholder set forth in this Agreement or the other  Transaction Documents to which the Borrower or the Equityholder is a party and the same  continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to  occur of (i) the date on which written notice of such failure requiring the same to be remedied shall  have been given to the Borrower or the Equityholder by the Administrative Agent, the Lender or  





 






  #75870257_v11 128   the Collateral Agent and (ii) the date on which the Borrower or the Equityholder acquires  knowledge thereof; or  (d) the occurrence of a Bankruptcy Event relating to the Borrower, the  Equityholder or the Servicer; or  (e) the occurrence of a Servicer Default (subject to the applicable cure periods  set forth in the definition of “Servicer Default”); or  (f) the rendering of one or more final judgments, decrees or orders by a court  or arbitrator of competent jurisdiction for the payment of money in excess individually or in the  aggregate of $5,000,000, (in the case of the Equityholder), or $250,000 (in the case of Borrower)  (excluding, in each case, any amounts covered by insurance to the extent coverage has not been  denied in writing), and the continuance of such judgment, decree or order unsatisfied and in effect  for any period of more than 30 consecutive days after the later of (i) the date on which the right to  appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to  appeal have been extinguished, without such judgment, decree or order being vacated, stayed or  discharged during such 30 day period; or  (g) the Borrower either shall cease to be an Affiliate of the Equityholder or shall  fail to qualify as a bankruptcy-remote entity based upon customary criteria such that an Opinion  of Counsel could no longer be rendered with respect to substantive nonconsolidation with respect  to the Borrower and the Equityholder; or  (h) (1) any Transaction Document, or any Lien or security interest granted  thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be  effective or cease to be the legally valid, binding and enforceable obligation of the Borrower or  the Servicer,  (2) (A) the Borrower, the Equityholder or the Servicer shall, directly or  indirectly, contest in any manner the effectiveness, validity, binding nature or  enforceability of any Transaction Document or any Lien or security interest  thereunder or (B) there shall be a contest in any manner of the effectiveness,  validity, binding nature or enforceability of any Transaction Document or of any  Lien or security interest thereunder by any other party (other than the  Administrative Agent, the Collateral Agent or the Lender) which has a substantial  likelihood of causing a Material Adverse Effect, as determined by the  Administrative Agent, in its reasonable discretion;  (3) any security interest securing any obligation under any Transaction  Document shall, in whole or in part, cease to be a first priority perfected security  interest (subject to Permitted Liens) except as otherwise expressly permitted to be  released in accordance with the applicable Transaction Document; or  (i) the Advances Outstanding on any day exceeds the Borrowing Base and has  not been remedied in accordance with and subject to the time frame set forth in Section 2.06; or  





 






  #75870257_v11 129   (j) failure on the part of the Borrower or the Servicer to make any payment or  deposit (including, without limitation, with respect to bifurcation and remittance of Interest  Collections and Principal Collections or any other payment or deposit required to be made by the  terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected  Party or Indemnified Party) required by the terms of any Transaction Document (other than  Section 2.06) on the day such payment or deposit is required to be made under the Transaction  Documents; provided that, in each case, if such failure resulted solely from an administrative error  or omission by the Administrative Agent, such failure will not constitute an Event of Default if  cured within two Business Days; or  (k) without limiting the generality of Section 7.01(i) above, failure of the  Borrower to pay Yield within two (2) Business Days of any Payment Date or within two (2)  Business Days of when otherwise due pursuant to the Transaction Documents; or  (l) the Borrower shall become required to register as an “investment company”  within the meaning of the 1940 Act or the arrangements contemplated by the Transaction  Documents shall require registration as an “investment company” within the meaning of the 1940  Act; or  (m) the Internal Revenue Service shall file notice of a Lien pursuant to Section  6323 of the Code with regard to any assets of the Borrower and such Lien shall not have been  released within five Business Days, or the Pension Benefit Guaranty Corporation shall file notice  of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower and  such lien shall not have been released within five Business Days; or  (n) any Change of Control exists or shall occur; or  (o) any representation, warranty or certification made by the Borrower or the  Equityholder in any Transaction Document or in any document delivered pursuant to any  Transaction Document shall prove to have been incorrect when made, which has a Material  Adverse Effect, on the Secured Parties and continues to be unremedied for a period of 30 days  after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the  same to be remedied shall have been given to the Borrower or the Equityholder by the  Administrative Agent, the Lender or the Collateral Agent (which shall be given at the direction of  the Administrative Agent) and (ii) the date on which a Responsible Officer of the Borrower or the  Equityholder acquires knowledge thereof; or  (p) failure to pay, on the Facility Maturity Date, the outstanding principal of all  Advances Outstanding, if any, and all Yield and all Fees accrued and unpaid thereon together with  all other Obligations, including, but not limited to, any Prepayment Premium; or  (q) (i) failure of the Borrower to maintain at least one Independent Director, (ii)  the removal of any Independent Director of the Borrower without “cause” (as such term is defined  in the Borrower Operating Agreement) or without giving prior written notice to the Administrative  Agent, each as required in the Borrower Operating Agreement or (iii) an Independent Director of  the Borrower which is not provided by a nationally recognized service reasonably acceptable to  the Administrative Agent shall be appointed without the consent of the Administrative Agent; or  





 






  #75870257_v11 130   (r) the Borrower ceases to have a valid, perfected ownership interest in all of  the Collateral Portfolio, other than with respect to any real property and except as a result of a  transaction permitted hereunder; or   (s) either the Borrower or the Equityholder makes any assignment or attempted  assignment of their respective rights or obligations under this Agreement or any other Transaction  Document without first obtaining the specific written consent of the Lender and the Administrative  Agent, which consent may be withheld by the Lender or the Administrative Agent in the exercise  of its sole and absolute discretion; or  (t) the occurrence of a Warranty Event and the failure of Borrower to cure such  breach, or cause the same to be cured, within the time period specified within Section 2.07(e); or  (u) the occurrence of an ERISA Event that would reasonably be expected to  result in a Material Adverse Effect, either alone or in connection with other ERISA Events; or  (v) the Minimum Equity Condition is not satisfied and such condition continues  unremedied for five (5) Business Days of such failure to satisfy the Minimum Equity Condition,  provided that, if within such five Business Day period the Borrower provides to the Administrative  Agent a valid capital call notice or credit facility draw notice or other plan to remedy the failure of  such condition acceptable to Administrative Agent in its sole discretion, then such period shall be  extended by an additional ten (10) Business Days.  then, by notice to the Borrower, (x) so long as the Administrative Agent is SMBC, the  Administrative Agent may, and (y) whether or not the Administrative Agent is SMBC, the  Administrative Agent at the direction of the Required Lenders shall, declare the Facility Maturity  Date to have occurred; provided that, in the case of any event described in Section 7.01(d) above,  the Facility Maturity Date shall be deemed to have occurred automatically upon the occurrence of  such event.  Upon any such declaration or automatic occurrence, (i) the Borrower shall cease  purchasing Loan Assets, (ii)(x) so long as the Administrative Agent is SMBC, the Administrative  Agent may, and (y) whether or not the Administrative Agent is SMBC, the Administrative Agent  at the direction of the Required Lenders shall, declare the Advances to be immediately due and  payable in full (without presentment, demand, protest or notice of any kind all of which are hereby  waived by the Borrower) and any other Obligations to be immediately due and payable, and (iii)  all proceeds and distributions in respect of the Portfolio Assets shall be distributed by the Account  Bank (at the direction of the Collateral Agent (acting at the direction of the Administrative Agent)  or the Administrative Agent) as described in Section 2.04(d) (provided that the Borrower shall in  any event remain liable to pay such Advances Outstanding and all such amounts and Obligations  immediately in accordance with Section 2.04(g) hereof).  In addition, upon any such declaration  or upon any such automatic occurrence, the Collateral Agent, on behalf of the Secured Parties and  at the direction of the Administrative Agent, shall have, in addition to all other rights and remedies  under this Agreement or otherwise, all other rights and remedies provided under the UCC of the  applicable jurisdiction and other Applicable Law, which rights shall be cumulative.  Without  limiting any obligation of the Servicer hereunder, the Borrower confirms and agrees that the  Collateral Agent, on behalf of the Secured Parties and at the direction of the Administrative Agent  (or any designee thereof, including without limitation the Servicer), following an Event of Default,  shall, at its option, have the sole right to enforce the Borrower’s rights and remedies under each  





 






  #75870257_v11 131   Assigned Document, but without any obligation on the part of the Administrative Agent, the  Lender or any of their respective Affiliates to perform any of the obligations of the Borrower under  any such Assigned Document.  If any Event of Default shall have occurred, upon the election of  the Administrative Agent, the LIBOR Yield Rate and Base Rate Yield Rate shall be increased  pursuant to the increase set forth in the definition of “Applicable Spread”, effective as of the date  of the occurrence of such Event of Default, and shall apply after the occurrence and during the  continuance of such Event of Default.  SECTION 7.02 Additional Remedies of the Administrative Agent.  (a) If, (i) upon the Administrative Agent’s declaration that the Advances made  to the Borrower hereunder are immediately due and payable pursuant to Section 7.01 upon the  occurrence and during the continuance of an Event of Default, or (ii) on the Facility Maturity Date  (other than a Facility Maturity Date occurring pursuant to clause (d) of the definition thereof prior  to an Event of Default), the aggregate outstanding principal amount of the Advances Outstanding,  all accrued and unpaid Fees and Yield and any other Obligations are not immediately paid in full,  then the Collateral Agent (acting as directed by the Administrative Agent) or the Administrative  Agent, in addition to all other rights specified hereunder, shall have the right, in its own name and  as agent for the Lender, to immediately sell (at the Servicer’s expense) in a commercially  reasonable manner, in a recognized market (if one exists) at such price or prices as the  Administrative Agent may reasonably deem satisfactory, any or all of the Collateral Portfolio and  apply the proceeds thereof to the Obligations.  (b) The parties recognize that it may not be possible to sell all of the Collateral  Portfolio on a particular Business Day, or in a transaction with the same purchaser, or in the same  manner because the market for the assets constituting the Collateral Portfolio may not be liquid.   Accordingly, the Administrative Agent may elect, in its sole discretion, the time and manner of  liquidating any of the Collateral Portfolio, and nothing contained herein shall obligate the  Administrative Agent to liquidate any of the Collateral Portfolio on the date the Administrative  Agent declares the Advances made to the Borrower hereunder to be immediately due and payable  pursuant to Section 7.01 or to liquidate all of the Collateral Portfolio in the same manner or on the  same Business Day.  (c) If the Collateral Agent (acting as directed by the Administrative Agent) or  the Administrative Agent proposes to sell the Collateral Portfolio or any part thereof in one or  more parcels at a public or private sale, at the request of the Collateral Agent or the Administrative  Agent, as applicable, the Borrower and the Servicer shall make available to (i) the Administrative  Agent, on a timely basis, all information (including any information that the Borrower and the  Servicer is required by law or contract to keep confidential to the extent such information can be  provided without violation of such laws or contracts, including through entering into any  confidentiality agreements in forms acceptable to the Collateral Agent or the Administrative  Agent, as applicable, to the extent required to prevent violation of such laws or contracts) relating  to the Collateral Portfolio subject to sale, including without limitation copies of any disclosure  documents, contracts, financial statements of the applicable Obligors, covenant certificates and  any other materials requested by the Administrative Agent, and (ii) each prospective bidder, on a  timely basis, all reasonable information relating to the Collateral Portfolio subject to sale, including  without limitation copies of any disclosure documents, contracts, financial statements of the  





 






  #75870257_v11 132   applicable Obligors, covenant certificates and any other materials reasonably requested by each  such bidder; provided that with respect to this clause (ii), neither the Borrower nor the Servicer  shall be required to disclose to each such bidder any information which it is required by law or  contract to keep confidential.  (d) Each of the Borrower and the Servicer agrees, to the full extent that it may  lawfully so agree, that neither it nor anyone claiming through or under it will set up, claim or seek  to take advantage of any appraisement, valuation, stay, extension or redemption law now or  hereafter in force in any locality where any part of the Collateral Portfolio may be situated in order  to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale  of any of the Collateral Portfolio or any part thereof, or the final and absolute putting into  possession thereof, immediately after such sale, of the purchasers thereof, and each of the  Borrower and the Servicer, for itself and all who may at any time claim through or under it, hereby  waives, to the full extent that it may be lawful so to do, the benefit of all such laws, and any and  all right to have any of the properties or assets constituting the Collateral Portfolio marshaled upon  any such sale, and agrees that the Collateral Agent, or the Administrative Agent on its behalf, or  any court having jurisdiction to foreclose the security interests granted pursuant to this Agreement  may sell the Collateral Portfolio as an entirety or in such parcels as the Collateral Agent (acting at  the direction of the Administrative Agent) or such court may determine.  (e) Any amounts received from any sale or liquidation of the Collateral  Portfolio pursuant to this Section 7.02 in excess of the Obligations will be applied by the Account  Bank (as directed by the Collateral Agent or the Administrative Agent) in accordance with the  provisions of Section 2.04(d), or as a court of competent jurisdiction may otherwise direct.  (f) The Administrative Agent and the Lender shall have, in addition to all the  rights and remedies provided herein and provided by applicable federal, state, foreign, and local  laws (including without limitation the rights and remedies of a secured party under the UCC of  any applicable state, to the extent that the UCC is applicable, and the right to offset any mutual  debt and claim), all rights and remedies available to the Lender at law, in equity or under any other  agreement between the Lender and the Borrower.  (g) Except as otherwise expressly provided in this Agreement, no remedy  provided for by this Agreement shall be exclusive of any other remedy, each and every remedy  shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any  right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any  Event of Default.  (h) Each of the Borrower and the Servicer hereby irrevocably appoints each of  the Collateral Agent and the Administrative Agent its true and lawful attorney (with full power of  substitution) in its name, place and stead and at its expense, in connection with the enforcement of  the rights and remedies, as provided for in this Agreement, including without limitation the  following powers:  (a) to give any necessary receipts or acquittance for amounts collected or  received hereunder, (b) to make all necessary transfers of the Collateral Portfolio in connection  with any such sale or other disposition made pursuant hereto, (c) to execute and deliver for value  all necessary or appropriate bills of sale, assignments and other instruments in connection with any  such sale or other disposition, the Borrower and the Servicer hereby ratifying and confirming all  





 






  #75870257_v11 133   that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto, and (d) to  sign any agreements, orders or other documents in connection with or pursuant to any Transaction  Document.  Nevertheless, if so requested by the Collateral Agent or the Administrative Agent, the  Borrower or the Servicer, as applicable, shall ratify and confirm any such sale or other disposition  by executing and delivering to the Collateral Agent or the Administrative Agent all proper bills of  sale, assignments, releases and other instruments as may be designated in any such request;  provided that, for the avoidance of doubt, no right under any power of attorney furnished under  this Section 7.02(h) may be exercised until after the occurrence and during the continuance of an  Event of Default.  (i) (1)  If the Collateral Agent (acting as directed by the Administrative  Agent) or the Administrative Agent elects to sell the Collateral Portfolio in whole, but not in part,  at a public or private sale, the Collateral Agent shall use commercially reasonable efforts to keep  the Borrower reasonably apprised of material developments in any such sale process (including  the submission of Eligible Bids), and the Borrower may exercise its buyout right to repurchase the  Collateral Portfolio, in whole but not in part, prior to such sale at a purchase price that is not less  than the amount of the Obligations as of the date of such proposed sale.  The Borrower’s buyout  right shall terminate not later than 4:00 p.m. (New York City time)  on the second Business Day  following the Business Day on which the Borrower receives notice of the Collateral Agent’s or  the Administrative Agent’s election to sell such Collateral Portfolio, such notice to attach a copy  of the winning Eligible Bid received by the Collateral Agent or the Administrative Agent in respect  of such Collateral Portfolio (other than any such Eligible Bid that the Collateral Agent or the  Administrative Agent is required by law to keep confidential).   (2) If the Collateral Agent (acting as directed by the Administrative  Agent) or the Administrative Agent elects to sell less than all of the Collateral Portfolio in  one or more parcels at a public or private sale, the Borrower may (x) exercise its buyout  right to repurchase the Collateral Portfolio, in whole but not in part, prior to such sale at a  purchase price that is not less than the amount of the Obligations as of the date of such  proposed sale or (y) exercise its right of first refusal to repurchase such portion of the  Collateral Portfolio prior to such sale at a purchase price of not less than the highest Eligible  Bid received in respect of such portion of the Collateral Portfolio as of the date of such  proposed sale, as notified by the Collateral Agent or the Administrative Agent to the  Borrower; provided that the Administrative Agent may direct the Collateral Agent to  cancel such sale and the Borrower shall not be permitted to acquire any such portion of the  Collateral Portfolio in accordance with the foregoing to the extent SMBC (so long as  SMBC is the Administrative Agent, Collateral Agent, the Lender or the Replacement  Servicer), in its sole discretion, determines that such highest Eligible Bid is not satisfactory  in any respect; provided further that, in any subsequent sale of such portion of the Collateral  Portfolio, the Borrower may exercise its right of first refusal to repurchase such portion of  the Collateral Portfolio pursuant to this Section 7.02(i).  The Borrower’s right of first  refusal shall terminate not later than 4:00 p.m. (New York City time) on the second  Business Day following the date on which the Borrower receives notice of the Collateral  Agent’s or the Administrative Agent’s election to sell such portion of the Collateral  Portfolio, such notice to attach a copy of the winning Eligible Bid received by the Collateral  Agent or the Administrative Agent in respect of such Collateral Portfolio (other than any  such Eligible Bid that the Collateral Agent or the Administrative Agent is required by law  





 






  #75870257_v11 134   to keep confidential), if such notice is delivered by 4:00 p.m. (New York City time) on  such Business Day; provided that, if such notice is delivered after 4:00 p.m. (New York  City time) on the Business Day on which the Borrower receives such notice, or if the  highest Eligible Bid received in respect of such portion of the Collateral Portfolio is greater  than $25,000,000, the Borrower’s right of first refusal shall terminate not later than 4:00  p.m. (New York City time) on the second Business Day following such date.  (3) If the Borrower elects not to exercise its buyout right as provided in  clauses (1) or (2) above, the Collateral Agent (acting as directed by the Administrative  Agent) or the Administrative Agent shall sell such Collateral Portfolio or portion thereof  for a purchase price equal to the highest of the Eligible Bids then received provided that  SMBC (so long as SMBC is the Administrative Agent, Collateral Agent, the Lender or the  Replacement Servicer) may direct the Collateral Agent to cancel such sale to the extent  SMBC (so long as SMBC is the Administrative Agent, Collateral Agent, the Lender or the  Replacement Servicer), in its sole discretion, determines that such highest Eligible Bid is  not satisfactory in any respect.  For the avoidance of doubt, any determination of the highest  Eligible Bid shall only consider bids for the same parcels of the Collateral Portfolio.  (4) It is understood that the Borrower may submit its bid for the  Collateral Portfolio or any portion thereof as a combined bid with the bids of other  members of a group of bidders, and shall have the right to find bidders to bid on the  Collateral Portfolio or any portion thereof.  (5) It is understood that the Borrower’s buyout right shall apply to each  proposed sale of the same parcel of the Collateral Portfolio.  ARTICLE VIII    INDEMNIFICATION  SECTION 8.01 Indemnities by the Borrower.  (a) Without limiting any other rights which the Affected Parties, the Secured  Parties, the Administrative Agent, each Lender, the Collateral Agent, the Account Bank, the  Collateral Administrator, the Collateral Custodian or any of their respective Affiliates may have  hereunder or under Applicable Law, the Borrower hereby agrees to indemnify and hold harmless  the Affected Parties, the Secured Parties, the Administrative Agent, each Lender, the Collateral  Agent, the Account Bank, the Collateral Administrator, the Collateral Custodian and each of their  respective Affiliates, assigns, officers, directors, employees, partners, managers, trustees,  administrators, advisors and agents and any permitted successors or assigns of the foregoing (each,  an “Indemnified Party” for purposes of this Article VIII) from and against any and all damages,  losses, claims, liabilities and related costs and expenses, but limited in the case of legal fees and  expenses to the reasonable and documented fees and out-of-pocket disbursements of (w) one  outside counsel to the Administrative Agent and the Lenders, (x) one outside counsel to the  Collateral Agent, (y) one outside counsel to the Account Bank, the Collateral Administrator, and  the Collateral Custodian, and (z) one outside counsel in each foreign or local jurisdiction for each  of the affected Indemnified Parties and, in the case of a conflict of interest, one additional counsel  





 






  #75870257_v11 135   in each relevant jurisdiction to the affected Indemnified Parties similarly situated (all of the  foregoing being collectively referred to as “Indemnified Amounts”), awarded against or actually  incurred by, or asserted against, any Indemnified Party by any Person (including, without  limitation, the Borrower) and other non-monetary damages of any such Indemnified Party or any  of them arising out of or as a result of this Agreement or in respect of any of the Collateral Portfolio,  excluding, however, Indemnified Amounts to the extent resulting solely from (x) gross negligence  or willful misconduct on the part of an Indemnified Party as determined by a court of competent  jurisdiction in a final and non-appealable judgment, (y) the uncollectability of any Loan Asset due  to the Obligor’s failure to pay any amounts due under the applicable Loan Agreement in  accordance with its terms or (z) Taxes which shall be solely covered by Section 2.10 and Section  2.11, as applicable.  Without limiting the foregoing, the Borrower shall indemnify and hold  harmless each Indemnified Party for Indemnified Amounts relating to or resulting from any of the  following (to the extent not resulting from the conditions set forth in (x), (y) or (z) above):  (i) any Loan Asset treated as or represented by the Borrower to be an  Eligible Loan Asset, which is not at the applicable time an Eligible Loan Asset, or the  purchase by any party or origination of any Loan Asset which violates Applicable Law;  (ii) the reliance on any representation or warranty made or deemed  made by the Borrower, the Servicer or any of their respective officers under or in  connection with this Agreement or any Transaction Document, which shall have been false  or incorrect in any material respect (or in all respects if already qualified by materiality)   when made or deemed made or delivered;  (iii) the failure by the Borrower or the Servicer to comply with any term,  provision or covenant contained in this Agreement or any agreement executed in  connection with this Agreement, or with any Applicable Law with respect to any item of  Collateral Portfolio, or the nonconformity of any item of Collateral Portfolio with any such  Applicable Law;  (iv) the failure to vest and maintain vested in the Collateral Agent, for  the benefit of the Secured Parties, a first priority perfected security interest in the Collateral  Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the  time of the related Advance or at any time thereafter;  (v) on any Business Day prior to the Collection Date, the occurrence of  a Borrowing Base Deficiency that continues unremedied for five Business Days;  (vi) the failure to file, or any delay in filing, UCC financing statements,  continuation statements or other similar instruments or documents under the UCC of any  applicable jurisdiction or other Applicable Law with respect to any Loan Assets included  in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time  of any Advance or at any subsequent time;  (vii) any dispute, claim, offset or defense (other than the discharge in  bankruptcy of an Obligor) to the payment of any Loan Asset included in the Collateral  Portfolio (including, without limitation, a defense based on such Loan Asset (or the Loan  





 






  #75870257_v11 136   Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of  such Obligor enforceable against it in accordance with its terms), or any other claim  resulting from the sale of the merchandise or services related to such Collateral Portfolio  or the furnishing or failure to furnish such merchandise or services;  (viii) any failure of the Borrower or the Servicer to perform its duties or  obligations in accordance with the provisions of the Transaction Documents to which it is  a party or any failure by the Borrower or any Affiliate thereof to perform its respective  duties in respect of any Collateral Portfolio;  (ix) any inability to obtain any judgment in, or utilize the court or other  adjudication system of, any state in which an Obligor may be located as a result of the  failure of the Borrower or the Servicer to qualify to do business or file any notice or  business activity report or any similar report;  (x) any action taken by the Borrower or the Servicer in the enforcement  or collection of the Collateral Portfolio, which results in any claim, suit or action of any  kind pertaining to the Collateral Portfolio or which reduces or impairs the rights of the  Administrative Agent, Collateral Agent or any Lender with respect to any Loan Asset or  the value of any such Loan Asset;  (xi) any products liability claim or personal injury or property damage  suit or other similar or related claim or action of whatever sort arising out of or in  connection with the Underlying Collateral or services that are the subject of any Collateral  Portfolio;  (xii) any claim, suit or action of any kind arising out of or in connection  with Environmental Laws, including without limitation any vicarious liability;  (xiii) any repayment by the Administrative Agent, each Lender or a  Secured Party of any amount previously distributed in payment of Advances or payment  of Yield or Fees or any other amount due hereunder, in each case which amount the  Administrative Agent, each Lender or a Secured Party believes in good faith is required to  be repaid;  (xiv) the commingling by the Borrower or the Servicer of payments and  collections required to be remitted to the Collection Account or the Unfunded Exposure  Account with other funds;  (xv) any investigation, litigation or proceeding related to this Agreement  (or any other Transaction Document), the enforcement of any provision of this Agreement  or any other Transaction Document, or the use of proceeds of Advances or the Collateral  Portfolio (including any security interest therein), or the administration of the Loan Assets  by or on behalf of the Borrower or the Servicer (unless such administration is carried out  by any Replacement Servicer, if applicable);  (xvi) any failure by the Borrower to give reasonably equivalent value to  the seller thereof in consideration for the transfer to the Borrower of any item of Collateral  





 






  #75870257_v11 137   Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under  any statutory provision or common law or equitable action, including without limitation  any provision of the Bankruptcy Code;  (xvii) the use of the proceeds of any Advance in a manner other than as  provided in this Agreement and the Transaction Documents;   (xviii) any failure of the Borrower, the Servicer or any of their respective  agents or representatives to remit to the Collection Account within two Business Days of  receipt, payments and collections with respect to the Collateral Portfolio remitted to the  Borrower, the Servicer or any such agent or representative (other than a failure on the part  of any Replacement Servicer, if applicable);   (xix) the failure of the Servicer to satisfy its obligations under  Section 8.02; and/or  (xx) the failure by the Borrower to pay when due any Taxes for which  the Borrower is liable (if any), including, without limitation, sales, excise or personal  property Taxes payable in connection with the Collateral Portfolio (if any).  (b) Any amounts subject to the indemnification provisions of this Section 8.01  shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified  Party within five Business Days following receipt by the Borrower of the Administrative Agent’s  written demand therefor on behalf of the applicable Indemnified Party (and the Administrative  Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by  the Administrative Agent of such amounts).  The Administrative Agent, on behalf of any  Indemnified Party making a request for indemnification under this Section 8.01, shall submit to  the Borrower a certificate setting forth in reasonable detail the basis for and the computations of  the Indemnified Amounts with respect to which such indemnification is requested, which  certificate shall be conclusive absent demonstrable error.  (c) If for any reason the indemnification provided above in this Section 8.01 is  unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in  respect of any losses, claims, damages or liabilities, then the Borrower shall contribute to the  amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or  liabilities in such proportion as is appropriate to reflect not only the relative benefits received by  such Indemnified Party on the one hand and the Borrower on the other hand but also the relative  fault of such Indemnified Party as well as any other relevant equitable considerations; provided  that, the Borrower shall not be required to contribute in respect of any Indemnified Amounts  excluded in Section 8.01(a).  (d) If the Borrower has made any payments in respect of Indemnified Amounts  to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and  such Indemnified Party thereafter collects any of such amounts from others, such Indemnified  Party will promptly repay such amounts collected to the Borrower in an amount equal to the  amount it has collected from others in respect of such Indemnified Amounts, without interest.  





 






  #75870257_v11 138   (e) The obligations of the Borrower under this Section 8.01 shall survive the  resignation or removal of or assignment by the Administrative Agent, each Lender, the Servicer,  the Collateral Agent, the Collateral Custodian, the Collateral Administrator or the Account Bank  and the termination of this Agreement.  SECTION 8.02 Indemnities by Servicer.  (a) Without limiting any other rights which any Indemnified Party may have  hereunder or under Applicable Law, the Servicer hereby agrees to indemnify and hold harmless  each Indemnified Party from and against any and all Indemnified Amounts, awarded against or  incurred by any Indemnified Party (whether brought by the Servicer or any other Person) as a  consequence of any of the following (excluding, however, Indemnified Amounts to the extent  resulting from gross negligence or willful misconduct on the part of any Indemnified Party (as  determined by a court of competent jurisdiction in a final and non-appealable judgment) claiming  indemnification hereunder):  (i) the reliance on any representation or warranty made or deemed  made by the Servicer or any of its officers under or in connection with this Agreement or  any other Transaction Document, any Servicing Report, any Servicer’s Certificate or any  other information or report delivered by or on behalf of the Servicer pursuant hereto, which  shall have been false, incorrect or misleading in any material respect (or in all respects if  already qualified by materiality) when made or deemed made or delivered;  (ii) the failure by the Servicer to comply with (A) any material term,  provision or covenant contained in this Agreement or any other Transaction Document, or  any other agreement executed in connection with this Agreement, or (B) any Applicable  Law applicable to it with respect to any Portfolio Assets;  (iii) the failure by the Servicer to perform any of its duties or obligations  in accordance with the provisions of this Agreement or any other Transaction Document  or errors or omissions related to such duties; and/or  (iv) any gross negligence, willful misconduct or bad faith on the part of  the Servicer.  (b) Any amounts subject to the indemnification provisions of this Section 8.02  shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified  Party within five Business Days following receipt by the Servicer of the Administrative Agent’s  written demand therefor on behalf of the applicable Indemnified Party (and the Administrative  Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by  the Administrative Agent of such amounts).  The Administrative Agent, on behalf of any  Indemnified Party making a request for indemnification under this Section 8.02, shall submit to  the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the  Indemnified Amounts with respect to which such indemnification is requested, which certificate  shall be conclusive absent demonstrable error.  (c) If for any reason the indemnification provided above in this Section 8.02 is  unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in  





 






  #75870257_v11 139   respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount  paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities  in such proportion as is appropriate to reflect not only the relative benefits received by such  Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of  such Indemnified Party as well as any other relevant equitable considerations.  (d) If the Servicer has made any payments in respect of Indemnified Amounts  to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.02 and  such Indemnified Party thereafter collects any of such amounts from others, such Indemnified  Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount  it has collected from others in respect of such Indemnified Amounts, without interest.  (e) The Servicer shall have no liability for making indemnification hereunder  to the extent any such indemnification results from the performance of the Collateral Portfolio  (including, without limitation, any change in the market value of the Collateral Portfolio), or  constitutes recourse for uncollectible or uncollected Loan Assets.  (f) The obligations of the Servicer under this Section 8.02 shall survive the  resignation or removal of the Administrative Agent, the Collateral Agent, any Lender, the  Collateral Administrator, the Account Bank or the Collateral Custodian and the termination of this  Agreement.  (g) Any indemnification pursuant to this Section 8.02 shall not be payable from  the Collateral Portfolio.  Each applicable Indemnified Party shall deliver to the Indemnifying Party under  Section 8.01 and Section 8.02, within a reasonable time after such Indemnified Party’s receipt  thereof, copies of all notices and documents (including court papers) received (if any) by such  Indemnified Party relating to the claim giving rise to the Indemnified Amounts.  SECTION 8.03 Legal Proceedings.  In the event an Indemnified Party becomes  involved in any action, claim, or legal, governmental or administrative proceeding (an “Action”)  for which it seeks indemnification hereunder, the Indemnified Party shall promptly notify the other  party or parties against whom it seeks indemnification (the “Indemnifying Party”) in writing of the  nature and particulars of the Action; provided that its failure to do so shall not relieve the  Indemnifying Party of its obligations hereunder except to the extent such failure has a material  adverse effect on the Indemnifying Party.  Upon written notice to the Indemnified Party  acknowledging in writing that the indemnification provided hereunder applies to the Indemnified  Party in connection with the Action (subject to the exclusion in the first sentence of Section 8.01,  the first sentence of Section 8.02 or Section 8.02(e), as applicable), the Indemnifying Party may  assume the defense of the Action at its expense with counsel reasonably acceptable to the  Indemnified Party.  The Indemnified Party shall have the right to retain separate counsel in  connection with the Action, and the Indemnifying Party shall not be liable for the legal fees and  expenses of the Indemnified Party after the Indemnified Party has done so; provided that if the  Indemnified Party determines in good faith that there may be a conflict between the positions of  the Indemnified Party and the Indemnifying Party in connection with the Action, or that the  Indemnifying Party is not conducting the defense of the Action in a manner reasonably protective  





 






  #75870257_v11 140   of the interests of the Indemnified Party, the reasonable legal fees and expenses of the Indemnified  Party shall be paid by the Indemnifying Party; provided further that the Indemnifying Party shall  not, in connection with any one Action or separate but substantially similar or related Actions in  the same jurisdiction arising out of the same general allegations or circumstances, be liable for the  fees or expenses of more than one separate firm of attorneys (and any required local counsel) for  such Indemnified Party, which firm (and local counsel, if any) shall be designated in writing to the  Indemnifying Party by the Indemnified Party.  If the Indemnifying Party elects to assume the  defense of the Action, it shall have full control over the conduct of such defense; provided that the  Indemnifying Party and its counsel shall, as reasonably requested by the Indemnified Party or its  counsel, consult with and keep them informed with respect to the conduct of such defense.  The  Indemnifying Party shall not settle an Action without the prior written approval of the Indemnified  Party unless such settlement provides for the full and unconditional release of the Indemnified  Party from all liability in connection with the Action.  The Indemnified Party shall reasonably  cooperate with the Indemnifying Party in connection with the defense of the Action.   Notwithstanding anything to contrary above, the Indemnifying Party shall not, without the prior  written consent of the Indemnified Party (in its sole and absolute discretion), be entitled to assume  the defense or designate counsel for an Action which seeks to impose liability on such Indemnified  Party in its individual or corporate capacity.  ARTICLE IX    THE ADMINISTRATIVE AGENT  SECTION 9.01 The Administrative Agent.  (a) Appointment.  The Lender and each Secured Party hereby appoints and  authorizes the Administrative Agent as its agent hereunder and hereby further authorizes the  Administrative Agent to appoint additional agents to act on its behalf and for the benefit of the  Lender and each Secured Party.  Notwithstanding any provision to the contrary contained  elsewhere in this Agreement or in any other Transaction Document, the Administrative Agent shall  not have any duties or responsibilities, except those expressly set forth in this Agreement, nor shall  the Administrative Agent have or be deemed to have any fiduciary relationship with the Lender,  and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read  into this Agreement or any other Transaction Document or otherwise exist against the  Administrative Agent.  Without limiting the generality of the foregoing sentence, the use of the  term “agent” in this Agreement with reference to the Administrative Agent is not intended to  connote any fiduciary or other implied (or express) obligations arising under agency doctrine of  any Applicable Law.  Instead, such term is used merely as a matter of market custom, and is  intended to create or reflect only an administrative relationship between independent contracting  parties.  (b) Power of Attorney.  The Borrower irrevocably authorizes the  Administrative Agent and appoints the Administrative Agent as its attorney-in-fact to act on behalf  of the Borrower (i) to file UCC financing statements necessary or desirable in the Administrative  Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the  Secured Parties in the Collateral Portfolio and (ii) to file a carbon, photographic or other  reproduction of this Agreement or any UCC financing statement with respect to the Collateral  





 






  #75870257_v11 141   Portfolio as a UCC financing statement in such offices as the Administrative Agent in its sole  discretion deems necessary or desirable to perfect and to maintain the perfection and priority of  the interests of the Secured Parties in the Collateral Portfolio.  This appointment is coupled with  an interest and is irrevocable.  (c) Performance by Administrative Agent.  If the Borrower or the Servicer, as  applicable, fails to perform any of its agreements or obligations under Section 5.01(u) or  Section 5.02(o) or Section 5.03(e), the Administrative Agent may (but shall not be required to)  itself perform, or cause performance of, such agreement or obligation, and the expenses of the  Administrative Agent incurred in connection therewith shall be payable by the Borrower or the  Servicer (on behalf of the Borrower), as applicable, upon the Administrative Agent’s demand  therefor.  (d) Delegation of Duties.  The Administrative Agent may execute any of its  duties under this Agreement or any other Transaction Document by or through agents, employees  or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to  such duties.  The Administrative Agent shall not be responsible for the negligence or misconduct  of any agent or attorney in fact that it selects with reasonable care.  (e) Administrative Agent’s Reliance, Etc.  Neither the Administrative Agent  nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted  to be taken by it or them as Administrative Agent under or in connection with this Agreement or  any of the other Transaction Documents, except for its or their own gross negligence or willful  misconduct as determined by a court of competent jurisdiction by a final and non-appealable  judgment.  Each Lender and each Secured Party hereby waives any and all claims against the  Administrative Agent or any of its Affiliates for any action taken or omitted to be taken by the  Administrative Agent or any of its Affiliates under or in connection with this Agreement or any of  the other Transaction Documents, except for its or their own gross negligence or willful  misconduct.  Without limiting the foregoing, the Administrative Agent:  (i) may consult with legal  counsel (including counsel for the Borrower or Equityholder), independent public accountants and  other experts selected by it and shall not be liable for any action taken or omitted to be taken in  good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes  no warranty or representation and shall not be responsible for any statements, warranties or  representations made in or in connection with this Agreement; (iii) shall not have any duty to  ascertain or to inquire as to the performance or observance of any of the terms, covenants or  conditions of this Agreement or any of the other Transaction Documents on the part of the  Borrower, Equityholder or the Servicer or to inspect the property (including the books and records,  including without limitation the Records) of the Borrower, Equityholder or the Servicer; (iv) shall  not be responsible for the due execution, legality, validity, enforceability, genuineness, sufficiency  or value of this Agreement, any of the other Transaction Documents or any other instrument or  document furnished pursuant hereto or thereto; and (v) shall incur no liability under or in respect  of this Agreement or any of the other Transaction Documents by acting upon any notice (including  notice by telephone), consent, certificate or other instrument or writing (which may be by  facsimile) believed by it to be genuine and signed or sent by the proper party or parties.  (f) Actions by Administrative Agent.  The Administrative Agent shall be fully  justified in failing or refusing to take any action under this Agreement or any other Transaction  





 






  #75870257_v11 142   Document unless it shall first receive such advice or concurrence of the Required Lenders as it  deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lender  against any and all liability and expense which may be incurred by it by reason of taking or  continuing to take any such action.  The Administrative Agent shall in all cases be fully protected  in acting, or in refraining from acting, under this Agreement or any other Transaction Document  in accordance with a request or consent of the Required Lenders; provided that, notwithstanding  anything to the contrary herein, the Administrative Agent shall not be required to take any action  hereunder if the taking of such action, in the reasonable determination of the Administrative Agent,  shall be in violation of any Applicable Law or contrary to any provision of this Agreement or shall  expose the Administrative Agent to liability hereunder or otherwise.  In the event the  Administrative Agent requests the consent of a Lender pursuant to the foregoing provisions and  the Administrative Agent does not receive a consent (either positive or negative) from such Person  within ten Business Days of such Person’s receipt of such request, then such Lender shall be  deemed to have consented to the relevant action.  (g) Notice of Event of Default, Unmatured Event of Default or Servicer  Default.  The Administrative Agent shall not be deemed to have knowledge or notice of the  occurrence of an Event of Default, Unmatured Event of Default or Servicer Default, unless the  Administrative Agent has received written notice from the Lender, the Borrower or the Servicer  referring to this Agreement, describing such Event of Default, Unmatured Event of Default or  Servicer Default and stating that such notice is a “Notice of Event of Default,” “Notice of  Unmatured Event of Default” or “Notice of Servicer Default,” as applicable.  (h) Credit Decision with Respect to the Administrative Agent.  The Lender and  each Secured Party acknowledges that none of the Administrative Agent or any of its Affiliates  has made any representation or warranty to it, and that no act by the Administrative Agent  hereinafter taken, including any consent to and acceptance of any assignment or review of the  affairs of the Borrower, the Servicer, Equityholder or any of their respective Affiliates or review  or approval of any of the Collateral Portfolio, shall be deemed to constitute any representation or  warranty by any of the Administrative Agent or its Affiliates to the Lender as to any matter,  including whether the Administrative Agent has disclosed material information in its possession.   The Lender and each Secured Party acknowledges that it has, independently and without reliance  upon the Administrative Agent, or any of the Administrative Agent’s Affiliates, and based upon  such documents and information as it has deemed appropriate, made its own evaluation and  decision to enter into this Agreement and the other Transaction Documents to which it is a party.   The Lender and each Secured Party also acknowledges that it will, independently and without  reliance upon the Administrative Agent, or any of the Administrative Agent’s Affiliates, and based  on such documents and information as it shall deem appropriate at the time, continue to make its  own decisions in taking or not taking action under this Agreement and the other Transaction  Documents to which it is a party.  The Lender and each Secured Party hereby agrees that the  Administrative Agent shall not have any duty or responsibility to provide the Lender with any  credit or other information concerning the business, prospects, operations, property, financial and  other condition or creditworthiness of the Borrower, the Servicer, Equityholder or their respective  Affiliates which may come into the possession of the Administrative Agent or any of its Affiliates.  (i) Indemnification of the Administrative Agent.  Each Lender agrees to  indemnify the Administrative Agent and any agent, attorney-in-fact or employee appointed by it  





 






  #75870257_v11 143   pursuant to Section 9.01(d) (to the extent not reimbursed by the Borrower or the Servicer) from  and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,  costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on,  incurred by, or asserted against the Administrative Agent by any Person (including the Borrower)  in any way relating to or arising out of this Agreement or any of the other Transaction Documents,  or any action taken or omitted by the Administrative Agent hereunder or thereunder; provided that  a Lender shall not be liable for any portion of such liabilities, obligations, losses, damages,  penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the  Administrative Agent’s gross negligence or willful misconduct as determined by a court of  competent jurisdiction in a final and non-appealable judgment; provided further that no action  taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross  negligence or willful misconduct for purposes of this Article IX.  Without limitation of the  foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for  any reasonable out-of-pocket expenses (including counsel fees) incurred by the Administrative  Agent in connection with the administration, modification, amendment or enforcement (whether  through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or  responsibilities under, this Agreement and the other Transaction Documents, to the extent that  such expenses are incurred in the interests of or otherwise in respect of the Secured Parties  hereunder and/or thereunder and to the extent that the Administrative Agent is not reimbursed for  such expenses by the Borrower or the Servicer.  (j) Successor Administrative Agent.  The Administrative Agent may resign at  any time, effective upon the appointment and acceptance of a successor Administrative Agent as  provided below, by giving at least five days’ written notice thereof to the Lender and the Borrower  and may be removed at any time with cause by the Lender.  Upon any such resignation or removal,  the Required Lenders shall appoint a successor Administrative Agent; provided that (x) so long as  no Event of Default has occurred and is continuing, unless the Borrower shall otherwise consent  in its sole discretion, the Lender may only appoint a successor Administrative Agent who is an  Affiliate of SMBC who is not a Designated Entity and (y) after an Event of Default has occurred  and is continuing, the Lender may appoint any Person as a successor Administrative Agent who is  not a Designated Entity (and with the consent of the Borrower, in the Borrower’s sole discretion,  may appoint a Designated Entity as a successor Administrative Agent).  The Lender agrees that it  shall not unreasonably withhold or delay its approval of the appointment of a successor  Administrative Agent.  If no such successor Administrative Agent shall have been so appointed,  and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s  giving of notice of resignation or the removal of the retiring Administrative Agent, then the retiring  Administrative Agent may, on behalf of the Secured Parties, appoint a successor Administrative  Agent which successor Administrative Agent shall be either (i) a commercial bank organized under  the laws of the United States or of any state thereof and have a combined capital and surplus of at  least $50,000,000 or (ii) an Affiliate of such a bank.  Upon the acceptance of any appointment as  Administrative Agent hereunder by a successor Administrative Agent, such successor  Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,  privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent  shall be discharged from its duties and obligations under this Agreement.  After any resignation or  removal of the Administrative Agent hereunder, the provisions of this Article IX shall continue to  inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative  Agent under this Agreement.  





 






  #75870257_v11 144   (k) Payments by the Administrative Agent.  Unless specifically allocated to a  specific Lender pursuant to the terms of this Agreement, all amounts received by the  Administrative Agent on behalf of the Lender shall be paid by the Administrative Agent to the  Lender and any assignee of the Lender in accordance with the Lender’s or such assignee’s  respective Commitment Percentage, on the Business Day received by the Administrative Agent,  unless such amounts are received after 12:00 noon (New York City time) on such Business Day,  in which case the Administrative Agent shall use its reasonable efforts to pay such amounts to the  Lender and such assignees of the Lender on such Business Day, but, in any event, shall pay such  amounts to the Lender and such assignee of the Lender not later than the following Business Day.  ARTICLE X    COLLATERAL AGENT  SECTION 10.01 Designation of Collateral Agent.  (a) Initial Collateral Agent.  The role of Collateral Agent shall be conducted by  the Person designated as Collateral Agent hereunder from time to time in accordance with this  Section 10.01.  Each of the Lender and the Administrative Agent hereby designate and appoint  SMBC as the Collateral Agent to act as its agent for the purposes of perfection of a security interest  in the Collateral Portfolio and hereby authorizes the Collateral Agent to take such actions on its  behalf and on behalf of each of the Secured Parties and to exercise such powers and perform such  duties as are expressly granted to the Collateral Agent by this Agreement.  The Collateral Agent  hereby accepts such agency appointment to act as Collateral Agent pursuant to the terms of this  Agreement, until its resignation or removal as Collateral Agent pursuant to the terms hereof.  (b) Successor Collateral Agent.  Upon the Collateral Agent’s receipt of a  Collateral Agent Termination Notice from the Administrative Agent of the designation of a  successor Collateral Agent pursuant to the provisions of Section 10.05, the Collateral Agent agrees  that it will terminate its activities as Collateral Agent hereunder.  SECTION 10.02 Duties of Collateral Agent.  (a) Appointment.  The Lender and the Administrative Agent each hereby  appoints SMBC to act as Collateral Agent, for the benefit of the Secured Parties.  The Collateral  Agent hereby accepts such appointment and agrees to perform the duties and obligations with  respect thereto set forth herein.  (b) Duties.  On or before the initial Advance Date, and until its removal  pursuant to Section 10.05, the Collateral Agent shall perform, on behalf of the Secured Parties, the  following duties and obligations.  The Collateral Agent shall promptly provide to the Servicer a  copy of all written notices and communications identified as being sent to it in connection with the  Loan Assets and the other Collateral Portfolio held hereunder which it receives from the related  Obligor, participating bank and/or agent bank.  In no instance shall the Collateral Agent be under  any duty or obligation to take any action on behalf of the Servicer in respect of the exercise of any  voting or consent rights, or similar actions, unless it receives specific written instructions from the  Servicer, prior to the occurrence of an Event of Default or the Administrative Agent, after the  





 






  #75870257_v11 145   occurrence of Event of Default, in which event the Collateral Agent shall vote, consent or take  such other action in accordance with such instructions.  (c) The Administrative Agent and each Secured Party further authorizes the  Collateral Agent to take such action as agent on its behalf and to exercise such powers under this  Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent  by the terms hereof and thereof, together with such powers as are reasonably incidental thereto.   In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby  appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to  execute and deliver all further instruments and documents, and take all further action that the  Administrative Agent deems necessary or desirable in order to perfect, protect or more fully  evidence the security interest granted by the Borrower hereunder, or to enable any of them to  exercise or enforce any of their respective rights hereunder, including without limitation the  execution by the Collateral Agent as secured party/assignee of such financing or continuation  statements, or amendments thereto or assignments thereof, relative to all or any of the Loan Assets  now existing or hereafter arising, and such other instruments or notices, as may be necessary or  appropriate for the purposes stated hereinabove.  Nothing in this Section 10.02(c) shall be deemed  to relieve the Borrower or the Servicer of their respective obligations to protect the interest of the  Collateral Agent (for the benefit of the Secured Parties) in the Collateral Portfolio, including to  file financing and continuation statements in respect of the Collateral Portfolio in accordance with  Section 5.01(t).  (i) The Administrative Agent may direct the Collateral Agent to take  any action incidental to its express duties hereunder.  With respect to actions which are  incidental to the actions specifically delegated to the Collateral Agent hereunder, the  Collateral Agent shall not be required to take any such incidental action hereunder, but  shall be required to act or to refrain from acting (and shall be fully protected in acting or  refraining from acting) upon the direction of the Administrative Agent; provided that the  Collateral Agent shall not be required to take any action hereunder at the request of the  Administrative Agent, any Secured Party or otherwise if the taking of such action, in the  reasonable determination of the Collateral Agent, (x) shall be in violation of any Applicable  Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral  Agent to liability hereunder or otherwise (unless it has received indemnity which it  reasonably deems to be satisfactory with respect thereto).  In the event the Collateral Agent  requests the consent of the Administrative Agent to any incidental action hereunder and  the Collateral Agent does not receive a consent (either positive or negative) from the  Administrative Agent within 10 Business Days of its receipt of such request, then the  Administrative Agent shall be deemed to have declined to consent to the relevant action.  (ii) Except as expressly provided herein, the Collateral Agent shall not  be under any duty or obligation to take any affirmative action to exercise or enforce any  power, right or remedy available to it under this Agreement (x) unless and until (and to the  extent) expressly so directed by the Administrative Agent or (y) prior to the Facility  Maturity Date (and upon such occurrence, the Collateral Agent shall act in accordance with  the written instructions of the Administrative Agent pursuant to clause (x)).  The Collateral  Agent shall not be liable for any action taken, suffered or omitted by it in accordance with  the request or direction of any Secured Party, to the extent that this Agreement provides  





 






  #75870257_v11 146   such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent.   The Collateral Agent shall not be deemed to have notice or knowledge of any matter  hereunder, including an Event of Default, unless a Responsible Officer of the Collateral  Agent has knowledge of such matter or written notice thereof is received by the Collateral  Agent.  (d) If, in performing its duties under this Agreement, the Collateral Agent is  required to decide between alternative courses of action, the Collateral Agent may request written  instructions from the Administrative Agent as to the course of action desired by it.  If the Collateral  Agent does not receive such instructions within two Business Days after it has requested them, the  Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses  of action.  The Collateral Agent shall act in accordance with instructions received after such two  Business Day period except to the extent it has already, in good faith, taken or committed itself to  take, action inconsistent with such instructions.  The Collateral Agent shall be entitled to rely on  the advice of legal counsel and independent accountants in performing its duties hereunder and  shall be deemed to have acted in good faith if it acts in accordance with such advice.  (e) Concurrently herewith, the Administrative Agent directs the Collateral  Agent and the Collateral Agent is authorized to enter into the Control Agreement.  For the  avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein  shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Control  Agreement in such capacity.  SECTION 10.03 Merger or Consolidation.  Any Person (i) into which the Collateral Agent may be merged or consolidated, (ii)  that may result from any merger or consolidation to which the Collateral Agent shall be a party,  or (iii) that may succeed to the properties and assets of the Collateral Agent substantially as a  whole, which Person in any of the foregoing cases executes an agreement of assumption to perform  every obligation of the Collateral Agent hereunder, shall be the successor to the Collateral Agent  under this Agreement without further act of any of the parties to this Agreement.  SECTION 10.04 Collateral Agent Expenses.  As compensation for its activities hereunder, the Collateral Agent shall be entitled  to the Collateral Agent Expenses from the Borrower, payable to the extent of funds available  therefor pursuant to Section 2.04.    SECTION 10.05 Collateral Agent Removal.  The Collateral Agent may be removed, with or without cause, by the Administrative  Agent by notice given in writing to the Collateral Agent (the “Collateral Agent Termination  Notice”); provided that notwithstanding its receipt of a Collateral Agent Termination Notice, the  Collateral Agent shall continue to act in such capacity until a successor Collateral Agent has been  appointed and has agreed to act as Collateral Agent hereunder; provided that the Collateral Agent  shall continue to receive compensation of its fees and expenses in accordance with Section 10.04  above while so serving as the Collateral Agent prior to a successor Collateral Agent being  





 






  #75870257_v11 147   appointed.  Prior to and other than during the continuation of an Event of Default, the prior written  consent of the Borrower shall be required to the appointment of any replacement Collateral Agent.  SECTION 10.06 Limitation on Liability.  (a) The Collateral Agent may conclusively rely on and shall be fully protected  in acting upon any certificate, instrument, opinion, notice, letter, telegram or other document  delivered to it and that in good faith it reasonably believes to be genuine and that has been signed  by the proper party or parties.  The Collateral Agent may rely conclusively on and shall be fully  protected in acting upon (a) the written instructions of any designated officer of the Administrative  Agent or (b) the verbal instructions of the Administrative Agent.  (b) The Collateral Agent may consult counsel satisfactory to it and the advice  or opinion of such counsel shall be full and complete authorization and protection in respect of  any action taken, suffered or omitted by it hereunder in good faith and in accordance with the  advice or opinion of such counsel.  (c) The Collateral Agent shall not be liable for any error of judgment, or for  any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for  anything that it may do or refrain from doing in connection herewith except in the case of its willful  misconduct or grossly negligent performance or omission of its duties.  (d) The Collateral Agent makes no warranty or representation and shall have  no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability,  completeness, validity, sufficiency, value, genuineness, ownership or transferability of the  Collateral Portfolio, and will not be required to and will not make any representations as to the  validity or value (except as expressly set forth in this Agreement) of any of the Collateral Portfolio.   The Collateral Agent shall not be obligated to take any legal action hereunder that might in its  judgment involve any expense or liability unless it has been furnished with an indemnity  reasonably satisfactory to it.  (e) The Collateral Agent shall have no duties or responsibilities except such  duties and responsibilities as are specifically set forth in this Agreement and no covenants or  obligations shall be implied in this Agreement against the Collateral Agent.  Notwithstanding any  provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent shall not  have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such,  and no implied covenants, functions, obligations or responsibilities shall be read into this  Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent.   Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by  the other parties hereto that the Collateral Agent shall not be required to exercise any discretion  hereunder and shall have no investment or management responsibility.  (f) The Collateral Agent shall not be required to expend or risk its own funds  in the performance of its duties hereunder.  (g) It is expressly agreed and acknowledged that the Collateral Agent is not  guaranteeing performance of or assuming any liability for the obligations of the other parties hereto  or any parties to the Collateral Portfolio.  





 






  #75870257_v11 148   (h) Subject in all cases to the last sentence of Section 2.05, in case any  reasonable question arises as to its duties hereunder, the Collateral Agent may, prior to the  occurrence of an Event of Default or the Facility Maturity Date, request instructions from the  Servicer and may, after the occurrence of an Event of Default or the Facility Maturity Date, request  instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking  any action unless it has received instructions from the Servicer or the Administrative Agent, as  applicable.  The Collateral Agent shall in all events have no liability, risk or cost for any action  taken pursuant to and in compliance with the instruction of the Administrative Agent.  In no event  shall the Collateral Agent be liable for special, indirect or consequential loss or damage of any  kind whatsoever (including but not limited to lost profits), even if the Collateral Agent has been  advised of the likelihood of such loss or damage and regardless of the form of action.  (i) The Collateral Agent shall not be liable for the acts or omissions of the  Collateral Custodian under the Control Agreement or this Agreement and shall not be required to  monitor the performance of the Collateral Custodian.  Notwithstanding anything herein to the  contrary, unless appointed as successor Collateral Custodian hereunder, the Collateral Agent shall  have no duty to perform any of the duties of the Collateral Custodian under this Agreement.  SECTION 10.07 Collateral Agent Resignation.  The Collateral Agent may resign at any time by giving not less than 90 days written  notice thereof to the Administrative Agent and with the consent of the Administrative Agent,  which consent shall not be unreasonably withheld.  Upon receiving such notice of resignation, the  Administrative Agent shall promptly appoint a successor collateral agent or collateral agents by  written instrument, in duplicate, executed by the Administrative Agent, one copy of which shall  be delivered to the Collateral Agent so resigning and one copy to the successor collateral agent or  collateral agents, together with a copy to the Borrower, Servicer and Collateral Custodian;  provided that, prior to and other than during the continuation of an Event of Default, the prior  written consent of the Borrower shall be required to the appointment of any replacement Collateral  Agent.  If no successor collateral agent shall have been appointed and an instrument of acceptance  by a successor Collateral Agent shall not have been delivered to the Collateral Agent within 45  days after the giving of such notice of resignation, the resigning Collateral Agent may petition any  court of competent jurisdiction for the appointment of a successor Collateral Agent.   Notwithstanding anything herein to the contrary, the Collateral Agent may not resign prior to a  successor Collateral Agent being appointed.  ARTICLE XI    MISCELLANEOUS  SECTION 11.01 Amendments and Waivers.  (a) Except as provided in Section 11.01(b), (i) no amendment or modification  of any provision of this Agreement shall be effective without the written agreement of the  Borrower, the Servicer, the Administrative Agent and the Lender and any assignees of the Lender  having in excess of 50% of the Commitment Percentage (the “Required Lenders”), and, solely if  such amendment or modification would adversely affect the rights and obligations of the Collateral  





 






  #75870257_v11 149   Agent, the written agreement of the Collateral Agent, and, solely if such amendment or  modification would adversely affect the rights and obligations of the Account Bank, the Collateral  Administrator or the Collateral Custodian, the written agreement of the Account Bank, the  Collateral Administrator or the Collateral Custodian, as applicable, and (ii) no termination or  waiver of any provision of this Agreement or consent to any departure therefrom by the Borrower  or the Servicer shall be effective without the written concurrence of the Administrative Agent and  the Required Lenders; provided that any such amendment, modification, termination or waiver of,  or consent to departure from, the provisions of Section 2.04 shall also require the written consent  or the written concurrence of any Secured Party that is a party to this Agreement which could  adversely be affected thereby.  (b) Notwithstanding the provisions of Section 11.01(a), the written consent of  the Lender and any assignees of the Lender having 100% of the Commitment Percentage shall be  required for any amendment, modification or waiver (i) reducing any Advances Outstanding, or  the Yield thereon, (ii) postponing any date for any payment of any Advance, or the Yield thereon,  (iii) modifying the provisions of this Section 11.01; (iv) increasing the Maximum Facility Amount  or (v) extending the Stated Maturity Date or the date set forth in clause (a) of the definition of  “Reinvestment Period”; provided that any amendment, modification or waiver to correct any  inconsistency or cure any ambiguity or error in this Agreement may be entered into with the written  consent of only the Borrower, the Servicer and the Administrative Agent; provided further that  notwithstanding the foregoing, any amendment to replace LIBOR with a Benchmark Replacement  and to make any Benchmark Replacement Conforming Changes shall require only those consents  required under Section 2.23.  SECTION 11.02 Notices, Etc.  All notices and other communications hereunder shall,  unless otherwise stated herein, be in writing (which shall include facsimile communication and  communication by e-mail) and faxed, e-mailed or delivered, to each party hereto, at its address set  forth under its name below or at such other address as shall be designated by such party in a written  notice to the other parties hereto:  If to the Borrower:  Nuveen Churchill BDC SPV II, LLC  c/o Nuveen Churchill Direct Lending Corp.  430 Park Avenue, 14th Floor  New York, NY 10022  Attention: Heather McNally  Email: heather.mcnally@churchillam.com  with a copy to:  Nuveen Churchill Direct Lending Corp.  8500 Andrew Carnegie Blvd.  Charlotte, NC 28262  Attention: John McCally  Email: john.mccally@nuveen.com  





 






  #75870257_v11 150   If to the Servicer:  Nuveen Churchill Direct Lending Corp.  430 Park Avenue, 14th Floor  New York, NY 10022  Attention: Heather McNally  Email: heather.mcnally@churchillam.com  with a copy to:  Nuveen Churchill Direct Lending Corp.  8500 Andrew Carnegie Blvd.  Charlotte, NC 28262  Attention: John McCally  Email: john.mccally@nuveen.com  If to the Administrative Agent or Collateral Agent:  Sumitomo Mitsui Banking Corporation  277 Park Avenue  New York, NY 10172  Attention: Jason Hare   Email: Jason_hare@smbcgroup.com  If to the Lender hereunder as of the Closing Date:  Sumitomo Mitsui Banking Corporation  277 Park Avenue  New York, NY 10172  Attention: Jason Hare  Email:  Jason_hare@smbcgroup.com  If to any assignee of the Lender which becomes a party to this Agreement through the  execution of an Assignment and Acceptance and Joinder Supplement after the Closing  Date;  To the address of such assignee of the Lender as set forth in the Assignment and  Acceptance and Joinder Supplement executed by such assignee of the Lender  If to the Collateral Custodian:  U.S. Bank National Association  Global Corporate Trust  1719 Range Way  Florence, SC 29501  Attention: Steve Garrett  Reference: CDO Unit – Nuveen Churchill BDC SPV II, LLC  Email; Steven.Garrett@usbank.com  





 






  #75870257_v11 151     with a copy to:    U.S. Bank National Association  Global Corporate Trust  214 N. Tryon Street, 26th Floor  Charlotte, NC 28202  Attention: Amanda Snippert  Reference: Nuveen Churchill BDC SPV II, LLC  Email: Nuveen.Churchill.BDC.SPV.II@usbank.com, with a copy to  amanda.snippert@usbank.com    If to the Account Bank or the Collateral Administrator:  U.S. Bank National Association  Global Corporate Trust  214 N. Tryon Street, 26th Floor  Charlotte, NC 28202  Attention: Amanda Snippert  Reference: Nuveen Churchill BDC SPV II, LLC  Email: Nuveen.Churchill.BDC.SPV.II@usbank.com, with a copy to  amanda.snippert@usbank.com    Notices and communications by facsimile and e-mail shall be effective when sent, and notices and  communications sent by other means shall be effective when received.  U.S. Bank, in each of its capacities, agrees to accept and act upon instructions or directions  pursuant to the Transaction Documents sent by unsecured email, facsimile transmission or other  similar unsecured electronic methods, provided that any person providing such instructions or  directions shall provide to U.S. Bank an incumbency certificate listing persons designated to  provide such instructions or directions, which incumbency certificate shall be amended whenever  a person is added or deleted from the listing.  If such person elects to give U.S. Bank email or  facsimile instructions (or instructions by a similar electronic method) and U.S. Bank in its  discretion elects to act upon such instructions, U.S. Bank’s reasonable understanding of such  instructions shall be deemed controlling.  Any person providing such instructions acknowledges  and agrees that there may be more secure methods of transmitting such instructions than the  method(s) selected by it and agrees that the security procedures (if any) to be followed in  connection with its transmission of such instructions provide to it a commercially reasonable  degree of protection in light of its particular needs and circumstances.  SECTION 11.03 No Waiver; Remedies.  No failure on the part of the Administrative  Agent, the Collateral Agent or the Lender to exercise, and no delay in exercising, any right  hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right  hereunder preclude any other or further exercise thereof or the exercise of any other right.  The  remedies herein provided are cumulative and not exclusive of any remedies provided by law.  SECTION 11.04 Binding Effect; Assignability; Multiple Lenders.  





 






  #75870257_v11 152   (a) This Agreement shall be binding upon and inure to the benefit of the  Borrower, the Servicer, the Administrative Agent, the Lender, the Collateral Agent, the Collateral  Custodian, the Collateral Administrator, the Account Bank and their respective successors and  permitted assigns.  The Lender and its respective successors and assigns may assign, syndicate, or  grant a security interest or sell a participation interest in, (i) this Agreement and the Lender’s rights  and obligations hereunder and interest herein in whole or in part (including by way of the sale of  participation interests therein) and/or (ii) any Advance (or portion thereof) or any Variable Funding  Note (or any portion thereof) to any Person other than the Borrower or an Affiliate thereof;  provided that, (x) so long as no Event of Default has occurred and is continuing, unless the  Borrower shall otherwise consent (such consent not to be unreasonably withheld), the Lender may  only assign, syndicate, grant a security interest or sell a participation in, its rights and obligations  hereunder to an Affiliate who is not a Designated Entity and (y) after an Event of Default has  occurred is continuing, the Lender may assign its rights and obligations hereunder to any Person  or Persons who is not a Designated Entity.  Any such assignee shall execute and deliver to the  Servicer, the Borrower and the Administrative Agent a fully-executed assignment and acceptance  substantially in the form of Exhibit N hereto (an “Assignment and Acceptance”) and a fully- executed Joinder Supplement.  The parties to any such assignment, grant or sale of a participation  interest shall execute and record in its books and records such agreement or document as may be  satisfactory to such parties.  None of the Borrower, the Equityholder or the Servicer may assign,  or permit any Lien (other than Permitted Liens) to exist upon, any of its rights or obligations  hereunder or under any Transaction Document or any interest herein or in any Transaction  Document without the prior written consent of the Required Lenders and the Administrative  Agent.  Any agreement or instrument to which a Lender sells such a participation shall provide  that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  participant, agree to any amendment, modification or waiver that affects such participant.  The  Borrower agrees that each participant shall be entitled to the benefits of Sections 2.10 and 2.11  (subject to the requirements and limitations therein, including the requirements under  Section 2.11(d) and (e) (it being understood that the documentation required under Section 2.11(d)  and (e) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and  had acquired its interest by assignment; provided that such participant (A) agrees to be subject to  the provisions of Section 2.10(e) as if it were an assignee; and (B) shall not be entitled to receive  any greater payment under Section 2.10 or 2.11, with respect to any participation, than its  participating Lender would have been entitled to receive, except to the extent such entitlement to  receive a greater payment results from a change in law that occurs after the participant acquired  the applicable participation.  Each Lender that sells a participation shall, acting solely for this  purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name  and address of each participant and the principal amounts (and stated interest) of each participant’s  interest in the loans (the “Participant Register”); provided that no Lender shall have any obligation  to disclose all or any portion of the Participant Register (including the identity of any participant  or any information relating to a participant’s interest in any commitments, loans, or its other  obligations under this Agreement) to any Person except to the extent that such disclosure is  necessary to establish that such commitment, loan, or other obligation is in registered form under  Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant  Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose  





 






  #75870257_v11 153   name is recorded in the Participant Register as the owner of such participation for all purposes of  this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the  Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for  maintaining a Participant Register.  (b) Whenever the term “Lender” is used herein, it shall mean SMBC and/or  each of its assignees; provided that prior to the last day of the Reinvestment Period, each such  party shall have a pro rata share of the rights and obligations of the Lender hereunder in such  percentage amount as shall be obtained by dividing such party’s commitment to fund Advances  hereunder by the total commitment of all parties to fund Advances hereunder; provided further  that on and after the last day of the Reinvestment Period, each such party shall have a pro rata  share of the aggregate Advances Outstanding as shall be obtained by dividing the amount of  Advances Outstanding funded by such party by the total amount of Advances Outstanding (in each  case, the “Commitment Percentage”).  Unless otherwise specified herein, any right at any time of  the Lender to enforce any remedy, or instruct the Administrative Agent to take (or refrain from  taking) any action hereunder, shall be exercised by the Administrative Agent only upon direction  by the Required Lenders at such time.  (c) Notwithstanding any other provision of this Section 11.04, the Lender may  at any time pledge or grant a security interest in all or any portion of its rights (including without  limitation rights to payment of principal and interest) under this Agreement to secure obligations  of the Lender to a Federal Reserve Bank, without notice to or consent of the Borrower or the  Administrative Agent; provided that no such pledge or grant of a security interest shall release the  Lender from any of its obligations hereunder, or substitute any such pledgee or grantee for the  Lender as a party hereto.  (d) Each Affected Party, each Indemnified Party and each Secured Party shall  be an express third party beneficiary of this Agreement.  SECTION 11.05 Term of This Agreement.  This Agreement, including without  limitation the Borrower’s obligation to observe its covenants and other agreements as set forth in  Articles V and VI and the Servicer’s obligation to observe its covenants and other agreements as  set forth in Articles V and VI, shall remain in full force and effect until the Collection Date;  provided that the rights and remedies with respect to any breach of any representation and warranty  made or deemed made by the Borrower or the Servicer pursuant to Articles III and IV and the  indemnification and payment provisions of Articles VIII and XI and the provisions of  Section 11.06, Section 11.07, Section 11.08, Section 11.09, Section 11.11, Section 11.12, and  Section 11.13 shall be continuing and shall survive any termination of this Agreement.  SECTION 11.06 GOVERNING LAW; JURY WAIVER.  THIS AGREEMENT  SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS  LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE  OF NEW YORK.  EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT  PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT  OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN  CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS  CONTEMPLATED HEREUNDER.  





 






  #75870257_v11 154   SECTION 11.07 Costs and Expenses.  (a) In addition to the rights of indemnification granted to the Collateral Agent,  the Collateral Administrator, the Account Bank, the Administrative Agent, the Lender, the  Collateral Custodian and its Affiliates under Section 8.01 and Section 8.02 hereof, the Borrower  agrees to pay on the Payment Date pertaining to the Remittance Period in which such cost is  incurred all reasonable and documented out-of-pocket costs and expenses of the Administrative  Agent, the Lender, the Collateral Agent, the Collateral Administrator, the Account Bank and the  Collateral Custodian incurred in connection with the preparation, execution, delivery,  administration (including periodic auditing), renewal, amendment or modification of, or any  waiver or consent issued in connection with, this Agreement, the Transaction Documents and the  other documents to be delivered hereunder or in connection herewith, including without limitation  the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent, the  Lender, the Collateral Agent, the Collateral Administrator, the Account Bank and the Collateral  Custodian with respect thereto and with respect to advising the Administrative Agent, the Lender,  the Collateral Agent, the Collateral Administrator, the Account Bank and the Collateral Custodian  as to their respective rights and remedies under this Agreement and the other documents to be  delivered hereunder or in connection herewith, and all out-of-pocket costs and expenses, if any  (including reasonable counsel fees and expenses), incurred by the Administrative Agent, the  Lender, the Collateral Agent, the Collateral Administrator, the Account Bank or the Collateral  Custodian in connection with such Person’s enforcement, and after the occurrence of an Event of  Default, such Person’s potential enforcement, of this Agreement, the Transaction Documents and  the other documents to be delivered hereunder or in connection herewith; provided that the  Borrower shall be liable hereunder only for the reasonable and documented fees and out-of-pocket  costs and expenses of one firm of outside counsel (along with local counsel) to each of (w) the  Administrative Agent and the Lenders, taken as a whole, (x) the Collateral Agent, (y) the Account  Bank and the Collateral Administrator and (z) the Collateral Custodian.  (b) Subject to the limitations of Section 2.11, Section 5.03(i) and Section  11.07(a), the Borrower shall pay on demand all other reasonable out-of-pocket costs and expenses  incurred by the Administrative Agent, the Lender, the Collateral Agent, the Collateral Custodian,  the Collateral Administrator and the Account Bank, including without limitation all costs and  expenses incurred by the Administrative Agent in connection with periodic audits of the  Borrower’s or the Servicer’s books and records, including without limitation the Records.  (c) For the avoidance of doubt, except with respect to the costs and expenses to  be paid to the Collateral Agent and the Collateral Custodian, costs and expenses to be paid pursuant  to this Section 11.07 shall exclude all allocable overhead costs and expenses.  SECTION 11.08 No Proceedings.  The Servicer agrees that it will not institute  against, or join any other Person in instituting against, the Borrower any proceedings of the type  referred to in the definition of Bankruptcy Event so long as there shall not have elapsed one year  (or such longer preference period as shall then be in effect) and one day since the Collection Date.  The provisions of this Section 11.08 are a material inducement for the  Administrative Agent, the Collateral Agent and the Lender to enter into this Agreement and the  transactions contemplated hereby and are an essential term hereof.  The Collateral Agent (acting  





 






  #75870257_v11 155   as directed by the Administrative Agent) with the consent of the Lender may seek and obtain  specific performance of such provisions (including injunctive relief), including without limitation  in any bankruptcy, reorganization, arrangement, winding-up, insolvency, moratorium or  liquidation proceedings, or other proceedings under United States federal or state bankruptcy laws  or any similar laws.  SECTION 11.09 Recourse Against Certain Parties.  (a) No recourse under or with respect to any obligation, covenant or agreement  (including without limitation the payment of any fees or any other obligations) of the  Administrative Agent or any Secured Party as contained in this Agreement or any other agreement,  instrument or document entered into by the Administrative Agent or any Secured Party pursuant  hereto or in connection herewith shall be had against any administrator of the Administrative  Agent or any Secured Party or any incorporator, affiliate, stockholder, officer, employee or director  of the Administrative Agent or any Secured Party or of any such administrator, as such, by the  enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or  otherwise; it being expressly agreed and understood that the agreements of each party hereto  contained in this Agreement and all of the other agreements, instruments and documents entered  into by the Administrative Agent or any Secured Party pursuant hereto or in connection herewith  are, in each case, solely the corporate obligations of such party (and nothing in this Section 11.09  shall be construed to diminish in any way such corporate obligations of such party), and that no  personal liability whatsoever shall attach to or be incurred by any administrator of the  Administrative Agent or any Secured Party or any incorporator, stockholder, affiliate, officer,  employee or director of the Lender or the Administrative Agent or of any such administrator, as  such, or any of them, under or by reason of any of the obligations, covenants or agreements of the  Administrative Agent or any Secured Party contained in this Agreement or in any other such  instruments, documents or agreements, or are implied therefrom, and that any and all personal  liability of every such administrator of the Administrative Agent or any Secured Party and each  incorporator, stockholder, affiliate, officer, employee or director of the Administrative Agent or  any Secured Party or of any such administrator, or any of them, for breaches by the Administrative  Agent or any Secured Party of any such obligations, covenants or agreements, which liability may  arise either at common law or in equity, by statute or constitution, or otherwise, is hereby expressly  waived as a condition of and in consideration for the execution of this Agreement.  Without  limitation of the foregoing, no recourse shall be had for the payment of any amount owing in  respect of the Advances or the Facility Documents against the Equityholder, the Servicer, or any  Affiliate, shareholder, manager, officer, director, employee or member of the Borrower, the  Equityholder, the Servicer or their respective successors or assigns.  (b) Notwithstanding any contrary provision set forth herein, no claim may be  made by the Borrower, Equityholder or the Servicer or any other Person against the Administrative  Agent or any Secured Party or their respective Affiliates directors, officers, employees, attorneys  or agents for any special, indirect, consequential or punitive damages in respect to 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 any act, omission or event occurring in connection therewith;  and the Borrower, Equityholder and the Servicer each hereby waives, releases, and agrees not to  sue upon any claim for any such damages, whether or not accrued and whether or not known or  





 






  #75870257_v11 156   suspected; provided that nothing in this sentence shall limit the Borrower’s or Servicer’s  indemnification obligations set forth herein.  (c) No obligation or liability to any Obligor under any of the Loan Assets is  intended to be assumed by the Administrative Agent or any Secured Party under or as a result of  this Agreement and the transactions contemplated hereby.  (d) The provisions of this Section 11.09 shall survive the termination of this  Agreement.  SECTION 11.10 Execution in Counterparts; Severability; Integration.  This  Agreement may be executed in any number of counterparts and by different parties hereto in  separate counterparts, each of which when so executed shall be deemed to be an original and all  of which when taken together shall constitute one and the same agreement.  Delivery of an  executed counterpart of a signature page to this Agreement by e-mail in portable document format  (.pdf) or facsimile shall be effective as delivery of a manually executed counterpart of this  Agreement.  In the event that any provision in or obligation under this Agreement shall be invalid,  illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the  remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,  shall not in any way be affected or impaired thereby.  This Agreement and any agreements or  letters (including fee letters related to the subject matter hereof) executed in connection herewith  contain the final and complete integration of all prior expressions by the parties hereto with respect  to the subject matter hereof and shall constitute the entire agreement among the parties hereto with  respect to the subject matter hereof, superseding all prior oral or written understandings other than  any fee letter delivered by the Servicer to the Administrative Agent and the Lender.  By executing  this Agreement, the parties hereto hereby acknowledge and agree, and direct the Collateral  Custodian, the Collateral Administrator and the Account Bank to acknowledge and agree and the  Collateral Custodian, the Collateral Administrator and the Account Bank do hereby acknowledge  and agree, that execution of this Agreement, any instruction, direction, notice, form or other  document executed by the any party to this Agreement or the Transaction Documents in  connection with this Agreement or such other Transaction Documents, by electronic signatures  (whether by Orbit, Adobe Fill & Sign, Adobe Sign, DocuSign, or any other similar platform  identified by such party and reasonably available at no undue burden or expense to the Collateral  Custodian, the Collateral Administrator or the Account Bank) shall be permitted hereunder  notwithstanding anything to the contrary herein and such electronic signatures shall be legally  binding as if such electronic signatures were handwritten signatures .  Any electronically signed  document delivered via email from a person purporting to be a Responsible Officer shall be  considered signed or executed by such Responsible Officer on such party’s behalf.  The parties  hereto also hereby acknowledge and agree that the Collateral Custodian, the Collateral  Administrator and the Account Bank shall have no duty to inquire into or investigate the  authenticity or authorization of any such electronic signature and shall be entitled to reasonably  rely on any such electronic signature without any liability with respect thereto.  SECTION 11.11 Consent to Jurisdiction; Service of Process.  (a) Each party hereto hereby irrevocably submits to the non-exclusive  jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan in New  





 






  #75870257_v11 157   York City in any action or proceeding arising out of or relating to the Transaction Documents, and  each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding  may be heard and determined in such New York State court or, to the extent permitted by law, in  such Federal court.  The parties hereto hereby irrevocably waive, to the fullest extent they may  effectively do so, the defense of an inconvenient forum to the maintenance of such action or  proceeding.  The parties hereto agree that a final judgment in any such action or proceeding shall  be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other  manner provided by law.  (b) Each of the Borrower and the Servicer agrees that service of process may  be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the  Borrower or the Servicer, as applicable, at its address set forth in Section 11.02 or at such other  address as the Administrative Agent shall have been notified in accordance herewith.  Nothing in  this Section 11.11 shall affect the right of the Lender or the Administrative Agent to serve legal  process in any other manner permitted by law.  SECTION 11.12 Confidentiality.  (a) Each of the Administrative Agent, the Lender, the Servicer, the Collateral  Agent, the Borrower, Equityholder, the Account Bank, the Collateral Administrator and the  Collateral Custodian shall maintain and shall cause each of its employees and officers to maintain  the confidentiality of the Agreement and all information with respect to the other parties, including  all information regarding the business of the Borrower and the Servicer hereto and their respective  businesses, and all information in connection with or related to the Loan Agreements (including  but not limited to any information provided pursuant to Section 6.08), obtained by it or them in  connection with the structuring, negotiating and execution of the transactions contemplated herein,  except that each such party and its officers and employees may (i) disclose such information to its  external accountants, investigators, auditors, attorneys or other agents, including any valuation  firm engaged by such party in connection with any due diligence and administration (including  periodic auditing) or comparable activities with respect to the transactions and Loan Assets  contemplated herein and the agents of such Persons (“Excepted Persons”); provided that each  Excepted Person shall, as a condition to any such disclosure, agree for the benefit of the  Administrative Agent, the Lender, the Servicer, the Collateral Agent, the Borrower, the Account  Bank, the Collateral Administrator, Equityholder and the Collateral Custodian that such  information shall be used solely in connection with such Excepted Person’s evaluation of, or  relationship with, the Borrower and its affiliates, (ii) disclose the existence of the Agreement, but  not the financial terms thereof, (iii) disclose such information as is required by Applicable Law  and (iv) disclose the Agreement and such information in any suit, action, proceeding or  investigation (whether in law or in equity or pursuant to arbitration) involving any of the  Transaction Documents for the purpose of defending itself, reducing its liability, or protecting or  exercising any of its claims, rights, remedies, or interests under or in connection with any of the  Transaction Documents.  Notwithstanding the foregoing provisions of this Section 11.12(a), the  Servicer may, subject to Applicable Law and the terms of any Loan Agreements, make available  copies of the documents in the Servicing Files and such other documents it holds in its capacity as  Servicer pursuant to the terms of this Agreement, to any of its creditors.  It is understood that the  financial terms that may not be disclosed except in compliance with this Section 11.12(a) include,  





 






  #75870257_v11 158   without limitation, all fees and other pricing terms, and all Events of Default, Servicer Defaults,  and priority of payment provisions.  (b) Anything herein to the contrary notwithstanding, the Borrower,  Equityholder and the Servicer each hereby consents to the disclosure of any nonpublic information  with respect to it (i) to the Administrative Agent, the Lender, the Account Bank, the Collateral  Administrator, the Collateral Agent or the Collateral Custodian by each other, (ii) by the  Administrative Agent, the Lender, the Collateral Agent and the Collateral Custodian to any  prospective or actual assignee or participant of any of them, provided that, (A) so long as no Event  of Default has occurred, such Person would be permitted to be an assignee or participant pursuant  to the terms hereof and (B) such Person agrees to hold such information confidential by entering  into a confidentiality agreement in a form reasonably acceptable to the Borrower, or (iii) by the  Administrative Agent, the Lender, the Account Bank, the Collateral Administrator, the Collateral  Agent and the Collateral Custodian to any provider of a surety, guaranty or credit or liquidity  enhancement to the Lender, as applicable, and to any officers, directors, employees, outside  accountants and attorneys of any of the foregoing, provided each such Person is informed of the  confidential nature of such information.  In addition, the Lender, the Administrative Agent, the  Collateral Agent and the Collateral Custodian may disclose any such nonpublic information as  required pursuant to any law, rule, regulation, direction, request or order of any judicial,  administrative or regulatory authority or proceedings (whether or not having the force or effect of  law).  (c) Notwithstanding anything herein to the contrary, the foregoing shall not be  construed to prohibit (i) disclosure of any and all information that is or becomes publicly known;  (ii) disclosure of any and all information (a) if required to do so by any applicable statute, law, rule  or regulation (including, without limitation, disclosure obligations under the Exchange Act to  which the Borrower and/or the Servicer are subject), (b) to any government agency or regulatory  body having or claiming authority to regulate or oversee any respects of the Lender’s, the  Administrative Agent’s, the Collateral Agent’s, the Account Bank’s, the Collateral  Administrator’s or the Collateral Custodian’s business or that of their Affiliates, (c) pursuant to  any subpoena, civil investigative demand or similar demand or request of any court, regulatory  authority, arbitrator or arbitration to which the Administrative Agent, the Lender or the Collateral  Agent or an officer, director, employer, shareholder or Affiliate of any of the foregoing is a party,  (d) in any preliminary or final offering circular, registration statement or contract or other  document approved in advance by the Borrower or the Servicer or (e) to any Affiliate, independent  or internal auditor, agent, employee or attorney of the Collateral Agent, the Collateral Custodian,  the Collateral Administrator or the Account Bank having a need to know the same; provided that  the disclosing party advises such recipient of the confidential nature of the information being  disclosed; or (iii) any other disclosure authorized by the Borrower or Servicer.  SECTION 11.13 Waiver of Set Off.  Each of the parties hereto hereby waives any right of setoff it may have or to which  it may be entitled under this Agreement from time to time against the Administrative Agent, the  Lender, the Collateral Agent or their respective assets.  SECTION 11.14 Headings and Exhibits.  





 






  #75870257_v11 159   The headings herein are for purposes of references only and shall not otherwise  affect the meaning or interpretation of any provision hereof.  The schedules and exhibits attached  hereto and referred to herein shall constitute a part of this Agreement and are incorporated into  this Agreement for all purposes.  SECTION 11.15 Breaches of Representations, Warranties and Covenants.  For the avoidance of doubt, no breach or default of any representation, warranty or  covenant contained in Sections 4.01, 4.02 or 4.03 or 5.01, 5.02, 5.03, 5.04 that does not constitute  an Unmatured Event of Default or Event of Default shall be deemed to be a breach or default  hereunder; provided that the foregoing shall not affect the definition of “Eligible Loan Asset”, the  definition of “Warranty Event”, Sections 2.07(d), 2.07(f), 2.15, 2.21, 3.02(a), 3.04(e), 5.01(n),  8.01, 8.02, 11.05 and the schedules and exhibits hereto.  SECTION 11.16 Delivery of Termination Statements, Releases, etc.  Upon payment in full of all of the Obligations (other than unmatured contingent  indemnification and expense reimbursement obligations) and the termination of this Agreement,  the Administrative Agent and the Collateral Agent shall deliver to the Borrower termination  statements, reconveyances, releases and other documents necessary or appropriate to evidence the  termination of the Liens securing the Obligations hereunder, all at the expense of the Borrower.  SECTION 11.17 Failure of Borrower or Servicer to Perform Certain Obligations.  If  the Borrower or the Servicer, as applicable, fails to perform any of its agreements or obligations  under Section 5.01(n), Section 5.02(m) or Section 5.03(e), the Administrative Agent may (but shall  not be required to) itself perform, or cause performance of, such agreement or obligation, and the  expenses of the Administrative Agent incurred in connection therewith shall be payable by the  Borrower or the Servicer (on behalf of the Borrower), as applicable, upon the Administrative  Agent’s demand therefor.  SECTION 11.18 USA Patriot Act.  Each of the Lenders, the Collateral Agent, the  Collateral Custodian, the Collateral Administrator, the Account Bank and the Administrative  Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower, the Servicer and  the Equityholder that pursuant to the requirements of the USA PATRIOT Act, it is required to  obtain, verify, and record information that identifies each of the Borrower, the Servicer and the  Equityholder, which information includes the name of each of the Borrower, the Servicer and the  Equityholder and other information that will allow each Lender, the Collateral Agent, the  Collateral Custodian, the Collateral Administrator, the Account Bank, or the Administrative  Agent, as applicable, to identify the Borrower, the Servicer and the Equityholder in accordance  with the USA PATRIOT Act, and each of the Borrower, the Servicer and the Equityholder agree  to provide such information from time to time to each Lender, the Collateral Agent, the Collateral  Custodian, the Collateral Administrator, the Account Bank and the Administrative Agent, as  applicable.    SECTION 11.19 Adequacy of Monetary Damages.  Each of the Borrower, the  Servicer and the Equityholder hereby acknowledges and agrees that (i) any and all claims, damages  and demands against any Lender, the Administrative Agent or the Collateral Agent arising out of,  





 






  #75870257_v11 160   or in connection with, the exercise by the Collateral Agent or Administrative Agent of any of the  Secured Party’s rights or remedies pursuant to Article VII of this Agreement can be sufficiently  and adequately remedied by monetary damages, (ii) no irreparable injury will be caused to the  Borrower, the Servicer or the Equityholder as a result of, or in connection with, any such claims,  damages or demands, and (iii) no equitable or injunctive relief shall be sought by the Borrower,  the Servicer or the Equityholder as a result of, or in connection with, any such claims, damages or  demands.  SECTION 11.20 No Proceedings.  Each of the parties hereto (other than the  Borrower) hereby agrees that it will not institute against, or join any other Person in instituting  against, the Borrower any Bankruptcy Proceeding so long as there shall not have elapsed one year  and one day (or such longer preference period as shall then be in effect) since the Collection Date.  SECTION 11.21 Interim Custody Agreement.  The Borrower hereby agrees that, as  of the date hereof, the Interim Custody Agreement shall be terminated and of no further force and  effect and for purposes hereof U.S. Bank in its capacities as custodian and document custodian  pursuant to the Interim Custody Agreement shall be a third-party beneficiary of this section.  The  Account Bank may utilize all accounts and the respective account numbers created under the  Interim Custody Agreement as Controlled Accounts hereunder or as sub-accounts of one or more  of the Controlled Accounts.  The parties hereto agree that, on and after the date hereof, such  accounts established under the Interim Custody Agreement shall be closed or, to the extent such  accounts remain open, deemed to be Controlled Accounts hereunder and subject to all of the  provisions of this Agreement and the other Transaction Documents.  ARTICLE XII    COLLATERAL CUSTODIAN  SECTION 12.01 Designation of Collateral Custodian.  (a) Initial Collateral Custodian.  The role of Collateral Custodian with respect  to the Required Loan Documents shall be conducted by the Person designated as Collateral  Custodian hereunder from time to time in accordance with this Section 12.01.  The Administrative  Agent and the Borrower hereby designate and appoint the Collateral Custodian to act as its agent  and hereby authorizes the Collateral Custodian to take such actions on its behalf and to exercise  such powers and perform such duties as are expressly granted to the Collateral Custodian by this  Agreement.  The Collateral Custodian hereby accepts such agency appointment to act as Collateral  Custodian pursuant to the terms of this Agreement, until its resignation or removal as Collateral  Custodian pursuant to the terms hereof.  (b) Successor Collateral Custodian.  Upon the Collateral Custodian’s receipt of  a Collateral Custodian Termination Notice from the Administrative Agent of the designation of a  successor Collateral Custodian pursuant to the provisions of Section 12.05, the Collateral  Custodian agrees that it will terminate its activities as Collateral Custodian hereunder.  SECTION 12.02 Duties of Collateral Custodian.  





 






  #75870257_v11 161   (a) Appointment.  The Borrower and the Administrative Agent each hereby  appoints U.S. Bank to act as Collateral Custodian, for the benefit of the Secured Parties.  The  Collateral Custodian hereby accepts such appointment and agrees to perform the duties and  obligations with respect thereto set forth herein.  (b) Duties.  From the Closing Date until its removal pursuant to Section 12.05  or resignation pursuant to Section 12.07, the Collateral Custodian shall perform, on behalf of the  Secured Parties, the following duties and obligations:  (i) The Collateral Custodian shall take and retain custody of the  Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and  Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all  for the benefit of the Secured Parties.  Within five Business Days of its receipt of any  Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan  Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to  confirm that (A) such Required Loan Documents have been executed (either an original or  a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages,  (B) filed stamped copies of UCC and other filings (as indicated on the Loan Asset  Checklist) have been included, (C) if listed on the Loan Asset Checklist, a copy of an  Insurance Policy with respect to any real or personal property constituting the Underlying  Collateral is included, and (D) the related original balance (based on a comparison to the  note or assignment agreement, as applicable), Loan Asset number and Obligor name, as  applicable, with respect to such Loan Asset is referenced on the related Loan Asset  Schedule (such items (A) through (D) collectively, the “Review Criteria”).  In order to  facilitate the foregoing review by the Collateral Custodian, in connection with each  delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer  shall provide to the Collateral Custodian a hard copy (which may be preceded by an  electronic copy, as applicable) of the related Loan Asset Checklist and Loan Asset  Schedule which contains the Loan Asset information with respect to the Required Loan  Documents being delivered, identification number and the name of the Obligor with respect  to such Loan Asset.  Notwithstanding anything herein to the contrary, the Collateral  Custodian’s obligation to review the Required Loan Documents shall be limited to  reviewing such Required Loan Documents based on the information provided on the Loan  Asset Schedule and Loan Asset Checklist.  If, at the conclusion of such review, the  Collateral Custodian shall determine that (i) the original balance of the Loan Asset with  respect to which it has received Required Loan Documents is less than as set forth on the  Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and  the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria  is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer  of such determination and provide the Servicer with a list of the non-complying Loan  Assets and the applicable Review Criteria that they fail to satisfy.  The Servicer shall have  five Business Days after notice or knowledge thereof to correct any non-compliance with  any Review Criteria.  In addition, if requested in writing (in the form of Exhibit M) by the  Servicer and approved by the Administrative Agent within 10 Business Days of the  Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any  Loan Asset which fails to satisfy a Review Criteria to the Borrower.  Other than the  foregoing, the Collateral Custodian shall not have any responsibility for reviewing any  





 






  #75870257_v11 162   Required Loan Documents.  Notwithstanding anything to the contrary contained herein,  the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset  Checklist delivered to it in electronic form.  (ii) In taking and retaining custody of the Required Loan Documents,  the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties;  provided that the Collateral Custodian makes no representations as to the existence,  perfection or priority of any Lien on the Required Loan Documents or the instruments  therein; provided further that the Collateral Custodian’s duties shall be limited to those  expressly contemplated herein and no implied obligations or responsibilities shall be read  into this Agreement against or on the part of the Collateral Custodian.  (iii) All Required Loan Documents that are originals shall be kept in fire  resistant vaults, rooms or cabinets at the locations specified on the address of the Collateral  Custodian set forth in Section 5.05(c), or at such other office as shall be specified to the  Administrative Agent and the Servicer by the Collateral Custodian in a written notice  delivered at least 30 days prior to such change.  All Required Loan Documents shall be  placed together with an appropriate identifying label and maintained in such a manner so  as to permit retrieval and access.  The Collateral Custodian shall segregate the Required  Loan Documents on its inventory system and will not commingle the physical Required  Loan Documents with any other files of the Collateral Custodian other than those, if any,  relating to the Servicer and its Affiliates and subsidiaries; provided that the Collateral  Custodian shall segregate any commingled files upon written request of the Administrative  Agent or the Borrower.  (iv) On the 20th calendar day of every month (or if such day is not a  Business Day, the next succeeding Business Day), the Collateral Custodian shall provide  a written report to the Administrative Agent and the Servicer (in a form mutually agreeable  to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for  which it holds Required Loan Documents and the applicable Review Criteria that any Loan  Asset fails to satisfy.  (v) In performing its duties, the Collateral Custodian shall use the same  degree of care and attention as it employs with respect to similar collateral that it holds as  collateral custodian for others.  (c) (i) The Collateral Custodian agrees to cooperate with the Administrative  Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent  or the Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable,  as requested in order for the Collateral Agent or the Administrative Agent to take any action that  the Collateral Agent or the Administrative Agent deems necessary or desirable in order to perfect,  protect or more fully evidence the security interests granted by the Borrower hereunder, or to  enable any of them to exercise or enforce any of their respective rights hereunder, including any  rights arising with respect to Article VII.  In the event the Collateral Custodian receives instructions  from the Servicer or the Borrower which conflict with any instructions received from the  Administrative Agent or the Collateral Agent, the Collateral Custodian shall rely on and follow  the instructions given by the Administrative Agent or the Collateral Agent, as applicable; provided  





 






  #75870257_v11 163   that in the event any instructions given by the Administrative Agent and the Collateral Agent  conflict, the Collateral Custodian shall rely on and follow the instructions given by the Collateral  Agent; provided further that the Collateral Custodian shall promptly provide notification to the  Servicer, the Borrower and/or the Administrative Agent, as applicable, of such conflicting  instructions; provided further that any such failure on the part of the Collateral Custodian to deliver  such notice shall not render such action by the Collateral Custodian invalid.  (ii) The Administrative Agent may direct the Collateral Custodian to  take any action incidental to its express duties hereunder.  With respect to actions which  are incidental to the actions specifically delegated to the Collateral Custodian hereunder,  the Collateral Custodian shall not be required to take any such incidental action hereunder,  but shall be required to act or to refrain from acting (and shall be fully protected in acting  or refraining from acting) upon the direction of the Administrative Agent; provided that  the Collateral Custodian shall not be required to take any action hereunder at the request  of the Administrative Agent, any Secured Parties or otherwise if the taking of such action,  in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any  Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the  Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity  which it reasonably deems to be satisfactory with respect thereto).  In the event the  Collateral Custodian requests the consent of the Administrative Agent or the Collateral  Agent and the Collateral Custodian does not receive a consent (either positive or negative)  from the Administrative Agent or the Collateral Agent, as applicable, within 10 Business  Days of its receipt of such request, then the Administrative Agent or the Collateral Agent,  as applicable, shall be deemed to have declined to consent to the relevant action.  (iii) The Collateral Custodian shall not be liable for any action taken,  suffered or omitted by it in accordance with the request or direction of any Secured Party,  to the extent that this Agreement provides such Secured Party the right to so direct the  Collateral Custodian, or the Administrative Agent.  The Collateral Custodian shall not be  deemed to have notice or knowledge of any matter hereunder, including an Event of  Default or a Notice of Exclusive Control, unless a Responsible Officer of the Collateral  Custodian has actual knowledge of such matter or written notice thereof is received by a  Responsible Officer of the Collateral Custodian.  SECTION 12.02A Duties of Collateral Administrator and the Account Bank  (a) Appointment.  The Borrower and the Administrative Agent each hereby  appoints U.S. Bank to act as Collateral Administrator and as Account Bank, for the benefit of the  Secured Parties.  Each of the Collateral Administrator and the Account Bank hereby accepts such  appointment and agrees to perform the duties and obligations with respect thereto set forth herein.  (b) Duties.  From the Closing Date until its removal pursuant to Section 12.05  or resignation pursuant to Section 12.07 (or Section 4(h)(ii) of the Control Agreement, in the case  of the Account Bank), the Collateral Custodian and the Account Bank shall perform, on behalf of  the Secured Parties, the following duties and obligations (as applicable):  





 






  #75870257_v11 164   (i) The Collateral Administrator shall compile and provide, subject to  the Collateral Administrator’s receipt from the Servicer, the Borrower, the Collateral Agent  or the Administrative Agent, as applicable, any information with respect to the Loan Assets  and Permitted Investments to the extent not maintained or in the possession of the  Collateral Administrator, the Monthly Report substantially in the form of Exhibit K hereof,  in accordance with the terms and subject to the provisions of this Agreement, and prepare  drafts of such Monthly Report and provide such drafts to the Servicer for review and  approval; provided that each such draft is to be provided no later than three days prior to  the date the Monthly Report is due.  The Borrower shall cause the Servicer to review and  confirm the calculations made by the Collateral Administrator in such Monthly Report  within two days prior to the due date of the Monthly Report.  (ii)  The Collateral Administrator shall calculate amounts to be remitted  pursuant to Section 2.04 to the applicable parties and notify the Servicer and the  Administrative Agent in the event of any discrepancy between the Collateral  Administrator’s calculations and the Servicing Report (such dispute to be resolved in  accordance with Section 2.05).  (iii) The Collateral Administrator shall promptly upon its actual receipt  of a (i) Borrowing Base Certificate from the Borrower and based upon information  provided by the Borrower or the Servicer on its behalf, re-calculate the Borrowing Base  and, if the Collateral Custodian’s calculation does not correspond with the calculation  provided by the Borrower on such Borrowing Base Certificate, deliver such calculation to  each of the Administrative Agent, Borrower and Servicer within one (1) Business Day of  receipt by the Collateral Custodian of such Borrowing Base Certificate.  (iv) The Collateral Administrator shall create a database (the “Collateral  Database”) with respect to the Loan Assets held by the Borrower on the Closing Date. The  Collateral Administrator shall permit access to the information in the Collateral Database  by the Servicer and the Borrower.  The Collateral Administrator shall update the Collateral  Database promptly for Loan Assets and Permitted Investments acquired or sold or  otherwise disposed of and for any amendments or changes to Loan Asset amounts or  interest rates.  (v) The Collateral Administrator shall assist and reasonably cooperate  with the independent certified public accountants in the preparation of those reports  required under Section 6.10.   (vi) The Collateral Administrator shall provide the Servicer with such  other information as may be reasonably requested in writing by the Servicer and as is within  the possession of the Collateral Administrator.  (vii) The Account Bank shall establish the Collection Account, the Pre- Funded Loan Asset Account and the Unfunded Exposure Account in the name of the  Borrower under the control of the Collateral Agent for the benefit of the Secured Parties.  





 






  #75870257_v11 165   (viii) The Account Bank shall track the receipt and daily allocation of cash  to the Interest Collection Account and Principal Collection Account and any withdrawals  therefrom and, on each Business Day, provide to the Servicer daily reports reflecting such  actions to the Interest Collection Account and Principal Collection Account as of the close  of business on the preceding Business Day.  (ix) The Account Bank shall make payments pursuant to the terms of the  Servicing Report or as otherwise directed in accordance with Sections 2.04 or 2.05.  (x) The Account Bank shall provide the Servicer with such other  information as may be reasonably requested in writing by the Servicer and as is within the  possession of the Account Bank.  SECTION 12.03 Merger or Consolidation.  Any Person (i) into which the Collateral Custodian may be merged or consolidated,  (ii) that may result from any merger or consolidation to which the Collateral Custodian shall be a  party, or (iii) that may succeed to the properties and assets of the Collateral Custodian substantially  as a whole, which Person in any of the foregoing cases executes an agreement of assumption to  perform every obligation of the Collateral Custodian hereunder, shall be the successor to the  Collateral Custodian under this Agreement without further act of any of the parties to this  Agreement.  SECTION 12.04 Collateral Custodian, Collateral Administrator and Account Bank  Compensation.  As compensation for the Collateral Custodian’s activities hereunder, the Collateral  Administrator’s activities hereunder and the Account Bank’s activities hereunder and under the  Control Agreement, the Collateral Custodian and the Account Bank shall be entitled to the  Collateral Custodian Fees and the Collateral Custodian Expenses from the Borrower as set forth  in the U.S. Bank Fee Letter.  The Collateral Custodian, the Collateral Administrator and the  Account Bank shall be entitled to receive the Collateral Custodian Fees and Collateral Custodian  Expenses to the extent of funds available therefor pursuant to Section 2.04; provided that, for the  avoidance of doubt, to the extent funds are not so available on any Payment Date to pay such fees  or reimburse such expenses incurred during the immediately ended Remittance Period, such  payment or reimbursement amount shall be deferred and payable on the next Payment Date on  which funds are available therefor pursuant to Section 2.04.  The Collateral Custodian’s, the  Collateral Administrator’s and the Account Bank’s entitlement to receive the Collateral Custodian  Fees (as applicable) shall cease on the earlier to occur of:  (i) its removal as Collateral Custodian,  Collateral Administrator or Account Bank (as applicable) pursuant to Section 12.05, (ii) the  Collateral Custodian’s or the Collateral Administrator’s resignation as Collateral Custodian or  Collateral Administrator (as applicable) pursuant to Section 12.07 or the Account Bank’s  resignation as Account Bank pursuant to Section 4(h)(ii) of the Control Agreement or (iii) the  termination of this Agreement.  





 






  #75870257_v11 166   SECTION 12.05 Collateral Custodian, Account Bank or Collateral Administrator  Removal.  The Collateral Custodian, the Account Bank or the Collateral Administrator may  be removed, with or without cause, by the Administrative Agent by notice given in writing to the  Collateral Custodian, the Account Bank or the Collateral Administrator, provided that if such  removal is without cause then notice shall be in writing and at least 30 days in advance of such  removal (the “Collateral Custodian Termination Notice”, “Account Bank Termination Notice” or  the “Collateral Administrator Termination Notice”, as applicable); provided that, notwithstanding  its receipt of a Collateral Custodian Termination Notice, Account Bank Termination Notice or a  Collateral Administrator Termination Notice, the Collateral Custodian, the Account Bank or the  Collateral Administrator (as applicable) shall continue to act in such capacity until a successor  Collateral Custodian, Account Bank or Collateral Administrator (as applicable) has been appointed  and has agreed to act as Collateral Custodian, Account Bank or Collateral Administrator  hereunder; provided that if a successor Collateral Custodian, Account Bank or Collateral  Administrator has not been appointed within 30 days after delivery to the Collateral Custodian.   Account Bank or the Collateral Administrator of such written notice of removal, the Collateral  Custodian, Account Bank or the Collateral Administrator shall be entitled to petition a court of  competent jurisdiction to appoint a successor Collateral Custodian, Account Bank or Collateral  Administrator (as applicable).  For purposes of this Section 12.05, “cause” means a material breach  of the obligations or duties of the Collateral Custodian, the Account Bank or the Collateral  Administrator (as applicable) under this Agreement.  Prior to and other than during the  continuation of an Event of Default, the prior written consent of the Borrower shall be required to  the appointment of any replacement Collateral Custodian, Account Bank or Collateral  Administrator.  SECTION 12.06 Limitation on Liability.  (a) The Collateral Custodian may conclusively rely on and shall be fully  protected in acting upon any certificate, instrument, opinion, notice, letter, telegram or other  document or electronic communication delivered to it and that in good faith it reasonably believes  to be genuine and that has been signed by the proper party or parties.  The Collateral Custodian  may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of  any designated officer of the Administrative Agent or the Borrower (or the Servicer on the  Borrower’s behalf) or (b) the verbal instructions of the Administrative Agent or the Borrower (or  the Servicer on the Borrower’s behalf).  (b) The Collateral Custodian may consult counsel satisfactory to it and the  advice or opinion of such counsel shall be full and complete authorization and protection in respect  of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the  advice or opinion of such counsel.  (c) Neither the Collateral Custodian nor its officers, directors or employees  shall be liable for any error of judgment, or for any act done or step taken or omitted by such  Person, in good faith, or for any mistakes of fact or law, or for anything that such Person may do  or refrain from doing in connection herewith except in the case of such Person’s willful misconduct  or grossly negligent performance or omission of such Person’s duties hereunder.  Under no  





 






  #75870257_v11 167   circumstances will the Collateral Custodian be liable for indirect, special, punitive, consequential  or incidental damages, such as loss of use, revenue or profit.  The Collateral Custodian shall not  be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or  representation (other than a statement, warranty or representation made by the Collateral  Custodian) made in or in connection with this Agreement or any other loan document, (ii) the  contents of any certificate, report or other document (except to the extent prepared by the Collateral  Custodian) delivered hereunder or thereunder or in connection herewith or therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions  (except as the same are required to be performed or observed by the Collateral Custodian) set forth  herein or therein or the occurrence of any Event of Default, or (iv) the due execution, legality,  validity, enforceability, effectiveness or genuineness (except the same relates to the Collateral  Custodian) of this Agreement, any other loan document, any of the Collateral Portfolio or any  other agreement, instrument or document.  (d) The Collateral Custodian makes no warranty or representation and shall  have no responsibility (except as expressly set forth in this Agreement) as to the content,  enforceability, completeness, validity, sufficiency, value, genuineness, ownership or  transferability of the Collateral Portfolio, and will not be required to and will not make any  representations as to the validity or value (except as expressly set forth in this Agreement) of any  of the Collateral Portfolio.  The Collateral Custodian shall not be obligated to take any legal action  hereunder that might in its judgment involve any expense or liability unless it has been furnished  with an indemnity reasonably satisfactory to it.  (e) The Collateral Custodian shall have no duties or responsibilities except such  duties and responsibilities as are specifically set forth in this Agreement and no covenants or  obligations shall be implied in this Agreement against the Collateral Custodian.  The permissive  right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.  (f) The Collateral Custodian shall not be required to expend or risk its own  funds in the performance of its duties hereunder.  (g) It is expressly agreed and acknowledged that the Collateral Custodian is not  guaranteeing performance of or assuming any liability for the obligations of the other parties hereto  or any parties to the Collateral Portfolio.  (h) In the event that (i) the Borrower, the Servicer, the Administrative Agent,  Lenders, or the Collateral Custodian shall be served by a third party with any type of levy,  attachment, writ or court order with respect to any Loan Asset or Required Loan Document or  (ii) a third party shall institute any court proceeding by which any Required Loan Document shall  be required to be delivered otherwise than in accordance with the provisions of this Agreement,  the party receiving such service shall promptly deliver or cause to be delivered to the other parties  to this Agreement copies of all court papers, orders, documents and other materials concerning  such proceedings.  The Collateral Custodian shall, to the extent permitted by law, continue to hold  and maintain all the Required Loan Documents that are the subject of such proceedings pending a  final, nonappealable order of a court of competent jurisdiction permitting or directing disposition  thereof.  Upon final determination of such court, the Collateral Custodian shall dispose of such  Required Loan Documents as directed by the Administrative Agent, which shall give a direction  





 






  #75870257_v11 168   consistent with such determination.  Expenses of the Collateral Custodian incurred as a result of  such proceedings shall be borne by the Borrower.  (i) Subject in all cases to the last sentence of Section 12.02(c)(i), in case any  reasonable question arises as to its duties hereunder, the Collateral Custodian may, prior to the  occurrence of an Event of Default or the Facility Maturity Date, request instructions from the  Servicer and may, after the occurrence of an Event of Default or the Facility Maturity Date, request  instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking  any action unless it has received instructions from the Servicer or the Administrative Agent, as  applicable.  The Collateral Custodian shall in all events have no liability, risk or cost for any action  taken pursuant to and in compliance with the instruction of the Administrative Agent.  In no event  shall the Collateral Custodian be liable for special, indirect or consequential loss or damage of any  kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has  been advised of the likelihood of such loss or damage and regardless of the form of action.  (j) The Collateral Custodian shall not be bound to make any independent  investigation into the facts or matters stated in any notice, instruction, statement, certificate,  request, waiver, consent, opinion, report, receipt or other paper, document or electronic  communication; provided that if the form thereof is specifically prescribed in any way by the terms  of this Agreement, the Collateral Custodian shall examine the same to determine whether it  substantially conforms on its face to such requirements hereof.  It is expressly acknowledged by  the Borrower, the Servicer, the Lenders and the Administrative Agent that performance by the  Collateral Custodian of its various duties hereunder (including recalculations to be performed in  respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data,  information and notices provided to it by the Servicer (and/or the Borrower) and/or any related  bank agent, obligor or similar party with respect to the Collateral Portfolio, and the Collateral  Custodian shall have no responsibility for the accuracy of any such information or data provided  to it by such persons and shall be entitled to update its records (as it may deem necessary or  appropriate).  Nothing herein shall impose or imply any duty or obligation on the part of the  Collateral Custodian to verify, investigate or audit any such information or data, or to determine  or monitor on an independent basis whether any issuer of the Collateral Portfolio is in default or  in compliance with the underlying documents governing or securing such item of the Collateral  Portfolio, from time to time.  The Collateral Custodian shall have no liability for any failure,  inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to  provide accurate and complete information on a timely basis to the Collateral Custodian or  otherwise on the part of any such party to comply with the terms of this Agreement, and shall have  no liability for any inaccuracy or error in the performance or observance on the Collateral  Custodian’s part of any of its duties hereunder that is caused by or results from any such  inaccurate, incomplete or untimely information received by it, or other failure on the part of any  such other party to comply with the terms hereof.  (k) The Collateral Custodian shall not be deemed to have knowledge or notice  of any matter unless actually known to a Responsible Officer of the Collateral Custodian.  (l) Nothing herein shall obligate the Collateral Custodian to commence,  prosecute or defend legal proceedings in any instance, whether on behalf of the Borrower or on its  





 






  #75870257_v11 169   own behalf or otherwise, with respect to any matter arising hereunder, or relating to this Agreement  or the services contemplated hereby.  (m) In acting hereunder and under the Control Agreement, the Account Bank  shall be entitled to the same protections, rights, immunities and indemnities as are afforded the  Collateral Custodian; provided that such protections, rights, immunities and indemnities shall be  in addition to, and not in limitation of, any protections, rights, immunities and  indemnities provided in the Control Agreement.  For so long as the Account Bank, the Collateral  Administrator and the Collateral Custodian are the same entity, U.S. Bank in each such role shall  be entitled to the same rights, immunities, indemnities and protections afforded to U.S. Bank in  each of its roles under this Agreement and the other Transaction Documents.  (n) The Collateral Custodian may assume the genuineness of any such Required  Loan Document it may receive and the genuineness and due authority of any signatures appearing  thereon, and shall be entitled to assume that each Required Loan Document it may receive is what  it purports to be.  If an original “security” or “instrument” as defined in Section 8-102 and Section  9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any  portion of the Collateral Portfolio to be held by the Collateral Custodian under this Agreement, it  shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Collateral  Custodian, and the Collateral Custodian shall not be under any obligation at any time to determine  whether any such original security or instrument has been or is required to be issued or made  available in respect of any portion of the Collateral Portfolio or to compel or cause delivery thereof  to the Collateral Custodian.  The Collateral Custodian shall have no liability for losses arising from  any cause beyond its control, including acts of God, strikes, lockouts, riots, acts of war or terrorism,  epidemics, nationalization, expropriation, currency restrictions, governmental regulations  superimposed after the fact, fire, communication line failures, computer viruses, power failures,  tornadoes or other disaster, or any delay, error, omission or default of mail, telegraph, cable or  wireless agency or operator, or the acts or edicts of any government or governmental agency or  other group or entity exercising governmental powers.  However, should the Collateral Custodian  fail to be able to perform as required, the Collateral Custodian shall notify the Servicer and the  Administrative Agent as soon as practicable of such occurrence and the Collateral Custodian shall  use reasonable efforts to resume performance as soon as reasonably practical under the  circumstances.  (o) The Collateral Custodian may act or exercise its duties or powers hereunder  through agents or attorneys and the Collateral Custodian shall not be liable or responsible for the  actions or omissions of any such agent or attorney appointed with due care.  Neither the Collateral  Custodian nor any of its affiliates, directors, officers, shareholders, agents or employees will be  liable to the Servicer, the Borrower or any other Person, except by reason of acts or omissions by  the Collateral Custodian constituting bad faith, willful misconduct, gross negligence or reckless  disregard of the Collateral Custodian’s duties hereunder.   (p) The Collateral Custodian shall not be liable for interest on any money  received by it except as the Collateral Custodian may agree in writing with the Borrower.  In no  event shall the Collateral Custodian be liable for the selection of any investments or any losses in  connection therewith (except in its capacity as obligor thereunder, if applicable), or for any failure  





 






  #75870257_v11 170   of the relevant party to provide investment instruction to the Collateral Custodian in connection  with the investment of funds in or from any account set forth herein.  (q) The Collateral Custodian shall have no duty to determine or inquire into  the happening or occurrence of any event or contingency, and it is agreed that its duties  hereunder are purely ministerial in nature.  (r) The Collateral Custodian shall not be responsible to the Lenders for the  perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements,  and such other documents or instruments, provided however that if instructed by the Lenders and  at the expense of the Borrower, the Collateral Custodian shall arrange for the filing and  continuation, of financing statements or other filing or recording documents or instruments for the  perfection of security interests in the Collateral Portfolio; provided, that, the Collateral Custodian  shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such  financing statements all of which shall be provided in writing to the Collateral Custodian by the  Lenders including the jurisdictions and filing offices where the Collateral Custodian is required to  file such financing statements.  (s) None of the Collateral Custodian, the Collateral Administrator or the  Account Bank shall be under any obligation (i) to monitor, determine or verify the unavailability  or cessation of LIBOR (or other applicable Benchmark Replacement), or whether or when there  has occurred, or to give notice to any other party of the occurrence of, any Benchmark Replacement  Date, Benchmark Transition Event, Benchmark Transition Start Date or Benchmark Unavailability  Period (ii) to select, identify or designate any alternative reference rate index (including any  Benchmark Replacement), or other successor or replacement benchmark index, or whether any  conditions to the designation of such a rate have been satisfied, (iii) to select, identify or designate  any Benchmark Replacement Adjustment, or other modifier to any replacement or successor  index, or (iv) to determine whether or what administrative procedures or any Benchmark  Replacement Conforming Changes or other modifications to this Agreement or any other  Transaction Document may be necessary or advisable in respect of the determination and  implementation of any alternative reference rate index (including any Benchmark Replacement),  if any, in connection with any of the foregoing.  (t) None of the Collateral Custodian, the Collateral Administrator or the  Account Bank shall be liable for any inability, failure or delay on its part to perform any of its  duties set forth in this Agreement as a result of the unavailability of LIBOR (or other applicable  Benchmark Replacement) and absence of a designated Benchmark Replacement, including as a  result of any inability, delay, error or inaccuracy on the part of any other party, including without  limitation the Administrative Agent, the Collateral Agent, the Servicer or the Borrower, by the  terms of the Agreement and reasonably required for the performance of such duties.  (u) The Servicer, the Administrative Agent, the Collateral Agent and the  Borrower shall cooperate with the Collateral Administrator in connection with the preparation by  the Collateral Administrator of the Monthly Reports and the calculations and re-calculations  provided hereunder.  Without limiting the generality of the foregoing, the Servicer shall advise in  a timely manner the Collateral Administrator of the results of any determinations required or  permitted to be made by it or the Borrower (or the Servicer on its behalf) and supply the Collateral  





 






  #75870257_v11 171   Administrator with such other information (to the extent not also maintained or readily available  to the Collateral Administrator) as is maintained by the Servicer that the Collateral Administrator  may from time to time request with respect to the Collateral Portfolio and reasonably needed to  complete the Monthly Reports or any calculations or re-calculations or required to permit the  Collateral Administrator to perform its obligations hereunder and any other information that may  be reasonably required hereunder with respect to any item of the Collateral Portfolio.  The Servicer  shall review and verify the contents of the aforesaid reports, instructions, statements, certificates,  calculations and recalculations and upon receipt of approval from the Servicer, the Collateral  Administrator shall transmit the same to the Borrower and shall make such reports available to the  Administrative Agent, the Collateral Agent and the Lenders.   (v) The Collateral Administrator may conclusively rely on and without any  investigation, any information provided by the Servicer, Borrower, Administrative Agent,  Collateral Agent and any Obligor, participating bank and/or agent bank and its Affiliates with  respect to the applicable Loan Assets or Underlying Instruments, along with any related agents  with respect to such Loan Assets or Underlying Instruments, in preparation of the Monthly Report.   The duties of the Collateral Administrator hereunder are limited to the duties expressly set forth in  this Agreement.  By entering into, or performing its duties under, this Agreement, the Collateral  Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or  Servicer under any of the Transaction Documents and nothing herein contained shall be deemed  to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any  respect the duties, obligations or liabilities of the Borrower or the Servicer under the Transaction  Documents.  (w) The Collateral Administrator will make the Monthly Report and any other  reports available via its internet website.  The Collateral Administrator’s internet website shall  initially be located at https://pivot.usbank.com.  The Collateral Administrator may change the way  such reports are distributed.  As a condition to access to the Collateral Administrator’s internet  website, the Collateral Administrator may require registration and the acceptance of a disclaimer.   The Collateral Administrator shall be entitled to rely on but shall not be responsible for the content  or accuracy of any information provided in the Monthly Report which the Collateral Administrator  disseminates in accordance with this Agreement and may affix thereto any disclaimer it deems  appropriate in its reasonable discretion.  (x) Nothing herein shall impose or imply any duty or obligation on the part of  the Collateral Administrator to verify, investigate or audit any such information or data, or to  determine or monitor on an independent basis whether any issuer of the Loan Asset is in default  or in compliance with the underlying documents governing or securing such securities, from time  to time, the role of the Collateral Administrator hereunder being solely to perform certain  mathematical computations and data comparisons as provided herein.  For purposes of monitoring  changes in ratings, the Collateral Administrator shall be entitled to use and rely exclusively upon  one or more reputable electronic financial information reporting services, and shall have no  liability for any inaccuracies in the information reported by, or other errors or omissions of, any  such services.  It is hereby expressly agreed that Bloomberg Financial Markets is one such  reputable service.  





 






  #75870257_v11 172   (y) Nothing herein shall obligate the Collateral Administrator to determine  independently any characteristic of any Loan Asset, any such determination being based  exclusively upon notification the Collateral Administrator receives from the Servicer, the  Administrative Agent or the Collateral Agent.  Nothing herein shall obligate the Collateral  Administrator to review or examine any underlying instrument or contract evidencing, governing  or guaranteeing or securing any Loan Asset in order to verify, confirm, audit or otherwise  determine any characteristic thereof.  (z) 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 (or the Servicer on its behalf)  or the Administrative Agent as to the course of action desired by it.  If the Collateral Administrator  does not receive such instructions within two Business Days after it has requested them, the  Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such  courses of action.  The Collateral Administrator shall act in accordance with instructions received  after such two Business Day period except to the extent it has already, in good faith, taken or  committed itself to take, action inconsistent with such instructions.    SECTION 12.07 Collateral Custodian or Collateral Administrator Resignation.  The Collateral Custodian or Collateral Administrator may resign and be discharged  from its duties or obligations hereunder, not earlier than 90 days after delivery to the  Administrative Agent of written notice of such resignation specifying a date when such resignation  shall take effect.  Upon the effective date of such resignation, or if the Administrative Agent gives  the Collateral Custodian or the Collateral Administrator written notice of an earlier termination  hereof, the Collateral Custodian or the Collateral Administrator (as applicable) shall (i) be  reimbursed for any costs and expenses the Collateral Custodian or the Collateral Administrator  shall incur in connection with the termination of its duties under this Agreement and (ii) in the case  of the Collateral Custodian, deliver all of the Required Loan Documents in the possession of the  Collateral Custodian to the Administrative Agent or to such Person as the Administrative Agent  may designate to the Collateral Custodian in writing upon the receipt of a request in the form of  Exhibit M; provided that the Borrower shall consent to any successor Collateral Custodian or  Collateral Administrator (as applicable) appointed by the Administrative Agent (such consent not  to be unreasonably withheld).  Notwithstanding anything herein to the contrary, the Collateral  Custodian and Collateral Administrator may not resign prior to a successor Collateral Custodian  or Collateral Administrator (as applicable) being appointed; provided that if a successor Collateral  Custodian or Collateral Administrator has not been appointed within 90 days after delivery to the  Administrative Agent of such written notice of resignation, the Collateral Custodian or Collateral  Administrator shall be entitled to petition a court of competent jurisdiction to appoint a successor  Collateral Custodian or Collateral Administrator (as applicable).  SECTION 12.08 Release of Documents.  (a) Release for Servicing.  From time to time and as appropriate for the  enforcement or servicing of any of the Collateral Portfolio, the Collateral Custodian is hereby  authorized (unless and until such authorization is revoked by the Administrative Agent), upon  written receipt from the Servicer of a request for release of documents and receipt in the form  





 






  #75870257_v11 173   annexed hereto as Exhibit M, to release to the Servicer within two Business Days of receipt of  such request, the related Required Loan Documents or the documents set forth in such request and  receipt to the Servicer.  All documents so released to the Servicer shall be held by the Servicer in  trust for the benefit of the Collateral Agent, on behalf of the Secured Parties in accordance with  the terms of this Agreement.  The Servicer shall return to the Collateral Custodian the Required  Loan Documents or other such documents (i) promptly upon the request of the Administrative  Agent, or (ii) when the Servicer’s need therefor in connection with such foreclosure or servicing  no longer exists, unless the Loan Asset shall be liquidated, in which case, the Servicer shall deliver  an additional request for release of documents to the Collateral Custodian and receipt certifying  such liquidation from the Servicer to the Collateral Agent, all in the form annexed hereto as  Exhibit M.  (b) Reserved.  (c) Release for Payment.  Upon receipt by the Collateral Custodian of the  Servicer’s request for release of documents and receipt in the form annexed hereto as Exhibit M  (which request for release shall include a statement to the effect that all amounts received in  connection with such payment or repurchase have been credited to the Collection Account as  provided in this Agreement), the Collateral Custodian shall promptly release the related Required  Loan Documents to the Servicer.  (d) Lien Release Dividend.  In connection with any Loan Asset for which a  Lien Release Dividend is effected in accordance with Section 2.07(d), and within two Business  Days after written receipt from the Servicer of a request for release of documents and receipt in  the form of Exhibit J, (which request for release shall include a statement to the effect that a Lien  Release Dividend is being effected as to such Loan Asset), the Collateral Custodian shall promptly  release the related Required Loan Documents for such Loan Asset to the Borrower.  SECTION 12.09 Return of Required Loan Documents.  The Borrower may, with the prior written consent of the Administrative Agent  (such consent not to be unreasonably withheld or delayed), require that the Collateral Custodian  return each Required Loan Document (a) delivered to the Collateral Custodian in error or (b)  released from the Lien of the Collateral Agent hereunder pursuant to Section 2.16, in each case by  submitting to the Collateral Custodian and the Administrative Agent a written request in the form  of Exhibit M hereto (signed by both the Borrower and the Administrative Agent) specifying the  Collateral Portfolio to be so returned and reciting that the conditions to such release have been met  (and specifying the Section or Sections of this Agreement being relied upon for such release).  The  Collateral Custodian shall upon its receipt of each such request for return executed by the Borrower  and the Administrative Agent promptly, but in any event within five Business Days, return the  Required Loan Documents so requested to the Borrower.  SECTION 12.10 Access to Certain Documentation and Information Regarding the  Collateral Portfolio; Audits of Servicer.  The Collateral Custodian shall provide to the Administrative Agent access to the  Required Loan Documents and all other documentation regarding the Collateral Portfolio  





 






  #75870257_v11 174   including in such cases where the Administrative Agent is required in connection with the  enforcement of the rights or interests of the Secured Parties, or by applicable statutes or  regulations, to review such documentation, such access being afforded without charge but only (i)  upon not less than two Business Days prior written request, (ii) during normal business hours and  (iii) subject to the Servicer’s and the Collateral Custodian’s normal security and confidentiality  procedures.  Prior to the Closing Date and periodically thereafter at the discretion of the  Administrative Agent, the Administrative Agent may review the Servicer’s collection and  administration of the Collateral Portfolio in order to assess compliance by the Servicer with the  Servicing Standard, as well as with this Agreement and may conduct an audit of the Collateral  Portfolio, and Required Loan Documents in conjunction with such a review.  Such review shall be  (subject to Section 5.03(d)(ii)) reasonable in scope and shall be completed in a reasonable period  of time.  Without limiting the foregoing provisions of this Section 12.10, from time to time on  request of the Administrative Agent, the Collateral Custodian shall permit certified public  accountants or other auditors acceptable to the Administrative Agent to conduct, at the expense of  the Servicer (on behalf of the Borrower) (subject to applicable limitations herein), a review of the  Required Loan Documents and all other documentation regarding the Collateral Portfolio.  SECTION 12.11 Custodian as Agent of Collateral Agent.  The Collateral Custodian agrees that, with respect to any Required Loan  Documents at any time or times in its possession or held in its name, the Collateral Custodian shall  be the agent of the Collateral Agent, for the benefit of the Secured Parties, for purposes of  perfecting (to the extent not otherwise perfected) the Collateral Agent’s security interest in the  Collateral Portfolio and for the purpose of ensuring that such security interest is entitled to first  priority status under the UCC.  [Signature pages follow.]    





 






  [Signature Page]  Loan and Servicing Agreement  IN WITNESS WHEREOF, the parties have caused this Agreement to be executed  by their respective officers thereunto duly authorized, as of the date first above written.    THE BORROWER: NUVEEN CHURCHILL BDC SPV II, LLC    By: ___________________________________   Name:  Shaul Vichness   Title:    Chief Financial Officer        [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE SERVICER: NUVEEN CHURCHILL DIRECT  LENDING CORP.    By: ___________________________________   Name:  Shaul Vichness   Title:    Chief Financial Officer        [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE ADMINISTRATIVE AGENT: SUMITOMO MITSUI BANKING  CORPORATION     By: ___________________________________   Name:  Stephen Chan   Title:    Managing Director        [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE LENDER: SUMITOMO MITSUI BANKING  CORPORATION     By: ___________________________________   Name:  Stephen Chan   Title:    Managing Director        [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE COLLATERAL AGENT: SUMITOMO MITSUI BANKING  CORPORATION     By: ___________________________________   Name:  Stephen Chan   Title:    Managing Director        [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE ACCOUNT BANK AND   COLLATERAL ADMINISTRATOR: U.S. BANK NATIONAL ASSOCIATION      By: _________________________________   Name:     Title:              [SIGNATURES CONTINUE ON THE FOLLOWING PAGE]     





 






  [Signature Page]  Loan and Servicing Agreement  THE COLLATERAL CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION    By: ___________________________________   Name:     Title:      





 






     Sch. I-1  #75870257_v11  SCHEDULE I  CONDITIONS PRECEDENT DOCUMENTS  As required by Section 3.01 of the Agreement, each of the following items must be  delivered to the Administrative Agent prior to the effectiveness of the Agreement:  (a) A copy of the Agreement duly executed by each of the parties hereto;  (b) A certificate of a Director, the Secretary or Assistant Secretary of each of the  Borrower, the Equityholder and the Servicer, dated the date of the Agreement, certifying (i) the  names and true signatures of the incumbent officers of such Person authorized to sign on behalf of  such Person the Transaction Documents to which it is a party (on which certificate the  Administrative Agent and the Lender may conclusively rely until such time as the Administrative  Agent shall receive from the Borrower, or the Servicer, as applicable, a revised certificate meeting  the requirements of this paragraph (b)(i)), (ii) that the copy of the Governing Documents of such  Person is a complete and correct copy and that such Governing Documents have not been amended,  modified or supplemented and are in full force and effect, and (iii) the resolutions of the board of  directors, managers or other relevant governing body of such Person approving and authorizing  the execution, delivery and performance by such Person of the Transaction Documents to which  it is a party;   (c) A good standing certificate, dated as of a recent date for each of the Borrower, the  Equityholder and the Servicer, issued by the Secretary of State of such Person’s jurisdiction of  formation, incorporation or organization, as applicable;   (d) An officer’s closing certificate from a Responsible Officer of each of the Borrower  and Servicer, certifying that, as of the Closing Date: (i) each of the representations and warranties  of the Borrower and Servicer contained in the Transaction Documents are true, complete and  correct in all material respects except to the extent relating to an earlier date and except for such  representations and warranties as are qualified by materiality, a Material Adverse Effect or any  similar qualifier, which representations and warranties are true, complete and correct in all respects  on and as of the Closing Date; (ii) no Servicer Default, Event of Default or Unmatured Event of  Default has occurred and is continuing under the Loan and Servicing Agreement, and no event has  occurred and is continuing, or would result from the transactions effected pursuant to the  Transaction Documents or from the application of proceeds thereof as of the Closing Date, that  constitutes or would constitute a Servicer Default, Event of Default or Unmatured Event of  Default; and (iii) both before and after giving effect to the transactions contemplated by the  Transaction Documents to which the Borrower or the Servicer is a party, each of the Borrower and  the Servicer is and will be Solvent.  (e) UCC financing statements describing the Collateral Portfolio, and (i) naming the  Borrower as debtor and the Collateral Agent, for the benefit of the Secured Parties, as secured  party and (ii) other, similar instruments or documents, as may be necessary or, in the opinion of  the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any  comparable law to perfect the Collateral Agent’s, for the benefit of the Secured Parties, interests  in the Collateral Portfolio;   





 






   Sch. I-2  #75870257_v11  (f) Copies of tax and judgment lien searches in all jurisdictions reasonably requested  by the Administrative Agent and requests for information (or a similar UCC search report certified  by a party acceptable to the Administrative Agent), dated a date reasonably near to the Closing  Date, and with respect to such requests for information or UCC searches, listing all effective UCC  financing statements which name the Borrower (under its present name and any previous name)  and the Servicer (under its present name and any previous name) as debtor(s) and which are filed  in the State of Delaware or State of Maryland, as applicable, together with copies of such UCC  financing statements (none of which shall cover any of the Collateral Portfolio);   (g) One or more favorable Opinions of Counsel of counsel to the Borrower, acceptable  to the Administrative Agent and addressed to the Administrative Agent, the Lender and the  Collateral Agent, with respect to such matters as the Administrative Agent may reasonably request  (including an opinion with respect to the first priority perfected security interest of the Collateral  Agent, for the benefit of the Secured Parties, in the Collateral Portfolio);  (h) One or more favorable Opinions of Counsel of counsel to the Borrower, acceptable  to the Administrative Agent and addressed to the Administrative Agent, the Lender and the  Collateral Agent, with respect to, among other things, the due authorization, execution and delivery  of, and enforceability of, the Agreement and the other Transaction Documents;  (i) Duly completed copies of the appropriate IRS Form W-9 (or any successor forms  or other certificates or statements that may be required from time to time by the relevant United  States taxing authorities or Applicable Law) for the Borrower; and  (j) A copy of each of the other Transaction Documents duly executed by the parties  thereto.  (k) One or more favorable Opinions of Counsel of counsel to the Collateral Custodian,  acceptable to the Administrative Agent and addressed to the Administrative Agent and the Lender,  with respect to, among other things, the due authorization, execution and delivery of, and  enforceability of, the Transaction Documents to which it is a party;   (l) One or more favorable Opinions of Counsel, acceptable to the Administrative  Agent and addressed to the Administrative Agent, the Lender and the Collateral Agent with respect  to the perfection of the security interest of the Collateral Agent, for the benefit of the Secured  Parties, in the Collateral Portfolio;  (m) One or more favorable Opinions of Counsel of counsel to the Borrower, acceptable  to the Administrative Agent and addressed to the Administrative Agent, the Lender and the  Collateral Agent, that the Borrower would not be substantively consolidated with the Equityholder  in a proceeding under the Bankruptcy Code; and   (n) UCC termination statements, if any, necessary to release all security interests and  other rights of any Person in the Collateral Portfolio as of the Closing Date.      





 






     Sch. II-1  #75870257_v11   SCHEDULE II  PRIOR NAMES, TRADENAMES, FICTITIOUS NAMES  AND “DOING BUSINESS AS” NAMES  Borrower: None  





 






     Sch. III-1  #75870257_v11   SCHEDULE III  ELIGIBILITY CRITERIA  The representations and warranties set forth in this Schedule III are made by the Borrower  and the Servicer under the Agreement, with respect to all Loan Assets which are designated as  being Eligible Loan Assets on any Borrowing Base Certificate or are otherwise represented to the  Administrative Agent or the Lender as being Eligible Loan Assets, or are included as Eligible Loan  Assets in any calculation set forth in the Agreement to which this Schedule III is attached.  For the  avoidance of doubt, if such Loan Asset does not satisfy the representations and warranties set forth  in this Schedule III, then the Administrative Agent must expressly consent in its sole discretion to  the inclusion of such Loan Asset; it being understood that the Administrative Agent will not be  deemed to have consented to the acquisition of a Loan Asset by the Borrower that does not satisfy  the representations and warranties set forth in this Schedule III by merely approving the acquisition  of such Loan Asset by the Borrower unless there is an express acknowledgement by the Borrower  and the Servicer under the Agreement of non-satisfaction of the representations and warranties set  forth in this Schedule III.  1. Each such Loan Asset is a First Lien Loan Asset evidenced by a note or a  credit document and, to the extent applicable, an assignment or participation document in the form  specified in the applicable credit agreement or, if no such specification, on the LSTA assignment  form.  Each such Loan Asset and the Portfolio Assets related thereto is subject to a valid, subsisting  and enforceable first priority perfected security interest (subject only to Permitted Liens) in favor  of the Collateral Agent, for the benefit of the Secured Parties, and the Borrower has good and  marketable title to and is the sole owner of, such Loan Asset and the Portfolio Assets related  thereto, free and clear of all Liens other than any Permitted Liens.   2. As of the related Cut-Off Date, the origination or acquisition of each such  Loan Asset by the Borrower and the grant of the security interest to the Collateral Agent, for the  benefit of the Secured Parties, in each such Loan Asset have been approved by the Administrative  Agent, in its sole discretion, by delivery of an Approval Notice.  3. No Loan Asset constitutes a participation interest in all or a portion of a loan  (for the avoidance of doubt, a syndication or co-lending interest which is not documented as a  participation interest shall not be deemed a participation interest).  4. The Obligor with respect to each such Loan Asset is organized under the  laws of the United States or Canada or any state, province or other political subdivision thereof  and its principal operations are located in the United States or Canada.   5. The funding obligations for each such Loan Asset and the Loan Agreement  under which such Loan Asset was created have been fully satisfied and all sums available  thereunder have been fully advanced, or if such Loan Asset is a Revolving Loan Asset or Delayed  Draw Loan Asset, then either (i) the Borrower shall have or have caused to be, at the time of the  sale of such Loan Asset to the Borrower, deposited into the Unfunded Exposure Account an  amount in Dollars equal to the Unfunded Exposure Equity Amount or (ii) the Unfunded Exposure  Equity Amount with respect to such Loan Asset shall not create a Borrowing Base Deficiency.   





 






   Sch. III-2  #75870257_v11  6. Each such Loan Asset is denominated in Dollars and does not permit the  currency or country in which such Loan Asset is payable to be changed.  7. No such Loan Asset is Margin Stock and the Underlying Instruments with  respect to such Loan Asset provide that no part of the proceeds of such Loan Asset or any other  extension of credit made thereunder will be used to purchase or carry any Margin Stock or to  extend credit to others for the purpose of purchasing or carrying any such Margin Stock.  8. The acquisition of such Loan Asset does not cause the Borrower or the  assets constituting the Collateral Portfolio to be required to be registered as an investment company  under the 1940 Act.  9. As of the related Cut-Off Date, no such Loan Asset is a financing by a  debtor-in-possession in any Bankruptcy Proceeding.  10. No such Loan Asset is principally secured by real estate.  11. Such Loan Asset, together with the Underlying Instruments related thereto,  contains provisions substantially to the effect that such Loan Asset and such Underlying  Instruments constitute a legal, valid, binding and enforceable obligation of the Obligor thereunder  and each guarantor thereof, enforceable against each such Person in accordance with its terms,  subject to the usual and customary bankruptcy, insolvency and equity limitations.  12. Such Loan Asset is in registered form for U.S. federal income tax purposes  unless not a “registration required obligation” as defined in Section 163(f)(2) of the Code.  13. As of the related Cut-Off Date, such Loan Asset is not a Defaulted Loan  Asset.  14. The Obligor with respect to each such Loan Asset is not an Affiliate of the  Servicer and/or the Equityholder.   15. The acquisition of any such Loan Asset by the Borrower or the grant of the  security interest to the Collateral Agent, for the benefit of the Secured Parties, in any such Loan  Asset would not (i) violate any material Applicable Law or (ii) cause the Administrative Agent or  the Lender (as notified to the Borrower by Administrative Agent or such Lender in its  commercially reasonable judgment) to fail to comply with any request or directive (whether or not  having the force of law) from any banking or other Governmental Authority having jurisdiction  over the Administrative Agent or the Lender.  16. To the knowledge of the Borrower or the Servicer, no such Loan Asset  contravenes any material Applicable Law and no part thereof is in violation of any material  Applicable Law; provided that for purposes of determining whether a Loan Asset is a Warranty  Loan Asset, as of the Cut-Off Date for such Loan Asset, such Loan Asset shall not contravene any  Applicable Law and no part thereof shall be in violation of any Applicable Law, without regard to  whether the Borrower or the Servicer has any knowledge of such contravention or violation.    





 






   Sch. III-3  #75870257_v11  17. Pursuant to the Loan Agreement with respect to such Loan Asset, (i) such  Loan Asset is eligible (giving effect to the provisions of Sections 9-406 and 9-408 of the UCC) to  be sold, transferred or assigned to the Borrower and to have a security interest therein granted to  the Collateral Agent, as agent for the Secured Parties, (ii) neither the sale, transfer or assignment  of such Loan Asset to the Borrower, nor the granting of a security interest hereunder to the  Collateral Agent, as agent for the Secured Parties, violates, conflicts with or contravenes in any  material respect any Applicable Law or any contractual or other restriction, limitation or  encumbrance binding on the Borrower or the underlying Obligor and (iii) the Loan Agreement  requires only usual and customary consents with respect to the enforcement of rights and remedies  with respect thereto, and the rights to enforce rights and remedies in respect of the same under the  applicable Loan Agreement inure to the benefit of the holder of such Loan Asset;   18. No such Loan Asset is the subject of any assertions in respect of any  litigation, right of rescission, set-off, counterclaim or defense, including the defense of usury, by  the related Obligor, nor will the operation of any of the terms of the Loan Agreements, or the  exercise of any right thereunder, render the Loan Agreements unenforceable in whole or in part,  or subject to any right of rescission, set-off, counterclaim or defense, including the defense of  usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with  respect thereto, and the Loan Agreements with respect to the Loan Asset provide for an affirmative  waiver by the related Obligor of all rights of rescission, set-off and counterclaim against the  Borrower and its assignees.  19. Such Loan Asset is not subject to withholding tax unless the Obligor thereon  is required under the terms of the related Loan Agreement to make “gross-up” payments that cover  the full amount of such withholding tax on an after-tax basis in the event of a change of tax law.   The transfer, assignment and conveyance of such Loan Asset (and the other Portfolio Assets  related thereto) from the third party assignor of such Loan Asset or other Portfolio Asset to the  Borrower is not subject to and will not result in any fee or governmental charge (other than income  taxes) payable by the Borrower or any other Person to any federal, state or local government.  20. No such Loan Asset has been repaid, prepaid, satisfied or rescinded, in each  case, in full.  21. No such Loan Asset has been sold, transferred, assigned or pledged by the  Borrower to any Person other than the Collateral Agent, for the benefit of the Secured Parties.  22. Such Loan Asset, together with the Underlying Instruments related thereto,  contains provisions substantially to the effect that the Obligor with respect to such Loan Asset (and  any guarantor of such Obligor’s obligations thereunder), had full legal capacity to execute and  deliver the Loan Agreement which creates such Loan Asset and any other documents related  thereto.  23. No Obligor of any Loan Asset is a Governmental Authority.  24. The Servicer has determined that (a) for each Loan Asset which was  originated by an Affiliate of the Servicer, it was originated in the ordinary course of such  originator’s business and, to the extent required by Applicable Law, such originator has all  





 






   Sch. III-4  #75870257_v11  necessary licenses and permits to originate or acquire such Loan Asset in the State where the  Obligor was located (to the extent required by Applicable Law), (b) each such Loan Asset was  acquired by the Borrower pursuant to customary assignment and transfer documents and (c) to the  extent required by Applicable Law, the Borrower has all necessary licenses and permits to  purchase and own such Loan Assets and enter into Loan Agreements pursuant to which such Loan  Asset was created, in the State where the Obligor is located (to the extent required by Applicable  Law); provided that any failure by the originator or the Borrower, as applicable, to have the  necessary licenses and permits in the applicable State shall not preclude such Loan Asset from  being deemed an Eligible Loan Asset if, upon discovery or knowledge of such failure, the  originator or the Borrower, as applicable, promptly commences and is thereafter diligently taking  the appropriate measures to obtain the necessary licenses and permits in such State and such  necessary licenses and permits can be obtained in a reasonable time, all as determined by the  Administrative Agent in its reasonable and sole discretion.  25. To the Borrower’s knowledge, there are no proceedings pending or  threatened in writing (i) which could reasonably be expected to result in a Bankruptcy Event with  respect to the Obligor of such Loan Asset, or (ii) wherein the Obligor of such Loan Asset, any  other obligated party or any governmental agency has alleged that such Loan Asset or the Loan  Agreement which creates such Loan Asset is illegal or unenforceable.  26. Each such Loan Asset requires the related Obligor to pay all maintenance,  repair, insurance and taxes, together with all other ancillary costs and expenses, with respect to the  related Underlying Collateral.  27. The Underlying Collateral related to each such Loan Asset has not, and will  not, be used by the related Obligor in any manner or for any purpose which would result in any  material risk of liability being imposed upon the Borrower or the Lender under any federal, state,  local or foreign laws, common laws, statutes, codes, ordinances, rules, regulations, permits,  judgments, agreements or order related to addressing the environment, health or safety.  28. Each such Loan Asset, upon its acquisition by the Borrower, has a  remaining term to maturity not greater than seven years.  29. No such Loan Asset contains confidentiality restrictions that would prohibit  the Lender or the Administrative Agent from accessing all necessary information (as required to  be provided pursuant to the Transaction Documents) with regards to such Loan Asset.   30. The Servicer is servicing each such Loan Asset in accordance in all material  respects with the Servicing Standard.  31. Within 5 Business Days of the applicable Cut-Off Date, all of the Required  Loan Documents and the Loan Asset Checklist, acceptable to the Administrative Agent and the  Servicer, with respect to such Loan Asset have been, or will be, delivered to the Collateral  Custodian and all Servicing Files are being or shall be maintained at the principal place of business  of the Servicer in accordance with documented safety procedures approved by the Administrative  Agent.  





 






   Sch. III-5  #75870257_v11  32. Underwriting materials prepared by the Servicer or otherwise in its  possession with respect to each such Loan Asset reasonably requested by the Administrative Agent  have been provided to the Administrative Agent, subject to applicable confidentiality restrictions.  33. As of the related Cut-Off Date, no such Loan Asset is subject to any  Material Modification.  34. The Servicer has determined to the best of its knowledge that each such  Loan Asset is not an extension of credit by the relevant originator of such Loan Asset to the Obligor  for the purpose of (i) making any past due principal, interest or other payments due on such Loan  Asset, (ii) preventing such Loan Asset or any other loan to the related Obligor from becoming past  due or (iii) preventing such Loan Asset from becoming defaulted.  35. The Obligor with respect to such Loan Asset (i) is a business organization  (and not a natural person) duly organized and validly existing under the laws of its jurisdiction of  organization; (ii) is a legal operating entity or holding company; (iii) has not entered into the Loan  Asset primarily for personal, family or household purposes; and (iv) is not the subject of a  Bankruptcy Event, and such Obligor is not in financial distress and has not experienced a material  adverse change in its condition, financial or otherwise, in each case, as determined by the Servicer  in its reasonable discretion unless approved in writing by the Administrative Agent.  36. Reserved.  37. Each such Loan Asset is not an Equity Security and does not provide for the  conversion or exchange into an Equity Security at any time on or after the date it is included as  part of the Collateral Portfolio.  For the purposes of this Section 37, “Equity Security” shall mean  (i) (x) any equity security or (y) any other security that, at the time of acquisition by the Borrower,  was not eligible for purchase by the Borrower as a Loan Asset and (ii) any security that trades  “stapled” to a Loan Asset and that itself is not eligible for purchase by the Borrower as a Loan  Asset.   38. As of the related Cut-Off Date, each such Loan Asset was originated or  purchased in accordance with the Servicing Standard.  39. Each such Loan Asset is not a Loan Asset with respect to which interest  required by the Loan Agreement to be paid in cash has previously been deferred or capitalized as  principal and not subsequently paid in full; unless the Obligor has commenced paying in cash  current interest required to be paid in cash.  40. Each such Loan Asset (other than a Loan Asset originated by the Borrower)  was acquired from a Person that is not an Affiliate of the Borrower, the Servicer or Equityholder,  provided that acquisitions of Loan Assets by an Affiliate are permitted to the extent such  acquisition was made pursuant to a Loan and Sale Agreement substantially in the form of Exhibit  P (or otherwise in form and substance acceptable to the Administrative Agent in its sole discretion),  and Administrative Agent has received a true sale opinion acceptable to Administrative Agent in  its sole discretion with respect to such acquisitions.    





 






   Sch. III-6  #75870257_v11  41. If such Loan Asset is a Revolving Loan Asset, a Delayed Draw Loan Asset  or a letter-of-credit obligation, after giving effect to such acquisition of such Loan Asset, the  Unfunded Exposure Amount would not exceed $22,500,000.  42. If such Loan Asset is a Revolving Loan Asset, a Delayed Draw Loan Asset  or a letter-of-credit obligation, after giving effect to such acquisition of such Loan Asset, the  Unfunded Exposure Amount would not exceed 15% of the Maximum Facility Amount.  43. As of the related Cut-Off Date, EBITDA of the Obligor and its consolidated  subsidiaries for the consecutive twelve month period most recently ended prior to such Cut-Off  Date for which financial statements are most recently provided is not less than $10,000,000.  44. As of the related Cut-Off Date, with respect to each such Loan Asset  acquired by the Borrower on which the security interest in such Loan Asset is granted to the  Collateral Agent, for the benefit of the Secured Parties, under the Agreement, the Servicer will  have caused the records relating to such Loan Asset to be clearly and unambiguously marked to  show that such Loan Asset is owned by the Borrower.  45. The Servicer (directly or through the Investment Manager) on behalf of  the Borrower (i) for purposes of assessing Borrower’s purchase of each such Loan Asset,  underwrote each such Loan Asset, including, without limitation, the completion of a due diligence  and, if applicable, a collateral assessment for each Loan Asset, (ii) directed the origination or  purchase of each such Loan Asset by the Borrower and (iii) is managing each such Loan Asset in  accordance in all material respects with the Servicing Standard  46. Such Loan Asset is not a bond, security or other debt obligation that is not  a loan.  47. No selection procedure adverse to the interests of the Secured Parties was  utilized by the Borrower or Servicer in the selection of such Loan Asset for inclusion in the  Collateral Portfolio.  48. The acquisition and ownership of such Loan Asset by the Borrower does  not prevent it from qualifying for the “loan securitization” exclusion set forth in the implementing  regulations of the Volcker Rule.  49. Such Loan Asset, and any payment made with respect to such Loan Asset,  has not been more than thirty (30) days past due with respect to any payment within the preceding  twelve (12) months.  50. If more than one Loan Asset has been made to the Obligor, then each such  Loan Asset is (i) cross-collateralized and cross-defaulted, (ii) owned by the Borrower and pledged  as part of the Collateral Portfolio hereunder or (iii) subject to an intercreditor agreement in form  and substance satisfactory to Servicer in its reasonable discretion.  51. As of the related Cut-Off Date, the value of the Underlying Collateral  securing the Loan Asset (or the enterprise value of the underlying business determined in  accordance with a methodology reasonably acceptable to the Administrative Agent) at the time  





 






   Sch. III-7  #75870257_v11  such Loan Asset was purchased, equals or exceeds the outstanding principal balance of such Loan  Asset plus the aggregate outstanding balances of all other loans of equal seniority secured by the  same Underlying Collateral.  52. The Underlying Instruments with respect to such Loan Asset contain a  requirement that the applicable underlying Obligor deliver (i) any financial statements (including  unaudited financial statements) by the date that is no later than ninety (90) days after the end of  each fiscal quarter (other than the last quarter of any fiscal year), with respect to quarterly reports,  and (ii) with respect to annual reports, any audited financial statements by the date that is no later  than one hundred fifty (150) days after the end of any fiscal year (or if such annual reports are not  required to be delivered by the related Obligor on or before such date, such later date on which it  is required to be delivered by the related Obligor, but in any event not later than one hundred eighty  (180) days after the end of any fiscal year).  53. With respect to each item of Underlying Collateral as of the applicable Cut- Off Date for the Loan Asset related to such Underlying Collateral, to the actual knowledge of a  Responsible Officer of the Borrower: (a) the related Obligor’s operations comply in all material  respects with all applicable Environmental Laws; (b) none of the related Obligor’s operations is  the subject of a federal or state investigation evaluating whether any remedial action, involving  expenditures, is needed to respond to a release of any Hazardous Materials into the environment;  and (c) the related Obligor does not have any material contingent liability in connection with any  release of any Hazardous Materials into the environment, in each case except as could not  reasonably be expected to have a Material Adverse Effect.  As of the applicable Cut-Off Date for  the Loan Asset related to such Underlying Collateral, neither the Borrower or the Servicer has  received any written or verbal notice of, or inquiry from any Governmental Authority regarding,  any violation, alleged violation, non-compliance, liability or potential liability regarding  environmental matters or compliance with Environmental Laws with regard to any of the  Underlying Collateral, nor does any such Person have knowledge or reason to believe that any  such notice will be received or is being threatened, in each case except as could not reasonably be  expected to have a Material Adverse Effect.      





 






     Sch. IV-1  #75870257_v11   SCHEDULE IV  AGREED-UPON PROCEDURES FOR   INDEPENDENT PUBLIC ACCOUNTANTS    In accordance with Section 6.10 of the Agreement, the Servicer will cause a firm of nationally  recognized independent public accountants to furnish in accordance with attestation standards  established by the American Institute of Certified Public Accountants a report to the effect that  such accountants have either verified, compared, or recalculated each of the following accounts in  the Servicing Report to the applicable system or records of the Servicer:  • Loan Asset List:  o Loan Asset Type  o Outstanding Loan Balance (Loan & Obligor)  o Cut-Off Date (the date that the Loan Asset is added to the facility)  o Purchase Price  o Loan Maturity Date  o Fixed/Floating  o Index, spread, interest paid in kind  o Moody’s Industry Classification  o Current principal amount  o Moody’s and S&P ratings (if applicable)  o Days Delinquent  o Exposure Amount  o trailing twelve-month EBITDA for the twelve consecutive month then most  recently ended  o the as-of date for the statistic in the foregoing bullet point  • Borrowing Base  • Advances Outstanding  • Cash Reconciliation report  • Discretionary Sales Calculations, Substitution Calculations, Optional Sales Calculations,  Lien Release Divided Calculations    At the discretion of the Administrative Agent and a firm of nationally recognized independent  public accountants, three random Servicing Reports for each fiscal year (including one that  pertains to a month immediately prior to a Payment Date) will be chosen and reviewed.    The report provided by such firm may be in a format such typically utilized for a report of this  nature; provided that it will consist of at a minimum (i) a list of deviations from the Servicing  Report and (ii) discuss with the Servicer the reason for such deviations, and set forth the findings  in such report.    





 






     Sch. V-1  #75870257_v11   SCHEDULE V  LOAN ASSET SCHEDULE  For each Loan Asset, the Borrower shall provide, as applicable, the following information and the  applicable Loan Asset Checklist:  (a) Loan Asset Number  (b) Obligor Name  (c) Loan Asset Type (Note or Noteless)  (d) Original Loan Asset Amount  (e) Sponsor Name    





 






Sch. VI  #75870257_v11 SCHEDULE VI  PRINCIPAL COLLECTION ACCOUNT – WIRE INSTRUCTIONS  





 






  #75870257_v11 Sch. VII   SCHEDULE VII  INDUSTRY CLASSIFICATIONS  Moody’s 35 Industry Categories  1. Aerospace & Defense  2. Automotive  3. Banking  4. Beverage, Food, & Tobacco  5. Capital Equipment  6. Chemicals, Plastics, & Rubber  7. Construction & Building  8. Consumer Goods:  Durable  9. Consumer Goods:  Non-Durable  10. Containers, Packaging, & Glass  11. Energy:  Electricity  12. Energy:  Oil & Gas  13. Environmental Industries  14. FIRE:  Finance  15. FIRE:  Insurance  16. FIRE:  Real Estate  17. Forest Products & Paper  18. Healthcare & Pharmaceuticals  19. High Tech Industries  20. Hotel, Gaming, & Leisure  21. Media:  Advertising, Printing & Publishing  22. Media:  Broadcasting & Subscription  23. Media:  Diversified & Production  24. Metals & Mining  25. Retail  26. Services:  Business  27. Services:  Consumer  28. Sovereign & Public Finance  29. Telecommunications  30. Transportation:  Cargo  31. Transportation:  Consumer  32. Utilities:  Electric  33. Utilities:  Oil & Gas  34. Utilities:  Water  35. Wholesale