baringsbdccreditagreemen






                                                    Exhibit 10.1             SENIOR SECURED    REVOLVING CREDIT AGREEMENT                 dated as of              February 21, 2019                   among            BARINGS BDC, INC.                 as Borrower          The LENDERS Party Hereto             ING CAPITAL LLC           as Administrative Agent             ING CAPITAL LLC,       JPMORGAN CHASE BANK, N.A.         BANK OF MONTREAL and           FIFTH THIRD BANK  as Joint Lead Arrangers and Joint Bookrunners                    and       JPMORGAN CHASE BANK, N.A.             as Syndication Agent                    and          BANK OF MONTREAL and           FIFTH THIRD BANK          as Documentation Agents  





 






                                      TABLE OF CONTENTS                                                                       Page                             ARTICLE I.                                                               DEFINITIONS   SECTION 1.01   Defined Terms ...................................................................................... 1  SECTION 1.02   Classification of Loans and Borrowings ............................................. 41  SECTION 1.03   Terms Generally.................................................................................. 41  SECTION 1.04   Accounting Terms; GAAP .................................................................. 42  SECTION 1.05   Currencies; Currency Equivalents ...................................................... 43                              ARTICLE II.                                                               THE CREDITS   SECTION 2.01   The Commitments ............................................................................... 44  SECTION 2.02   Loans and Borrowings ........................................................................ 45  SECTION 2.03   Requests for Borrowings..................................................................... 45  SECTION 2.04   Letters of Credit .................................................................................. 47  SECTION 2.05   Funding of Borrowings ....................................................................... 52  SECTION 2.06   Interest Elections ................................................................................. 52  SECTION 2.07   Termination, Reduction or Increase of the Commitments .................. 54  SECTION 2.08   Repayment of Loans; Evidence of Debt ............................................. 57  SECTION 2.09   Prepayment of Loans .......................................................................... 58  SECTION 2.10   Fees ..................................................................................................... 62  SECTION 2.11   Interest................................................................................................. 64  SECTION 2.12   Eurocurrency Borrowing Provisions................................................... 65  SECTION 2.13   Increased Costs ................................................................................... 68  SECTION 2.14   Break Funding Payments .................................................................... 69  SECTION 2.15   Taxes ................................................................................................... 70  SECTION 2.16   Payments Generally; Pro Rata Treatment: Sharing of Set-offs .......... 75  SECTION 2.17   Defaulting Lenders.............................................................................. 77  SECTION 2.18   Mitigation Obligations; Replacement of Lenders ............................... 79  SECTION 2.19   Maximum Rate.................................................................................... 80                              ARTICLE III.                                                   REPRESENTATIONS AND WARRANTIES   SECTION 3.01   Organization; Powers .......................................................................... 81  SECTION 3.02   Authorization; Enforceability ............................................................. 81  SECTION 3.03   Governmental Approvals; No Conflicts ............................................. 81  SECTION 3.04   Financial Condition; No Material Adverse Effect .............................. 82  SECTION 3.05   Litigation ............................................................................................. 82  SECTION 3.06   Compliance with Laws and Agreements ............................................ 82                                  (i)                                                                                           





 






                                                                           SECTION 3.07   Taxes ................................................................................................... 82  SECTION 3.08   ERISA ................................................................................................. 83  SECTION 3.09   Disclosure ........................................................................................... 83  SECTION 3.10   Investment Company Act; Margin Regulations ................................. 83  SECTION 3.11   Material Agreements and Liens .......................................................... 84  SECTION 3.12   Subsidiaries and Investments .............................................................. 84  SECTION 3.13   Properties ............................................................................................ 85  SECTION 3.14   Solvency .............................................................................................. 85  SECTION 3.15   No Default ........................................................................................... 85  SECTION 3.16   Use of Proceeds................................................................................... 85  SECTION 3.17   Security Documents ............................................................................ 85  SECTION 3.18   Financing Subsidiaries ........................................................................ 86  SECTION 3.19   Affiliate Agreements ........................................................................... 86  SECTION 3.20   Compliance with Sanctions................................................................. 86  SECTION 3.21   Anti-Money Laundering and Sanctions Program ............................... 86  SECTION 3.22   Anti-Corruption Laws ......................................................................... 87  SECTION 3.23   Beneficial Ownership Certification .................................................... 87  SECTION 3.24   EEA Financial Institutions .................................................................. 87                              ARTICLE IV.                                                               CONDITIONS   SECTION 4.01   Effective Date ..................................................................................... 87  SECTION 4.02   Conditions to Each Credit Event......................................................... 91                              ARTICLE V.                                                        AFFIRMATIVE COVENANTS   SECTION 5.01   Financial Statements and Other Information ...................................... 92  SECTION 5.02   Notices of Material Events.................................................................. 95  SECTION 5.03   Existence; Conduct of Business .......................................................... 95  SECTION 5.04   Payment of Obligations....................................................................... 95  SECTION 5.05   Maintenance of Properties; Insurance ................................................. 96  SECTION 5.06   Books and Records; Inspection and Audit Rights .............................. 96  SECTION 5.07   Compliance with Laws and Agreements ............................................ 97  SECTION 5.08   Certain Obligations Respecting Subsidiaries; Further                 Assurances .......................................................................................... 97  SECTION 5.09   Use of Proceeds................................................................................. 100  SECTION 5.10   Status of RIC and BDC ..................................................................... 101  SECTION 5.11   Investment Policies; Valuation Policy .............................................. 101  SECTION 5.12   Portfolio Valuation and Diversification Etc ..................................... 101  SECTION 5.13   Calculation of Borrowing Base ......................................................... 107  SECTION 5.14   Taxes ................................................................................................. 116  SECTION 5.15   Post-Closing Matters ......................................................................... 116                                  (ii)                                                                                           





 






                                                                                                      ARTICLE VI.                                                          NEGATIVE COVENANTS   SECTION 6.01   Indebtedness ...................................................................................... 116  SECTION 6.02   Liens .................................................................................................. 118  SECTION 6.03   Fundamental Changes and Dispositions of Assets ........................... 119  SECTION 6.04   Investments ....................................................................................... 121  SECTION 6.05   Restricted Payments .......................................................................... 122  SECTION 6.06   Certain Restrictions on Subsidiaries ................................................. 123  SECTION 6.07   Certain Financial Covenants ............................................................. 123  SECTION 6.08   Transactions with Affiliates .............................................................. 124  SECTION 6.09   Lines of Business .............................................................................. 125  SECTION 6.10   No Further Negative Pledge .............................................................. 125  SECTION 6.11   Modifications of Indebtedness and Affiliate Agreements ................ 125  SECTION 6.12   Payments of Longer-Term Indebtedness .......................................... 126  SECTION 6.13   Modification of Investment and Valuation Policies ......................... 126  SECTION 6.14   SBIC Guarantees ............................................................................... 126  SECTION 6.15   Derivative Transactions .................................................................... 126                             ARTICLE VII.                                                           EVENTS OF DEFAULT                             ARTICLE VIII.                                                       THE ADMINISTRATIVE AGENT   SECTION 8.01   Appointment ..................................................................................... 130  SECTION 8.02   Capacity as Lender ............................................................................ 130  SECTION 8.03   Limitation of Duties; Exculpation .................................................... 131  SECTION 8.04   Reliance............................................................................................. 131  SECTION 8.05   Sub-Agents ........................................................................................ 132  SECTION 8.06   Resignation; Successor Administrative Agent .................................. 132  SECTION 8.07   Reliance by Lenders .......................................................................... 132  SECTION 8.08   Modifications to Loan Documents.................................................... 133  SECTION 8.09   Certain ERISA Matters ..................................................................... 133  SECTION 8.10   Agents ............................................................................................... 134  SECTION 8.11   Collateral Matters.............................................................................. 134  SECTION 8.12   Credit Bidding ................................................................................... 135                              ARTICLE IX.                                                             MISCELLANEOUS   SECTION 9.01   Notices; Electronic Communications ............................................... 136  SECTION 9.02   Waivers; Amendments ...................................................................... 140                                  (iii)                                                                                           





 






                                                                                         SECTION 9.03   Expenses; Indemnity; Damage Waiver ............................................. 143         SECTION 9.04   Successors and Assigns..................................................................... 145         SECTION 9.05   Survival ............................................................................................. 151         SECTION 9.06   Counterparts; Integration; Effectiveness; Electronic Execution ....... 151         SECTION 9.07   Severability ....................................................................................... 151         SECTION 9.08   Right of Setoff................................................................................... 152         SECTION 9.09   Governing Law; Jurisdiction; Etc ..................................................... 152         SECTION 9.10   WAIVER OF JURY TRIAL ............................................................. 153         SECTION 9.11   Judgment Currency ........................................................................... 153         SECTION 9.12   Headings ........................................................................................... 154         SECTION 9.13   Treatment of Certain Information; Confidentiality ........................... 154         SECTION 9.14   USA PATRIOT Act .......................................................................... 155         SECTION 9.15   Termination ....................................................................................... 156         SECTION 9.16   Acknowledgment and Consent to Bail-In of EEA Financial                        Institutions......................................................................................... 156         SECTION 9.17   Interest Rate Limitation .................................................................... 156        SCHEDULE 1.01(a) -  Approved Dealers and Approved Pricing Services   SCHEDULE 1.01(b) -  Commitments  SCHEDULE 1.01(c) -  Eligibility Criteria   SCHEDULE 1.01(d) -  Industry Classification Groups   SCHEDULE 3.11(a) -  Material Agreements   SCHEDULE 3.11(b) -  Liens  SCHEDULE 3.12(a) -  Subsidiaries  SCHEDULE 3.12(b) -  Investments  SCHEDULE 6.08    -  Certain Affiliate Transactions   EXHIBIT A   -  Form of Assignment and Assumption  EXHIBIT B   -  Form of Borrowing Base Certificate  EXHIBIT C   -  Form of Promissory Note  EXHIBIT D    - Form of Borrowing Request  EXHIBIT E    - Form of Interest Election Request                                          (iv)                                                                                      





 






                 SENIOR SECURED REVOLVING CREDIT AGREEMENT dated as of February   21, 2019 (this “Agreement”), among BARINGS BDC, INC., a Maryland corporation (the   “Borrower”), the LENDERS party hereto, and ING CAPITAL LLC, as Administrative Agent.                WHEREAS, the Borrower has requested that the Lenders (as defined herein) extend   credit to the Borrower from time to time pursuant to the commitments as set forth herein and  the   Lenders have agreed to extend such credit upon the terms and conditions hereof.               NOW, THEREFORE, in consideration of the premises and the covenants and  agreements contained herein, the parties hereto hereby agree as follows:                                     ARTICLE I.                                                                             DEFINITIONS                SECTION 1.01   Defined Terms.  As used in this Agreement, the following terms   have the meanings specified below:                “ABR”, when used in reference to any Loan or Borrowing, refers to whether such   Loan is, or the Loans constituting such Borrowing are, bearing interest at a rate determined by   reference to the Alternate Base Rate.                “Adjusted Borrowing Base” means the Borrowing Base minus the aggregate   amount of Cash and Cash Equivalents included in the Borrowing Base.                “Adjusted Covered Debt Balance” means, on any date, the aggregate Covered Debt   Amount on such date minus the aggregate amount of Cash and Cash Equivalents included in the   Borrowing Base (excluding any Cash held by the Administrative Agent pursuant to Section   2.04(k)).                “Adjusted Eurocurrency Rate” means, for the Interest Period for any Eurocurrency   Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)   equal to the greater of (i) (a) the Eurocurrency Rate for such Interest Period multiplied by (b) the   Statutory Reserve Rate for such Interest Period and (ii) zero.                “Administrative Agent” means ING, in its capacity as administrative agent for the   Lenders hereunder, and its successors in such capacity as provided in Section 8.06.                “Administrative Agent’s Account” means, for each Currency, an account in respect   of such Currency designated by the Administrative Agent in a notice to the Borrower and the   Lenders.                “Administrative Questionnaire” means an Administrative Questionnaire in a form   supplied by the Administrative Agent.                “Advance Rate” has the meaning assigned to such term in Section 5.13.                                                                                        





 






                                                        “Affiliate” means, with respect to a specified Person, another Person that directly,   or indirectly through one or more intermediaries, Controls or is Controlled by or is under common   Control with the Person specified.  Anything herein to the contrary notwithstanding, the term   “Affiliate” shall not include any Person that constitutes an Investment held by any such Person in   the ordinary course of business.  For the avoidance of doubt, the term “Affiliate” shall include the   Investment Advisor.                “Affiliate Agreements” means, collectively, (a) the Investment Advisory   Agreement, dated as of August 2, 2018, between the Borrower and Barings and (b) the   Administration Agreement, dated as of August 2, 2018, between the Borrower and Barings.                “Agent External Value” has the meaning assigned to such term in Section   5.12(b)(iii)(A).                “Agency Account” has the meaning assigned to such term in Section 5.08(c)(v).                “Agreed Foreign Currency” means, at any time, any of Canadian Dollars, Euros,   Pounds Sterling, AUD and, with the agreement of each Multicurrency Lender, any other Foreign   Currency, so long as, in respect of any such specified Foreign Currency or other Foreign Currency,   at such time (a) such Foreign Currency is dealt with in the London interbank deposit market or, in  the case of Canadian Dollars or AUD, the relevant local market for obtaining quotations, (b) such  Foreign Currency is freely transferable and convertible into Dollars in the London foreign  exchange market and (c) no central bank or other governmental authorization in the country of  issue of such Foreign Currency (including, in the case of the Euro, any authorization by the  European Central Bank) is required to permit use of such Foreign Currency by any Multicurrency  Lender  for making any Loan hereunder or to permit the Issuing Bank to issue (or to make payment  under) any Letter of Credit denominated in such Foreign Currency and/or to permit the Borrower  to borrow and repay the principal thereof and to pay the interest thereon (or to repay any LC  Disbursement under a Letter of Credit denominated in such Foreign Currency), unless such  authorization has been obtained and is in full force and effect.                “Agreement” has the meaning assigned to such term in the preamble of this   Agreement.                “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of   (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for such day plus   1/2 of 1%, (c) the Overnight Bank Funding Rate plus 1/2 of 1%, (d) the Adjusted Eurocurrency   for deposits in Dollars for a period of three (3) months plus 1% and (e) 1%.  Any change in the   Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, Overnight   Bank Funding Rate, or such Adjusted Eurocurrency Rate shall be effective from and including the   effective date of such change in the Prime Rate, the Federal Funds Effective Rate, Overnight Bank   Funding Rate, or such Adjusted Eurocurrency Rate, as the case may be.                “Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction   from time to time relating to bribery or corruption.                                           2                                                                                      





 






                                                        “Applicable Dollar Percentage” means, with respect to any Dollar Lender, the   percentage of the total Dollar Commitments represented by such Dollar Lender’s Dollar   Commitments.  If the Dollar Commitments have terminated or expired, the Applicable Dollar   Percentage shall be determined based upon the Dollar Commitments most recently in effect, giving   effect to any assignments pursuant to Section 9.04(b).                “Applicable External Value” shall mean with respect to any Unquoted Investment,   the most recent Borrower External Unquoted Value determined with respect to such Unquoted   Investment; provided, however, if an Agent External Value with respect to such Unquoted   Investment is more recent than such Borrower External Unquoted Value, then the term   “Applicable External Value” shall mean the most recent Agent External Value obtained with   respect to such Unquoted Investment.                “Applicable Margin” means a per annum rate determined on a daily basis according   to the following pricing grid:                                         Eurocurrency Loans   ABR Loans    During any period that the Ratings 2.25%                  1.25%   Condition is not satisfied    During any period that the Ratings 2.00%                  1.00%   Condition is satisfied    Any change in the Applicable Margin as a result of a change in the Ratings Condition shall be   effective as of the effective date of the change in the Borrower’s Credit Rating.                “Applicable Multicurrency Percentage” means, with respect to any Multicurrency   Lender, the percentage of the total Multicurrency Commitments represented by such   Multicurrency Lender’s Multicurrency Commitments.  If the Multicurrency Commitments have   terminated or expired, the Applicable Multicurrency Percentage shall be determined based upon   the Multicurrency Commitments most recently in effect, giving effect to any assignments pursuant   to Section 9.04(b).                “Applicable Percentage” means, with respect to any Lender, the percentage of the   total Commitments represented by such Lender’s Commitments.  If the Commitments have   terminated or expired, the Applicable Percentages shall be determined based upon the   Commitments most recently in effect, giving effect to any assignments pursuant to Section 9.04(b).                “Approved Dealer” means (a) in the case of any Eligible Portfolio Investment that   is not a U.S. Government Security, a bank or a broker-dealer registered under the Securities   Exchange Act of 1934 of nationally recognized standing or an Affiliate thereof, as set forth on  Schedule 1.01(a), (b) in the case of a U.S. Government Security, any primary dealer in U.S.   Government Securities and (c) in the case of any foreign Portfolio Investment, any foreign broker- dealer of internationally recognized standing or an Affiliate thereof, in the case of each of clauses                                          3                                                                                      





 






                                            (a), (b) and (c) above, as set forth on Schedule 1.01(a) or any other bank or broker-dealer   acceptable to the Administrative Agent in its reasonable determination.                “Approved Pricing Service” means (a) a pricing or quotation service as set forth in   Schedule 1.01(a) or (b) any other pricing or quotation service (i) approved by the Directing Body   of the Borrower, (ii) designated in writing by the Borrower to the Administrative Agent (which   designation shall be accompanied by a copy of a resolution of the Directing Body of the Borrower   that such pricing or quotation service has been approved by the Borrower), and (iii) acceptable to   the Administrative Agent in its reasonable determination.                “Approved Third-Party Appraiser” means any Independent nationally recognized   third-party appraisal firm (a) designated by the Borrower in writing to the Administrative Agent   (which designation shall be accompanied by a copy of a resolution of the Directing Body of the  Borrower that such firm has been approved by the Borrower for purposes of assisting the Directing  Body of the Borrower in making valuations of portfolio assets to determine the Borrower’s  compliance with the applicable provisions of the Investment Company Act) and (b) acceptable to  the Administrative Agent in its reasonable discretion; provided that, if any proposed appraiser   requests or requires a non-reliance letter, confidentiality agreement or similar agreement prior to   allowing the Administrative Agent to review any written valuation report, such Person shall only   be deemed an Approved Third-Party Appraiser if the Administrative Agent and such Approved   Third-Party Appraiser shall have entered into such a letter or agreement.  Subject to the foregoing,   it is understood and agreed that, so long as the same are Independent third-party appraisal firms   approved by the Directing Body of the Borrower, Alvarez & Marsal, Houlihan Lokey Howard &   Zukin Capital, Inc., Duff & Phelps LLC, Murray, Devine and Company, Lincoln Partners  Advisors, LLC, Stout Risius Ross, LLC and Valuation Research Corporation are acceptable to the  Administrative Agent solely to the extent they are not serving as the Independent Valuation  Provider.                “Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and   leaseback, assignment, conveyance, transfer or other disposition to, or any exchange of property   with, any Person, in one transaction or a series of transactions, of all or any part of any Obligor’s   assets or properties of any kind, whether real, personal, or mixed and whether tangible or   intangible, whether now owned or hereafter acquired; provided, however, the term “Asset Sale”   as used in this Agreement shall not include the disposition of Portfolio Investments originated by   the Borrower and promptly transferred to a Financing Subsidiary pursuant to the terms of Section   6.03(e) or 6.03(i) hereof.                “Assignment and Assumption” means an Assignment and Assumption entered into   by a Lender and an assignee (with the consent of any party whose consent is required by Section   9.04(b)), and accepted by the Administrative Agent as provided in Section 9.04 in the form of   Exhibit A or any other form reasonably approved by the Administrative Agent.                “Assuming Lender” has the meaning assigned to such term in Section 2.07(e)(i).                “AUD” and “A$” denote the lawful currency of The Commonwealth of Australia.                                          4                                                                                      





 






                                                        “AUD Rate” means for any Loans in AUD, (a) the AUD Screen Rate plus (b)   0.20%.                “AUD Screen Rate” means, with respect to any Interest Period, the average bid   reference rate administered by the Australian Financial Markets Association (or any other Person   that takes over the administration of such rate) for AUD bills of exchange with a tenor equal in   length to such Interest Period as displayed on page BBSY of the Reuters screen (or, in the event   such rate does not appear on such Reuters page, on any successor or substitute on such screen that   displays such rate, or on the appropriate page of such other information service that publishes such   rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion)   on or about 11:00 a.m. (Sydney, Australia time) on the first day of such Interest Period.  If the   AUD Screen Rate shall be less than zero, the AUD Screen Rate shall be deemed to be zero for   purposes of this Agreement.                “Availability Period” means the period from and including the Effective Date to   but excluding the earlier of the Revolver Termination Date and the date of termination of the   Commitments in accordance with this Agreement.                “Average COF Rate” has the meaning assigned to such term in Section 2.12(a).                “Bail-In Action” means the exercise of any Write-Down and Conversion Powers   by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial   Institution.                “Bail-In Legislation” means, with respect to any EEA Member Country   implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council   of the European Union, the implementing law for such EEA Member Country from time to time   which is described in the EU Bail-In Legislation Schedule.                “Bank Loans” has the meaning assigned to such term in Section 5.13.                “Barings” means Barings LLC, a Delaware limited liability company.                “Beneficial Ownership Certification” means a certification regarding a beneficial   ownership required by the Beneficial Ownership Regulation.                “Beneficial Ownership Regulation” means 31 C.F.R § 1010.230.                “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA)   that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any  Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of  Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or  “plan”.                “Board” means the Board of Governors of the Federal Reserve System of the   United States of America.                                          5                                                                                      





 






                                                      “Board of Directors” means, with respect to any person, (a) in the case of any  corporation, the board of directors of such person, (b) in the case of any limited liability company,  the board of managers (or the equivalent) of such person, or if there is none, the Board of Directors  of the managing member of such Person, (c) in the case of any partnership, the Board of Directors  (or the equivalent) of the general partner of such person and (d) in any other case, the functional  equivalent of the foregoing.               “Borrower” has the meaning assigned to such term in the preamble to this  Agreement.               “Borrower External Unquoted Value” has the meaning assigned to such term in  Section 5.12(b)(ii)(B)(y).               “Borrowing” means (a) all ABR Loans of the same Class made, converted or  continued on the same date and/or (b) all Eurocurrency Loans of the same Class denominated in  the same Currency that have the same Interest Period.               “Borrowing Base” has the meaning assigned to such term in Section 5.13.               “Borrowing Base Certificate” means a certificate of a Financial Officer of the  Borrower, substantially in the form of Exhibit B and appropriately completed.               “Borrowing Base Deficiency” means, at any date on which the same is determined,  the amount, if any, that the aggregate Covered Debt Amount as of such date exceeds the Borrowing  Base as of such date.               “Borrowing Request” means a request by the Borrower for a Borrowing in  accordance with Section 2.03, substantially in the form of Exhibit D hereto or such other form as  is reasonably satisfactory to the Administrative Agent.               “Broadly Syndicated Loan” has the meaning assigned to such term in Section 5.13.               “Business Day” means any day (a) that is not a Saturday, Sunday or other day on  which commercial banks in New York City are authorized or required by law to remain closed,  (b) when used in connection with a Eurocurrency Loan for a LIBOR Quoted Currency or in Euros,  the term “Business Day” shall also exclude any day on which banks are not open for dealings in  deposits in such LIBOR Quoted Currency or in Euros; and in addition, with respect to any date for  the payment or purchase of, or the fixing of an interest rate in relation to, any Non-LIBOR Quoted  Currency, the term “Business Day” shall also exclude any day on which banks are not open for  general business in the Principal Financial Center of the country of such Non-LIBOR Quoted  Currency and, if the Borrowings or LC Disbursements which are the subject of such a borrowing,  drawing, payment, reimbursement or rate selection are denominated in Euros, the term “Business  Day” shall also exclude any day on which the TARGET2 payment system is not open for the  settlement of payment in Euros.               “Calculation Amount” has the meaning assigned to such term in Section  5.12(b)(iii)(B).                                         6                                                                                    





 






                                                      “Canadian Dollar” means the lawful money of Canada.               “Canadian Prime Rate” means, on any day, the rate determined by the  Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN index rate that appears  on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the  PRIMCAN index is not published by Bloomberg, any other information service that publishes  such index from time to time, as selected by the Administrative Agent in its reasonable discretion)  and (ii) the CDOR Rate for one month, plus 1% per annum.  Any change in the Canadian Prime  Rate due to a change in the PRIMCAN index or the CDOR Rate shall be effective from and  including the effective date of such change in the PRIMCAN Index or the CDOR Rate,  respectively.               “Capital Lease Obligations” of any Person means the obligations of such Person 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 or finance leases on a balance sheet of such Person under GAAP,  and the amount of such obligations shall be the capitalized amount thereof determined in  accordance with GAAP.               “Cash” means any immediately available funds in Dollars or in any currency other  than Dollars (measured in terms of the Dollar Equivalent thereof) which is a freely convertible  currency.               “Cash Collateralize” means, with respect to a Letter of Credit, the pledge and  deposit of immediately available funds (or, if the Issuing Bank shall agree in its sole discretion,  other credit support) in the Currency of the Letter of Credit under which such LC Exposure arises  into a cash collateral account (the “Letter of Credit Collateral Account”) maintained with (or on  behalf of) the Administrative Agent in an amount equal to one hundred and two percent (102%)  of the face amount of such Letter of Credit (or such other amount as may be specified in any  applicable provision hereof) as collateral pursuant to documentation in form and substance  satisfactory to the Administrative Agent and the Issuing Bank.  “Cash Collateral” shall have a  meaning correlative to the foregoing and shall include the proceeds of such cash collateral and  other credit support.               “Cash Equivalents” means investments (other than Cash) that are one or more of  the following obligations:                     (a)   Short-Term U.S. Government Securities;                     (b)   investments in commercial paper maturing within 180 days from the        date of acquisition thereof and having, at such date of acquisition, a credit rating of at least        A-1 from S&P and at least P-1 from Moody’s;                     (c)   investments in certificates of deposit, banker’s acceptances and time        deposits maturing within 180 days from the date of acquisition thereof (i) issued or        guaranteed by or placed with, and money market deposit accounts issued or offered by,        any domestic office of any commercial bank organized under the laws of the United States                                        7                                                                                    





 






                                                of America or any State thereof or under the laws of a Permitted Foreign Jurisdiction;        provided that such certificates of deposit, banker’s acceptances and time deposits are held        in a securities account (as defined in the Uniform Commercial Code) through which the        Collateral Agent can perfect a security interest therein and (ii) having, at such date of        acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s;                     (d)   fully collateralized repurchase agreements with a term of not more        than 30 days from the date of acquisition thereof for U.S. Government Securities and       entered into with (i) a financial institution satisfying the criteria described in clause (c) of       this definition or (ii) an Approved Dealer having (or being a member of a consolidated       group having) at such date of acquisition, a credit rating of at least A-1 from S&P and at        least P-1 from Moody’s;                     (e)   certificates of deposit or bankers’ acceptances with a maturity of        ninety (90) days or less of any financial institution that is a member of the Federal Reserve        System having combined capital and surplus and undivided profits of not less than        $1,000,000,000; and                     (f)   investments in money market funds and mutual funds, which invest        substantially all of their assets in Cash or assets of the types described in clauses (a) through        (e) above;               provided, that (i) in no event shall Cash Equivalents include any obligation that  provides for the payment of interest alone (for example, interest-only securities or “IOs”); (ii) if  any of Moody’s or S&P changes its rating system, then any ratings included in this definition shall  be deemed to be an equivalent rating in a successor rating category of Moody’s or S&P, as the  case may be; (iii) Cash Equivalents (other than U.S. Government Securities, certificates of deposit  or repurchase agreements) shall not include any such investment representing more than 25% of  total assets of the Obligors in any single issuer; and (iv) in no event shall Cash Equivalents include  any obligation that is not denominated in Dollars or in an Agreed Foreign Currency.               “CDOR Rate” means, on any day and for any period, an annual rate of interest  equal to the average rate applicable to Canadian Dollar bankers’ acceptances for the applicable  period that appears on the Reuters Screen CDOR Page (or, in the event such rate does not appear  on such page or screen, on any successor or substitute page or screen that displays such rate, or on  the appropriate page of such other information service that publishes such rate from time to time,  as selected by the Administrative Agent in its reasonable discretion), rounded to the nearest 1/100th  of 1% (with .005% being rounded up), at approximately 10:15 a.m. Toronto time on such day, or  if such day is not a Business Day, then on the immediately preceding Business Day (the “CDOR  Screen Rate”); provided that if such CDOR Rate shall be less than zero, such rate shall be deemed  to be zero for purposes of this Agreement.               “CDOR Screen Rate” has the meaning assigned to such term in the definition of  the term “CDOR Rate”.               “CFC” means a Subsidiary that is a “controlled foreign corporation” directly or  indirectly owned by an Obligor within the meaning of Section 957 of the Code.                                        8                                                                                    





 






                                                      “Change in Control” means (a) the acquisition of ownership, directly or indirectly,  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) other than the  Investment Advisor of shares representing more than 35% of the aggregate ordinary voting power  represented by the issued and outstanding capital stock of the Borrower, (b) the occupation of a  majority of the seats (other than vacant seats) on the Board of Directors of the Borrower by Persons  who were not (A) members of the Board of Directors of the Borrower as of the later of (x) the  Effective Date and (y) the corresponding date of the previous year, (B) approved, selected or  nominated to become members of the Board of Directors of the Borrower by the Board of Directors  of the Borrower of which a majority consisted of individuals described in clause (A), or (C)  approved, selected or nominated to become members of the Board of Directors of the Borrower  by the Board of Directors of the Borrower of which a majority consisted of individuals described  in clause (A) and individuals described in clause (B) or (c) the acquisition of direct or indirect  Control of the Borrower by any Person or group other than the Investment Advisor.               “Change in Law” means (a) the adoption of any law, rule or regulation or treaty  after the Effective Date, (b) any change in any law, rule or regulation or treaty or in the  interpretation, implementation or application thereof by any Governmental Authority after the  Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section  2.13(b) or Section 2.18(a), by such Lender’s or the Issuing Bank’s holding company, if any, or by  any lending office of such Lender) with any request, guideline or directive (whether or not having  the force of law) of any Governmental Authority made or issued after the Effective Date; provided  that, notwithstanding anything herein to the contrary, (I) the Dodd-Frank Wall Street Reform and  Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith  and (II) all requests, rules, guidelines or directives promulgated by the Bank For International  Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority)  or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in  each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued,  promulgated or implemented.               “Class”, when used in reference to any Loan or Borrowing, refers to whether such  Loan, or the Loans constituting such Borrowing, are Dollar Loans or Multicurrency Loans; when  used in reference to any Lender, refers to whether such Lender is a Dollar Lender or a  Multicurrency Lender; and when used in reference to any Commitment, refers to whether such  Commitment is a Dollar Commitment or a Multicurrency Commitment.               “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to  time.               “COF Rate” has the meaning assigned to such term in Section 2.12(a).               “Collateral” has the meaning assigned to such term in the Guarantee and Security  Agreement.               “Collateral Agent” means ING in its capacity as Collateral Agent under the  Guarantee and Security Agreement, and includes any successor Collateral Agent thereunder.                                         9                                                                                    





 






                                                        “Commitment” means, collectively, the Dollar Commitments and the   Multicurrency Commitments.                “Commitment Increase” has the meaning assigned to such term in Section   2.07(e)(i).                “Commitment Increase Date” has the meaning assigned to such term in Section   2.07(e)(i).                “Consolidated Asset Coverage Ratio” means, on a consolidated basis for Borrower   and its Subsidiaries, the ratio which the value of total assets, less all liabilities and indebtedness   not represented by Senior Securities, bears to the aggregate amount of Senior Securities   representing indebtedness of the Borrower and its Subsidiaries (all as determined pursuant to the   Investment Company Act and any orders of the SEC issued to the Borrower thereunder).  For   clarity, the calculation of the Consolidated Asset Coverage Ratio shall be made in accordance with   any exemptive order issued by the SEC under Section 6(c) of the Investment Company Act relating   to the exclusion of any Indebtedness of any SBIC Subsidiary from the definition of Senior   Securities only so long as (a) such order is in effect, (b) no obligations have become due and owing  pursuant to the terms of any Permitted SBIC Guarantee and (c) such Indebtedness is owed to the  SBA.                “Control” means the possession, directly or indirectly, of the power to direct or   cause the direction of the management or policies of a Person, whether through the ability to   exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings   correlative thereto.                “Control Account” has the meaning assigned to such term in Section 5.08(c)(ii).                “Control Agreement” means that certain Control Agreement, dated as of the date   hereof, by and among the Borrower, Energy Hardware Holdings, Inc., the Collateral Agent and   the Custodian.                “Covenant-Lite Loan” has the meaning assigned to such term in Section 5.13.                “Covered Debt Amount” means, on any date, the sum of (x) all of the Credit   Exposures of all Lenders on such date, plus (y) the aggregate principal amount (including any   increase in the aggregate principal amount resulting from payable-in-kind interest) of Other   Covered Indebtedness outstanding on such date minus (z) LC Exposure that has been Cash   Collateralized or LC Exposure that has been backstopped in a manner reasonably satisfactory to   the Administrative Agent.  For the avoidance of doubt, for purposes of calculating the Covered   Debt Amount, any convertible securities included in the Covered Debt Amount will be included   at the then outstanding principal balance thereof.                “Covered Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with   respect to any payment made by or on account of any obligation of the Borrower under any Loan   Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.                                          10                                                                                      





 






                                                        “Credit Default Swap” means any credit default swap entered into as a means to   hedge the default risk of bonds, notes, loans, debentures or securities of the Borrower or any   Obligor.                “Credit Exposure” means, with respect to any Lender at any time, the sum of the   outstanding principal amount of such Lender’s Dollar Credit Exposure and Multicurrency Credit   Exposure at such time (including, for the avoidance of doubt, the Loans and LC Exposure   surviving after the Revolver Termination Date).                “Credit Rating” means the rating assigned by a Rating Agency to the senior   unsecured long term indebtedness of a Person.                “Currency” means Dollars or any Foreign Currency.                “Custodian” means State Street Bank and Trust Company, or any other financial   institution mutually agreeable to the Collateral Agent and the Borrower, as custodian holding   documentation for Portfolio Investments, and accounts of the Obligors holding Portfolio   Investments, on behalf of the Obligors and, pursuant to the Control Agreement, the Collateral   Agent.  The term “Custodian” includes any agent or sub-custodian acting on behalf of the  Custodian pursuant to the terms of the Custodian Agreement.                “Custodian Account” means an account subject to a Custodian Agreement.                “Custodian Agreement” means (i) that certain Control Agreement, dated as of the   date hereof, entered into by and between the Borrower and the Custodian and (ii) such other control   agreements as may be entered into by and among an Obligor, the Collateral Agent and a Custodian,   in form and substance reasonably satisfactory to the Administrative Agent and the Borrower.                “Default” means any event or condition which constitutes an Event of Default or   which upon notice, lapse of time or both would, unless cured or waived, become an Event of   Default.                “Defaulted Obligation” has the meaning assigned to such term in Section 5.13.                “Defaulting Lender” means any Lender that has, as reasonably determined by the   Administrative Agent, (a) failed to fund any portion of its Loans or participations in Letters of   Credit within two (2) Business Days of the date required to be funded by it hereunder, unless, in   the case of any Loans, such Lender notifies the Administrative Agent and the Borrower in writing   that such Lender’s failure is based on such Lender’s reasonable determination that the conditions   precedent to funding such Loan under this Agreement have not been met, such conditions have   not otherwise been waived in accordance with the terms of this Agreement and such Lender has   advised the Administrative Agent and the Borrower in writing (with reasonable detail of those   conditions that have not been satisfied) prior to the time at which such funding was to have been   made, (b) notified the Borrower, the Administrative Agent, the Issuing Bank or any other Lender   in writing that it does not intend to comply with any of its funding obligations under this   Agreement or has made a public statement that it does not intend to comply with its funding   obligations under this Agreement (unless such writing or public statement states that such position                                          11                                                                                      





 






                                          is based on such Lender’s reasonable determination that one or more conditions precedent to  funding (which conditions precedent, together with the applicable default, if any, shall be  specifically identified in such writing or public statement) cannot be satisfied), (c) failed, within  three (3) Business Days after request by the Administrative Agent or the Borrower to confirm in  writing to the Administrative Agent and the Borrower that it will comply with the terms of this  Agreement relating to its obligations to fund prospective Loans or participations in then  outstanding Letters of Credit (provided that such Lender shall cease to be a Defaulting Lender  pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent  and the Borrower), (d) otherwise failed to pay over to the Administrative Agent or any other  Lender any other amount (other than a de minimis amount) required to be paid by it hereunder  within two (2) Business Days of the date when due, unless the subject of a good faith dispute, or  (e) other than via an Undisclosed Administration, either (i) has been adjudicated as, or determined  by any Governmental Authority having regulatory authority over such Person or its assets to be,  insolvent or has a parent company that has been adjudicated as, or determined by any  Governmental Authority having regulatory authority over such Person or its assets to be, insolvent,  (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged  with reorganization or liquidation of its business or custodian, appointed for it, or has taken any  action in furtherance of, or indicating its consent to, approval of or acquiescence in any such  proceeding or appointment or has a parent company that has become the subject of a bankruptcy  or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for  the benefit of creditors or similar Person charged with reorganization or liquidation of its business  or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to,  approval of or acquiescence in any such proceeding or appointment or (iii) become the subject of  a Bail-In Action (unless in the case of any Lender referred to in this clause (e), the Borrower, the  Administrative Agent and the Issuing Bank shall be satisfied in the exercise of their respective  reasonable discretion that such Lender intends, and has all approvals required to enable it, to  continue to perform its obligations as a Lender hereunder); provided that a Lender shall not qualify  as a Defaulting Lender solely as a result of the acquisition or maintenance of an ownership interest  in such Lender or its parent company, or of the exercise of control over such Lender or any Person  controlling such Lender, by a Governmental Authority or instrumentality thereof, or solely as a  result of an Undisclosed Administration, so long as such ownership interest or Undisclosed  Administration does not result in or provide such Lender with immunity from the jurisdiction of  courts within the United States or from the enforcement of judgments or writs of attachment on its  assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or  disaffirm any contracts or agreements made with such Lender.               “DIP Loan” has the meaning assigned to such term in Section 5.13.               “Directing Body” means the Borrower’s Board of Directors (or appropriate  committee thereof with the necessary delegated authority).               “Disqualified Equity Interests” means Equity Interests of the Borrower that after  issuance are subject to any agreement between the holder of such Equity Interests and the Borrower  whereby the Borrower is required to purchase, redeem, retire, acquire, cancel or terminate such  Equity Interests, other than (x) as a result of a change of control, or (y) in connection with any                                         12                                                                                    





 






                                            purchase, redemption, retirement, acquisition, cancellation or termination with, or in exchange for,   shares of Equity Interests that are not Disqualified Equity Interests.                “Disqualified Lenders” means (i) any Person identified by name on the   “Disqualified Lender” list provided by the Borrower to the Administrative Agent on or before the   Effective Date as a direct competitor of the Borrower, (ii) any Person identified by name by the   Borrower to the Administrative Agent as a direct competitor from time to time after the Effective   Date that is approved by the Administrative Agent (such approval not to be unreasonably withheld   or delayed) and (iii) any Affiliates of any such Person identified above that are either identified in   writing to the Administrative Agent by the Borrower from time to time or readily identifiable   solely based on similarity of such Affiliate’s name; provided that no update of the list of   Disqualified Lenders shall apply retroactively to disqualify any parties that have previously   acquired an assignment or participation interest in the Loan or Commitments (or any Person that,   prior to such identification, has entered into a bona fide and binding trade for either of the foregoing  and has not yet acquired such assignment or participation) pursuant to the terms hereof; provided,   further that any designation of a Person as a Disqualified Lender shall not be effective until the   Business Day after written notice thereof is received by the Administrative Agent.                “Documentation Agents” means Bank of Montreal and Fifth Third.                “Dollar Commitment” means, with respect to each Dollar Lender, the commitment   of such Dollar Lender to make Loans denominated in Dollars hereunder, expressed as an amount   representing the maximum aggregate amount of such Lenders’ Dollar Credit Exposure permitted   hereunder, as such commitment may be (a) reduced or increased from time to time pursuant to   Section 2.07 or reduced from time to time pursuant to Section 2.09 or as otherwise provided in this   Agreement and (b) reduced or increased from time to time pursuant to assignments by or to such   Lender pursuant to Section 9.04.  The aggregate amount of each Lender’s Dollar Commitment as   of the Effective Date is set forth on Schedule 1.01(b) or in the Assignment and Assumption   pursuant to which such Lender shall have assumed its Commitment, as applicable.  The aggregate   amount of the Lenders’ Dollar Commitments as of the Effective Date is $300,000,000.                “Dollar Credit Exposure” means, with respect to any Lender at any time, the sum   of the outstanding principal amount of such Lender’s Loans at such time made or incurred under   such Lender’s Dollar Commitments.                “Dollar Equivalent” means, for any amount, at the time of determination thereof,   (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in an   Agreed Foreign Currency, the equivalent of such amount in Dollars determined by using the rate   of exchange for the purchase of dollars with the Agreed Foreign Currency in the London foreign   exchange market at or about 11:00 a.m. London time (or New York time, as applicable) on a   particular day as displayed by ICE Data Services  as the “ask price”, or as displayed on such other  information service which publishes that rate of exchange from time to time in place of ICE Data  Services (or if such service ceases to be available, the equivalent of such amount in dollars as  determined by the Administrative Agent using any method of determination it deems reasonably  appropriate in its sole discretion) and (c) if such amount is denominated in any other currency, the  equivalent of such amount in Dollars as determined by the Administrative Agent using any method  of determination it deems reasonably appropriate in its sole discretion.                                         13                                                                                      





 






                                                      “Dollar Lender” means the Persons listed on Schedule 1.01(b) as having Dollar  Commitments and any other Person that shall have become a party hereto pursuant to an  Assignment and Assumption that provides for it to assume Dollar Commitments or to acquire  Dollar Credit Exposure, other than any such Person that ceases to be a party hereto pursuant to an  Assignment and Assumption or otherwise in accordance with the terms hereof.               “Dollar Loan” means a Loan denominated in Dollars made by a Dollar Lender.               “Dollars” or “$” refers to lawful money of the United States of America.               “EBITDA” has the meaning assigned to such term in Section 5.13.               “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this  definition and is subject to consolidated supervision with its parent.               “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.               “EEA Resolution Authority” means any public administrative authority or any  Person entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.               “Effective Date” means the date on which the conditions specified in Section 4.01  are satisfied (or waived in accordance with Section 9.02).               “Eligible Liens” means any right of offset, banker’s lien, security interest or other  like rights against the Portfolio Investments held by the Custodian pursuant to or in connection  with its rights and obligations relating to the Custodian Account, provided that such rights are  subordinated, pursuant to the terms of the Control Agreement, to the first priority perfected  security interest in the Collateral created in favor of the Collateral Agent, except to the extent  expressly provided therein.               “Eligible Portfolio Investment” means any Portfolio Investment held by any  Obligor (and solely for purposes of determining the Borrowing Base, Cash (other than Cash  Collateral) and Cash Equivalents held by any Obligor) that, in each case, meets all of the criteria  set forth on Schedule 1.01(c) hereto; provided, that no Portfolio Investment, Cash or Cash  Equivalent shall constitute an Eligible Portfolio Investment or be included in the Borrowing Base  if the Collateral Agent does not at all times maintain a first priority, perfected Lien (subject to no  other Liens other than Eligible Liens) on such Portfolio Investment, Cash or Cash Equivalent or if  such Portfolio Investment, Cash or Cash Equivalent has not been or does not at all times continue  to be Delivered (as defined in the Guarantee and Security Agreement).  Without limiting the  generality of the foregoing, it is understood and agreed that any Portfolio Investments that have  been contributed or sold, purported to be contributed or sold or otherwise transferred to any                                         14                                                                                    





 






                                          Financing Subsidiary, Immaterial Subsidiary, CFC, Transparent Subsidiary or any other Person  that is not a Subsidiary Guarantor, or held by any Financing Subsidiary, Immaterial Subsidiary,  CFC, Transparent Subsidiary or any other Person that is not a Subsidiary Guarantor shall not be  treated as Eligible Portfolio Investments until distributed, sold or otherwise transferred to any  Obligor free and clear of all Liens (other than Eligible Liens).  Notwithstanding the foregoing,  nothing herein shall limit the provisions of Section 5.12(b)(i), which provide that, for purposes of  this Agreement, all determinations of whether an Investment is to be included as an Eligible  Portfolio Investment shall be determined on a Settlement-Date Basis, provided that no such  Investment shall be included as an Eligible Portfolio Investment to the extent it has not been paid  for in full.               “Equity Interests” means shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership  interests in a Person, and any warrants, options or other rights entitling the holder thereof to  purchase or acquire any such equity interest. As used in this Agreement, “Equity Interests” shall  not include convertible debt unless and until such debt has been converted to capital stock.               “ERISA” means the 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) or (c) of the Code,  or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single  employer under Section 414(m) or (o) of the Code.               “ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of  ERISA, with respect to a Plan (other than an event for which the 30-day notice period is waived);  (b) with respect to any Plan, the failure to satisfy the minimum funding standards set forth in  Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) the filing pursuant  to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the  minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of  its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of  any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (e) the  receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any  notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan  under Section 4041(c) or Section 4042 of ERISA; (f) the incurrence by the Borrower or any of its  ERISA Affiliates of Withdrawal Liability; (g) the occurrence of any non-exempt prohibited  transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect  to any Plan which would result in liability to a Lender; (h) the failure to make any required  contribution to a Multiemployer Plan or to any Plan that would result in the imposition of a lien or  other encumbrance or the provision of security under Section 412 or 430 of the Code or Section  302, 303 or 4068 of ERISA; or (i) the receipt by the Borrower or any ERISA Affiliate of any notice  concerning a determination that a Multiemployer Plan is insolvent as defined in Title IV of ERISA.               “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule  published by the Loan Market Association (or any successor person), as in effect from time to  time.                                        15                                                                                    





 






                                                        “EURIBOR Screen Rate” means, for any Interest Period, in the case of any   Eurocurrency Borrowing denominated in Euros, the European Interbank Offered Rate   administered by the European Money Markets Institute (or any other entity which takes over the   administration of that rate, or any such benchmark that would replace such rate) for the relevant   period and displayed on Page EURIBOR01 of the Reuters Screen or, in the event that such rate   does not appear on such Reuters page, on any successor or substitute page on such screen that   displays such rate, or on the appropriate page of such other information service that publishes such   rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion   (the “EURIBOR Screen Rate”); provided that, if the EURIBOR Screen Rate so determined would   be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.                “Euro” refers to the lawful money of the Participating Member States.                “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to   whether such Loan is, or the Loans constituting such Borrowing are, denominated in Dollars or an  Agreed Foreign Currency and bearing interest at a rate determined by reference to the Adjusted  Eurocurrency Rate.  For clarity, a Loan or Borrowing bearing interest by reference to clause (d) of   the definition of the Alternate Base Rate shall not be a Eurocurrency Loan or Eurocurrency   Borrowing.                “Eurocurrency Rate” means, with respect to (A) any Eurocurrency Borrowing in   any LIBOR Quoted Currency for any applicable Interest Period, the LIBOR Screen Rate as of the   Specified Time on the Quotation Day for such LIBOR Quoted Currency and Interest Period and   (B) any Eurocurrency Borrowing denominated in Euros for any applicable Interest Period, the   EURIBOR Screen Rate as of the Specified Time on the Quotation Day for such Interest Period   and (C) any Eurocurrency Borrowing in any Non-LIBOR Quoted Currency (other than Euros) and   for any applicable Interest Period, the applicable Local Rate as of the Specified Time and on the   Quotation Day for such Non-LIBOR Quoted Currency and Interest Period.  If the applicable   Screen Rate shall not be available for such Interest Period at the applicable time (the “Impacted   Interest Period”), then the Eurocurrency Rate for such Interest Period for such Eurocurrency   Borrowing shall be the Interpolated Rate at such time, subject to Section 2.12; provided, that if the   applicable Screen Rate shall not be available with respect to any Eurocurrency Borrowing for any   other reason, then the rate determined in accordance with Section 2.12 shall be the Eurocurrency   Rate for such Eurocurrency Borrowing; provided, further that, if the Eurocurrency Rate shall be   less than zero, such rate shall be deemed to be zero for purposes of this Agreement.                “Event of Default” has the meaning assigned to such term in Article VII.                “Exchange Act” means the Securities Exchange Act of 1934, as amended from time   to time.                “Excluded Taxes” means any of the following Taxes imposed on or with respect to   the Administrative Agent, any Lender or the Issuing Bank or required to be withheld or deducted   from a payment to the Administrative Agent, any Lender or the Issuing Bank, (a) Taxes imposed   on (or measured by) its net income (however denominated) or franchise Taxes, in each case,   imposed (i) by 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 any Lender, in                                         16                                                                                      





 






                                            which its applicable lending office is located, or (ii) that are Other Connection Taxes, (b) any  branch profits Taxes imposed by the United States of America or any similar Tax imposed by any  other jurisdiction in which the Borrower is located, (c) in the case of a Lender (other than an  assignee pursuant to a request by the Borrower under Section 2.18(b)), any U.S. federal   withholding Tax that is imposed on amounts payable to or for the account of such Lender pursuant   to a law in effect at the time such Lender becomes a party to this Agreement (or designates a new   lending office), except to the extent that such 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   the Borrower with respect to such withholding Tax pursuant to Section 2.15(a), (d) Taxes   attributable to such recipient’s failure to comply with Section 2.15(f), and (e) any withholding   Taxes imposed under FATCA.                “External Quoted Value” has the meaning assigned to such term in Section   5.12(b)(ii)(A).                “FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date   (or any amended or successor version that is substantively comparable and not materially more   onerous to comply with), any current or future regulations or official interpretations thereof, any   agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental   agreement entered into in connection with the implementation of such Sections of the Code, and   any fiscal or regulatory legislation, rules, or official practices adopted pursuant to any   intergovernmental agreement entered into in connection with the implementation of such Sections   of the Code.                “Federal Funds Effective Rate” means, for any day, the weighted average (rounded   upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions   with members of the Federal Reserve System, as published on the next succeeding Business Day   by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is   a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the   quotations for such day for such transactions received by the Administrative Agent from three   Federal funds brokers of recognized standing selected by it; provided, that if the Federal Funds   Effective Rate is less than zero, such rate shall be zero for purposes of this Agreement.                “Financial Officer” means the chief executive officer, president, chief operating   officer, chief financial officer, chief legal officer, principal accounting officer, treasurer, assistant   treasurer, controller or chief compliance officer of the Borrower, in each case, whom has been   authorized by the Board of Directors of the Borrower to execute the applicable document or   certificate.                “Financing Subsidiary” means (i) any Structured Subsidiary or (ii) any SBIC   Subsidiary.                “First Lien Bank Loan” has the meaning assigned to such term in Section 5.13.                “Fitch” means Fitch Ratings, Inc. or any successor thereto.                “Foreign Currency” means at any time any currency other than Dollars.                                         17                                                                                      





 






                                                        “Foreign Currency Equivalent” means, at any time, with respect to any amount   denominated in Dollars the equivalent amount thereof in the applicable Foreign Currency as   reasonably determined by the Administrative Agent or the applicable Issuing Bank, as the case   may be, at such time on the basis of the Spot Rate (determined in respect of the most recent   Revaluation Date) for the purchase of such Foreign Currency with Dollars.                “Foreign Lender” means any Lender or Issuing Bank that is not a U.S. Person.                “GAAP” means generally accepted accounting principles in the United States of   America.                “Governmental Authority” means the government of the United States of America,   or of any other nation, or any political subdivision thereof, whether state or local, and any agency,   authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,   legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to   government (including any supra-national body exercising such powers or functions, such as the   European Union or the European Central Bank).                “Guarantee” of or by any Person (the “guarantor”) means any obligation,   contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in   any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or   indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such   Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)   any security for the payment thereof, (b) to purchase or lease property securities or services for the   purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,   (c) to maintain working capital, equity capital or any other financial statement condition or   liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or   other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty   issued to support such Indebtedness or obligation; provided, that the term “Guarantee” shall not   include endorsements for collection or deposit in the ordinary course of business or customary   indemnification agreements entered into in the ordinary course of business in connection with   obligations that do not constitute Indebtedness. The amount of any Guarantee at any time shall be   deemed to be an amount equal to the maximum stated or determinable amount of the primary   obligation in respect of which such Guarantee is incurred, unless the terms of such Guarantee   expressly provide that the maximum amount for which such Person may be liable thereunder is a   lesser amount (in which case the amount of such Guarantee shall be deemed to be an amount equal   to such lesser amount).                “Guarantee and Security Agreement” means that certain Guarantee, Pledge and   Security Agreement, dated as of the Effective Date, among the Borrower, the Subsidiary   Guarantors, the Administrative Agent, each holder (or a representative, agent or trustee therefor)   from time to time of any Secured Longer-Term Indebtedness, and the Collateral Agent.                “Guarantee Assumption Agreement” means a Guarantee Assumption Agreement   substantially in the form of Exhibit B to the Guarantee and Security Agreement (or such other   form that is reasonably acceptable to the Collateral Agent) between the Collateral Agent and an                                         18                                                                                      





 






                                            entity that pursuant to Section 5.08 is required to become a “Subsidiary Guarantor” under the   Guarantee and Security Agreement (with such changes as the Administrative Agent shall request   consistent with the requirements of Section 5.08, or to which the Collateral Agent shall otherwise   consent).                “Hedging Agreement” means any interest rate protection agreement, Credit Default   Swap, foreign currency exchange protection agreement, commodity price protection agreement or   other credit, interest or currency exchange rate or commodity price hedging arrangement.                “High Yield Securities” has the meaning assigned to such term in Section 5.13.                “Immaterial Subsidiaries” means those Subsidiaries of the Borrower that are   designated as “Immaterial Subsidiaries” by the Borrower from time to time (it being understood  that the Borrower may at any time change any such designation); provided that such designated   Immaterial Subsidiaries shall collectively meet all of the following criteria as of the date of (x) the   designation of each such Immaterial Subsidiary and (y) the most recent balance sheet required to   be delivered pursuant to Section 5.01 (and the Borrower shall in each case deliver to the   Administrative Agent a certificate of a Financial Officer to such effect setting forth reasonably   detailed calculations demonstrating such compliance): (a) such Subsidiaries and their Subsidiaries   do not hold any Eligible Portfolio Investment included in the Borrowing Base, (b) the aggregate   assets of all such Subsidiaries and their Subsidiaries (on a consolidated basis) as of such date do   not exceed an amount equal to 3% of the consolidated assets of the Borrower and its Subsidiaries   as of such date; and (c) the aggregate revenues of all such Subsidiaries and their Subsidiaries (on   a consolidated basis) for the fiscal quarter ending on such date do not exceed an amount equal to   3% of the consolidated revenues of the Borrower and its Subsidiaries for such period.    Notwithstanding the foregoing, no Immaterial Subsidiary that is later designated as a Subsidiary   Guarantor may be an Immaterial Subsidiary.                “Impacted Interest Period” has the meaning assigned to such term in the definition   of “Eurocurrency Rate”.                “Increasing Lender” has the meaning assigned to such term in Section 2.07(e)(i).                “Indebtedness” of any Person means, without duplication, (a) (i) all obligations of   such Person for borrowed money or (ii) with respect to deposits, loans or advances of any kind   that are required to be accounted for under GAAP as a liability on the financial statements of an   Obligor (other than deposits received in connection with a Portfolio Investment in the ordinary   course of the Obligor’s business (including, but not limited to, any deposits or advances in   connection with expense reimbursement, prepaid agency fees, other fees, indemnification, work   fees, tax distributions or purchase price adjustments)), (b) all obligations of such Person evidenced   by bonds, debentures, notes or similar debt instruments, (c) all obligations of such Person under   conditional sale or other title retention agreements relating to property acquired by such Person,   (d) all obligations of such Person in respect of the deferred purchase price of property or services   (other than trade accounts payable and accrued expenses in the ordinary course of business not   past due for more than 90 days after the date on which such trade account payable was due or that   are being contested in good faith), (e) all Indebtedness of others secured by any Lien on property   owned or acquired by such Person, whether or not the Indebtedness secured thereby has been                                         19                                                                                      





 






                                            assumed (with the value of such debt being the lower of the outstanding amount of such debt and   the fair market value of the property subject to such Lien), (f) all Guarantees by such Person of   Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations,   contingent or otherwise, of such Person as an account party in respect of letters of credit and letters   of guaranty, (i) the net amount such Person would be obligated for under any Hedging Agreement   if such Hedging Agreement was terminated at the time of determination, (j) all obligations,   contingent or otherwise, with respect to Disqualified Equity Interests, and (k) all obligations,   contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of   any Person shall include the Indebtedness of any other entity (including any partnership in which   such Person is a general partner) to the extent such Person is liable therefor as a result of such   Person’s ownership interest in or other relationship with such entity, except to the extent the terms   of such Indebtedness provide that such Person is not liable therefor (or such Person is not otherwise   liable for such Indebtedness). Notwithstanding the foregoing, “Indebtedness” shall not include (x)   purchase price holdbacks arising in the ordinary course of business in respect of a portion of the   purchase price of an asset or Investment to satisfy unperformed obligations of the seller of such   asset or Investment, (y) a commitment arising in the ordinary course of business to make a future   Portfolio Investment or fund the delayed draw or unfunded portion of any existing Portfolio   Investment or (z) indebtedness of an Obligor on account of the sale by an Obligor of the first out   tranche of any First Lien Bank Loan that arises solely as an accounting matter under ASC 860,   provided that such indebtedness (i) is non-recourse to the Borrower and its Subsidiaries and (ii)   would not represent a claim against the Borrower or any of its Subsidiaries in a bankruptcy,   insolvency or liquidation proceeding of the Borrower or its Subsidiaries, in each case in excess of   the amount sold or purportedly sold.                “Independent” when used with respect to any specified Person means that Person   (a) does not have any direct financial interest (other than ownership of a de minimis amount of the  Equity Interests of such Person) or any material indirect financial interest in the Borrower or any  of its Subsidiaries or Affiliates (including its investment advisor or any Affiliate thereof) and (b)  is not an officer, employee, promoter, underwriter, trustee, partner, director or Person performing  similar functions of the Borrower or any of its Subsidiaries or Affiliates (including its investment   advisor or any Affiliate thereof).                “Independent Valuation Provider” means any of Alvarez & Marsal, Houlihan   Lokey Howard & Zukin Capital, Inc., Duff & Phelps LLC, Murray, Devine and Company, Lincoln   Partners Advisors, LLC, Stout Risius Ross, LLC  and Valuation Research Corporation  and Stout,   or any other Independent nationally recognized third-party appraisal firm selected by the   Administrative Agent, and reasonably acceptable to the Borrower.                “Industry Classification Group” means (a) any of the Moody’s classification groups   set forth on Schedule 1.01(d) hereto, together with any classification groups that may be   subsequently established by Moody’s and provided by the Borrower to the Administrative Agent   and (b) any additional industry group classifications established by the Borrower pursuant to   Section 5.12.                “ING” means ING Capital LLC.                                          20                                                                                      





 






                                                        “Interest Election Request” means a request by the Borrower to convert or continue   a Borrowing in accordance with Section 2.06 substantially in the form of Exhibit E or such other   form that is reasonably acceptable to the Administrative Agent.                “Interest Payment Date” means (a) with respect to any ABR Loan, each Quarterly   Date and (b) with respect to any Eurocurrency Loan, the last day of each Interest Period therefor   and, in the case of any Interest Period of more than three months’ duration, each day prior to the   last day of such Interest Period that occurs at three-month intervals after the first day of such   Interest Period.                “Interest Period” means, for any Eurocurrency Loan or Borrowing, the period   commencing on the date of such Loan or Borrowing and ending on the numerically corresponding   day in the calendar month that is one, two, three or six months thereafter or, with respect to such   portion of any Loan or Borrowing that is scheduled to be repaid on the Maturity Date, a period of   less than one month’s duration commencing on the date of such Loan or Borrowing and ending on   the Maturity Date, as specified in the applicable Borrowing Request or Interest Election Request;   provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest   Period shall be extended to the next succeeding Business Day unless such next succeeding   Business Day would fall in the next calendar month, in which case such Interest Period shall end  on the next preceding Business Day, and (b) any Interest Period (other than an Interest Period that   ends on the Maturity Date that is permitted to be of less than one month’s duration as provided in   this definition) that commences on the last Business Day of a calendar month (or on a day for   which there is no numerically corresponding day in the last calendar month of such Interest   Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For   purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and   thereafter shall be the effective date of the most recent conversion or continuation of such Loan,   and the date of a Borrowing comprising Loans that have been converted or continued shall be the   effective date of the most recent conversion or continuation of such Loans.                “Internal Value” has the meaning assigned to such term in Section 5.12(b)(ii)(C).                “Interpolated Rate” means, at any time, for any Interest Period, the rate per annum   (rounded to the same number of decimal places as the applicable Screen Rate) determined by the   Administrative Agent (which determination shall be conclusive and binding absent manifest error)   to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable   Screen Rate for the longest period (for which the applicable Screen Rate is available for the   applicable currency) that is shorter than the Impacted Interest Period; and (b) the applicable Screen   Rate for the shortest period (for which that applicable Screen Rate is available for the applicable   currency) that exceeds the Impacted Interest Period, in each case, at such time.                “Investment” means, for any Person: (a) Equity Interests, bonds, notes, debentures   or other securities of any other Person (including convertible securities) or any agreement to   acquire any Equity Interests, bonds, notes, debentures or other securities of any other Person   (including any “short sale” or any sale of any securities at a time when such securities are not   owned by the Person entering into such sale); (b) deposits, advances, loans or other extensions of  credit made to any other Person (including purchases of property from another Person subject to                                          21                                                                                      





 






                                            an understanding or agreement, contingent or otherwise, to resell such property to such Person);   or (c) Hedging Agreements.                “Investment Advisor” means (i) Barings, (ii) an Affiliate of Barings reasonably   satisfactory to the Administrative Agent or (iii) another investment advisor reasonably satisfactory   to the Administrative Agent and approved by the Required Lenders.                “Investment Company Act” means the Investment Company Act of 1940, as   amended from time to time.                “Investment Policies” means the Borrower’s written investment objectives,   policies, restrictions and limitations as in existence on the Effective Date, delivered to the   Administrative Agent prior to the Effective Date, as may be amended or modified from time to   time by a Permitted Policy Amendment.                “IRS” means the U.S. Internal Revenue Service.                “Issuing Bank” means ING, in its capacity as the issuer of Letters of Credit   hereunder, and its successors in such capacity as provided in Section 2.04(j).                “IVP Supplemental Cap” has the meaning assigned to such term in Section 9.03(a).                “Joint Lead Arrangers” means, collectively, ING, JPMorgan Chase Bank, N.A.,   Bank of Montreal and Fifth Third Bank.                “Last Out Loan” has the meaning assigned to such term in Section 5.13.                “LC Disbursement” means a payment made by the Issuing Bank pursuant to a   Letter of Credit.                “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount   of all outstanding Letters of Credit at such time (including any Letter of Credit for which a draft   has been presented but not yet honored by the Issuing Bank) plus (b) the aggregate amount of all   LC Disbursements in respect of such Letters of Credit that have not yet been reimbursed by or on   behalf of the Borrower at such time.  The LC Exposure of any Lender at any time shall be its   Applicable Multicurrency Percentage of the total LC Exposure at such time.  Unless otherwise  specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated  amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of   Credit that, by its terms or a document related thereto, provides for one or more automatic increases   in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the  maximum stated amount of such Letter of Credit after giving effect to all such increases, whether  or not such maximum stated amount is in effect at such time.                “Lenders” means, collectively, the Dollar Lenders and the Multicurrency Lenders.                “Letter of Credit” means any letter of credit issued pursuant to this Agreement.                                          22                                                                                      





 






                                                        “Letter of Credit Documents” means, with respect to any Letter of Credit,   collectively, any application therefor and any other agreements, instruments, guarantees or other   documents (whether general in application or applicable only to such Letter of Credit) governing  or providing for (a) the rights and obligations of the parties concerned or at risk with respect to  such Letter of Credit or (b) any collateral security for any of such obligations, each as the same   may be modified and supplemented and in effect from time to time.                “LIBOR Quoted Currency” means Dollars, Pounds Sterling and any other Agreed   Foreign Currency other than Euros, Canadian Dollars and AUD, in each case so long as there is a   published LIBOR Screen Rate with respect thereto.                “LIBOR Screen Rate” means, for any Interest Period, in the case of any   Eurocurrency Borrowing denominated in a LIBOR Quoted Currency, the London interbank   offered rate administered by the ICE Benchmark Administration (or any other Person that takes   over the administration of such rate) for such LIBOR Quoted Currency for a period equal in length   to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters Screen or, in   the event such rate does not appear on either of such Reuters pages, on any successor or substitute   page on such screen that displays such rate, or on the appropriate page of such other information   service that publishes such rate as shall be selected by the Administrative Agent from time to time   in its reasonable discretion; provided that, if the LIBOR Screen Rate so determined would be less   than zero, such rate shall be deemed to be zero for purposes of this Agreement.                “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,   pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the   interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention   agreement (or any financing lease having substantially the same economic effect as any of the   foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or  similar right of a third party with respect to such securities (other than on market terms at fair value   so long as in the case of any Portfolio Investment, the Value used in determining the Borrowing   Base is not greater than the purchase or call price), except in favor of the issuer thereof (and in the   case of Portfolio Investments that are equity securities, excluding customary drag-along, tag-along,   right of first refusal, restrictions on assignments or transfers and other similar rights in favor of   other equity holders of the same issuer).  For the avoidance of doubt, 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 shall not be deemed to be a “Lien”.                “Loan Documents” means, collectively, this Agreement, the Letter of Credit   Documents, any promissory notes delivered pursuant to Section 2.08(f) and the Security   Documents.                “Local Rate” means (i) for Loans or Letters of Credit in AUD, the AUD Rate and   (ii) for Loans or Letters of Credit in Canadian Dollars, the CDOR Rate.                “Local Screen Rate” means the CDOR Screen Rate and the AUD Screen Rate.                                          23                                                                                      





 






                                                        “Local Time” means, with respect to any Loan denominated in or any payment to   be made in any Currency, the local time in the Principal Financial Center for the Currency in which   such Loan is denominated or such payment is to be made.                “Long-Term U.S. Government Securities” has the meaning assigned to such term   in Section 5.13.                “Loans” means the revolving loans made by the Lenders to the Borrower pursuant   to this Agreement.                “Margin Stock” means “margin stock” within the meaning of Regulations D, T, U   and X.                “Material Adverse Effect” means a material adverse effect on (a) the business,   Portfolio Investments of the Obligors (taken as a whole) and other assets, liabilities (actual or   contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries   (other than any Financing Subsidiary), taken as a whole, or (b) the validity or enforceability of any   of the Loan Documents or the rights or remedies of the Administrative Agent and the Lenders  thereunder or the ability of the Obligors to perform their respective obligations thereunder.                “Material Indebtedness” means (a) Indebtedness (other than the Loans, Letters of   Credit and Hedging Agreements), of any one or more of the Borrower and its Subsidiaries    (excluding any Specified CLO, but including each other Financing Subsidiary) in an aggregate   outstanding principal amount exceeding $20,000,000 and (b) obligations in respect of one or more   Hedging Agreements or other swap or derivative transactions under which the maximum aggregate   amount (after giving effect to any netting agreements) that the Borrower and its Subsidiaries would  be required to pay if such Hedging Agreement(s) or other swap or derivative transactions were  terminated at such time would exceed $20,000,000.                “Maturity Date” means the date that is the one year anniversary of the Revolver   Termination Date.                “Mezzanine Investments” has the meaning assigned to such term in Section 5.13.                “Moody’s” means Moody’s Investors Service, Inc. or any successor thereto.                “Multicurrency Commitment” means, with respect to each Multicurrency Lender,   the commitment of such Multicurrency Lender to make Loans, and to acquire participations in   Letters of Credit denominated in Dollars and in Agreed Foreign Currencies hereunder, expressed   as an amount representing the maximum aggregate amount of such Lender’s Multicurrency Credit   Exposure hereunder, as such commitment may be (a) reduced or increased from time to time   pursuant to Section 2.07 or reduced from time to time pursuant to Section 2.09 or as otherwise   provided in this Agreement and (b) reduced or increased from time to time pursuant to assignments   by or to such Lender pursuant to Section 9.04.  The aggregate amount of each Lender’s   Multicurrency Commitment is set forth on Schedule 1.01(b) or in the Assignment Assumption   pursuant to which such Lender shall have assumed its Commitment, as applicable.  The aggregate   amount of the Lenders’ Multicurrency Commitments as of the Effective Date is $500,000,000.                                          24                                                                                      





 






                                                      “Multicurrency Credit Exposure” means, with respect to any Lender at any time,  the sum of the outstanding principal amount of such Lender’s Loans at such time, made or incurred  under such Lender’s Multicurrency Commitments, and such Lender’s LC Exposure.               “Multicurrency Lender” means the Persons listed on Schedule 1.01(b) as having  Multicurrency Commitments and any other Person that shall have become a party hereto pursuant  to an Assignment and Assumption that provides for it to assume a Multicurrency Commitment or  to acquire Multicurrency Credit Exposure, other than any such Person that ceases to be a party  hereto pursuant to an Assignment and Assumption or otherwise in accordance with the terms  hereof.               “Multicurrency Loan” means a Loan denominated in Dollars or in an Agreed  Foreign Currency made under the Multicurrency Commitments.               “Multiemployer Plan” means a multiemployer plan as defined in  Section 4001(a)(3) of ERISA in respect of which the Borrower or any ERISA Affiliate makes or  is required to make any contributions.               “National Currency” means the currency, other than the Euro, of a Participating  Member State.               “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal  to (a) the sum of Cash payments and Cash Equivalents received by the Obligors from such Asset  Sale (including any Cash or Cash Equivalents received by way of deferred payment pursuant to,  or by monetization of, a note receivable or otherwise, but only as and when so received), minus  (b) any costs, fees, commissions, premiums and expenses actually incurred by any Obligor directly  incidental to such Asset Sale and payable in cash to a Person that is not an Affiliate of any Obligor  (or if payable to an Affiliate, only to the extent such expenses are reasonable and customary),  including reasonable legal fees and expenses, minus (c) all taxes paid or reasonably estimated to  be payable by any Obligor (other than any income tax) as a result of such Asset Sale (after taking  into account any applicable tax credits or deductions that are reasonably expected to be available),  minus (d) reserves for indemnification, purchase price adjustments or analogous arrangements  reasonably estimated by the Borrower or the relevant Subsidiary in connection with such Asset  Sale; provided that (i) such reserved amount shall not be included in the Borrowing Base and (ii)  if the amount of any estimated reserves pursuant to this clause (d) exceeds the amount actually  required to be paid in cash in respect of indemnification, purchase price adjustments or analogous  arrangements for such Asset Sale, the aggregate amount of such excess shall constitute Net Asset  Sale Proceeds (as of the date the Borrower determines such excess exists), minus (e) payments of  unassumed liabilities relating to the assets sold or otherwise disposed of at the time, or within 30  days after, the date of such Asset Sale.               “Net Return of Capital” means an amount equal to (i) (a) any Cash amount (and  proceeds of any non-Cash amount) received by any Obligor at any time in respect of the  outstanding principal of any Portfolio Investment (whether at stated maturity, by acceleration or  otherwise), (b) without duplication of amounts received under clause (a), any Cash proceeds  (including Cash proceeds of any non-Cash consideration) received by any Obligor at any time  from the sale of any property or assets pledged as collateral in respect of any Portfolio Investment                                        25                                                                                    





 






                                          to the extent such Cash proceeds are less than or equal to the outstanding principal balance of such  Portfolio Investment, (c) solely to the extent such proceeds, along with any such proceeds  previously received (other than on account of taxes paid or reasonably estimated to be payable),  are less than or equal to the Obligor’s investments therein, any cash amount (and Cash proceeds  of any non-Cash amount) received by any Obligor at any time in respect of any Portfolio  Investment that is an Equity Interest (x) upon the liquidation or dissolution of the Portfolio  Company of such Portfolio Investment, (y) as a distribution of capital made on or in respect of  such Portfolio Investment (other than, in the case of a Portfolio Investment that is capital stock,  any distribution on account of actual taxes paid or reasonably estimated to be payable by an  Obligor solely in its capacity as a holder of such Equity Interest (and not on account of such  Obligor’s status as a RIC)), or (z) pursuant to the recapitalization or reclassification of the capital  of the Portfolio Company of such Portfolio Investment or pursuant to the reorganization of such  Portfolio Company or (d) any similar return of capital received by any Obligor in Cash (and Cash  proceeds of any non-Cash amount) in respect of any Portfolio Investment minus (ii) any costs,  fees, commissions, premiums and expenses incurred by any Obligor directly incidental to such  Cash receipts, including reasonable legal fees and expenses.               “Non-Consenting Lender” has the meaning assigned to such term in  Section 9.02(d).               “Non-LIBOR Quoted Currency” means any Euros, Canadian Dollars and AUD.               “NYFRB” means the Federal Reserve Bank of New York.               “Obligors” means, collectively, the Borrower and the Subsidiary Guarantors.               “Obligors’ Net Worth” means, at any date, Stockholders’ Equity at such date, minus  the net asset value held by any Obligor in (x) any non-Obligor Subsidiary and (y) any joint venture  except to the extent that the Collateral Agent maintains a first priority, perfected Lien (subject to  no other Liens other than Eligible Liens) in the Equity Interests of such joint venture owned by  such Obligor.               “OFAC” has the meaning assigned to such term in Section 3.20.               “Other Connection Taxes” means, with respect to any recipient of any payment to  be made by or on account of any obligation of the Borrower hereunder, Taxes imposed as a result  of a present or former connection between such recipient and the jurisdiction imposing such Tax  (other than connections arising from such recipient having executed, delivered, become a party to,  performed its obligations under, received payments under, received or perfected a security interest  under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or  assigned an interest in any Loan or Loan Document).               “Other Covered Indebtedness” means, collectively, (i) Secured Longer-Term  Indebtedness and (ii) and Unsecured Shorter-Term Indebtedness.               “Other Taxes” means any and all present or future stamp, court, documentary,  intangible, recording or filing Taxes or any other excise or property Taxes, charges or similar                                         26                                                                                    





 






                                          levies arising from any payment made under any Loan Document or from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest  under, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed  with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)).               “Overnight Bank Funding Rate” means, for any day, the rate comprised of both  overnight federal funds and overnight Eurocurrency transactions by U.S.-managed banking offices  of depository institutions, as such composite rate shall be determined by the NYFRB as set forth  on its public website from time to time, and published on the next succeeding Business Day by the  NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall  commence to publish such composite rate); provided, that if the Overnight Bank Funding Rate is  less than zero, such rate shall be zero for purposes of this Agreement.               “Participant” has the meaning assigned to such term in Section 9.04(f).               “Participant Register” has the meaning assigned to such term in Section 9.04(f).               “Participating Member State” means any member state of the European  Community that adopts or has adopted the Euro as its lawful currency in accordance with the  legislation of the European Union relating to the European Monetary Union.               “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined  in ERISA and any successor entity performing similar functions.               “Performing” has the meaning assigned to such term in Section 5.13.               “Performing Covenant-Lite Loans” has the meaning assigned to such term in  Section 5.13.               “Performing DIP Loans” has the meaning assigned to such term in Section 5.13.               “Performing First Lien Bank Loans” has the meaning assigned to such term in  Section 5.13.               “Performing First Lien Middle Market Loans” has the meaning assigned to such  term in Section 5.13.               “Performing High Yield Securities” has the meaning assigned to such term in  Section 5.13.               “Performing Last Out Loans” has the meaning assigned to such term in Section  5.13.               “Performing Mezzanine Investments” has the meaning assigned to such term in  Section 5.13.               “Performing Second Lien Bank Loans” has the meaning assigned to such term in  Section 5.13.                                        27                                                                                    





 






                                                        “Permitted Equity Interests” means common stock of the Borrower that after its   issuance is not subject to any agreement between the holder of such common stock and the   Borrower where the Borrower is required to purchase, redeem, retire, acquire, cancel or terminate   any such common stock at any time prior to the first anniversary of the later of the Maturity Date   (as in effect from time to time) and the Termination Date.                “Permitted Liens” means (a) Liens imposed by any Governmental Authority for   taxes, assessments or charges not yet due or that are being contested in good faith and by   appropriate proceedings if adequate reserves with respect thereto are maintained on the books of   the Borrower in accordance with GAAP; (b) Liens of clearing agencies, broker-dealers and similar   Liens incurred in the ordinary course of business, provided that such Liens (i) attach only to the   securities (or proceeds) being purchased or sold and (ii) secure only obligations incurred in  connection with such purchase or sale, and not any obligation in connection with margin financing;  (c)  Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmens’, storage,  landlord, and repairmen’s Liens and other similar Liens arising in the ordinary course of business  and securing obligations (other than Indebtedness for borrowed money) not yet due or that are  being contested in good faith and by appropriate proceedings if adequate reserves with respect  thereto are maintained on the books of the Borrower in accordance with GAAP; (d) Liens incurred  or pledges or deposits made to secure obligations incurred in the ordinary course of business under  workers’ compensation laws, unemployment insurance or other similar social security legislation  (other than in respect of employee benefit plans subject to ERISA) or to secure public or statutory  obligations; (e) Liens securing the performance of, or payment in respect of, bids, insurance  premiums, deductibles or co-insured amounts, tenders, government or utility contracts (other than  for the repayment of borrowed money), surety, stay, customs and appeal bonds and other  obligations of a similar nature incurred in the ordinary course of business; (f) Liens arising out of  judgments or awards that have been in force for less than the applicable period for taking an appeal  so long as such judgments or awards do not constitute an Event of Default; (g) customary rights   of setoff and liens upon (i) deposits of cash in favor of banks or other depository institutions in   which such cash is maintained in the ordinary course of business, (ii) cash and financial assets held   in securities accounts in favor of banks and other financial institutions with which such accounts   are maintained in the ordinary course of business and (iii) assets held by a custodian in favor of   such custodian in the ordinary course of business, in the case of each of clauses (i) through (iii)   above, securing payment of fees, indemnities, charges for returning items and other similar   obligations; (h) Liens arising solely from precautionary filings of financing statements under the   Uniform Commercial Code of the applicable jurisdictions in respect of operating leases entered   into by the Borrower or any of its Subsidiaries in the ordinary course of business; (i) Eligible Liens;   (j) Liens in favor of any escrow agent solely on and in respect of any cash earnest money deposits   made by any Obligor in connection with any letter of intent or purchase agreement (to the extent   that the acquisition or disposition with respect thereto is otherwise permitted hereunder); (k)   zoning restrictions, easements, licenses, or other restrictions on the use of any real estate (including   leasehold title), in each case which do not interfere with or affect in any material respect the   ordinary course conduct of the business of the Borrower and its Subsidiaries; (l) purchase money   Liens on specific equipment and fixtures, provided that (i) such Liens only attach to such   equipment and fixtures and (ii) the Indebtedness secured thereby does not exceed the lesser of the   cost and the fair market value of such equipment and fixtures at the time of the acquisition thereof;   (m) deposits of money securing leases to which Borrower is a party as lessee made in the ordinary                                         28                                                                                      





 






                                            course of business; and (n) precautionary Liens and filing of financing statements under the   Uniform Commercial Code covering assets sold or contributed to any Person not prohibited   hereunder.                “Permitted Foreign Jurisdiction” has the meaning assigned to such term in Section   5.13.                “Permitted Foreign Jurisdiction Portfolio Investment” has the meaning assigned to   such term in Section 5.13.                “Permitted Policy Amendment” is an amendment, modification, termination or   restatement of the Investment Policies or Valuation Policy, in each case that is any of (i) approved   in writing by the Administrative Agent (with the consent of the Required Lenders), (ii) required   by applicable law or Governmental Authority, or (iii) is not or could not reasonably be expected   to be materially adverse to the Lenders.                “Permitted Prior Working Capital Lien” has the meaning assigned to such term in   Section 5.13.                “Permitted SBIC Guarantee” means a guarantee by the Borrower of SBA   Indebtedness of an SBIC Subsidiary on the SBA’s then applicable form; provided that the recourse   to the Obligors thereunder is expressly limited only to periods after the occurrence of an event or   condition that is an impermissible change in the control of such SBIC Subsidiary (it being   understood that, as provided in clause (q) of Article VII, it shall be an Event of Default hereunder   if any such event or condition giving rise to such recourse occurs).                “Person” means any natural person, corporation, limited liability company, trust,   joint venture, association, company, partnership, Governmental Authority or other entity.                “PIK Obligation” has the meaning assigned to such term in Section 5.13.                “Plan” means any employee pension benefit plan (other than a Multiemployer   Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of   ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were   terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in  Section 3(5) of ERISA.                “Portfolio Company” means the issuer or obligor under any Portfolio Investment   held by any Obligor.                “Portfolio Investment” means any Investment held by the Borrower and its   Subsidiaries in their asset portfolio and included on the schedule of investments on the financial   statements of the Borrower delivered pursuant to Section 5.01(a) or (b) (or, for any Investment   made during a given quarter and before a schedule of investments is required to be delivered   pursuant to Section 5.01(a) or (b), as applicable, with respect to such quarter, is intended to be   included on the schedule of investments when such Investment is made) (and, for the avoidance   of doubt, shall not include any Subsidiary of the Borrower).                                          29                                                                                      





 






                                                        “Pounds Sterling” means the lawful currency of England.                “Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money   Rates Section, as the “U.S. Prime Rate” (or its successor), as in effect from time to time.  The   Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually   charged to any customer.  The Administrative Agent or any Lender may make commercial loans   or other loans at rates of interest at, above, or below the Prime Rate.                “Principal Financial Center” means, in the case of any Currency, the principal   financial center where such Currency is cleared and settled, as determined by the Administrative   Agent.                “Pro-Rata Borrowing” has the meaning assigned to such term in Section 2.03(a).                “Pro-Rata Dollar Portion” means, in connection with any Pro-Rata Borrowing in   Dollars, an amount equal to (i) the aggregate amount of such Pro-Rata Borrowing multiplied by   (ii) the aggregate Dollar Commitments of all Dollar Lenders at such time divided by (iii) the  aggregate Commitments of all Lenders at such time.                “Pro-Rata Multicurrency Portion” means, in connection with any Pro-Rata   Borrowing in Dollars, an amount equal to (i) the aggregate amount of such Pro-Rata Borrowing   multiplied by (ii) the aggregate Multicurrency Commitments of all Multicurrency Lenders at such   time divided by (iii) the aggregate Commitments of all Lenders at such time.                “PTE” means a prohibited transaction class exemption issued by the U.S.   Department of Labor, as any such exemption may be amended from time to time.                “Quarterly Dates” means the last Business Day of March, June, September and   December in each year, commencing on March 29, 2019.                “Quotation Day” means, with respect to any Eurocurrency Borrowing for any   Interest Period, (i) if the Currency is Canadian Dollars, AUD or Pounds Sterling, the first day of   such Interest Period, (ii) if the Currency is Euro, two TARGET Days before the first day of such   Interest Period and (iii) for any other Currency, two Business Days prior to the first day of such   Interest Period, unless, in each case, market practice differs in the relevant market where the   Eurocurrency Rate for such Currency is to be determined, in which case the Quotation Day will   be determined by the Administrative Agent in accordance with market practice in such market   (and if quotations would normally be given on more than one day, then the Quotation Day shall   be the last of those days).                “Quoted Investments” has the meaning assigned to such term in Section   5.12(b)(ii)(A).                “Rating Agency” means each of S&P, Moody’s and Fitch.                                           30                                                                                      





 






                                                      “Ratings Condition” means that, at any time commencing on or after twelve months  after the Effective Date, the Borrower maintains a Credit Rating of at least BBB-/Baa3 (or  equivalent) from at least one Rating Agency.               “Register” has the meaning assigned to such term in Section 9.04(c).               “Regulations D, T, U and X” means, respectively, Regulations D, T, U and X of  the Board of Governors of the Federal Reserve System (or any successor), as the same may be  modified and supplemented and in effect from time to time.               “Related Parties” means, with respect to any specified Person, such Person’s  Affiliates and the respective directors, partners, officers, employees, agents, advisors and  representatives of such Person and such Person’s Affiliates.               “Required Lenders” means, at any time, Lenders having Credit Exposures and  unused Commitments representing more than 50% of the sum of the total Credit Exposures and  unused Commitments at such time.  The Required Lenders of a Class (which shall include the  terms “Required Dollar Lenders” and “Required Multicurrency Lenders”) means Lenders having  Credit Exposures and unused Commitments of such Class representing more than 50% of the sum  of the total Credit Exposures and unused Commitments of such Class; provided that the Credit  Exposures and unused Commitments of any Defaulting Lenders shall be disregarded in the  determination of Required Lenders to the extent provided for in Section 2.17.               “Required Payment Amount” has the meaning assigned to such term in Section  6.05(b).               “Restricted Payment” means any dividend or other distribution (whether in cash,  securities or other property) with respect to any shares of any class of capital stock of the Borrower  or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including  any sinking fund or similar deposit, on account of the purchase, redemption, retirement,  acquisition, cancellation or termination of any such shares of capital stock of the Borrower or any  option, warrant or other right to acquire any such shares of capital stock of the Borrower (other  than any equity awards granted to employees, officers, directors and consultants of the Borrower  and its Affiliates); provided, for clarity, neither the conversion of convertible debt into Permitted  Equity Interests nor the purchase, redemption, retirement, acquisition, cancellation or termination  of convertible debt made solely with Permitted Equity Interests (other than interest or expenses or  fractional shares, which may be payable in cash) shall be a Restricted Payment hereunder.               “Restructured Investment” has the meaning assigned to such term in Section 5.13.               “Revaluation Date” means (a) with respect to any Loan, each of the following: (i)  each date of a Borrowing of a Eurocurrency Loan denominated in an Agreed Foreign Currency,  (ii) each date of a continuation of a Eurocurrency Loan denominated in an Agreed Foreign  Currency and (iii) such additional dates as the Administrative Agent shall reasonably and in good  faith determine or the Required Lenders shall reasonably and in good faith require; and (b) with  respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit  denominated in an Agreed Foreign Currency, (ii) each date of an amendment of any such Letter                                        31                                                                                    





 






                                            of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the   Issuing Bank under any Letter of Credit denominated in an Agreed Foreign Currency and (iv) such   additional dates as the Administrative Agent or the Issuing Bank shall reasonably and in good faith   determine or the Required Lenders shall reasonably and in good faith require.                “Revolver Termination Date” means the date that is the four (4) year anniversary   of the Effective Date, unless extended with the consent of each Lender in its sole and absolute   discretion.                “RIC” means a Person qualifying for treatment as a “regulated investment   company” under Subchapter M of the Code.                “S&P” means S&P Global Ratings, a division of S&P Global Inc., a New York   corporation, or any successor thereto.                “Sanctioned Country” means, at any time, a country, territory or region that is, or   whose government is, the subject or target of any comprehensive Sanctions (which are, as of the   date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea/Sevastopol region of  Ukraine).                “Sanctions” has the meaning assigned to such term in Section 3.20.                “SBA” means the United States Small Business Administration or any   Governmental Authority succeeding to any or all of the functions thereof.                “SBIC Subsidiary” means any Subsidiary of the Borrower or any other Obligor (or   such Subsidiary’s general partner or manager entity) that is (x)  either (i) a “small business   investment company” licensed by the SBA (or that has applied for such a license and is actively   pursuing the granting thereof by appropriate proceedings promptly instituted and diligently   conducted) under the Small Business Investment Act of 1958, as amended, or (ii) any wholly-  owned, direct or indirect, Subsidiary of an entity referred to in clause (x)(i) of this definition, and   (y) designated in writing by the Borrower (as provided below) as an SBIC Subsidiary, so long as:                      (a)   other than pursuant to a Permitted SBIC Guarantee or the         requirement by the SBA that the Borrower or such Obligor make an equity or capital         contribution to the SBIC Subsidiary in connection with its incurrence of SBA Indebtedness         (provided that such contribution is permitted by Section 6.03(e) or 6.03(i) and is made         substantially contemporaneously with such incurrence), no portion of the Indebtedness or         any other obligations (contingent or otherwise) of such Person (i) is Guaranteed by the         Borrower or any of its Subsidiaries (other than any SBIC Subsidiary), (ii) is recourse to or         obligates the Borrower or any of its Subsidiaries (other than any SBIC Subsidiary) in any         way, or (iii) subjects any property of the Borrower or any of its Subsidiaries (other than         any SBIC Subsidiary) to the satisfaction thereof, other than Equity Interests in any SBIC         Subsidiary pledged to secure such Indebtedness;                      (b)   other than pursuant to a Permitted SBIC Guarantee, neither the         Borrower nor any of its Subsidiaries has any material contract, agreement, arrangement or                                          32                                                                                      





 






                                                understanding with such Person other than on terms no less favorable to the Borrower or        such Subsidiary than those that might be obtained at the time from Persons that are not        Affiliates of the Borrower or such Subsidiary;                     (c)   neither the Borrower nor any of its Subsidiaries (other than any        SBIC Subsidiary) has any obligation to such Person to maintain or preserve its financial        condition or cause it to achieve certain levels of operating results; and                     (d)   such Person has not Guaranteed or become a co-borrower under, and        has not granted a security interest in any of its properties to secure, and the Equity Interests        it has issued are not pledged to secure, in each case, any indebtedness, liabilities or        obligations of any one or more of the Obligors.               Any designation by the Borrower under clause (y) above shall be effected pursuant  to a certificate of a Financial Officer delivered to the Administrative Agent, which certificate shall  include a statement to the effect that, to the best of such Financial Officer’s knowledge, such  designation complied with the foregoing conditions.               “Screen Rate” means the LIBOR Screen Rate, the EURIBOR Screen Rate and the  Local Screen Rates collectively and individually as the context may require.               “SEC” means the United States Securities and Exchange Commission or any  Governmental Authority succeeding to any or all of the functions thereof.               “Second Lien Bank Loan” has the meaning assigned to such term in Section 5.13.               “Secured Longer-Term Indebtedness” means, as at any date, Indebtedness of the  Borrower (other than Indebtedness hereunder) (which may be Guaranteed by Subsidiary  Guarantors) that:                     (a)   has no amortization (other than for amortization in an amount not        greater than 1% of the aggregate initial principal amount of such Indebtedness per annum        (or an amount in excess of 1% of the aggregate initial principal amount of such        Indebtedness per annum on terms mutually agreeable to the Borrower and the Required        Lenders)) or mandatory redemption, repurchase or prepayment prior to, and a final        maturity date not earlier than, six months after the Maturity Date (it being understood that        any amortization, mandatory redemption, repurchase or prepayment obligation or put right        that is contingent upon the happening of an event that is not certain to occur (including,        without limitation, a Change in Control or bankruptcy) shall not in and of itself be deemed        to disqualify such Indebtedness under this clause (a); provided that any payment prior to        the Termination Date in respect of any such obligation or right shall only be made to the        extent permitted by Section 6.12);                     (b)   is incurred pursuant to documentation containing (i) financial        covenants, covenants governing the borrowing base, if any, covenants regarding portfolio        valuations, and events of default that are no more restrictive in any respect upon the        Borrower and its Subsidiaries, at any time that any Commitments or Loans are outstanding                                         33                                                                                    





 






                                                hereunder (including pursuant to any maturity extensions), than those set forth in this       Agreement (other than, if such Indebtedness is governed by a customary indenture or       similar instrument, events of default that are customary in indentures or similar instruments       and that have no analogous provisions in this Agreement or credit agreements generally)       (provided that, upon the Borrower’s request, this Agreement will be deemed to be        automatically amended (and, upon the request of the Administrative Agent or the Required        Lenders, the Borrower and the Lenders shall enter into a document evidencing such        amendment), mutatis mutandis, to make such covenants more restrictive in this Agreement       as may be necessary to meet the requirements of this clause (b)(i)) and (ii) other terms        (other than interest and any commitment or related fees) that are no more restrictive in any        material respect upon the Borrower and its Subsidiaries, at any time that any Commitments        or Loans are outstanding hereunder (including pursuant to any maturity extensions), than        those set forth in this Agreement; and                     (c)   ranks pari passu with the obligations under this Agreement and is        not secured by any assets of any Person other than any assets of any Obligor pursuant to        the Security Documents and the holders of which, or the agent, trustee or representative of        such holders on behalf of and for the benefit of such holders, have agreed to either (x) be       bound by the provisions of the Security Documents by executing the joinder attached as       Exhibit E to the Guarantee and Security Agreement or (y) be bound by the provisions of       the Security Documents in a manner reasonably satisfactory to the Administrative Agent       and the Collateral Agent.  For the avoidance of doubt, (a) Secured Longer-Term       Indebtedness shall also include any refinancing, refunding, renewal or extension of any       Secured Longer-Term Indebtedness so long as such refinanced, refunded, renewed or       extended Indebtedness continues to satisfy the requirements of this definition and (b) any       payment on account of Secured Longer-Term Indebtedness shall be subject to Section 6.12.               “Secured Parties” has the meaning assigned to such term in the Guarantee and  Security Agreement.               “Security Documents” means, collectively, the Guarantee and Security Agreement,  the Custodian Agreement, the Control Agreement, all Uniform Commercial Code financing  statements filed with respect to the security interests in personal property created pursuant to the  Guarantee and Security Agreement, and all other assignments, pledge agreements, security  agreements, control agreements and other instruments executed and delivered at any time by any  of the Obligors pursuant to the Guarantee and Security Agreement or otherwise providing or  relating to any collateral security for any of the Secured Obligations under and as defined in the  Guarantee and Security Agreement.               “Senior Securities” means senior securities (as such term is defined and determined  pursuant to the Investment Company Act and any orders of the SEC issued to the Borrower  thereunder).               “Settlement-Date Basis” means that any Investment that has been purchased will  not be treated as an Eligible Portfolio Investment until such purchase has settled, and any Eligible  Portfolio Investment which has been sold will not be excluded as an Eligible Portfolio Investment  until such sale has settled.                                        34                                                                                    





 






                                                        “Short-Term U.S. Government Securities” has the meaning assigned to such term   in Section 5.13.                “Solvent” means, with respect to any Obligor, that as of the date of determination,   both (i) (a) the sum of such Obligor’s debt and liabilities (including contingent liabilities) does not   exceed the present fair saleable value of such Person’s present assets, (b) such Obligor’s capital is   not unreasonably small in relation to its business as contemplated on the Effective Date and   reflected in any projections delivered to the Lenders or with respect to any transaction   contemplated or undertaken after the Effective Date, and (c) such Obligor has not incurred and   does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts   beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and   (ii) such Obligor is “solvent” within the meaning given to such term and similar terms under   applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition,   the amount of any contingent liability at any time shall be computed as the amount that, in light of   all of the facts and circumstances existing at such time, represents the amount that can reasonably   be expected to become an actual or matured liability (irrespective of whether such contingent   liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).                “Specified CLO” means a Structured Subsidiary that (i) is a collateralized loan   obligation vehicle and (ii) has been designated in writing as a Specified CLO by the Borrower to  the Administrative Agent at any time prior to the Specified CLO Effective Date (which designation   shall not be revocable).  For the avoidance of doubt, each Specified CLO shall be subject to the   proviso of Section 6.03(e).                “Specified CLO Effective Date” means, in respect of any Specified CLO, the   earliest of (i) the date the applicable Rating  Agency has deemed such Specified CLO to be   effective, (ii) the date the collateral manager (or similar person) has elected and/or certified that   such Specified CLO has become effective and (iii) the date on which the underlying coverage,   portfolio quality or similar tests in respect of such Specified CLO become effective.                “Specified Time” means (i) in relation to a Loan in Canadian Dollars, as of 10:00   a.m., Toronto, Ontario time, (ii) in relation to a Loan in a LIBOR Quoted Currency, as of 11:00   a.m., London time, (iii) in relation to a Loan in Euros, 11:00 a.m., Brussels time and (iv) in relation   to a Loan in AUD, as of 11:00 a.m., Sydney, Australia time.                “Spot Rate” for a currency means the rate determined by the Administrative Agent   or the Issuing Bank, as applicable, to be the rate quoted by the Person acting in such capacity as   the spot rate for the purchase by such Person of such currency with another currency through its   principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business   Days prior to the date as of which the foreign exchange computation is made; provided that the   Administrative Agent or the Issuing Bank may obtain such spot rate from another financial   institution designated by the Administrative Agent or Issuing Bank if the Person acting in such   capacity does not have as of the date of determination a spot buying rate for any such currency;   and provided further that the Issuing Bank may use such spot rate quoted on the date as of which   the foreign exchange computation is made in the case of any Letter of Credit denominated in an   Agreed Foreign Currency.                                          35                                                                                      





 






                                                      “Standard Securitization Undertakings” means, collectively, (a) customary arms- length servicing obligations (together with any related performance guarantees), (b) obligations  (together with any related performance guarantees) to refund the purchase price or grant purchase  price credits for breach of representations and warranties referred to in clause (c), and  (c) representations, warranties, covenants and indemnities (together with any related performance  guarantees) of a type that are reasonably customary in commercial loan securitizations (in each  case in clauses (a), (b) and (c) excluding obligations related to the collectability of the assets sold  or the creditworthiness of the underlying obligors and excluding obligations that constitute credit  recourse).               “Statutory Reserve Rate” means, for the Interest Period for any Eurocurrency  Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and the  denominator of which is the number one minus the arithmetic mean, taken over each day in such  Interest Period, of the aggregate of the applicable maximum reserve percentages (including any  marginal, special, emergency or supplemental reserves) expressed as a decimal established by the  Board to which the Administrative Agent is subject for eurocurrency funding (currently referred  to as “Eurocurrency liabilities” in Regulation D).  Such reserve percentages shall include those  imposed pursuant to Regulation D.  Eurocurrency Loans shall be deemed to constitute  eurocurrency funding and to be subject to such reserve requirements without benefit of or credit  for proration, exemptions or offsets that may be available from time to time to any Lender under  Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted  automatically on and as of the effective date of any change in any reserve percentage.               “Stockholders’ Equity” means, at any date, the amount determined on a  consolidated basis, without duplication, in accordance with GAAP, of stockholders’ equity for the  Borrower and its Subsidiaries at such date.               “Structured Finance Obligations” has the meaning assigned to such term in Section  5.13.               “Structured Subsidiaries” means:                     (a)   a direct or indirect Subsidiary of the Borrower which is formed        (including prior to the Effective Date) in connection with, and which continues to exist for        the sole purpose of, obtaining and maintaining third-party financings and which engages       in no material activities other than in connection with the purchase and financing of assets       from the Obligors or any other Person, and which is designated by the Borrower (as       provided below), as a Structured Subsidiary, so long as:                           (i)   no portion of the Indebtedness or any other obligations        (contingent or otherwise) of such Subsidiary (i) is Guaranteed by any Obligor (other than        Guarantees in respect of Standard Securitization Undertakings), (ii) is recourse to or       obligates any Obligor in any way other than pursuant to Standard Securitization       Undertakings or (iii) subjects any property of any Obligor (other than property that has       been contributed or sold or otherwise transferred to such Subsidiary in accordance with the        terms Section 6.03(e) or 6.03(i)), directly or indirectly, contingently or otherwise, to the                                         36                                                                                    





 






                                                  satisfaction thereof, other than pursuant to Standard Securitization Undertakings or any         Guarantee thereof;                            (ii)  no Obligor has any material contract, agreement,         arrangement or understanding with such Subsidiary other than on terms no less favorable         to such Obligor than those that might be obtained at the time from Persons that are not         Affiliates of any Obligor, other than fees payable in the ordinary course of business in         connection with servicing loan assets; and                            (iii) no Obligor has any obligation to maintain or preserve such         entity’s financial condition or cause such entity to achieve certain levels of operating         results; and                      (b)   any passive holding company that is designated by the Borrower (as         provided below) as a Structured Subsidiary, so long as:                            (i)   such passive holding company is the direct parent of a         Structured Subsidiary referred to in clause (a);                            (ii)  such passive holding company engages in no activities and         has no assets (other than in connection with the transfer of assets to and from a Structured         Subsidiary referred to in clause (a), and its ownership of all of the Equity Interests of a         Structured Subsidiary referred to in clause (a)) or liabilities;                            (iii) all of the Equity Interests of such passive holding company         are owned directly by an Obligor and are pledged as Collateral for the Secured Obligations         and the Collateral Agent has a first-priority perfected Lien (subject to no other Liens other         than Eligible Liens) on such Equity Interests; and                            (iv)  no Obligor has any obligation to maintain or preserve such         passive holding company’s financial condition or cause such entity to achieve certain levels         of operating results.                Any designation of a Structured Subsidiary by the Borrower shall be effected  pursuant to a certificate of a Financial Officer delivered to the Administrative Agent, which  certificate shall include a statement to the effect that, to the best of such Financial Officer’s   knowledge, such designation complied with each of the conditions set forth in clause (a) or (b)   above, as applicable.                “Subsidiary” means, with respect to any Person (the “parent”) at any date, any   corporation, limited liability company, partnership, association or other entity the accounts of   which would be consolidated with those of the parent in the parent’s consolidated financial   statements if such financial statements were prepared in accordance with GAAP as of such date,   as well as any other corporation, limited liability company, partnership, association or other entity   (a) of which securities or other ownership interests representing more than 50% of the equity or   more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the   general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of                                          37                                                                                      





 






                                          such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or by the  parent and one or more subsidiaries of the parent.  Anything herein to the contrary notwithstanding,  the term “Subsidiary” shall not include any Person that constitutes an Investment held by any  Obligor in the ordinary course of business and that is not, under GAAP, consolidated on the  financial statements of the Borrower and its Subsidiaries.  Unless otherwise specified,  “Subsidiary” means a Subsidiary of the Borrower.               “Subsidiary Guarantor” means any Subsidiary that is or is required to be a  Guarantor under the Guarantee and Security Agreement.  It is understood and agreed that, subject  to Section 5.08(a), no CFC, Transparent Subsidiary, Immaterial Subsidiary or Financing  Subsidiary shall be required to be a Subsidiary Guarantor as long as it remains a CFC, Transparent  Subsidiary, Immaterial Subsidiary or Financing Subsidiary, as applicable, each as defined and  described herein.               “TARGET Day” means any day on which the TARGET2 is open.               “TARGET2” means the Trans-European Automated Real-time Gross Settlement  Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative,  such other payment system reasonably determined by the Administrative Agent to be a suitable  replacement) for the settlement of payments in Euros.               “Tax Amount” has the meaning assigned to such term in Section 6.05(b).               “Tax Damages” has the meaning assigned to such term in Section 2.15(d).               “Taxes” means any and all present or future taxes levies, imposts, duties,  deductions, withholdings (including backup withholding), assessments, fees or other charges  imposed by any Governmental Authority, including any interest, additions to tax or penalties  applicable thereto.               “Termination Date” means the date on which the Commitments have expired or  been terminated and the principal of and accrued interest on each Loan and all fees and other  amounts payable hereunder by the Borrower or any other Obligor shall have been paid in full  (excluding, for the avoidance of doubt, any amount in connection with any contingent, unasserted  indemnification obligations), all Letters of Credit shall have (w) expired, (x) terminated, (y) been  Cash Collateralized or (z) otherwise been backstopped in a manner acceptable to the Issuing Bank  and the Administrative Agent in their sole discretion and, in each case, all LC Disbursements then  outstanding have been reimbursed.               “Third Party Finance Company” has the meaning assigned to such term in Section  5.13.               “Total  Eligible Portfolio” has the meaning assigned to such term in Section 5.13(b).               “Transactions” means the execution, delivery and performance by the Borrower of  this Agreement and other Loan Documents, the borrowing of Loans, and the use of the proceeds  thereof and the issuance of Letters of Credit hereunder.                                         38                                                                                    





 






                                                      “Transferable” has the meaning assigned to such term in Section 5.13.               “Transparent Subsidiary” means a Subsidiary classified as a partnership or as a  disregarded entity for U.S. federal income tax purposes directly or indirectly owned by an Obligor  that has no material assets other than Equity Interests (held directly or indirectly through other  Transparent Subsidiaries) in one or more CFCs.               “Two Largest Industry Classification Groups” means, as of any date of  determination, each of the two Industry Classification Groups that a greater portion of the Total  Eligible Portfolio has been assigned to each such Industry Classification Group pursuant to Section  5.12(a) than any other single Industry Classification Group.               “Type”, when used in reference to any Loan or Borrowing, refers to whether the  rate of interest on such Loan, or on the Loans constituting such Borrowing, is determined by  reference to the Adjusted Eurocurrency Rate or the Alternate Base Rate.               “Undisclosed Administration” means, in relation to a Lender or its direct or indirect  parent company, the appointment of an administrator, provisional liquidator, conservator, receiver,  trustee, custodian or other similar official by a supervisory authority or regulator under or based  on the law in the country where such Lender or its direct or indirect parent company is subject to  home jurisdiction supervision if applicable law requires that such appointment is not to be publicly  disclosed and such appointment has not been publicly disclosed (including, without limitation,  under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any  successor legislation)).               “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as  in effect from time to time in the State of New York.               “Unquoted Investments” has the meaning assigned to such term in Section  5.12(b)(ii)(B).               “Unsecured Longer-Term Indebtedness” means any Indebtedness of an Obligor  that:                     (a)   has no amortization, or mandatory redemption, repurchase or        prepayment prior to, and a final maturity date not earlier than, six months after the Maturity        Date (it being understood that (i) the conversion features into Permitted Equity Interests        under convertible notes (as well as the triggering of such conversion and/or settlement        thereof solely with Permitted Equity Interests, except in the case of interest, fractional        shares pursuant to customary and market conversion and other provisions or expenses        (which may be payable in cash)) shall not constitute “amortization”, “redemption”,        “repurchase” or “prepayment” for the purposes of this definition and (ii) that any        amortization, mandatory redemption, repurchase or prepayment obligation or put right that        is contingent upon the happening of an event that is not certain to occur (including, without        limitation, a Change in Control or bankruptcy) shall not in and of itself be deemed to        disqualify such Indebtedness under this clause (a) (notwithstanding the foregoing, in this        clause (ii), the Borrower acknowledges that any payment prior to the Termination Date in                                        39                                                                                    





 






                                                  respect of any such obligation or right shall only be made to the extent permitted by Section         6.12)),                      (b)   is incurred pursuant to documentation containing (i) financial         covenants, covenants governing the borrowing base, if any, covenants regarding portfolio         valuation, and events of default that are no more restrictive in any respect upon the         Borrower and its Subsidiaries, at any time that any Commitments or Loans are outstanding        hereunder (including pursuant to any maturity extensions), than those set forth in this        Agreement (other than, if such Indebtedness is governed by a customary indenture or        similar instrument, events of default that are customary in indentures or similar instruments        and that have no analogous provisions in this Agreement or credit agreements generally)        (provided that, upon the Borrower’s request, this Agreement will be deemed to be         automatically amended (and, upon the request of the Administrative Agent or the Required         Lenders, the Borrower and the Lenders shall enter into a document evidencing such         amendment), mutatis mutandis, to make such covenants more restrictive in this Agreement        as may be necessary to meet the requirements of this clause (b)(i)) (it being understood that         put rights or repurchase or redemption obligations (x) in the case of convertible securities,         in connection with the suspension or delisting of the Equity Interests of the Borrower or        the failure of the Borrower to satisfy a continued listing rule with respect to its Equity        Interests or (y) arising out of circumstances that would constitute a “fundamental change”        (as such term is customarily defined in convertible note offerings) or an Event of Default        shall not be deemed to be more restrictive for purposes of this definition) and (ii) other        terms that are substantially comparable to, or more favorable to the Borrower than, market        terms for substantially similar debt of other similarly situated borrowers as reasonably        determined in good faith by the Borrower, and                      (c)   is not secured by any assets of any Person.  For the avoidance of         doubt, (a) Unsecured Longer-Term Indebtedness shall also include any refinancing,        refunding, renewal or extension of any Unsecured Longer-Term Indebtedness so long as         such refinanced, refunded, renewed or extended Indebtedness continues to satisfy the         requirements of clause (B) of this definition and (b) any payment on account of Unsecured         Longer-Term Indebtedness shall be subject to Section 6.12.                “Unsecured Shorter-Term Indebtedness” means, collectively, (a) any Indebtedness   of the Borrower or any Subsidiary (other than a Financing Subsidiary) that is not secured by any   assets of any Person and that does not constitute Unsecured Longer-Term Indebtedness and (b) any   Indebtedness for borrowed money of the Borrower or any Subsidiary (other than a Financing   Subsidiary) that is designated as “Unsecured Shorter-Term Indebtedness” pursuant to  Section 6.11.  For the avoidance of doubt, Unsecured Shorter-Term Indebtedness shall also include   any refinancing, refunding, renewal or extension of any Unsecured Shorter-Term Indebtedness so  long as such refinanced, refunded, renewed or extended Indebtedness continues to satisfy the  requirements of this definition.                “USA PATRIOT Act” has the meaning assigned to such term in Section 3.21.                “U.S. Government Securities” means securities that are direct obligations of, and   obligations the timely payment of principal and interest on which is fully guaranteed by, the United                                         40                                                                                      





 






                                            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 and in the form of conventional bills, bonds, and   notes.                “U.S. Person” means any Person that is a “United States Person” as defined in   Section 7701(a)(30) of the Code.                “Valuation Policy” means the Borrower’s valuation policy as in existence on the   Effective Date and delivered to the Administrative Agent prior to the Effective Date, as may be   amended or modified from time to time in a manner consistent with standard industry practice by   a Permitted Policy Amendment.                “Valuation Testing Date” has the meaning assigned to such term in Section   5.12(b)(iii)(A).                “Value” has the meaning assigned to such term in Section 5.13.                “wholly owned Subsidiary” of any person shall mean a Subsidiary of such person,   all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other   similar shares required pursuant to applicable law) are owned by such person and/or one or more   wholly owned Subsidiaries of such person.  Unless the context otherwise requires, “wholly owned   Subsidiary Guarantor” shall mean a wholly owned Subsidiary that is a Subsidiary Guarantor.                “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a   “complete withdrawal” or “partial withdrawal” from such Multiemployer Plan, as defined in Part I   of Subtitle E of Title IV of ERISA.                “Withholding Agent” means any Obligor and the Administrative Agent.                “Write-Down and Conversion Powers” means, with respect to any EEA Resolution   Authority, the write-down and conversion powers of such EEA Resolution Authority from time to   time under the Bail-In Legislation for the applicable EEA Member Country, which write-down   and conversion powers are described in the EU Bail-In Legislation Schedule.                SECTION 1.02   Classification of Loans and Borrowings.  For purposes of this   Agreement, Loans may be classified and referred to by Class (e.g., a “Dollar Loan” or a   “Multicurrency Loan”), by Type (e.g., an “ABR Loan” or a “Eurocurrency Loan”) or by Class and   Type (e.g., a “Multicurrency Eurocurrency Loan”).  Borrowings also may be classified and   referred to by Class (e.g., a “Dollar Borrowing” or a “Multicurrency Borrowing”), by Type (e.g.,   an “ABR Borrowing” or a “Eurocurrency Borrowing”) or by Class and Type (e.g., a   “Multicurrency Eurocurrency Borrowing”).  Loans and Borrowings may also be identified by   Currency.                SECTION 1.03   Terms Generally.  The definitions of terms herein shall apply   equally to the singular and plural forms of the terms defined.  Whenever the context may require,   any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words  “include”, “includes” and “including” shall be deemed to be followed by the phrase “without                                          41                                                                                      





 






                                            limitation”.  The word “will” shall be construed to have the same meaning and effect as the word   “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement,   instrument or other document herein shall be construed as referring to such agreement, instrument   or other document as from time to time amended, restated, amended and restated, supplemented  or otherwise modified (subject to any restrictions on such amendments, supplements or  modifications set forth herein or therein), (b) any reference herein to any Person shall be construed  to include such Person’s successors and assigns (subject to any restrictions on such successors and  assigns set forth herein), (c) the words “herein”, “hereof” and “hereunder”, and words of similar  import, shall be construed to refer to this Agreement in its entirety and not to any particular  provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be  construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and   (e) the words “asset” and “property” shall be construed to have the same meaning and effect and   to refer to any and all tangible and intangible assets and properties, including cash, securities,   accounts and contract rights.  Solely for purposes of this Agreement, any references to   “obligations” owed by any Person under any Hedging Agreement shall refer to the amount that   would be required to be paid by such Person if such Hedging Agreement were terminated at such   time (after giving effect to any netting agreement).                SECTION 1.04   Accounting Terms; GAAP.  Except as otherwise expressly   provided herein, all terms of an accounting or financial nature shall be construed in accordance   with GAAP, as in effect from time to time; provided that, if the Borrower notifies the   Administrative Agent that the Borrower requests an amendment to any provision hereof to   eliminate the effect of any change occurring after the Effective Date in GAAP or in the application   or interpretation thereof on the operation of such provision (or if the Administrative Agent notifies   the Borrower that the Required Lenders request an amendment to any provision hereof for such   purpose), regardless of whether any such notice is given before or after such change in GAAP or   in the application thereof, then the Borrower, Administrative Agent and the Lenders agree to enter   into negotiations in good faith in order to amend such provisions of the Agreement so as to   equitably reflect such change to comply with GAAP with the desired result that the criteria for   evaluating the Borrower’s financial condition shall be the same after such change to comply with   GAAP as if such change had not been made; provided, however,  until such amendments to   equitably reflect such changes are effective and agreed to by the Borrower, Administrative Agent   and the Required Lenders, the Borrower’s compliance with such financial covenants shall be   determined on the basis of GAAP as in effect and applied immediately before such change in   GAAP becomes effective.  Notwithstanding the foregoing or anything herein to the contrary, the   Borrower covenants and agrees with the Lenders that whether or not the Borrower may at any time   adopt Financial Accounting Standard Board Accounting Standards Codification 825, all   determinations relating to fair value accounting for liabilities or compliance with the terms and   conditions of this Agreement shall be made on the basis that the Borrower has not adopted   Accounting Standard Codification 825.  In addition, notwithstanding Accounting Standards   Update 2015-03, GAAP or any other matter, for purposes of calculating any financial or other   covenants hereunder, debt issuance costs shall not be deducted from the related debt obligation.    Notwithstanding any other provision contained herein, the definitions set forth in the Loan   Document and any financial calculations required by the Loan Documents shall be computed to   exclude any effects on lease accounting as a result of ASU No. 2016-02 Leases (Topic 842) (or  any other Financial Accounting Standard having a similar result or effect), regardless of the date                                         42                                                                                      





 






                                            enacted, adopted or issued and regardless of any delayed implementation thereof, and all   determinations of Capital Lease Obligations shall be made consistently therewith (i.e., ignoring   any such changes in GAAP pursuant to ASU No. 2016-02 Leases (Topic 842) (or any other   Financial Accounting Standard having a similar result or effect).                SECTION 1.05   Currencies; Currency Equivalents.                (a)   Currencies Generally.  At any time, any reference in the definition of the   term “Agreed Foreign Currency” or in any other provision of this Agreement to the Currency of   any particular nation means the lawful currency of such nation at such time whether or not the   name of such Currency is the same as it was on the Effective Date.  Except as provided in Section   2.09(b) and the last sentence of Section 2.16(a), for purposes of determining (i) whether the amount   of any Multicurrency Borrowing or Letter of Credit then outstanding or to be borrowed at the same   time as such Borrowing would exceed the aggregate amount of Multicurrency Commitments, (ii)   the aggregate unutilized amount of the Multicurrency Commitments, (iii) the Multicurrency Credit   Exposure, (iv) the LC Exposure, (v) the Covered Debt Amount and (vi) the Borrowing Base or the   Value of any Portfolio Investment, the outstanding principal amount of any Borrowing or Letter   of Credit that is denominated in any Foreign Currency or the Value of any Portfolio Investment   that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent of the   amount of the Foreign Currency of such Borrowing, Letter of Credit or Portfolio Investment, as   the case may be, determined as of the date of such Borrowing or Letter of Credit (determined in   accordance with the last sentence of the definition of the term “Interest Period”) or the date of   valuation of such Portfolio Investment, as the case may be; provided that in connection with the   delivery of any Borrowing Base Certificate pursuant to Section 5.01(d) or (e), such amounts shall   be determined as of the date of delivery of such Borrowing Base Certificate.  Wherever in this  Agreement in connection with a Borrowing or Loan an amount, such as a required minimum or  multiple amount, is expressed in Dollars, but such Borrowing or Loan is denominated in a Foreign  Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar Amount  (rounded to the nearest 1,000 units of such Foreign Currency).  Without limiting the generality of  the foregoing, for purposes of determining compliance with any basket in this Agreement, in no  event shall any Obligor be deemed to not be in compliance with any such basket solely as a result  of a change in exchange rates.                (b)   Special Provisions Relating to Euro.  Each obligation hereunder of any party   hereto that is denominated in the National Currency of a state that is not a Participating Member   State on the Effective Date shall, effective from the date on which such state becomes a   Participating Member State, be redenominated in Euro in accordance with the legislation of the   European Union applicable to the European Monetary Union; provided that, if and to the extent   that any such legislation provides that any such obligation of any such party payable within such   Participating Member State by crediting an account of the creditor can be paid by the debtor either   in Euros or such National Currency, such party shall be entitled to pay or repay such amount either   in Euros or in such National Currency.  If the basis of accrual of interest or fees expressed in this   Agreement with respect to an Agreed Foreign Currency of any country that becomes a   Participating Member State after the date on which such currency becomes an Agreed Foreign   Currency shall be inconsistent with any convention or practice in the interbank market for the basis   of accrual of interest or fees in respect of the Euro, such convention or practice shall replace such                                          43                                                                                      





 






                                          expressed basis effective as of and from the date on which such state becomes a Participating  Member State; provided that, with respect to any Borrowing denominated in such currency that is  outstanding immediately prior to such date, such replacement shall take effect at the end of the  Interest Period therefor.               Without prejudice to the liabilities of the Borrower to the Lenders and the Lenders  to the Borrower under or pursuant to this Agreement, each provision of this Agreement shall be  subject to such reasonable changes of construction as the Administrative Agent may from time to  time, in consultation with the Borrower, reasonably specify to be necessary or appropriate to reflect  the introduction or changeover to the Euro in any country that becomes a Participating Member  State after the Effective Date; provided that the Administrative Agent shall provide the Borrower  and the Lenders with prior notice of the proposed change with an explanation of such change in  sufficient time to permit the Borrower and the Lenders an opportunity to respond to such proposed  change.               (c)   Exchange Rates; Currency Equivalents.  The Administrative Agent or the  Issuing Bank, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used  for calculating Dollar Equivalent amounts of Loans, Letters of Credit and Credit Exposure  denominated in Agreed Foreign Currencies. Such Spot Rates shall become effective as of such  Revaluation Date and shall be the Spot Rates employed in converting any amounts between the  applicable currencies until the next Revaluation Date to occur. Except for purposes of financial  statements delivered pursuant to Section 5.01 or calculating financial covenants hereunder or  except as otherwise provided herein, the applicable amount of any currency (other than Dollars)  for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by  the Administrative Agent or the Issuing Bank, as applicable.  Wherever in this Agreement in  connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Loan or  the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum  or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Loan or Letter of  Credit is denominated in an Agreed Foreign Currency, such amount shall be the relevant Foreign  Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Agreed Foreign  Currency, with 0.5 of a unit being rounded upward).                                    ARTICLE II.                                                                           THE CREDITS               SECTION 2.01   The Commitments.               (a)   Subject to the terms and conditions set forth herein, each Dollar Lender  severally agrees to make Dollar Loans to the Borrower from time to time during the Availability  Period in an aggregate principal amount that will not result in (a) such Lender’s Dollar Credit  Exposure exceeding such Lender’s Dollar Commitment, (b) the aggregate Dollar Credit Exposure  of all of the Lenders exceeding the aggregate Dollar Commitments or (c) a Borrowing Base  Deficiency.               (b)   Subject to the terms and conditions set forth herein, each Multicurrency  Lender severally agrees to make Multicurrency Loans to the Borrower from time to time during                                        44                                                                                    





 






                                            the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s   Multicurrency Credit Exposure exceeding such Lender’s Multicurrency Commitment, (b) the   aggregate Multicurrency Credit Exposure of all of the Lenders exceeding the aggregate   Multicurrency Commitments or (c) a Borrowing Base Deficiency.                (c)   Within the foregoing limits and subject to the terms and conditions set forth   herein, the Borrower may borrow, prepay and reborrow Loans.                SECTION 2.02   Loans and Borrowings.                (a)   Obligations of Lenders.  Each Loan shall be made as part of a Borrowing   consisting of Loans of the same Class, Currency and Type made by the Lenders ratably in   accordance with their respective Commitments of the same Class.  The failure of any Lender to   make any Loan required to be made by it shall not relieve any other Lender of its obligations   hereunder; provided that the Commitments of the Lenders are several and no Lender shall be   responsible for any other Lender’s failure to make Loans as required.                (b)   Type of Loans.  Subject to Section 2.12, each Borrowing of a Class shall be   constituted entirely of ABR Loans or of Eurocurrency Loans of such Class denominated in a single   Currency as the Borrower may request in accordance herewith.  Each Pro-Rata Borrowing  denominated in Dollars shall be constituted entirely of ABR Loans or of Eurocurrency Loans.   Each Borrowing denominated in an Agreed Foreign Currency shall be constituted entirely of  Eurocurrency Loans.  Each Lender at its option may make any Eurocurrency Loan by causing any  domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any   exercise of such option shall not affect the obligation of the Borrower to repay such Loan in   accordance with the terms of this Agreement and (ii) in exercising such option, such Lender shall   use reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which   obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines   would result in increased costs for which it will not be compensated hereunder or that it determines   would be otherwise disadvantageous to it and in the event of such request for costs for which   compensation is provided under this Agreement, the provisions of Section 2.14 shall apply).                (c)   Minimum Amounts.  Each Borrowing (whether Eurocurrency or ABR) shall   be in an aggregate amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or,   with respect to any Agreed Foreign Currency, such smaller minimum amount as may be agreed to   by the Administrative Agent; provided that a Borrowing of a Class may be in an aggregate amount   that is equal to the entire unused balance of the total Commitments of such Class or that is required   to finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(f).    Borrowings of more than one Class, Currency Type may be outstanding at the same time.                (d)   Limitations on Interest Periods.  Notwithstanding any other provision of this   Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as a   Eurocurrency Borrowing) any Borrowing if the Interest Period requested therefor would end after   the Maturity Date.                SECTION 2.03   Requests for Borrowings.                                          45                                                                                      





 






                                                        (a)   Notice by the Borrower.  To request a Borrowing, the Borrower shall notify   the Administrative Agent of such request by delivery of a signed Borrowing Request or by   telephone or e-mail (in each case, followed promptly by delivery of a signed Borrowing Request)   (i) in the case of a Eurocurrency Borrowing denominated in Dollars, not later than 12:00 p.m.,   New York City time, three (3) Business Days before the date of the proposed Borrowing, (ii) in   the case of a Eurocurrency Borrowing denominated in a Foreign Currency (other than AUD), not   later than 12:00 p.m. London time, three Business Days before the date of the proposed Borrowing,   (iii) (x) in the case of an ABR Borrowing not in excess of $50,000,000, not later than 10:00 a.m.,   New York City time, on the date of the proposed Borrowing and (y) in the case of any other ABR   Borrowing, not later than 12:00 p.m., New York City time, one Business Day before the date of   the proposed Borrowing or (iv) in the case of a Eurocurrency Borrowing denominated in AUD,   not later than 12:00 p.m., London time, four Business Days before the date of the proposed   Borrowing.  Each such request for a Borrowing shall be irrevocable and shall be confirmed   promptly by hand delivery or by email to the Administrative Agent of a written Borrowing Request   in a form approved by the Administrative Agent and signed by the Borrower.  Notwithstanding the   other provisions of this Agreement, in the case of any Borrowing denominated in Dollars, the   Borrower may request that such Borrowing be split into a Dollar Loan in an aggregate principal   amount equal to the Pro-Rata Dollar Portion and a Multicurrency Loan in an aggregate principal   amount equal to the Pro-Rata Multicurrency Portion (any such Borrowing, a “Pro-Rata   Borrowing”).  Except as set forth in this Agreement, a Pro-Rata Borrowing shall be treated as being   comprised of two separate Borrowings, a Dollar Borrowing under the Dollar Commitments and a   Multicurrency Borrowing under the Multicurrency Commitments.                 (b)   Content of Borrowing Requests.  Each request for a Borrowing (whether a   written Borrowing Request, a telephonic request or e-mail request) shall specify the following  information in compliance with Section 2.02:                (i)   whether such Borrowing is to be made under the Dollar Commitments or         the Multicurrency Commitments or is a Pro-Rata Borrowing;                (ii)  if such Borrowing is a Pro-Rata Borrowing, the Pro-Rata Dollar Portion and         the Pro-Rata Multicurrency Portion;               (iii) the aggregate amount and Currency of such Borrowing;                (iv)  the date of such Borrowing, which shall be a Business Day;               (v)   in the case of a Borrowing denominated in Dollars, whether such Borrowing        is to be an ABR Borrowing or a Eurocurrency Borrowing;                (vi)  in the case of a Eurocurrency Borrowing, the Interest Period therefor, which         shall be a period contemplated by the definition of the term “Interest Period” and permitted         under Section 2.02(d); provided, that there shall be no more than ten (10) separate         Borrowings outstanding at any one time; and                (vii) the location and number of the Borrower’s account (or such other account(s)        as the Borrower may designate in a written Borrowing Request accompanied by                                          46                                                                                      





 






                                                  information reasonably satisfactory to the Administrative Agent as to the identity and         purpose of such other account(s)) to which funds are to be disbursed, which shall comply         with the requirements of Section 2.05.                (c)   Notice by the Administrative Agent to the Lenders.  Promptly following   receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall   advise each applicable Lender of the details thereof and of the amounts of such Lender’s Loan to   be made as part of the requested Borrowing.                (d)   Failure to Elect.  If no election as to the Class of a Borrowing is specified   in a Borrowing Request, then the requested Borrowing shall be denominated in Dollars and shall   be a Pro-Rata Borrowing.  If no election as to the Currency of a Borrowing is specified in a  Borrowing request, then the requested Borrowing shall be denominated in Dollars. If no election  as to the Type of a Borrowing is specified in a Borrowing Request, then the requested Borrowing   shall be a Eurocurrency Borrowing having an Interest Period of one month’s duration and if an   Agreed Foreign Currency has been specified, the requested Borrowing shall be a Eurocurrency   Borrowing denominated in such Agreed Foreign Currency having an interest period of one month’s  duration.  If a Eurocurrency Borrowing is requested but no Interest Period is specified, (i) if the  Currency specified for such Borrowing is Dollars (or if no Currency has been specified), the  requested Borrowing shall be a Eurocurrency Borrowing denominated in Dollars having an  Interest Period of one month’s duration, and (ii) if the Currency specified for such Borrowing is  an Agreed Foreign Currency, the Borrower shall be deemed to have selected an Interest Period of  one month’s duration.                SECTION 2.04   Letters of Credit.                (a)   General.  Subject to the terms and conditions set forth herein, in addition to   the Loans provided for in Section 2.01, the Borrower may request the Issuing Bank to issue, at any   time and from time to time during the Availability Period and under the Multicurrency   Commitments, Letters of Credit denominated in Dollars or in any Agreed Foreign Currency for its   own account or for the account of its designee (provided the Obligors shall remain primarily liable  to the Lenders hereunder for payment and reimbursement of all amounts payable in respect of such  Letter of Credit hereunder) for the purposes set forth in Section 5.09 in such form as is acceptable   to the Issuing Bank in its reasonable determination and for the benefit of such named beneficiary   or beneficiaries as are specified by the Borrower.  Letters of Credit issued hereunder shall   constitute utilization of the Multicurrency Commitments up to the aggregate amount then available   to be drawn thereunder.                (b)   Notice of Issuance, Amendment, Renewal or Extension.  To request the   issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of   Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if   arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the   Administrative Agent (reasonably in advance of the requested date of issuance, amendment,   renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter   of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment,   renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is   to expire (which shall comply with paragraph (d) of this Section), the amount of such Letter of                                         47                                                                                      





 






                                          Credit, stating that such Letter of Credit is to be issued under the Multicurrency Commitments, the  name and address of the beneficiary thereof and such other information as shall be necessary to  prepare, amend, renew or extend such Letter of Credit.  The Administrative Agent will promptly  notify all Multicurrency Lenders following the issuance of any Letter of Credit.  If requested by  the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank’s  standard form in connection with any request for a Letter of Credit.  In the event of any  inconsistency between the terms and conditions of this Agreement and the terms and conditions of  any form of letter of credit application or other agreement submitted by the Borrower to, or entered  into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and  conditions of this Agreement shall control.               (c)   Limitations on Amounts.  A Letter of Credit shall be issued, amended,  renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter  of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such  issuance, amendment, renewal or extension (i) the aggregate LC Exposure of the Issuing Bank  (determined for these purposes without giving effect to the participations therein of the Lenders  pursuant to paragraph (e) of this Section) shall not exceed $25,000,000, (ii) the total Multicurrency  Credit Exposures shall not exceed the aggregate Multicurrency Commitment and  (iii) the total  Covered Debt Amount shall not exceed the Borrowing Base then in effect.               (d)   Expiration Date.  Each Letter of Credit shall expire at or prior to the close  of business on the date twelve months after the date of the issuance of such Letter of Credit (or, in  the case of any renewal or extension thereof, twelve months after the then-current expiration date  of such Letter of Credit, so long as such renewal or extension occurs within three months of such  then-current expiration date); provided that any Letter of Credit with a one-year term may provide  (pursuant to customary “evergreen” provisions) for the renewal thereof for additional one-year  periods; provided, further, that (x) in no event shall any Letter of Credit have an expiration date  that is later than the Revolver Termination Date unless the Borrower (1) Cash Collateralizes such  Letter of Credit on or prior to the date that is two (2) Business Days prior to the Revolver  Termination Date (by reference to the undrawn face amount of such Letter of Credit) that will  remain outstanding as of the close of business on the Revolver Termination Date and (2) pays in  full, on or prior to the Revolver Termination Date, all commissions required to be paid with respect  to any such Letter of Credit through the then-current expiration date of such Letter of Credit and  (y) no Letter of Credit shall have an expiration date after the Maturity Date.               (e)   Participations.  By the issuance of a Letter of Credit (or an amendment to a  Letter of Credit increasing the amount thereof) by the Issuing Bank, and without any further action  on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each  Multicurrency Lender, and each Multicurrency Lender hereby acquires from the Issuing Bank, a  participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the  aggregate amount available to be drawn under such Letter of Credit.  Each Multicurrency Lender  acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in  respect of Letters of Credit is absolute and unconditional and shall not be affected by any  circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit  or the occurrence and continuance of a Default or reduction or termination of the Commitments,  provided that no Multicurrency Lender shall be required to purchase a participation in a Letter of                                         48                                                                                    





 






                                            Credit pursuant to this Section 2.04(e) if (x) the conditions set forth in Section 4.02 would not be   satisfied in respect of a Borrowing at the time such Letter of Credit was issued and (y) the Required   Multicurrency Lenders shall have so notified the Issuing Bank in writing and shall not have   subsequently determined that the circumstances giving rise to such conditions not being satisfied   no longer exist.                In consideration and in furtherance of the foregoing, each Multicurrency Lender   hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for account of   the Issuing Bank, such Lender’s Applicable Multicurrency Percentage of each LC Disbursement   made by the Issuing Bank in respect of Letters of Credit promptly upon the request of the Issuing   Bank at any time from the time of such LC Disbursement until such LC Disbursement is   reimbursed by the Borrower or at any time after any reimbursement payment is required to be   refunded to the Borrower for any reason.  Such payment shall be made without any offset,   abatement, withholding or reduction whatsoever.  Each such payment shall be made in the same   manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05   shall apply, mutatis mutandis, to the payment obligations of the Multicurrency Lenders), and the   Administrative Agent shall promptly  pay to the Issuing Bank the amounts so received by it from   the Multicurrency Lenders.  Promptly following receipt by the Administrative Agent of any  payment from the Borrower pursuant to paragraph (f), the Administrative Agent shall distribute   such payment to the Issuing Bank or, to the extent that the Multicurrency Lenders have made   payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the   Issuing Bank as their interests may appear.  Any payment made by a Multicurrency Lender   pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement shall not   constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC   Disbursement.                (f)   Reimbursement.  If the Issuing Bank shall make any LC Disbursement in   respect of a Letter of Credit, the Borrower shall reimburse the Issuing Bank in respect of such LC   Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement   not later than 12:00 p.m., New York City time, on (i) the Business Day that the Borrower receives   notice of such LC Disbursement, if such notice is received prior to 10:00 a.m., New York City   time, or (ii) the Business Day immediately following the day that the Borrower receives such   notice, if such notice is not received prior to such time, provided that, if such LC Disbursement is   not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein,   request in accordance with Section 2.03 that such payment be financed with a Eurocurrency   Borrowing having an Interest Period of one month’s duration of either Class in an equivalent   amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be  discharged and replaced by the resulting Eurocurrency Borrowing having an Interest Period of one  month’s duration.                If the Borrower fails to make such payment when due, the Administrative Agent   shall notify each applicable Lender of the applicable LC Disbursement, the payment then due from   the Borrower in respect thereof and such Lender’s Applicable Multicurrency Percentage thereof.                (g)   Obligations Absolute.  The Borrower’s obligation to reimburse LC   Disbursements as provided in paragraph (f) of this Section shall be absolute, unconditional and                                          49                                                                                      





 






                                            irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under   any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability   of any Letter of Credit, or any term or provision therein, (ii) any draft or other document presented   under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement   therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter   of Credit against presentation of a draft or other document that does not comply strictly with the   terms of such Letter of Credit, and (iv) any other event or circumstance whatsoever, whether or  not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a   legal or equitable discharge of the Borrower’s obligations hereunder.                None of the Administrative Agent, the Lenders, the Issuing Bank, or any of their   respective Related Parties, shall have any liability or responsibility by reason of or in connection   with the issuance or transfer of any Letter of Credit by the Issuing Bank or any payment or failure   to make any payment thereunder (irrespective of any of the circumstances referred to in the   preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery   of any draft, notice or other communication under or relating to any Letter of Credit (including   any document required to make a drawing thereunder), any error in interpretation of technical   terms or any consequence arising from causes beyond the control of the Issuing Bank; provided   that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower   to the extent of any direct damages (as opposed to consequential damages, claims in respect of   which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by   the Borrower that are caused by the Issuing Bank’s gross negligence or willful misconduct when   determining whether drafts and other documents presented under a Letter of Credit comply with   the terms thereof.  The parties hereto expressly agree that:                (i)   the Issuing Bank may accept documents that appear on their face to be in         substantial compliance with the terms of a Letter of Credit without responsibility for further         investigation, regardless of any notice or information to the contrary, and may make         payment upon presentation of documents that appear on their face to be in substantial         compliance with the terms of such Letter of Credit;                (ii)  the Issuing Bank shall have the right, in its sole discretion, to decline to         accept such documents and to make such payment if such documents are not in strict         compliance with the terms of such Letter of Credit; and                (iii) this sentence shall establish the standard of care to be exercised by the        Issuing Bank when determining whether drafts and other documents presented under a        Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the        extent permitted by applicable law, any standard of care inconsistent with the foregoing).                (h)   Disbursement Procedures.  The Issuing Bank shall, within a reasonable time   following its receipt thereof, examine all documents purporting to represent a demand for payment   under a Letter of Credit.  The Issuing Bank shall promptly after such examination notify the   Administrative Agent and the Borrower by telephone (confirmed by telecopy or by email) of such  demand for payment and whether the Issuing Bank has made or will make an LC Disbursement  thereunder; provided that any failure to give or delay in giving such notice shall not relieve the                                          50                                                                                      





 






                                          Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to any such  LC Disbursement.               (i)   Interim Interest.  If the Issuing Bank shall make any LC Disbursement, then,  unless the Borrower shall reimburse such LC Disbursement in full on the date such LC  Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and  including the date such LC Disbursement is made to but excluding the date that the Borrower  reimburses such LC Disbursement, at the rate per annum then applicable to Eurocurrency Loans  having an Interest Period of one month’s duration; provided that, if the Borrower fails to reimburse  such LC Disbursement within two Business Days following the date when due pursuant to  paragraph (f) of this Section, then the provisions of Section 2.11(c) shall apply.  Interest accrued  pursuant to this paragraph shall be for account of the Issuing Bank, except that interest accrued on  and after the date of payment by any Lender pursuant to paragraph (f) of this Section to reimburse  the Issuing Bank shall be for account of such Lender to the extent of such payment.               (j)   Replacement of the Issuing Bank.  The Issuing Bank may be replaced at any  time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing  Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any  such replacement of the Issuing Bank.  In addition to the foregoing, if a Lender becomes, and  during the period in which it remains, a Defaulting Lender, and any Default has arisen from a  failure of the Borrower to comply with Section 2.17(c), then the Issuing Bank may, upon prior  written notice to the Borrower and the Administrative Agent, resign as Issuing Bank, effective at  the close of business New York City time on a date specified in such notice (which date may not  be less than five (5) Business Days after the date of such notice).  On or after the effective date of  any such resignation, the Borrower and the Administrative Agent may, by written agreement,  appoint a successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such  replacement of the Issuing Bank.  At the time any such replacement under any of the foregoing  circumstances shall become effective, the Borrower shall pay all unpaid fees accrued for account  of the replaced Issuing Bank pursuant to Section 2.10(b).  From and after the effective date of any  such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the  replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter  and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or  to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context  shall require.  After the replacement of the Issuing Bank hereunder, the replaced Issuing Bank shall  remain a party hereto and shall continue to have all the rights and obligations of the Issuing Bank  under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but  shall not be required to issue additional Letters of Credit.               (k)   Cash Collateralization.  If the Borrower shall be required or shall elect, as  the case may be, to provide cover for LC Exposure pursuant to Section 2.04(d), Section 2.09(b),  Section 2.17(c)(ii) or the last paragraph of Article VII, the Borrower shall immediately Cash  Collateralize such LC Exposure.  Such Cash Collateral shall be held by the Administrative Agent  in the first instance as collateral for LC Exposure under this Agreement and thereafter for the  payment of the “Secured Obligations” as defined in the Guarantee and Security Agreement, and  for these purposes the Borrower hereby grants a security interest to the Administrative Agent for                                         51                                                                                    





 






                                            the benefit of the Issuing Bank and the Lenders in the Letter of Credit Collateral Account and in   any financial assets (as defined in the Uniform Commercial Code) or other property held therein.                SECTION 2.05   Funding of Borrowings.                (a)   Funding by Lenders.  Each Lender shall make each Loan to be made by it   hereunder on the proposed date thereof by wire transfer of immediately available funds by   1:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it   for such purpose by notice to the Lenders.  The Administrative Agent will make such Loans   available to the Borrower by promptly crediting the amounts so received, in like funds, to an   account of the Borrower designated by the Borrower in the applicable Borrowing Request;   provided that Borrowings made to finance the reimbursement of an LC Disbursement as provided   in Section 2.04(f) shall be remitted by the Administrative Agent to the Issuing Bank.                (b)   Presumption by the Administrative Agent.  Unless the Administrative Agent   shall have received notice from a Lender prior to the proposed date of any Borrowing that such   Lender will not make available to the Administrative Agent such Lender’s share of such   Borrowing, the Administrative Agent may assume that such Lender has made such share available   on such date in accordance with paragraph (a) of this Section and, in reliance upon such   assumption, the Administrative Agent may (in its sole discretion and without any obligation to do   so) make available to the Borrower a corresponding amount.  In such event, if a Lender has not in   fact made its share of the applicable Borrowing available to the Administrative Agent, then the   applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith   on demand such corresponding amount in the corresponding Currency with interest thereon, for   each day from and including the date such amount is made available to the Borrower to but   excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the   Federal Funds Effective Rate and (ii) in the case of the Borrower, the interest rate applicable to   Eurocurrency Loans having an Interest Period of one month’s duration.  If such Lender pays such   amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan   included in such Borrowing.  Nothing in this paragraph shall relieve any Lender of its obligation   to fulfill its commitments hereunder, and shall be without prejudice to any claim the Borrower may   have against a Lender that shall have failed to make such payment to the Administrative Agent.                SECTION 2.06   Interest Elections.                (a)   Elections by the Borrower for Borrowings.  Subject to Section 2.03(d), the   Loans constituting each Borrowing initially shall be of the Type specified in the applicable   Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have the Interest Period   specified in such Borrowing Request.  Thereafter, subject to Section 2.06(e), the Borrower may   elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing   as a Borrowing of the same Type and, in the case of a Eurocurrency Borrowing, may elect the   Interest Period therefor, all as provided in this Section; provided, however that (i) a Borrowing of   a Class may only be continued or converted into a Borrowing of the same Class, (ii) a Borrowing   denominated in one Currency may not be continued as, or converted into, a Borrowing in a   different Currency, (iii) no Eurocurrency Borrowing denominated in a Foreign Currency may be  continued if, after giving effect thereto, the aggregate Multicurrency Credit Exposures would  exceed the aggregate Multicurrency Commitments and (iv) a Eurocurrency Borrowing                                         52                                                                                      





 






                                            denominated in a Foreign Currency may not be converted into a Borrowing of a different Type.    The Borrower may elect different options with respect to different portions of the affected   Borrowing, in which case each such portion shall be allocated ratably among the Lenders of the   respective Class holding the Loans constituting such Borrowing, and the Loans constituting each   such portion shall be considered a separate Borrowing.                (b)   Notice of Elections.  To make an election pursuant to this Section, the   Borrower shall notify the Administrative Agent of such election by delivery of a signed Interest   Election Request in a form approved by the Administrative Agent or by telephone (followed   promptly, but no later than the close of business on the date of such request, by a signed Interest   Election Request in a form approved by the Administrative Agent) by the time that a Borrowing   Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the   Type resulting from such election to be made on the effective date of such election.  Each such   Interest Election Request shall be irrevocable.                (c)   Content of Interest Election Requests.  Each telephonic and written Interest   Election Request shall specify the following information in compliance with Section 2.02:                (i)   the Borrowing (including the Class) to which such Interest Election Request         applies and, if different options are being elected with respect to different portions thereof,         the portions thereof to be allocated to each resulting Borrowing (in which case the         information to be specified pursuant to clauses (iii) and (iv) of this paragraph shall be         specified for each resulting Borrowing);                (ii)  the effective date of the election made pursuant to such Interest Election         Request, which shall be a Business Day;                (iii) in the case of a Borrowing denominated in Dollars, whether the resulting         Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and                (iv)  if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period         therefor after giving effect to such election, which shall be a period contemplated by the         definition of the term “Interest Period” and permitted under Section 2.02(d); provided, that         there shall be no more than ten (10) separate Borrowings outstanding at any one time.                (d)   Notice by the Administrative Agent to the Lenders.  Promptly following   receipt of an Interest Election Request, the Administrative Agent shall advise each applicable   Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.                (e)   Failure to Elect; Events of Default.  If the Borrower fails to deliver a timely   and complete Interest Election Request with respect to a Eurocurrency Borrowing prior to the end   of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein, (i) if such   Borrowing is denominated in Dollars, at the end of such Interest Period such Borrowing shall be   converted to a Eurocurrency Borrowing of the same Class having an Interest Period of one month’s  duration and (ii) if such Borrowing is denominated in a Foreign Currency, the Borrower shall be  deemed to have selected an Interest Period of one month’s duration.  Notwithstanding any contrary  provision hereof, if an Event of Default has occurred and is continuing and the Administrative                                          53                                                                                      





 






                                            Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such Event   of Default is continuing no outstanding Eurocurrency Borrowing may have an Interest Period of   more than one month’s duration.                SECTION 2.07   Termination, Reduction or Increase of the Commitments.                (a)   Scheduled Termination.  Unless previously terminated in accordance with   the terms of this Agreement, on the Revolver Termination Date the Commitments shall   automatically be reduced to an amount equal to the aggregate principal amount of the Loans and   LC Exposure of all Lenders outstanding on the Revolver Termination Date and thereafter to an   amount equal to the aggregate principal amount of the Loans and LC Exposure outstanding after   giving effect to each payment of principal and each expiration or termination of a Letter of Credit   hereunder; provided that, for clarity, except as expressly provided for herein (including, without   limitation, Section 2.04(e)), no Lender shall have any obligation to make new Loans or to issue,   amend or renew an existing Letter of Credit on or after the Revolver Termination Date, and Loans   outstanding on the Revolver Termination Date shall be due and payable on the Maturity Date in  accordance with Section 2.08.                (b)   Voluntary Termination or Reduction.  The Borrower may at any time   terminate, or from time to time reduce, the Commitments ratably among each Class; provided that   (i) each reduction of the Commitments pursuant to this Section 2.07(b) shall be in a minimum   amount of at least $1,000,000 (or an amount less than $1,000,000 if the Commitments are being   reduced to zero) and (ii) the Borrower shall not terminate or reduce the Commitments if, after  giving effect to any concurrent prepayment of the Loans of any Class in accordance with  Section 2.09, the total Credit Exposures of such Class would exceed the total Commitments of   such Class.                (c)   Notice of Voluntary Termination or Reduction.  The Borrower shall notify   the Administrative Agent of any election to terminate or reduce the Commitments under paragraph   (b) of this Section at least three (3) Business Days prior to the effective date of such termination   or reduction, specifying such election and the effective date thereof.  Promptly following receipt   of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof.    Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that   a notice of termination of the Commitments of a Class delivered by the Borrower 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.                (d)   Effect of Termination or Reduction.  Any termination or reduction of the   Commitments shall be permanent.  Each reduction of the Commitments of a Class shall be made   ratably among the Lenders in accordance with their respective Commitments of such Class.                (e)   Increase of the Commitments.                (i)   Requests for Increase by Borrower.  The Borrower shall have the right, at         any time after the Effective Date but prior to the Revolver Termination Date, to propose         that the Commitments of a Class hereunder be increased (each such proposed increase                                         54                                                                                      





 






                                      being a “Commitment Increase”) by notice to the Administrative Agent specifying each   existing Lender (each an “Increasing Lender”) and/or each additional lender (each an   “Assuming Lender”) that shall have agreed to an additional Commitment and the date on   which such increase is to be effective (the “Commitment Increase Date”), which date shall   be a Business Day at least three Business Days (or such lesser period as the Administrative   Agent may reasonably agree) after delivery of such notice and at least thirty (30) days prior   to the Revolver Termination Date; provided that, subject to the foregoing, each   Commitment Increase shall become effective only upon satisfaction of the following   conditions:                (A)   the minimum amount of the Commitment of any Assuming Lender,         and the minimum amount of the increase of the Commitment of any Increasing        Lender, as part of such Commitment Increase shall be $5,000,000 or a larger        multiple of $1,000,000 in excess thereof (or, in each case, in such other amounts as        agreed by the Administrative Agent);               (B)   immediately after giving effect to such Commitment Increase, the        total Commitments of all of the Lenders   hereunder shall not exceed        $1,200,000,000;               (C)   each Assuming Lender and the Commitment Increase shall be        consented to by the Administrative Agent and the Issuing Bank (which consent shall        not be unreasonably withheld or delayed);               (D)   no Default or Event of Default shall have occurred and be continuing        on such Commitment Increase Date or shall result from the proposed Commitment        Increase; and               (E)   the representations and warranties contained in this Agreement and        the other Loan Documents shall be true and correct in all material respects (other        than any representation or warranty already qualified by materiality or Material        Adverse Effect, which shall be true and correct in all respects) on and as of the        Commitment Increase Date as if made on and as of such date (or, if any such        representation or warranty is expressly stated to have been made as of a specific        date, as of such specific date).   For the avoidance of doubt, no Lender shall be obligated to agree to an increased  Commitment requested by the Borrower pursuant to this Section 2.07(e).          (ii)  Effectiveness of Commitment Increase by Borrower.  On the Commitment   Increase Date for any Commitment Increase, each Assuming Lender, if any, providing a   Commitment as part of such Commitment Increase shall become a Lender hereunder as of   such Commitment Increase Date with a Commitment in the amount set forth in the   agreement referred to in Section 2.07(e)(ii)(y) and the Commitment of each Increasing   Lender, if any, increasing its Commitment as part of such Commitment Increase shall be   increased as of such Commitment Increase Date to the amount set forth in the agreement   referred to in Section 2.07(e)(ii)(y); provided that:                                    55                                                                                            





 






                                                  (x)   the Administrative Agent shall have received on or prior to 12:00         p.m., New York City time, on such Commitment Increase Date  a certificate of a         duly authorized officer of the Borrower stating that each of the applicable         conditions to such Commitment Increase set forth in the foregoing paragraph (i) has        been satisfied; and               (y)   each Assuming Lender and/or Increasing Lender providing or        increasing a Commitment, respectively, as part of such Commitment Increase shall        have delivered to the Administrative Agent, on or prior to 12:00 p.m., New York        City time on such Commitment Increase Date, an agreement, duly executed by each        such Assuming Lender and/or Increasing Lender, as applicable, and the Borrower,        in form and substance reasonably satisfactory to the Administrative Agent and        acknowledged by the Administrative Agent, pursuant to which each such Assuming        Lender and/or Increasing Lender shall, effective as of such Commitment Increase        Date, provide or increase its Commitment of the applicable Class, respectively.   Promptly following satisfaction of such conditions, the Administrative Agent shall notify  the Lenders (including any Assuming Lenders) thereof and of the occurrence of the  Commitment Increase Date by facsimile transmission or electronic messaging system.          (iii) Recordation into Register.  Upon its receipt of an agreement referred to in   clause (ii)(y) above executed by each Assuming Lender and/or each Increasing Lender   providing or increasing a Commitment, respectively, as part of such Commitment Increase,   together with the certificate referred to in clause (ii)(x) above, the Administrative Agent   shall, if such agreement referred to in clause (ii)(y) has been completed, (x) accept such   agreement, (y) record the information contained therein in the Register and (z) give prompt   notice thereof to the Borrower.          (iv)  Adjustments of Borrowings upon Effectiveness of Increase.  On each   Commitment Increase Date, the Borrower shall (A) prepay the outstanding Loans of the   affected Class (if any) in full, (B) simultaneously borrow new Loans of such Class  hereunder in an amount equal to such prepayment; provided that with respect to subclauses   (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be   effected by book entry to the extent that any portion of the amount prepaid to such Lender   will be subsequently borrowed from such Lender and (y) the existing Lenders, the   Increasing Lenders and the Assuming Lenders shall make and receive payments among   themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect   thereto, the Loans are held ratably by the Lenders of such Class in accordance with the   respective Commitments of such Class of such Lenders (after giving effect to such   Commitment Increase) and (C) pay to the Lenders of such Class the amounts, if any,   payable under Section 2.14 as a result of any such prepayment.  Notwithstanding the   foregoing, unless otherwise consented in writing by the Borrower, no Commitment   Increase Date shall occur on any day other than the last day of an Interest Period.    Concurrently therewith, the Lenders with Multicurrency Commitments shall be deemed to   have adjusted their participation interests in any outstanding Letters of Credit so that such   interests are held ratably in accordance with their Multicurrency Commitments as so  increased.  The Administrative Agent shall amend Schedule 1.01(b) to reflect the aggregate                                   56                                                                                            





 






                                                  amount of each Lender’s Commitments (including Increasing Lenders and Assuming         Lenders). Each reference to Schedule 1.01(b) in this Agreement shall be to Schedule         1.01(b) as amended pursuant to this Section.                (v)   Terms of Loans issued on the Commitment Increase Date.  For the         avoidance of doubt, the terms and provisions of any new Loans issued by any Assuming         Lender or Increasing Lender, and the Commitment Increase of any Assuming Lender or         Increasing Lender, shall be identical to terms and provisions of the Loans issued by, and         the Commitments of, the Lenders immediately prior to the applicable Commitment         Increase Date.                SECTION 2.08   Repayment of Loans; Evidence of Debt.                (a)   Repayment.  Subject to, and in accordance with, the terms of this   Agreement, the Borrower hereby unconditionally promises to pay to the Administrative Agent for   account of the Lenders the outstanding principal amount of each Class of Loans and all other   amounts due and owing hereunder and under the other Loan Documents on the Maturity Date.                (b)   Manner of Payment.  Prior to any repayment or prepayment of any   Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be paid and shall   notify the Administrative Agent by telephone (confirmed by telecopy or e-mail) of such selection   not later than the time set forth in Section 2.09(e) prior to the scheduled date of such repayment.    Subject to Section 2.09 and to the proviso to Section 2.16(c), if the repayment or prepayment is   denominated in Dollars and the Class to be repaid or prepaid is specified (or if no Class is specified   and there is only one Class of Loans with Borrowings in Dollars outstanding), such repayment or   prepayment shall be applied ratably between or among, as applicable, the Loans of such Class   (based on the outstanding principal amount of such Loans), in each case first to repay or prepay   any outstanding ABR Borrowings of such Loans and second to repay or prepay the remaining   Borrowings denominated in Dollars of such Loans in the order of the remaining duration of their   respective Interest Period (the Borrowing with the shortest remaining Interest period to be repaid   or prepaid first).  Subject to Section 2.09 and to the proviso to Section 2.16(c), if the repayment or   prepayment is denominated in Dollars and the Class to be repaid or prepaid is not specified, such   repayment or prepayment shall be applied (i) ratably between or among, as applicable, the Dollar   denominated Loans of the Multicurrency Lenders (based on the then outstanding principal   amounts of such Dollar denominated Loans), in each case (x) first to repay or prepay any  outstanding ABR Borrowings of the Multicurrency Lenders, and (y) then second to repay or prepay  the remaining Borrowings denominated in Dollars of the Multicurrency Lenders in the order in the  order of the remaining duration of their respective Interest Periods (the Borrowings with the  shortest remaining Interest Periods to be repaid first), and (ii) once the outstanding principal   amount of all Dollar denominated Loans of the Multicurrency Lenders is paid in full, ratably   between or among, as applicable, the Loans of the Dollar Lenders (based on the then outstanding   principal amount of such Loans), in each case (x) first to repay or prepay any outstanding ABR   Borrowings of the Dollar Lenders and (y) then second to repay or prepay the remaining   Borrowings of the Dollar Lenders in order of the remaining duration of their respective Interest   Periods (the Borrowings with the shortest remaining Interest Period to be repaid first).  Subject to   Section 2.09 and to the proviso Section 2.16(c), if the repayment or prepayment is denominated in                                          57                                                                                      





 






                                          a particular Agreed Foreign Currency, such repayment or prepayment shall be applied ratably  between or among, as applicable, any remaining Borrowings denominated in such Agreed Foreign  Currency (based on the then outstanding principal amount of such Loans), in each case in the order  of the remaining duration of their respective Interest Periods (the Borrowing with the shortest  remaining Interest Period to be repaid first).  Each payment specified as a payment on account of  the Pro-Rata Borrowings shall be applied ratably between the Dollar Loans and the Multicurrency  Loans (based on the then outstanding principal amount of such Loans), in each case in the order  of the remaining duration of their respective Interest Periods (the Borrowing with the shortest  remaining Interest Period to be repaid first).  Each payment of a Borrowing of a Class shall be  applied ratably to the Loans of such Class included in such Borrowing.               (c)   Maintenance of Records by Lenders.  Each Lender shall maintain in  accordance with its usual practice records evidencing the indebtedness of the Borrower to such  Lender resulting from each Loan made by such Lender, including the amounts and Currency of  principal and interest payable and paid to such Lender from time to time hereunder.               (d)   Maintenance of Records by the Administrative Agent.  The Administrative  Agent shall maintain records in which it shall record (i) the amount of each Loan made hereunder,  the Type thereof and each Interest Period therefor, (ii) the amount of any principal or interest due  and payable or to become due and payable from the Borrower to each Lender hereunder and  (iii) the amount of any sum received by the Administrative Agent hereunder for account of the  Lenders with respect to each Loan and each Lender’s share thereof.               (e)   Effect of Entries.  The entries made in the records maintained pursuant to  paragraph (c) or (d) of this Section shall be prima facie evidence, absent manifest error, of the  existence and amounts of the obligations recorded therein; provided that the failure of any Lender  or the Administrative Agent to maintain such records or any error therein shall not in any manner  affect the obligation of the Borrower to repay the Loans in accordance with the terms of this  Agreement.  In the event of any conflict between the accounts and records maintained by any  Lender and the accounts and records of the Administrative Agent in respect of such matters, the  accounts and records of the Administrative Agent shall control in the absence of manifest error.               (f)   Promissory Notes.  Any Lender may request that Loans made by it be  evidenced by a promissory note.  In such event, the Borrower shall prepare, execute and deliver to  such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such  Lender and its permitted registered assigns) and in a form attached hereto as Exhibit C.  Thereafter,  the Loans evidenced by such promissory note and interest thereon shall at all times (including after  assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form  payable to the payee named therein (or, if such promissory note is a registered note, to such payee  and its permitted registered assigns).               SECTION 2.09   Prepayment of Loans.               (a)   Optional Prepayments.  The Borrower shall have the right at any time and  from time to time (but subject to Section 2.09(e)) to prepay any Borrowing in whole or in part,  without premium or fee (but subject to Section 2.14), subject to the requirements of this Section.                                         58                                                                                    





 






                                            Each prepayment in part under this Section 2.09(a) shall be in a minimum amount of $5,000,000   or a larger multiple of $1,000,000 (or such lesser amount as is then outstanding).                (b)   Mandatory Prepayments due to Changes in Exchange Rates.                (i)   Determination of Amount Outstanding.  On each Quarterly Date and, in         addition, promptly upon the receipt by the Administrative Agent of a Currency Valuation         Notice (as defined below), the Administrative Agent shall determine the aggregate         Multicurrency Credit Exposure.  For the purpose of this determination, the outstanding         principal amount of any Loan or LC Exposure that is denominated in any Foreign Currency         shall be deemed to be the Dollar Equivalent of the amount in the Foreign Currency of such         Loan or LC Exposure, determined as of such Quarterly Date or, in the case of a Currency         Valuation Notice received by the Administrative Agent prior to 11:00 a.m., New York City         time, on a Business Day, on such Business Day or, in the case of a Currency Valuation         Notice otherwise received, on the first Business Day after such Currency Valuation Notice         is received.  Upon making such determination, the Administrative Agent shall promptly         notify the Multicurrency Lenders and the applicable Borrower thereof.                (ii)  Prepayment.  If, on the date of such determination, the aggregate         Multicurrency Credit Exposure minus the Cash Collateralized LC Exposure exceeds 105%         of the aggregate amount of the Multicurrency Commitments then in effect, the Borrower         shall prepay the Multicurrency Loans (and/or Cash Collateralize LC Exposure as         contemplated by Section 2.04(k)) within 15 Business Days following such date of         determination in such aggregate amounts as shall be necessary so that after giving effect         thereto the aggregate Multicurrency Credit Exposure does not exceed the Multicurrency         Commitments.    For purposes hereof, “Currency Valuation Notice” means a notice given by the Required   Multicurrency Lenders to the Administrative Agent stating that such notice is a “Currency   Valuation Notice” and requesting that the Administrative Agent determine the aggregate   Multicurrency Credit Exposure. The Administrative Agent shall not be required to make more than   one valuation determination pursuant to Currency Valuation Notices within any rolling three   month period.    Any prepayment made pursuant to this paragraph shall be applied first, to the Multicurrency Loans   outstanding and second, as cover for LC Exposure.                (c)   Mandatory Prepayments due to Borrowing Base Deficiency.  In the event   that (i) the amount of the total Dollar Credit Exposure exceeds the total Dollar Commitments   and/or (ii) the amount of the total Multicurrency Credit Exposure exceeds the total Multicurrency   Commitments (other than as a result of a change in exchange rates pursuant to Section 2.09(b)),   the Borrower shall prepay Loans (and/or Cash Collateralize Letters of Credit as contemplated by   Section 2.04(k)) in such amounts as shall be necessary so that (x) in the case of clause (i), the   amount of total Dollar Credit Exposure does not exceed the total Dollar Commitments and (y) in   the case of clause (ii), the amount of total Multicurrency Credit Exposure does not exceed the total   Multicurrency Commitments.  In the event that at any time any Borrowing Base Deficiency shall  exist, promptly (but in no event later than 5 Business Days), the Borrower shall either prepay (x)                                         59                                                                                      





 






                                            the Loans (and/or Cash Collateralize Letters of Credit as contemplated by Section 2.04(k)) so that   the Borrowing Base Deficiency is promptly cured or (y) the Loans and the Other Covered   Indebtedness in such amounts as shall be necessary so that such Borrowing Base Deficiency is   promptly cured; provided, that as among the Loans (and Letters of Credit) on the one hand and the   Other Covered Indebtedness on the other hand, such prepayment shall be at least ratable (based on   the outstanding principal amount of such Indebtedness) as to payments of Loans (and Letters of   Credit) in relation to Other Covered Indebtedness); provided, that if within such 5 Business Day   period, the Borrower shall present to the Administrative Agent a reasonably feasible plan, which   plan is reasonably satisfactory to the Administrative Agent, that will enable any such Borrowing   Base Deficiency to be cured within 30 Business Days of the occurrence of such Borrowing Base   Deficiency (which 30-Business Day period shall include the 5 Business Days permitted for   delivery of such plan), then such prepayment or reduction shall be effected in accordance with   such plan (subject, for the avoidance of doubt, to the limitations as to the allocation of such   prepayments set forth above in this Section 2.09(b)). Notwithstanding the foregoing, the Borrower   shall pay interest in accordance with Section 2.11(c) for so long as the Covered Debt Amount   exceeds the Borrowing Base during such 30-Business Day period. For clarity, in the event that the  Borrowing Base Deficiency is not cured prior to the end of such 5-Business Day period (or, if  applicable, such 30-Business Day period), it shall constitute an Event of Default under clause (a) of  Article VII.                (d)   Mandatory Prepayments due to Certain Events Following Availability   Period.  Subject to Section 2.09(e):                (i)   Asset Sales.  In the event that any Obligor shall receive any Net Asset Sale         Proceeds at any time after the Availability Period, the Borrower shall, no later than the third         Business Day following the receipt of such Net Asset Sale Proceeds, prepay the Loans in         an amount equal to such Net Asset Sale Proceeds (and the Commitments shall be         permanently reduced by such amount); provided, that with respect to Asset Sales of assets         that are not Portfolio Investments, the Borrower shall not be required to prepay the Loans         unless and until (and to the extent that) the aggregate Net Asset Sale Proceeds relating to         all such Asset Sales are greater than $2,000,000.                (ii)  Returns of Capital.  In the event that any Obligor shall receive any Net         Return of Capital at any time after the Availability Period, the Borrower shall, no later than         the third Business Day following the receipt of such Net Return of Capital, prepay the         Loans in an amount equal to 100% of such Net Return of Capital (and the Commitments         shall be permanently reduced by such amount).                (iii) Equity Issuances.  In the event that the Borrower shall receive any Cash         proceeds from the issuance of Equity Interests of the Borrower at any time after the         Availability Period, the Borrower shall, no later than the third Business Day following the         receipt of such Cash proceeds, prepay the Loans in an amount equal to 75% of such Cash         proceeds, net of underwriting discounts and commissions or other similar payments and         other reasonable costs, fees, premiums and expenses directly associated therewith,         including, without limitation, reasonable legal fees and expenses, (and the Commitments         shall be permanently reduced by such amount).                                          60                                                                                      





 






                                                      (iv)  Indebtedness.  In the event that any Obligor shall receive any Cash proceeds        from the issuance of Indebtedness (excluding Hedging Agreements permitted by Section        6.01 and other Indebtedness permitted by Section 6.01(a), (e), (f), (g) and (j)) at any time        after the Availability Period, such Obligor shall, no later than the third Business Day        following the receipt of such Cash proceeds, prepay the Loans in an amount equal to 100%        of such Cash proceeds, net of underwriting discounts and commissions or other similar        payments and other reasonable costs, fees, commissions, premiums and expenses directly        associated therewith, including, without limitation, reasonable legal fees and expenses (and        the Commitments shall be permanently reduced by such amount).               (e)   Mandatory Prepayment of Eurocurrency Loans.  If the Loans to be prepaid  pursuant to Section 2.09(d)(ii) are Eurocurrency Loans, the Borrower may defer such prepayment  (and permanent Commitment reduction) until the last day of the Interest Period applicable to such  Loans, so long as the Borrower deposits an amount equal to an amount required to be prepaid, no  later than the third Business Day following the receipt of such amount, into a segregated collateral  account in the name and under the dominion and control (within the meaning of Section 9-104 of  the Uniform Commercial Code) of the Administrative Agent pending application of such amount  to the prepayment of the Loans (and permanent reduction of the Commitments) on the last day of  such Interest Period.               (f)   Payments Following Availability Period or During an Event of Default.   Notwithstanding any provision to the contrary in Section 2.08 or this Section 2.09, following the  end of the Availability Period:               (i)   No optional prepayment of the Loans made of any Class shall be permitted        unless at such time, the Borrower also prepays its Loans of the other Class or, in the case        of a prepayment of Dollar Loans and to the extent no Multicurrency Loans are outstanding,        provides Cash Collateral as contemplated by Section 2.04(k) for the outstanding Letters of        Credit, which prepayment (and Cash Collateral) shall be made on a pro-rata basis (based       on the outstanding principal amounts of such Indebtedness) between each outstanding       Class of Credit Exposure;               (ii)  any prepayment of Loans in Dollars required to be made in connection with        any of the events specified in Section 2.09(d) shall be applied ratably between the Dollar        Lenders and the Multicurrency Lenders based on the then outstanding principal amounts        of Loans denominated in Dollars; provided, that, so long as no Event of Default has        occurred and is continuing, each prepayment in an Agreed Foreign Currency (including as        a result of the Borrower’s receipt of proceeds from a prepayment event in such Agreed        Foreign Currency (it being the understanding that any receipt of proceeds in an Agreed        Foreign Currency shall first be used to make a payment on account of the Loans        denominated in such Agreed Foreign Currency)) shall be applied ratably among just the        Multicurrency Lenders to prepay the Loans denominated in such Agreed Foreign Currency        and, if after such payment, if applicable, or otherwise, the balance of the Loans        denominated in such Agreed Foreign Currency remaining is zero, then, if there are any        remaining proceeds, the Borrower shall prepay (in Dollars) the remaining Loans on a pro        rata basis (based on the aggregate outstanding Dollar Equivalent principal amount of such        Loans) between each outstanding Class of Loans; and                                        61                                                                                    





 






                                                      (iii) Notwithstanding any other provision to the contrary in this Agreement, if        an Event of Default has occurred and is continuing, then any payment or repayment of the        Loans shall be made and applied ratably (based on the aggregate Dollar Equivalents of the        outstanding principal amounts of such Loans) between Dollar Loans, Multicurrency Loans        and Letters of Credit.               (g)   Notices, Etc.  The Borrower shall notify the Administrative Agent in writing  or by telephone (followed promptly by written confirmation) of any prepayment hereunder (i) in  the case of prepayment of a Eurocurrency Borrowing under Section 2.09(a), not later than 12:00  p.m., New York City time (or, in the case of a prepayment of a Eurocurrency denominated in a  Foreign Currency under Section 2.09(a), 12:00 a.m. London time), three (3) Business Days before  the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing under Section  2.09(a), or in the case of any prepayment under Section 2.09(b), (c), or (d), not later than 12:00  p.m., New York City time, on the Business Day of prepayment, or (iii) in each case of the notice  periods described in clauses (i) and (ii), such lesser period as the Administrative Agent may  reasonably agree with respect to notices given in connection with any of the events specified in  Section 2.09(d)(ii).  Each such notice shall be irrevocable and shall specify the prepayment date,  the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a  mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment;  provided, that, (1) if a notice of prepayment is given in connection with a conditional notice of  termination or reduction of the Commitments as contemplated by Section 2.07(c), then such notice  of prepayment may be revoked if such notice of termination or reduction is revoked in accordance  with Section 2.07(c) and (2) any such notices given in connection with any of the events specified  in Section 2.09(c) may be conditioned upon (x) the consummation of the Asset Sale or the issuance  of Equity Interests or Indebtedness (as applicable) or (y) the receipt of net cash proceeds from  Asset Sales or Net Returns of Capital.  Promptly following receipt of any such notice relating to a  Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each  prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid  Borrowing.  In the event the Borrower is required to make any concurrent prepayments under both  paragraph (c) and also another paragraph of this Section 2.09, any such prepayments shall be  applied toward a prepayment pursuant to paragraph (c) before any prepayment pursuant to any  other paragraph of this Section 2.09.  Prepayments shall be accompanied by accrued interest to the  extent required by Section 2.11 and shall be made in the manner specified in Section 2.08(b).               (h)   RIC Tax Distributions.  Notwithstanding anything herein to the contrary,  Net Asset Sale Proceeds and Net Return of Capital required to be applied to the prepayment of the  Loans pursuant to Section 2.09(d) shall exclude the amounts estimated in good faith by the  Borrower to be necessary for the Borrower to make distributions on account of such Net Asset  Sale Proceeds and Net Returns of Capital sufficient in amount to achieve the objectives set forth  in (i), (ii) and (iii) of Section 6.05(b)(1) hereof solely to the extent that the Tax Amount in or with  respect to any taxable year (or any calendar year, as relevant) is increased as a result of the receipt  of such Net Asset Sale Proceeds or Net Return of Capital, as the case may be.               SECTION 2.10   Fees.                                          62                                                                                    





 






                                                        (a)   Commitment Fee.  The Borrower agrees to pay to the Administrative Agent   for the account of each Lender a commitment fee, which shall accrue (i) for the period beginning   on the Effective Date to and including the earlier of the date such Lender’s Commitment terminates  and the date that is six months after the Effective Date, at a rate equal to 0.375% per annum on the  daily unused portion of the Commitment of such Lender as of the close of business on such day  and (ii) for the period beginning the day after the date that is six months after the Effective Date  to and including the earlier of the date such Lender’s Commitment terminates and the Revolver  Termination Date, at a rate equal to (x) 0.50% per annum on the daily unused amount of the Dollar  Commitments and Multicurrency Commitments, as applicable, of such Lender as of the close of  business on such day if the daily unused amount of the Dollar Commitments and the Multicurrency  Commitments is greater than thirty three and one-third percent (33 and 1/3%) of such Lender’s   Dollar Commitment and Multicurrency Commitment, as applicable and (y) 0.375% per annum on   the daily unused amount of the Dollar Commitments and Multicurrency Commitments, as   applicable of such Lender as of the close of business on such day if the daily unused amount of   the Dollar Commitment and Multicurrency Commitment is equal to or less than thirty three and   one-third percent (33 and 1/3%).  Accrued commitment fees shall be payable in arrears (x) within   one Business Day after each Quarterly Date and (y) on the earlier of the date the Commitments of   the respective Class terminate and the Revolver Termination Date, commencing on the first such   date to occur after the Effective Date.  All commitment fees shall be computed on the basis of a   year of 360 days and shall be payable for the actual number of days elapsed (including the first   day but excluding the last day).  For purposes of computing commitment fees, the Commitments   of any Class of a Lender shall be deemed to be used to the extent of the outstanding Loans of such   Class and LC Exposure of such Class of all Lenders.                (b)   Letter of Credit Fees.  The Borrower agrees to pay (i) to the Administrative   Agent for account of each Multicurrency Lender a participation fee with respect to its   participations in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable   Margin applicable to interest on Eurocurrency Loans on the average daily amount of such Lender’s   LC Exposure (excluding any portion thereof attributable to unreimbursed LC   Disbursements) during the period from and including the Effective Date to but excluding the later   of the date on which such Lender’s Multicurrency Commitment terminates and the date on which   such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which   shall accrue at the rate of one-half of one percent (0.50%) per annum on the average daily amount   of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC   Disbursements) during the period from and including the Effective Date to but excluding the later   of the date of termination of the Commitments and the date on which there ceases to be any LC   Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment   renewal or extension of any Letter of Credit or processing of drawings thereunder.  Participation   fees and fronting fees accrued through and including each Quarterly Date shall be payable on the   third Business Day following such Quarterly Date, commencing on the first such date to occur   after the Effective Date; provided that all such fees with respect to the Letters of Credit shall be   payable on earlier of the Revolver Termination Date and the date on which all Multicurrency   Commitments are otherwise terminated in accordance with the terms hereof (such earlier date, the   “termination date”) and the Borrower shall pay any such fees that have accrued and that are unpaid   on the termination date and, in the event any Letters of Credit shall be outstanding that have   expiration dates after the termination date, the Borrower shall prepay on the termination date the                                         63                                                                                      





 






                                            full amount of the participation and fronting fees that will accrue on such Letters of Credit   subsequent to the termination date through but not including the date such outstanding Letters of   Credit are scheduled to expire (and in that connection, the Multicurrency Lenders agree not later   than the date two Business Days after the date on which the last such Letter of Credit shall expire   or be terminated to rebate to the Borrower the excess, if any, of the aggregate participation and   fronting fees that ultimate accrue through the date of such expiration or termination).  Any other   fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 Business   Days after demand.  All participation fees and fronting fees shall be computed on the basis of a  year of 360 days and shall be payable for the actual number of days elapsed (including the first  day but excluding the last day).                (c)   Administrative Agent Fees.  The Borrower agrees to pay to the   Administrative Agent, for its own account, fees payable in the amounts and at the times separately   agreed upon between the Borrower and the Administrative Agent.                (d)   Payment of Fees.  All fees payable hereunder shall be paid on the dates due,   in Dollars and immediately available funds, to the Administrative Agent (or to the Issuing Bank,  in the case of fees payable to it) for distribution, in the case of facility fees and participation fees,  to the Lenders entitled thereto.  Fees paid shall not be refundable under any circumstances absent   manifest error.                SECTION 2.11   Interest.                (a)   ABR Loans.  The Loans constituting each ABR Borrowing shall bear   interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.                (b)   Eurocurrency Loans.  The Loans constituting each Eurocurrency Borrowing   shall bear interest at a rate per annum equal to the Adjusted Eurocurrency Rate for the related   Interest Period for such Borrowing plus the Applicable Margin.                (c)   Default Interest.  Notwithstanding the foregoing, (x) automatically, if any   Event of Default described in clause (a), (b), (d) (only with respect to Section 6.07), (h) or (i) of   Article VII has occurred and is continuing, or if the Covered Debt Amount exceeds the Borrowing   Base during the 5-Business Day period (or, if applicable, the 30-Business Day period) referred to   in Section 2.09(c), and (y) upon the demand of the Administrative Agent or the Required Lenders   when any other Event of Default has occurred and is continuing, the interest rates applicable to the   Loans shall accrue, and any fee or other amount due and payable by the Borrower hereunder shall   bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of   principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided above,   (ii) in the case of any other amount, 2.00% plus (x) if such other amount is denominated in Dollars,   the rate applicable to ABR Loans as provided in paragraph (a) of this Section or (y) if such other   amount is denominated in a Foreign Currency, the rate applicable to the applicable Eurocurrency   Loans as provided in paragraph (b) of this Section.                (d)   Payment of Interest.  Accrued interest on each Loan shall be payable in   arrears on each Interest Payment Date for such Loan in the Currency in which such Loan is   denominated and upon the Maturity Date; provided that (i) interest accrued pursuant to paragraph                                         64                                                                                      





 






                                            (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment   of any Loan (other than a prepayment of an ABR Loan prior to the Maturity Date), accrued interest   on the principal amount repaid or prepaid shall be payable on the date of such repayment or   prepayment and (iii) in the event of any conversion of any Eurocurrency Borrowing prior to the   end of the Interest Period therefor, accrued interest on such Borrowing shall be payable on the   effective date of such conversion.                (e)   Computation.  All interest hereunder shall be computed on the basis of a   year of 360 days, except that (A) Eurocurrency Borrowings in Canadian Dollars or AUD shall be   computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for   the actual number of days elapsed (including the first day but excluding the last day) and (B)  Eurocurrency Borrowings in Pounds Sterling and ABR Borrowings, at times when the Alternate  Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366  days in a leap year), and in each case shall be payable for the actual number of days elapsed  (including the first day but excluding the last day).  The applicable Alternate Base Rate or Adjusted  Eurocurrency Rate shall be determined by the Administrative Agent and such determination shall  be conclusive absent manifest error.                SECTION 2.12   Eurocurrency Borrowing Provisions.                (a)   If, at any time that the Administrative Agent shall seek to determine the   relevant Screen Rate on the Quotation Day for any Interest Period for a Eurocurrency Borrowing,   the applicable Screen Rate shall not be available for such Interest Period for the applicable   Currency with respect to such Eurocurrency Borrowing for any reason and the Administrative   Agent shall determine that it is not possible to determine the Interpolated Rate (which conclusion   shall be conclusive and binding absent manifest error), (i) if the Administrative Agent is seeking   to determine the relevant Screen Rate in the context of a Borrowing Request or an Interest Election   Request electing the applicable Interest Period (A) if such Borrowing is in Dollars then either, at   the Borrower’s election, (u) the applicable Borrowing Request or Interest Election Request shall   be deemed ineffective or (v) such Borrowing shall be made as or converted to an ABR Borrowing   at the Alternate Base Rate, (B) if such Borrowing is in Canadian Dollars then either, at the   Borrower’s election, (w) such Borrowing Request or Interest Election Request shall be deemed   ineffective or (x) such Borrowing shall be made as or converted to a Eurocurrency Borrowing for   which the Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if such Borrowing   is in any Agreed Foreign Currency (other than Canadian Dollars) then either, at the Borrower’s   election, (y) the applicable Borrowing Request or Interest Election Request shall be deemed   ineffective or (z) such Borrowing shall be made as or converted to a Eurocurrency Borrowing for   which the Eurocurrency Rate shall be equal to the weighted average of the cost to each Lender to   fund its pro rata share of such Borrowing (from whatever source and using whatever   methodologies as such Lender may select in its reasonable discretion) (with respect to a Lender,   the “COF Rate”, and with respect to the weighted average of the COF Rate applicable to each   Lender for any Borrowing, the “Average COF Rate”) and (ii) if the Administrative Agent is seeking   to determine the relevant Screen Rate in the context of a Eurocurrency Borrowing for which the   Interest Period is continuing then (A) if such Borrowing is in Dollars such Borrowing shall   continue as an ABR Borrowing at the Alternate Base Rate, (B) if such Borrowing is in Canadian   Dollars then such Borrowing shall continue as a Eurocurrency Borrowing for which the                                          65                                                                                      





 






                                          Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if such Borrowing is in any  Agreed Foreign Currency (other than Canadian Dollars), then such Borrowing shall continue as a  Eurocurrency Borrowing for which the Eurocurrency Rate shall be the Average COF Rate.               (b)   Alternate Rate of Interest.  If prior to the commencement of the Interest  Period for any Eurocurrency Borrowing:               (i)   the Administrative Agent determines (which determination shall be        conclusive and binding absent manifest error) that adequate and reasonable means do not        exist for ascertaining the Adjusted Eurocurrency Rate for a Loan in the applicable Currency        for the applicable Interest Period; or              (ii)   the Administrative Agent is advised by the Required Lenders that the        Adjusted Eurocurrency Rate for a Loan in the applicable Currency for the applicable        Interest Period will not adequately and fairly reflect the cost to such Lenders of making or        maintaining their respective Loans included in such Borrowing for such Interest Period;   then the Administrative Agent shall give notice thereof to the Borrower and the affected Lenders  by telephone, telecopy or e-mail as promptly as practicable thereafter setting forth in reasonable  detail the basis for such determination and, until the Administrative Agent notifies the Borrower  and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest  Election Request electing the applicable Interest Period for a Borrowing in the applicable Currency  shall be ineffective, (ii) in the case of any Borrowing Request requesting a Borrowing in the  applicable Currency for the applicable Interest Period, (A) if such Borrowing is in Dollars then  either, at the Borrower’s election, (u) the applicable Borrowing Request shall be deemed  ineffective or (v) such Borrowing shall be made as an ABR Borrowing at the Alternate Base Rate,  (B) if such Borrowing is in Canadian Dollars then either, at the Borrower’s election, (w) such  Borrowing Request shall be deemed ineffective or (x) such Borrowing shall be made as a  Eurocurrency Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime  Rate and (C) if such Borrowing is in any Agreed Foreign Currency (other than Canadian Dollars),  then either, at the Borrower’s election, (y) the applicable Borrowing Request shall be deemed  ineffective or (z) such Borrowing shall be made as or converted to a Eurocurrency Borrowing for  which the Eurocurrency Rate shall be equal to the Average COF Rate and (iii) in the case of a  Eurocurrency Borrowing for which the Interest Period is continuing then (A) if such Borrowing is  in Dollars such Borrowing shall continue as an ABR Borrowing at the Alternate Base Rate, (B) if  such Borrowing is in Canadian Dollars then such Borrowing shall continue as a Eurocurrency  Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if  such Borrowing is in any Agreed Foreign Currency (other than Canadian Dollars), then such  Borrowing shall continue as a Eurocurrency Borrowing for which the Eurocurrency Rate shall be  the Average COF Rate.; provided that, if the circumstances giving rise to such notice affect only  one Type of Borrowings, then the other Type of Borrowings shall be permitted; provided, further  that, in connection with any ABR Borrowing made pursuant to the terms of this Section 2.12(b),  the determination of the Alternate Base Rate shall disregard clause (d) of the definition thereof.               (c)   If at any time the Administrative Agent determines (which determination  shall be conclusive absent manifest error) that (i) the circumstance set forth in clause (b)(i) have  arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in                                        66                                                                                    





 






                                            clause (a)(i) have arisen but the supervisor for the administrator of the Screen Rate for any   applicable Currency or a Governmental Authority having jurisdiction over the Administrative  Agent has made a public statement identifying a specific date after which such Screen Rate shall   no longer be used for determining interest rates for loans, then the Administrative Agent and the   Borrower shall endeavor to agree upon an alternate rate of interest to the applicable Screen Rate   that gives due consideration to the then prevailing market convention for determining a rate of   interest for syndicated loans in the United States at such time and, if an alternate rate is agreed,   shall enter into an amendment to his Agreement to reflect such alternate rate of interest and such   other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such   related changes shall not include a reduction of the Applicable Margin).  Notwithstanding anything   to the contrary in Section 9.02, such amendment shall become effective without any further action   or consent of any other party to this Agreement so long as the Administrative Agent shall not have   received, within five Business Days of the date notice of such alternate rate of interest is provided   to the Lenders, a written notice from the Required Lenders stating that such Required Lenders   object to such amendment.  Until an alternate rate of interest shall be implemented in accordance   with this clause (c) (but, in the circumstances described in clause (ii) of the first sentence of this   Section 2.12(c), only to the extent the Screen Rate for the applicable Currency and such Interest   Period is not available or published at such time on a current basis), (x) any Interest Election   Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a   Eurocurrency Borrowing in the applicable Currency shall be ineffective and (y) if any Borrowing  Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing;  provided that if such alternate rate of interest shall be less than zero, such rate shall be deemed to   be zero for the purposes of this Agreement.                (d)   Illegality.  Without duplication of any other rights that any Lender has    hereunder, if any Lender determines that any law has made it unlawful, or that any Governmental   Authority has asserted that it is unlawful for any Lender to make, maintain or fund Loans whose   interest is determined by reference to the Eurocurrency Rate (whether in Dollars or an Agreed   Foreign Currency) or to determine or charge interest rates based upon the Eurocurrency Rate, or   any Governmental Authority has imposed material restrictions on the authority of such Lender to   purchase or sell, or to take deposits of, Dollars or any Agreed Foreign Currency in the applicable   interbank market, then, on notice thereof by such Lender to the Borrower and the Administrative   Agent, (i) any obligation of such Lender to make or continue Eurocurrency Loans in the affected   Currency or currencies or, in the case of Eurocurrency Loans in Dollars, to convert ABR Loans to   Eurocurrency Loans, shall be suspended, and (ii) if such notice asserts the illegality of such Lender   making or continuing ABR Loans the interest rate on which is determined by the Administrative   Agent by reference to the Adjusted Eurocurrency Rate component of the Alternate Base Rate, the   interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be   determined by the Administrative Agent without reference to the Adjusted Eurocurrency Rate   component of the Alternate Base Rate, in each case until such Lender notifies the Administrative   Agent and the Borrower that the circumstances giving rise to such determination no longer exist.    Upon receipt of such notice, (x) all applicable Eurocurrency Borrowings denominated in Dollars   of such Lender shall automatically convert to ABR Borrowings and all Eurocurrency Borrowings   denominated in the affected Agreed Foreign Currency of such Lender shall automatically convert   to Dollars based on the Dollar Equivalent at such time and shall be an ABR Borrowing (the interest   rate on which ABR Borrowings of such Lender shall, if necessary to avoid such illegality, be                                         67                                                                                      





 






                                          determined by the Administrative Agent without reference to the LIBO Rate component of the  Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may  lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such  Lender may not lawfully continue to maintain such Eurocurrency Borrowings (in which event  Borrower shall not be required to pay any yield maintenance, breakage or similar fees) and (y) if  such notice asserts the illegality of such Lender determining or charging interest rates based upon  the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension  compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted  Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such  Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon  the Eurocurrency Rate. Upon any such conversion, the Borrower shall also pay accrued interest on  the amount so converted.               SECTION 2.13   Increased Costs.               (a)   Increased Costs Generally.  If any Change in Law shall:               (i)   impose, modify or deem applicable any reserve, special deposit,        compulsory loan, insurance charge or similar requirement against assets of, deposits with        or for the account of, or credit extended by, any Lender (except any such reserve        requirement reflected in the Adjusted Eurocurrency Rate) or the Issuing Bank;               (ii)  subject any Lender to any Taxes (other than Covered Taxes and Excluded        Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or        its deposits, reserves, other liabilities or capital attributable thereto; or               (iii) impose on any Lender or the Issuing Bank or the London interbank market        any other condition, cost or expense (other than Taxes) affecting this Agreement or        Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lenders of making or  maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or  to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining  any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or  the Issuing Bank hereunder (whether of principal, interest or otherwise), then, upon the request of  such Lender or Issuing Bank, the Borrower will pay to such Lender or the Issuing Bank, as the  case may be, in Dollars, such additional amount or amounts as will compensate such Lender or the  Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered; provided  that no Lender will claim from the Borrower the payment of any of the amounts referred to in this  paragraph (a) if not generally claiming similar compensation from its other similar customers in  similar circumstances.               (b)   Capital and Liquidity Requirements.  If any Lender or the Issuing Bank  determines that any Change in Law regarding capital or liquidity requirements has or would have  the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the  capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this  Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or                                        68                                                                                    





 






                                            the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the   Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but   for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies   and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital   adequacy or liquidity position), by an amount deemed to be material by such Lender or the Issuing   Bank, then from time to time the Borrower will pay to such Lender or the Issuing Bank, as the   case may be, in Dollars, such additional amount or amounts as will compensate such Lender or the   Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction   suffered.                (c)   Certificates from Lenders.  A certificate of a Lender or the Issuing Bank   setting forth (in reasonable detail the basis for and calculation of) the amount or amounts, in   Dollars, necessary to compensate such Lender or the Issuing Bank or its holding company, as the   case may be, as specified in paragraph (a) or (b) of this Section shall be promptly delivered to the   Borrower and shall be conclusive absent manifest error (it being understood that no Lender shall   be required to disclose (i) any confidential or price sensitive information or (ii) any information to   the extent prohibited by applicable law).  The Borrower shall pay such Lender or the Issuing Bank,   as the case may be, the amount shown as due on any such certificate within ten (10) days after   receipt thereof.                (d)   Delay in Requests.  Failure or delay on the part of any Lender or the Issuing   Bank to demand compensation pursuant to this Section shall not constitute a waiver of such   Lender’s or the Issuing Bank’s right to demand such compensation; provided that no Obligor shall   be required to compensate a Lender or the Issuing Bank pursuant to the foregoing provisions of  this Section for any increased costs incurred or reductions suffered more than six months prior to  the date that such Lender or the Issuing Bank notifies the Borrower in writing of any such Change  in Law giving rise to such increased costs or reductions (except that, if the Change in Law giving  rise to such increased costs is retroactive, then the six-month period referred to above shall be   extended to include the period of retroactive effect thereof).                SECTION 2.14   Break Funding Payments.  In the event of (a) the payment of any   principal of any Eurocurrency Loan other than on the last day of an Interest Period therefor   (including as a result of the occurrence of any Commitment Increase Date or an Event of Default),   (b) the conversion of any Eurocurrency Loan other than on the last day of an Interest Period   therefor, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date   specified in any notice delivered pursuant hereto (including in connection with any Commitment   Increase Date and regardless of whether such notice is permitted to be revocable under   Section 2.09(g) and is revoked in accordance herewith), or (d) the assignment as a result of a   request by the Borrower pursuant to Section 2.18(b) of any Eurocurrency Loan other than on the   last day of an Interest Period therefor, then, in any such event, the Borrower shall compensate each   Lender for the loss, cost and expense attributable to such event (excluding loss of anticipated   profits).  In the case of a Eurocurrency Loan, the loss to any Lender attributable to any such event   (excluding, in any event, loss of anticipated profits) shall be deemed to include an amount   determined by such Lender to be equal to the excess, if any, of:                                           69                                                                                      





 






                                                        (i)   the amount of interest that such Lender would pay for a deposit equal to the         principal amount of such Loan referred to in clauses (a), (b), (c) or (d) of this Section 2.14         denominated in the Currency of such Loan for the period from the date of such payment,         conversion, failure or assignment to the last day of the then current Interest Period for such        Eurocurrency Loan (or, in the case of a failure to borrow, convert or continue, the duration        of the Interest Period that would have resulted from such borrowing, conversion or         continuation) if the interest rate payable on such deposit were equal to the Adjusted         Eurocurrency Rate for such Currency for such Interest Period, over                (ii)  the amount of interest that such Lender would earn on such principal         amount for such period if such Lender were to invest such principal amount for such period         at the interest rate that would be bid by such Lender (or an Affiliate of such Lender) for         deposits denominated in such Currency from other banks in the Eurocurrency market or,         in the case of any Non-LIBOR Quoted Currency, in the relevant market for such Non-       LIBOR Quoted Currency, in each case at the commencement of such period.   Payments under this Section shall be made upon written request of a Lender delivered not later  than thirty (30) Business Days following the payment, conversion, or failure to borrow, convert,  continue or prepay that gives rise to a claim under this Section accompanied by a written certificate  of such Lender setting forth in reasonable detail the amount or amounts that such Lender is entitled  to receive pursuant to this Section, which certificate shall be conclusive absent manifest error.  The  Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days  after receipt thereof.                SECTION 2.15   Taxes.                (a)   Payments Free of Taxes.  Any and all payments by or on account of any   obligation of the Borrower hereunder or under any other Loan Document shall be made free and   clear of and without deduction for any Taxes, unless otherwise required by applicable law;   provided that if any applicable law (as determined in the good faith discretion of an applicable   Withholding Agent) requires the deduction or withholding of any Taxes from such payments, then   (i) the Withholding Agent shall make such deductions or withholdings, (ii) the Withholding Agent   shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in   accordance with applicable law and (iii) if such Tax is a Covered Tax, the sum payable shall be   increased as necessary so that after making all required deductions and withholdings (including   deductions and withholdings applicable to additional sums payable under this Section 2.15) the   Administrative Agent, Lender or the Issuing Bank (as the case may be) receives an amount equal   to the sum it would have received had no such deductions or withholdings of Covered Tax been   made.                (b)   Payment of Other Taxes by the Borrower.  In addition, the Borrower shall   pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.                (c)   Indemnification by the Borrower.  The Borrower shall indemnify the   Administrative Agent, each Lender and the Issuing Bank for and, within ten (10) Business Days   after written demand therefor, pay the full amount of any Covered Taxes (including Covered Taxes   imposed or asserted on or attributable to amounts payable under this Section 2.15) payable or paid                                         70                                                                                      





 






                                          by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, and any  penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or  not such Covered Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to  the Borrower by a Lender, by the Issuing Bank or by the Administrative Agent (on its own behalf  or on behalf of a Lender or the Issuing Bank), shall be conclusive absent manifest error.               (d)   Indemnification by the Lenders.  To the extent required by any applicable  law, the Administrative Agent may withhold from any payment to any Lender an amount  equivalent to any applicable withholding Tax. Without limiting the provisions of Section 2.15(a)  or (c), each Lender shall, and does hereby, agree severally to indemnify the Administrative Agent,  and shall make payable in respect thereof within 10 days after demand therefor, (i) against any and  all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges  and disbursements of any counsel for the Administrative Agent) (collectively, “Tax Damages”)  incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any  other Governmental Authority as a result of the failure of the Administrative Agent to properly  withhold Tax from amounts paid to or for the account of such Lender for any reason (including  because the appropriate form was not delivered or not properly executed, or because such Lender  failed to notify the Administrative Agent of a change in circumstance that rendered the exemption  from, or reduction of withholding tax ineffective) and (ii) Tax Damages attributable to such  Lender’s failure to comply with the provisions of Section 9.04 relating to the maintenance of a  Participant Register. A certificate as to the amount of such payment or liability delivered to any  Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby  authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to  such Lender under this Agreement or any other Loan Document or otherwise payable by the  Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph. The agreements in this paragraph shall survive the  resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all other obligations.               (e)   Evidence of Payments.  As soon as practicable after any payment of Taxes  by the Borrower to a Governmental Authority pursuant to this Section 2.15, the Borrower shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.  If the  Borrower is required by applicable law or this Agreement to pay any U.S. federal withholding  Taxes (and the Administrative Agent is not so required) and the Borrower fails to pay any such  U.S. federal withholding Taxes that are Excluded Taxes when due to the appropriate Governmental  Authority or fails to remit to the Administrative Agent the required receipts or other required  documentary evidence on account of such Excluded Taxes, the Borrower shall indemnify the  Administrative Agent and each Lender for any incremental Taxes that may become payable by the  Administrative Agent or such Lender as a result of such failure, but only to the extent that such  incremental Taxes exceed the amount of Excluded Taxes that would have been borne by the  Administrative Agent or a Lender absent such failure.                                         71                                                                                    





 






                                            (f)   Status of Lenders.          (i)   Any Lender that is entitled to an exemption from or reduction of   withholding Tax with respect to payments under this Agreement or any other Loan   Documents shall deliver to the Borrower and the Administrative Agent, at the time or times   prescribed by applicable law or reasonably requested by the Borrower or the   Administrative Agent, such properly completed and executed documentation prescribed by   applicable law or reasonably requested by the Borrower or the Administrative Agent as will   permit such payments to be made without withholding or at a reduced rate of withholding.    In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall   deliver such other documentation prescribed by applicable law or reasonably requested by   the Borrower or the Administrative Agent as will enable the Borrower or the Administrative   Agent to determine whether or not such Lender is subject to backup withholding or   information reporting requirements.  Notwithstanding anything to the contrary in the  preceding two sentences, the completion, execution and submission of such documentation  (other than such documentation set forth in Section 2.15(f)(ii)(A) or (B) or Section 2.15(g)   below) shall not be required if in the Lender’s reasonable judgment such completion,   execution or submission would subject such Lender to any material unreimbursed cost or   expense or would materially prejudice the legal or commercial position of such Lender.          (ii)  Without limiting the generality of the foregoing, if the Borrower is a U.S.   Person,                (A)   any Lender that is a U.S. Person shall deliver to the Borrower and         the Administrative Agent on or prior to the date on which such Lender becomes a         Lender under this Agreement (and from time to time thereafter upon the reasonable         request of the Borrower or the Administrative Agent), executed originals of IRS         Form W-9 certifying that such Lender is exempt from U.S. federal backup         withholding tax;                (B)   each Foreign Lender shall deliver to the Borrower and the         Administrative Agent (in such number of copies as shall be requested by the         recipient) on or prior to the date on which such Foreign Lender becomes a Lender         under this Agreement (and from time to time thereafter upon the reasonable request         of the Borrower or the Administrative Agent, but, in any event, only if such Foreign         Lender is legally entitled to do so) whichever of the following is applicable:                      (1)   in the case of a Foreign Lender claiming the benefits of an                           income tax treaty to which the United States is a party duly                           completed executed originals of Internal Revenue Service                           Form W-8BEN or Internal Revenue Service Form W-8BEN-                          E, as applicable, or any successor form establishing an                           exemption from, or reduction of, U.S. federal withholding                           Tax (x) with respect to payments of interest under any Loan                           Document, pursuant to the “interest” article of such tax                           treaty and (y) with respect to any other applicable payments                                    72                                                                                            





 






                                                under any Loan Document, pursuant to the “business                    profits” or “other income” article of such tax treaty,               (2)   duly completed executed originals of Internal Revenue                    Service Form W-8ECI or any successor form certifying that                    the income receivable pursuant to this Agreement is                    effectively connected with the conduct of a trade or business                    in the United States,               (3)   in the case of a Foreign Lender claiming the benefits of the                    exemption for portfolio interest under Section 881(c) of the                    Code, (x) a certificate, signed under penalties of perjury, to                   the effect that such Foreign Lender is not (I) a “bank” within                   the meaning of Section 881(c)(3)(A) of the Code, (II) a “10                   percent shareholder” of the Borrower within the meaning of                   Section 881(c)(3)(B) of the Code, or (III) a “controlled                    foreign corporation” described in Section 881(c)(3)(C) of                    the Code and (y) duly completed executed originals of                    Internal Revenue Service Form W-8BEN or Internal                   Revenue Service Form W-8BEN-E, as applicable (or any                   successor form), certifying that the Foreign Lender is not a                   U.S. Person, or               (4)   any other form as prescribed by applicable law as a basis for                   claiming exemption from or a reduction in United States                   federal withholding tax duly completed together with such                   supplementary documentation as may be prescribed by                   applicable law to permit the Borrower to determine the                   withholding or deduction required to be made, including, to                   the extent a Foreign Lender is not the beneficial owner, duly                   completed executed originals of Internal Revenue Service                   Form W-8IMY accompanied by Internal Revenue Service                   Form W-8ECI, Internal Revenue Service Form W-8BEN or                   Internal Revenue Service Form W-8BEN-E, as applicable, a                   certificate substantially similar to the certificate described in                   Section 2.15(f)(ii)(B)(3)(x) above, Internal Revenue Service                    Form W-9 and/or other certification documents from each                    beneficial owner, as applicable.         (C)   any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Borrower and the Administrative Agent (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent), executed  originals 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,                             73                                                                                     





 






                                                        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.                (g)   If a payment made to a Lender under this Agreement would be subject to   U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the   applicable reporting requirements of FATCA (including those contained in Section 1471(b) or   1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Agent and the   Borrower such documentation prescribed by applicable law (including as prescribed by Section   1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the   Administrative Agent or the Borrower, at the time or times prescribed by law and at such time or   times reasonably requested by the Administrative Agent or the Borrower, as may be necessary for   the Administrative Agent and the Borrower to comply with their obligations under FATCA and to   determine that such Lender has complied with such Lender’s obligations under FATCA or to   determine the amount to deduct and withhold from any such payment. Solely for purposes of this   clause (g), “FATCA” shall include any amendments made to FATCA after the date of this   Agreement.    Each Lender agrees that if any form or certification it previously delivered under this Agreement   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.                (h)   Treatment of Certain Refunds.  If the Administrative Agent, any Lender or   the Issuing Bank determines, in its sole discretion exercised in good faith, that it has received a   refund of any Covered Taxes as to which it has been indemnified by the Borrower or with respect   to which the Borrower has paid additional amounts pursuant to this Section 2.15, 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 with respect to the Covered Taxes   giving rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative  Agent, any Lender or the Issuing Bank, as the case may be, and without interest (other than any  interest paid by the relevant Governmental Authority with respect to such refund ), provided that  the Borrower, upon the request of the Administrative Agent, any Lender or the Issuing Bank, agrees  to repay the amount paid over to the Borrower pursuant to this paragraph (h) (plus any penalties,  interest or other charges imposed by the relevant Governmental Authority) to the Administrative  Agent, any Lender or the Issuing Bank in the event the Administrative Agent, any Lender or the  Issuing Bank is required to repay such refund to such Governmental Authority.  Notwithstanding  anything to the contrary in this paragraph (h), in no event will the Administrative Agent, any  Lender or the Issuing Bank be required to pay any amount to the Borrower pursuant to this  paragraph (h) the payment of which would place the Administrative Agent, such Lender or the  Issuing Bank in a less favorable net position after-Taxes than the Administrative Agent, such  Lender or the Issuing Bank would have been in if the Tax subject to indemnification and giving  rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid.  This paragraph  (h) shall not be construed to require the Administrative Agent, any Lender or the Issuing Bank to                                          74                                                                                      





 






                                          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.               (i)   Survival.  Each party’s obligations under this Section 2.15 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or  replacement of, any Lender or any Issuing Bank, the termination of the Commitments and the  repayment, satisfaction or discharge of all obligations under any Loan Document to which the  Borrower or any of its Subsidiaries is a party.               (j)   Defined Terms.  For purposes of this Section 2.15, the term “applicable law”  includes FATCA.               SECTION 2.16   Payments Generally; Pro Rata Treatment: Sharing of Set-offs.               (a)   Payments by the Borrower.  The Borrower shall make each payment  required to be made by it hereunder (whether of principal, interest, fees, reimbursement of LC  Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) or under any other Loan  Document (except to the extent otherwise expressly provided therein) prior to 2:00 p.m., New York  City time, on the date when due, in immediately available funds, without set-off, deduction or  counterclaim.  Any amounts received after such time on any date may, in the discretion of the  Administrative Agent, be deemed to have been received on the next succeeding Business Day for  purposes of calculating interest thereon.  All such payments shall be made to the Administrative  Agent at the Administrative Agent’s Account, except as otherwise expressly provided in the  relevant Loan Document and except payments to be made directly to the Issuing Bank as expressly  provided herein and pursuant to Sections 2.13, 2.14, 2.15 and 9.03, which shall be made directly  to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments  received by it for account of any other Person to the appropriate recipient promptly following  receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the  date for payment shall be extended to the next succeeding Business Day and, in the case of any  payment accruing interest, interest thereon shall be payable for the period of such extension.               All amounts owing under this Agreement (including commitment fees, payments  required under Sections 2.13 and 2.14 (except to the extent otherwise provided therein relating to  any Loan denominated in Dollars, but not including principal of, and interest on, any Loan  denominated in any Foreign Currency or payments relating to any such Loan required under  Section 2.14 or any reimbursement or cash collateralization of any LC Exposure denominated in  any Foreign Currency, which are payable in such Foreign Currency) or under any other Loan  Document (except to the extent otherwise provided therein) are payable in Dollars.   Notwithstanding the foregoing, if the Borrower shall fail to pay any principal of any Loan or LC  Disbursement when due (whether at stated maturity, by acceleration, by mandatory prepayment or  otherwise), the unpaid portion of such Loan or such LC Disbursement shall, if such Loan or such  LC Disbursement is not denominated in Dollars, automatically be redenominated in Dollars on the  due date thereof (or, if such due date is a day other than the last day of the Interest Period therefor,  on the last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the  date of such redenomination and such principal shall be payable on demand; and if the Borrower  shall fail to pay any interest on any Loan or LC Disbursement that is not denominated in Dollars,  such interest shall automatically be redenominated in Dollars on the due date therefor (or, if such                                        75                                                                                    





 






                                            due date is a day other than the last day of the Interest Period therefor, on the last day of such   Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such   redenomination and such interest shall be payable on demand.                (b)   Application of Insufficient Payments.  If at any time insufficient funds are   received by and available to the Administrative Agent to pay fully all amounts of principal,   unreimbursed LC Disbursements, interest and fees of a Class then due hereunder, such funds shall   be applied (i) first, to pay interest and fees of such Class then due hereunder, ratably among the   parties entitled thereto in accordance with the amounts of interest and fees then due to such parties,   and (ii) second, to pay principal and unreimbursed LC Disbursements of such Class then due   hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal   and unreimbursed LC Disbursements of such Class then due to such parties.                (c)   Pro Rata Treatment.  Except to the extent otherwise provided herein:   (i) each Borrowing of a Class shall be made from the Lenders of such Class,  and each termination   or reduction of the amount of the Commitments of a Class under Section 2.07, 2.09 or otherwise   shall be applied to the respective Commitments of the Lenders of such Class, pro rata according   to the amounts of their respective Commitments of such Class; (ii) each Borrowing of a Class shall   be allocated pro rata among the Lenders of such Class according to the amounts of their respective  Commitments of such Class  (in the case of the making of Loans) or their respective Loans of such   Class that are to be included in such Borrowing (in the case of conversions and continuations of   Loans); (iii) each payment of commitment fees under Section 2.10 shall be made for the account   of the Lenders pro rata according to the average daily unutilized amounts of their respective   Commitments; (iv) each payment or prepayment of principal of Loans of a Class by the Borrower   shall be made for account of the Lenders or such Class pro rata in accordance with the respective   unpaid principal amounts of the Loans of such Class held by them; and (v) each payment of interest  on Loans of a Class by the Borrower shall be made for account of the Lenders of such Class pro  rata in accordance with the amounts of interest on such Loans of such Class then due and payable  to the respective Lenders; provided, however, that, notwithstanding anything to the contrary   contained herein, in the event that the Borrower wishes to make a Multicurrency Borrowing in an   Agreed Foreign Currency and the Multicurrency Commitments are fully utilized, the Borrower   may make a Borrowing under the Dollar Commitments (if otherwise permitted hereunder) and   may use the proceeds of such Borrowing to prepay the Multicurrency Loans (without making a   ratable prepayment to the Dollar Loans) solely to the extent that the Borrower substantially   concurrently therewith utilizes any Multicurrency Commitments made available as a result of such   prepayment to make a Multicurrency Borrowing in an Agreed Foreign Currency.                (d)   Sharing of Payments by Lenders.  If any Lender of a Class shall, by   exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any   principal of or interest on any of its Loans, or participations in LC Disbursements of a Class    resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its   Loans and participations in LC Disbursements, and accrued interest thereon of such Class then due   than the proportion received by any other Lender of such Class, then the Lender receiving such   greater proportion shall purchase (for cash at face value) participations in the Loans and   participations in LC Disbursements of other Lenders of such Class to the extent necessary so that   the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance                                          76                                                                                      





 






                                          with the aggregate amount of principal of and accrued interest on their respective Loans and  participations in LC Disbursements of such Class; provided that (i) if any such participations are  purchased and all or any portion of the payment giving rise thereto is recovered, such participations  shall be rescinded and the purchase price restored to the extent of such recovery, without interest,  and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by  the Borrower pursuant to and in accordance with the express terms of this Agreement or any  payment obtained by a Lender as consideration for the assignment of or sale of a participation in  any of its Loans or participations in LC Disbursements to any assignee or participant, other than  to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph  shall apply).  The Borrower consents to the foregoing and agrees, to the extent it may effectively  do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing  arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to  such participation as fully as if such Lender were a direct creditor of the Borrower in the amount  of such participation.               (e)   Presumptions of Payment.  Unless the Administrative Agent shall have  received notice from the Borrower prior to the date on which any payment is due to the  Administrative Agent for account of the Lenders or the Issuing Bank hereunder that the Borrower  will not make such payment, the Administrative Agent may assume that the Borrower has made  such payment on such date in accordance herewith and may, in reliance upon such assumption,  distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.  In such event,  if the Borrower has not in fact made such payment, then each of the Lenders and the Issuing Bank,  as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the  amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day from  and including the date such amount is distributed to it to but excluding the date of payment to the  Administrative Agent at the Federal Funds Effective Rate.               (f)   Certain Deductions by the Administrative Agent.  If any Lender shall fail to  make any payment required to be made by it pursuant to Section 2.04(e), 2.05 or 2.16(e), then the  Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply  any amounts thereafter received by the Administrative Agent for account of such Lender to satisfy  such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.               SECTION 2.17   Defaulting Lenders.               Notwithstanding any provision of this Agreement to the contrary, if any Lender  becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender  is a Defaulting Lender:               (a)   commitment fees pursuant to Section 2.10(a) shall cease to accrue on the  unfunded portion of the Commitment of such Defaulting Lender to the extent, and during the  period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to  pay any such commitment fee that otherwise would have accrued and been required to have been  paid to such Defaulting Lender to the extent and during the period in which such Lender is a  Defaulting Lender);                                         77                                                                                    





 






                                                      (b)   the Commitment and Credit Exposure of such Defaulting Lender shall not  be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the  Lenders of a Class, the Required Lenders or the Required Lenders of a Class have taken or may  take any action hereunder or under any other Loan Document (including any consent to any  amendment or waiver pursuant to Section 9.02, except for any amendment or waiver described in  Section 9.02(b)(i), (ii), (iii) or (iv)); provided that any waiver, amendment or modification  requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which  affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable)  shall require the consent of such Defaulting Lender.               (c)   if any LC Exposure exists at the time a Multicurrency Lender becomes a  Defaulting Lender then:               (i)   all or any part of such LC Exposure shall be reallocated among the non-       Defaulting Multicurrency Lenders in accordance with their respective Applicable       Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’        Multicurrency Credit Exposures plus such Defaulting Lender’s LC Exposure does not       exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments, (y) no non-       Defaulting Lender’s Multicurrency Credit Exposure will exceed such Lender’s        Multicurrency Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at        such time (and unless the Borrower has notified the Administrative Agent at such time, the        Borrower shall be deemed to have represented and warranted that such conditions are        satisfied at such time);               (ii)  if the reallocation described in clause (i) above cannot, or can only partially,        be effected, the Borrower shall, without prejudice to any right or remedy available to it        hereunder or under law, within three Business Days following notice by the Administrative        Agent, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any       partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth       in Section 2.04(k) for so long as such LC Exposure is outstanding;               (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s        LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any        fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting        Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash        collateralized;               (iv)  if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to        clause (i) above, then the fees payable to the Lenders pursuant to Section 2.10(a) and        Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Multicurrency        Lenders’ Applicable Multicurrency Percentages in effect after giving effect to such        reallocation;               (v)   if any Defaulting Lender’s LC Exposure is neither cash collateralized nor       reallocated pursuant to this Section 2.17(c), then, without prejudice to any rights or        remedies of the Issuing Bank or any Lender hereunder, all facility fees that otherwise would        have been payable to such Defaulting Lender (solely with respect to the portion of such                                         78                                                                                    





 






                                                  Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of         credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC         Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized         and/or reallocated; and                (vi)  subject to Section 9.16, no reallocation hereunder shall constitute a waiver         or release of any claim of any party hereunder against a Defaulting Lender arising from         that Lender having become a Defaulting Lender, including any claim of a non-Defaulting         Lender as a result of such non-Defaulting Lender’s increased exposure following such        reallocation.                (d)   so long as any Multicurrency Lender is a Defaulting Lender, the Issuing   Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied   that the related exposure will be 100% covered by the Multicurrency Commitments of the non-  Defaulting Multicurrency Lenders and/or cash collateral will be provided by the Borrower in  accordance with Section 2.17(c), and participating interests in any such newly issued or increased   Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with  Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein).                In the event that the Administrative Agent and the Borrower agree in writing that a  Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such  Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall purchase  at par such of the Loans made to each Borrower of the other Lenders as the Administrative Agent  shall determine may be necessary in order for the Lenders to hold such Loans in accordance with  their applicable Dollar Percentage in effect immediately after giving effect to such agreement.  In  the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing  that a Defaulting Lender that is a Multicurrency Lender has adequately remedied all matters that  caused such Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender  shall no longer be deemed a Defaulting Lender, the Borrower shall no longer be required to cash  collateralize any portion of such Lender’s LC Exposure cash collateralized pursuant to Section   2.17(c)(ii) above, the LC Exposure of the Multicurrency Lenders shall be readjusted to reflect the   inclusion of such Lender’s Multicurrency Commitment and such Lender shall purchase at par the   portion of the Loans of the other Multicurrency Lenders as the Administrative Agent shall   determine may be necessary in order for such Lender to hold such Loans in accordance with its  Applicable Multicurrency Percentage in effect immediately after giving effect to such agreement.                SECTION 2.18   Mitigation Obligations; Replacement of Lenders.                (a)   Designation of a Different Lending Office.  If any Lender exercises its rights   under Section 2.12(b) or requests compensation under Section 2.13, or if the Borrower is required   to pay any Covered Taxes or additional amount to any Lender or any Governmental Authority for   account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts   (subject to overall policy considerations of such Lender) to designate a different lending office for   funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another   of its offices, branches or affiliates, if in the sole reasonable judgment of such Lender, such   designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13   or 2.15, as the case may be, in the future, or eliminate the circumstance giving rise to such Lender                                         79                                                                                      





 






                                          exercising its rights under Section 2.12(b) and (ii) would not subject such Lender to any cost or  expense not required to be reimbursed by the Borrower and would not otherwise be  disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and  expenses incurred by any Lender in connection with any such designation or assignment.               (b)   Replacement of Lenders.  If any Lender exercises its rights under  Section 2.12(b) or requests compensation under Section 2.13, or if the Borrower is required to pay  any Covered Taxes or additional amount to any Lender or any Governmental Authority for account  of any Lender pursuant to Section 2.15 and, in each case, such Lender has declined or is unable to  designate a different lending office in accordance with Section 2.18(a), or if any Lender becomes  a Defaulting Lender, or if any Lender becomes a Non-Consenting Lender, then the Borrower may,  at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require  such Lender to assign and delegate, without recourse (in accordance with and subject to the  restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement  and the other Loan Documents to an assignee that shall assume such obligations (which assignee  may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall  have received the prior written consent of the Administrative Agent and the Issuing Bank, which  consent shall not be unreasonably withheld, conditioned or delayed, (ii) such Lender shall have  received payment of an amount equal to the outstanding principal of its Loans and participations  in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it  hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and  fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment  resulting from a claim for compensation under Section 2.13 or payments required to be made  pursuant to Section 2.15, such assignment will result in a reduction in such compensation or  payments.  A Lender shall not be required to make any such assignment and delegation if prior  thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the  Borrower to require such assignment and delegation cease to apply.               (c)   Defaulting Lenders.  If any Lender shall fail to make any payment required  to be made by it pursuant to Section 2.04(e), 2.05 or 9.03(c), then the Administrative Agent may,  in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts  thereafter received by the Administrative Agent or the Issuing Bank for the account of such Lender  for the benefit of the Administrative Agent or the Issuing Bank to satisfy such Lender’s obligations  under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such  amounts in a segregated account as cash collateral for, and application to, any future funding  obligations of such Lender under such Sections, in the case of each of clauses (i) and (ii) above, in  any order as determined by the Administrative Agent in its discretion.               SECTION 2.19   Maximum Rate.  Notwithstanding anything herein to the   contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and  other amounts which are treated as interest on such Loan under applicable law (collectively, the  “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be  contracted for, charged, taken, received or reserved by the Lender holding such Loan, the rate of  interest payable in respect of such Loan hereunder, together with all related Charges, shall be  limited to the Maximum Rate.  To the extent lawful, the interest and Charges that would have been  payable in respect of a Loan made to the Borrower, but were not payable as a result of the operation                                         80                                                                                    





 






                                            of this Section, shall be cumulated and the interest and Charges payable to such Lender by the   Borrower in respect of other Loans or periods shall be increased (but not above the Maximum Rate  therefor) until such cumulated amount, together with interest thereon at the Federal Funds  Effective Rate to the date of repayment, shall have been received by such Lender.                                     ARTICLE III.                                                                 REPRESENTATIONS AND WARRANTIES                The Borrower represents and warrants to the Lenders that:                SECTION 3.01   Organization; Powers.  Each of the Borrower and its   Subsidiaries, as applicable, is duly organized or incorporated, validly existing and in good standing   under the laws of the jurisdiction of its organization or incorporation, has all requisite power and   authority to carry on its business as now conducted and, except where the failure to do so,   individually or in the aggregate, could not reasonably be expected to result in a Material Adverse   Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such   qualification is required of the Borrower or such Subsidiary, as applicable.  There is no existing   default under any charter, by-laws or other organizational documents of Borrower or its   Subsidiaries or any event which, with the giving of notice or passage of time or both, would   constitute a default by any party thereunder.                SECTION 3.02   Authorization; Enforceability.  The Transactions are within the   Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if   required, by all necessary stockholder action and the Board of Directors of the Borrower and its   Subsidiaries have approved the transactions contemplated in this Agreement.  This Agreement has   been duly executed and delivered by the Borrower and constitutes, and each of the other Loan   Documents to which it is a party when executed and delivered will constitute, a legal, valid and   binding obligation of the Borrower, enforceable in accordance with its terms, except as such   enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar   laws of general applicability affecting the enforcement of creditors’ rights and (b) the application   of general principles of equity (regardless of whether such enforceability is considered in a   proceeding in equity or at law).                SECTION 3.03   Governmental Approvals; No Conflicts.  The Transactions   (a) do not require any consent or approval of registration or filing with, or any other action by, any   Governmental Authority, except for (i) such as have been or will be obtained or made and are in   full force and effect and (ii) filings and recordings in respect of the Liens created pursuant to the   Security Documents, (b) will not violate any applicable law or regulation or the charter, by-laws   or other organizational documents of the Borrower or any of its Subsidiaries or any order of any   Governmental Authority (including the Investment Company Act and the rules, regulations and  orders issued by the SEC thereunder), (c) will not violate or result in a default in any material   respect under any indenture, agreement or other instrument binding upon the Borrower or any of   its Subsidiaries or assets, or give rise to a right thereunder to require any payment to be made by   any such Person, and (d) except for the Liens created pursuant to the Security Documents, will not   result in the creation or imposition of any Lien on any asset of the Borrower or any of its   Subsidiaries.                                         81                                                                                      





 






                                                        SECTION 3.04   Financial Condition; No Material Adverse Effect.                (a)   Financial Statements. The financial statements delivered to the   Administrative Agent and the Lenders by the Borrower pursuant to Section 4.01(c) and 5.01(a)   and (b) present fairly, in all material respects, the financial condition and results of operations of   the Borrower and its Subsidiaries on a consolidated basis as of the end of and for the applicable   period in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited   financial statements, to year-end audit adjustments and the absence of footnotes.  None of the   Borrower or any of its Subsidiaries has any material contingent liabilities, material liabilities for   taxes, material unusual forward or material long-term commitments or material unrealized or  anticipated losses from any unfavorable commitments not reflected in such financial statements.                (b)   No Material Adverse Effect.  Since September 30, 2018, there has not been   any event, development or circumstance that has had or could reasonably be expected to have a   Material Adverse Effect.                SECTION 3.05   Litigation.                There are no actions, suits, investigations or proceedings by or before any arbitrator   or Governmental Authority now pending against or, to the knowledge of the Borrower, threatened   against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a reasonable   possibility of an adverse determination and that, if adversely determined, could reasonably be   expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve   this Agreement or the Transactions.                SECTION 3.06   Compliance with Laws and Agreements.                Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations   and orders of any Governmental Authority applicable to it or its property and all indentures,   agreements and other instruments binding upon it or its property, except where the failure to do   so, individually or in the aggregate, could not reasonably be expected to result in a Material   Adverse Effect.  Neither the Borrower nor any of its Subsidiaries is subject to any contract or other   arrangement, the performance of which by the Borrower could reasonably be expected to result in   a Material Adverse Effect.                SECTION 3.07   Taxes.  Each of the Borrower and its Subsidiaries has timely   filed or has caused to be timely filed all material U.S. federal, state and local Tax returns that are   required to be filed by it and all other material Tax returns that are required to be filed by it and   has paid all material Taxes for which it is directly or indirectly liable and any assessments made   against it or any of its property and all other material Taxes, fees or other charges imposed on it or   any of its property by any Governmental Authority, except such Taxes, fees or other charges the   amount or validity of which is currently being contested in good faith by appropriate proceedings   and with respect to which reserves in conformity with GAAP have been provided on the books of   the Borrower or its Subsidiaries, as the case may be.  The charges, accruals and reserves on the   books of the Borrower and any of its Subsidiaries in respect of Taxes and other governmental   charges are adequate in accordance with GAAP.  Neither the Borrower nor any of its Subsidiaries   has given or been requested to give a waiver of the statute of limitations relating to the payment                                         82                                                                                      





 






                                            of any federal, state, local and foreign Taxes or other impositions, and no Tax lien (other than   Liens permitted pursuant to clause (a) of the definition of Permitted Liens) has been filed with   respect to the Borrower or any of its Subsidiaries. There is no proposed Tax assessment against   the Borrower or any of its Subsidiaries that has been received by the Borrower or any of its  Subsidiaries in writing.                SECTION 3.08   ERISA.No ERISA Event has occurred or is reasonably expected   to occur that, when taken together with all other such ERISA Events for which liability is   reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.                SECTION 3.09   Disclosure.                (a)   All written information (other than financial projections, pro forma   financial information, other forward-looking information and information of a general economic   or general industry nature) which has been made available to the Administrative Agent or any   Lender by the Borrower or any of its representatives on behalf of the Borrower in connection with   the transactions contemplated by this Agreement or delivered under any Loan Document, taken as  a whole, is and will be (after giving effect to all written updates provided by the Borrower to the  Administrative Agent for delivery to the Lenders from time to time) complete, true and correct in  all material respects and does not and will not (after giving effect to all written updates provided  by the Borrower to the Administrative Agent for delivery to the Lenders from time to time) contain  any untrue statement of a material fact or omit to state a material fact necessary in order to make  the statements contained therein at the time made and taken as a whole not misleading in light of  the circumstances under which such statements were made; provided that, solely with respect to   information furnished by the Borrower which was provided to the Borrower from a third party,   such information need only be true and correct in all material respects to the knowledge of the   Borrower; and                (b)   All financial projections, pro forma financial information and other   forward-looking information which has been delivered to the Administrative Agent or any Lender   by the Borrower or any of its representatives on behalf of the Borrower in connection with the   transactions contemplated by this Agreement or delivered under any Loan Document, are based   upon estimates and assumptions believed by the Borrower in good faith to be reasonable at the   time made, it being recognized that (i) such projections, financial information and other forward-  looking information as they relate to future events are subject to significant uncertainty and   contingencies (many of which are beyond the control of the Borrower and that no assurance can   be given that such projections will be realized) and therefore are not to be viewed as fact and (ii)   actual results during the period or periods covered by such projections, financial information and   other forward-looking information may materially differ from the projected results set forth   therein.                SECTION 3.10   Investment Company Act; Margin Regulations.                (a)   Status as Business Development Company.  The Borrower is an “investment   company” that has elected to be regulated as a “business development company” within the   meaning of the Investment Company Act and qualifies as a RIC.                                          83                                                                                      





 






                                                      (b)   Compliance with Investment Company Act.  The business and other  activities of the Borrower and its Subsidiaries, including, without limitation, entering into this  Agreement and the other Loan Documents to which each is a party, the borrowing of the Loans  hereunder, the application of the proceeds and repayment thereof by the Borrower and the  consummation of the Transactions contemplated by the Loan Documents, do not result in a  violation or breach of the applicable provisions of the Investment Company Act or any rules,  regulations or orders issued by the SEC thereunder, except where such breaches or violations,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse  Effect.               (c)   Investment Policies.  The Borrower is in compliance in all material respects  with the Investment Policies and its Valuation Policies, in each case as amended by Permitted  Policy Amendments.               (d)   Use of Credit.  Neither the Borrower nor any of its Subsidiaries is engaged  principally, or as one of its important activities, in the business of extending credit for the purpose,  whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the  proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock in  violation of law, rule or regulation. The Borrower does not own or intend to carry or purchase any  Margin Stock or to extend “purpose credit” within the meaning of Regulation U.               SECTION 3.11   Material Agreements and Liens.               (a)   Material Agreements.  Schedule 3.11(a) is a complete and correct list of  each credit agreement, loan agreement, indenture, purchase agreement, guarantee, letter of credit  or other arrangements providing for or otherwise relating to any Indebtedness or any extension of  credit (or commitment for any extension of credit) to, or guarantee by, the Borrower or any of its  Subsidiaries outstanding on the Effective Date, and the aggregate principal or face amount  outstanding or that is, or may become, outstanding under each such arrangement is correctly  described in Schedule 3.11(a).               (b)   Liens.  Schedule 3.11(b) is a complete and correct list of each Lien securing  Indebtedness of any Person outstanding on the Effective Date covering any property of the  Borrower or any of its Subsidiaries, and the aggregate principal amount of such Indebtedness  secured (or that may be secured) by each such Lien and the property covered by each such Lien as  of the Effective Date is correctly described in Schedule 3.11(b).               SECTION 3.12   Subsidiaries and Investments.               (a)   Subsidiaries.  Set forth in Schedule 3.12(a) is a complete and correct list of  all of the Subsidiaries of the Borrower as of the Effective Date together with, for each such  Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding  ownership interests in such Subsidiary and (iii) the percentage of ownership of such Subsidiary  represented by such ownership interests.  Except as disclosed in Schedule 3.12(a), as of the  Effective Date, (x) the Borrower owns, free and clear of Liens (other than Eligible Liens and Liens  permitted pursuant to Section 6.02(b) or (e)), and has the unencumbered right to vote, all  outstanding ownership interests in each Subsidiary shown to be held by it in Schedule 3.12(a), and                                        84                                                                                    





 






                                            (y) all of the issued and outstanding capital stock of each such Subsidiary organized as a   corporation is validly issued, fully paid and nonassessable (to the extent such concepts are   applicable).                (b)   Investments.  Set forth in Schedule 3.12(b) is a complete and correct list of   all Investments (other than Investments of the types referred to in clauses (b), (c), (d), (e), (f)   (solely with respect to Portfolio Investments), (g) and (i) of Section 6.04) held by the Borrower or   any of its Subsidiaries in any Person on the Effective Date and, for each such Investment, (i) the   identity of the Person or Persons holding such Investment and (ii) the nature of such Investment.    Except as disclosed in Schedule 3.12(b), as of the Effective Date each of the Borrower and its   Subsidiaries owns, free and clear of all Liens (other than Liens permitted pursuant to Section 6.02),   all such Investments.                SECTION 3.13   Properties.                (a)   Title Generally.  Each of the Borrower and its Subsidiaries has good title to,   or valid leasehold interests in, all its real and personal property material to its business, except for   minor defects in title that do not interfere with its ability to conduct its business as currently   conducted or to utilize such properties for their intended purposes.                (b)   Intellectual Property.  Each of the Borrower and its Subsidiaries owns, or is   licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property   material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe   upon the rights of any other Person, except for any such infringements that, individually or in the   aggregate, could not reasonably be expected to result in a Material Adverse Effect.                SECTION 3.14   Solvency.  On the Effective Date, and upon the incurrence of   any extension of credit hereunder, on any date on which this representation and warranty is made,   (a) the Borrower will be Solvent on an unconsolidated basis, and (b) each Obligor will be Solvent   on a consolidated basis with the other Obligors.                SECTION 3.15   No Default.  No Default or Event of Default has occurred and is   continuing under this Agreement.                SECTION 3.16   Use of Proceeds.  The proceeds of the Loans shall be used for   the general corporate purposes of the Borrower and its Subsidiaries (other than Financing   Subsidiaries except as expressly permitted under Section 6.03(e) or 6.03(i)) in the ordinary course   of its business, including making distributions not prohibited by this Agreement, making payments   on Indebtedness of the Obligors to the extent permitted under this Agreement and the acquisition   and funding (either directly or indirectly as expressly permitted hereunder) of leveraged loans,  mezzanine loans, high yield securities, convertible securities, preferred stock, common stock and  other Investments, but excluding, for clarity, Margin Stock in violation of applicable law, rule or   regulation.                SECTION 3.17   Security Documents.  The Guarantee and Security Agreement is   effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal,   valid and enforceable first-priority Liens on, and security interests in, the Collateral and, (i) when                                         85                                                                                      





 






                                            all appropriate filings or recordings are made in the appropriate offices as may be required for   perfection by filing under applicable law and, as applicable, and (ii) upon the taking of possession   or control by the Collateral Agent of the Collateral with respect to which a security interest may  be perfected by possession or control (which possession or control shall be given to the Collateral  Agent to the extent possession or control by the Collateral Agent is required by the Guarantee and  Security Agreement), the Liens created by the Guarantee and Security Agreement shall constitute  fully perfected Liens on, and security interests in, all right, title and interest of the grantors in the  Collateral (other than such Collateral in which a security interest cannot be perfected under the   UCC as in effect at the relevant time in the relevant jurisdiction), in each case subject to no Liens   other than Permitted Liens.                SECTION 3.18   Financing Subsidiaries.  Any Structured Subsidiary complies   with each of the conditions set forth in clause (a) or (b) in the definition of “Structured Subsidiary”,   as applicable.                (a)   Any SBIC Subsidiary complies with each of the conditions set forth in the   definition of “SBIC Subsidiary.”                (b)   As of the Effective Date, other than Barings BDC Finance I, LLC, and   Barings BDC Senior Funding I, LLC, the Borrower has no Financing Subsidiaries.                SECTION 3.19   Affiliate Agreements.  As of the Effective Date, the Borrower   has heretofore delivered to each of the Lenders true and complete copies of each of the Affiliate   Agreements (including any schedules and exhibits thereto, and any amendments, supplements or   waivers executed and delivered thereunder). As of the Effective Date, (a) each of the Affiliate   Agreements is in full force and effect and (b) other than the Affiliate Agreements, there is no   contract, agreement or understanding, in writing, between the Borrower or any of its Subsidiaries,   on the one hand, and any Affiliate of the Borrower, on the other hand.                SECTION 3.20   Compliance with Sanctions.  Neither the Borrower nor any of its   Subsidiaries, nor any executive officer or director thereof, nor, to the knowledge of the Borrower,   any Affiliate of the Borrower or any of their respective employees or agents, (i) is subject to, or   subject of, any sanctions or trade embargoes (or similar measures) (collectively, “Sanctions”)   imposed, administered or enforced from time to time by the United States of America (including   the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and   the U.S. Department of State), the European Union, Her Majesty’s Treasury, the United Nations   Security Council, or any other relevant sanctions authority, (ii) is located, organized or resident in   a Sanctioned Country or (iii) is in violation of Sanctions. Furthermore, no part of the proceeds of   a Loan will be used, directly or indirectly, or made available by the Borrower to any Person to   cause any Person to violate Sanctions or to finance or facilitate any activities or business of or with   any Person, or in any country or territory, that, at the time of such funding, is, or whose government   is, the subject of Sanctions.                SECTION 3.21   Anti-Money Laundering and Sanctions Program.  The Borrower   has implemented an anti-money laundering program to the extent required by the Uniting And   Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct   Terrorism, as amended (the “USA PATRIOT Act”) and by any other applicable anti-money                                         86                                                                                      





 






                                            laundering laws, and the rules and regulations thereunder and maintains in effect and enforces  policies and procedures designed to ensure compliance by the Borrower and its Subsidiaries (and,  when acting on behalf of the Borrower and its Subsidiaries, their respective directors, officers,  employees and agents) with applicable Sanctions.  Furthermore, no part of the proceeds of a Loan   will be used, directly or indirectly, by the Borrower or any Subsidiary or Affiliate of the Borrower,   or by any of their respective directors, officers, agents or employees acting on behalf of the   Borrower or any Subsidiary of the Borrower, to finance or facilitate a transaction in violation of   the anti-money laundering laws.                SECTION 3.22   Anti-Corruption Laws. The Borrower, its Subsidiaries, its   Affiliates, its directors and officers and, to the Borrower’s knowledge, the employees and agents   acting on behalf of the Borrower and its Subsidiaries, are in compliance with all applicable   Sanctions and Anti-Corruption Laws and each of the Borrower and any Subsidiary and Affiliate   of the Borrower has instituted and maintained policies and procedures reasonably designed to  ensure, and which are reasonably expected to continue to ensure, compliance therewith.   Furthermore, no part of the proceeds of a Loan will be used, directly or indirectly, by the Borrower  or any Subsidiary or Affiliate of the Borrower or by any of their respective directors, officers,  agents or employees acting on behalf of the Borrower or any Subsidiary of the Borrower, to finance  or facilitate a transaction in violation of the Anti-Corruption Laws.                SECTION 3.23   Beneficial Ownership Certification. As of the Effective Date, the   information included in any Beneficial Ownership Certification provided on or prior to the   Effective Date to any Lender in connection with this Agreement is true and correct in all respects.                SECTION 3.24   EEA Financial Institutions. No Obligor is an EEA Financial   Institution.                                     ARTICLE IV.                                                                             CONDITIONS                SECTION 4.01   Effective Date.  The effectiveness of this Agreement and of the   obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit   hereunder shall not become effective until completion of each of the following conditions   precedent (unless a condition shall have been waived in accordance with Section 9.02):                (a)   Documents.  Administrative Agent shall have received each of the following   documents, each of which shall be reasonably satisfactory to the Administrative Agent (and to the   extent specified below to each Lender) in form and substance:                (i)   Executed Counterparts.  From each party hereto either (x) a counterpart of         this Agreement signed on behalf of such party or (y) written evidence satisfactory to the         Administrative Agent (which may include telecopy or e-mail transmission of a signed        signature page to this Agreement) that such party has signed a counterpart of this        Agreement.                                           87                                                                                      





 






                                                      (ii)  Guarantee and Security Agreement; Custodian Agreement.  The Guarantee        and Security Agreement, the Custodian Agreement with respect to the Borrower’s        Custodian Account and the Control Agreement, each duly executed and delivered by each        of the parties thereto, and all other documents or instruments required to be delivered by        the Guarantee and Security Agreement, the Custodian Agreement and the Control        Agreement in connection with the execution thereof.               (iii) Opinion of Counsel to the Borrower.  A favorable written customary opinion        (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of        Dechert LLP, New York counsel for the Borrower, in form and substance reasonably       satisfactory to the Administrative Agent and covering such matters as the Administrative       Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver       such opinion to the Lenders and the Administrative Agent).               (iv)  Corporate Documents.  A certificate of the secretary or assistant secretary        of each Obligor, dated the Effective Date, certifying that attached thereto are (v) true and        complete copies of the organizational documents of each Obligor certified as of a recent        date by the appropriate governmental official, (w) signature and incumbency certificates        of the officers of such Person executing the Loan Documents to which it is a party, (x) true        and complete resolutions of the Board of Directors of each Obligor approving and        authorizing the execution, delivery and performance of this Agreement and the other Loan        Documents to which it is a party or by which it or its assets may be bound as of the Effective        Date and, in the case of the Borrower, authorizing the borrowings hereunder, and that such        resolutions are in full force and effect without modification or amendment, (y) a good        standing certificate from the applicable Governmental Authority of each Obligor’s        jurisdiction of incorporation, organization or formation and in each jurisdiction in which it        is qualified as a foreign corporation or other entity to do business, each dated a recent date        prior to the Effective Date, and (z) such other documents and certificates as the        Administrative Agent or its counsel may reasonably request relating to the organization,        existence and good standing of the Obligors, and the authorization of the Transactions, all        in form and substance reasonably satisfactory to the Administrative Agent and its counsel.               (v)   Officer’s Certificate. A certificate, dated the Effective Date and signed by a        Financial Officer of the Borrower, confirming compliance with the conditions set forth in        Sections 4.01(e) and (h) and Sections 4.02 (a), (b), (c) and (d).               (vi)  Control Agreements.  A control agreement with respect to each of the        Deposit Accounts and the Securities Accounts of the Borrower and its Subsidiaries required        to be delivered by the Guarantee and Security Agreement.               (b)   Liens.  The Administrative Agent shall have received results of a recent lien  search in each relevant jurisdiction with respect to the Obligors, confirming the priority of the  Liens in favor of the Collateral Agent created pursuant to the Security Documents and revealing  no liens on any of the assets of the Obligors except for Liens permitted under Section 6.02 or Liens  to be discharged on or prior to the Effective Date pursuant to documentation reasonably  satisfactory to the Administrative Agent.  All UCC financing statements, control agreements, stock  certificates and other documents or instruments required to be filed or executed and delivered in                                         88                                                                                    





 






                                            order to create in favor of the Collateral Agent, for the benefit of the Administrative Agent and the   Lenders, a first-priority perfected (subject to Eligible Liens) security interest in the Collateral (to   the extent that such a security interest may be perfected by filing, possession or control under the   Uniform Commercial Code) shall have been properly filed (or provided to the Administrative   Agent) or executed and delivered in each jurisdiction required.                (c)   Financial Statements.  The Administrative Agent and the Lenders shall have   received, prior to the execution of this Agreement, (i) the audited consolidated balance sheets,   audited consolidated statements of operations, audited consolidated statements of changes in net   assets, audited consolidated statements of cash flows and related audited consolidated schedule of   investments of the Borrower and its consolidated Subsidiaries as of and for the fiscal year ended   December 31, 2017, December 31, 2016 and December 31, 2015 and (ii) the unaudited   consolidated balance sheets, unaudited consolidated statements of operations, unaudited   consolidated statements of changes in net assets, unaudited consolidated statements of cash flows   and related unaudited consolidated schedule of investments  of the Borrower and its consolidated   Subsidiaries as of and for the nine-month and three-month period ended September 30, 2018, in   each case certified in writing by a Financial Officer of the Borrower as presenting fairly in all   material respects the financial condition and results of operations of the Borrower and its   Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to   normal year-end audit adjustments and the absence of footnotes.  The Administrative Agent and   the Lenders shall have received any other financial statements of the Borrower and its Subsidiaries   as they shall have reasonably requested.                (d)   Consents.  The Borrower shall have obtained and delivered to the   Administrative Agent certified copies of all consents, approvals, authorizations, registrations, or   filings (other than any filing required under the Exchange Act or the rules or regulations   promulgated thereunder, including any filing required on Form 8-K) required to be made or   obtained by the Borrower and all guarantors in connection with the Transactions and any other  evidence reasonably requested by, and reasonably satisfactory to, the Administrative Agent as to  compliance with all material legal and regulatory requirements applicable to the Obligors, and  such consents, approvals, authorizations, registrations, filings and orders shall be in full force and  effect and all applicable waiting periods shall have expired and no investigation or inquiry by any  Governmental Authority regarding the Transactions or any transaction being financed with the  proceeds of the Loans shall be ongoing.                (e)   No Litigation.  There shall not exist any action, suit, investigation, litigation   or proceeding or other legal or regulatory developments pending or, to the knowledge of the   Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority   (including any SEC investigation) that relates to the Transactions or that could reasonably be   expected to have a Material Adverse Effect.                (f)   Solvency Certificate.  On the Effective Date, the Administrative Agent shall   have received a solvency certificate of a Financial Officer of the Borrower dated as of the Effective   Date and addressed to the Administrative Agent and the Lenders, and in form, scope and substance   reasonably satisfactory to Administrative Agent, with appropriate attachments and demonstrating   that both before and after giving effect to the Transactions, (a) the Borrower will be Solvent on an                                          89                                                                                      





 






                                            unconsolidated basis and (b) each Obligor will be Solvent on a consolidated basis with the other  Obligors.                (g)   Due Diligence.  All customary confirmatory due diligence on the Borrower   and its Subsidiaries shall have been completed by the Administrative Agent and the Lenders and   the results of such due diligence shall be satisfactory to the Administrative Agent and the Lenders.    No information shall have become available which the Administrative Agent reasonably believes   has had, or could reasonably be expected to have, a Material Adverse Effect.                (h)   Default. No Default or Event of Default shall have occurred and be   continuing under this Agreement, nor any default or event of default that permits (or which upon   notice, lapse of time or both, would permit) the acceleration of any Material Indebtedness,   immediately before and after giving effect to the Transactions, any incurrence of Indebtedness   hereunder and the use of the proceeds hereof.                (i)   USA PATRIOT Act.  The Administrative Agent and each Lender shall have   received all documentation and other information required by bank regulatory authorities under   applicable “know your customer” and anti-money laundering rules and regulations, including the  USA PATRIOT Act, as reasonably requested by the Administrative Agent or such Lender.                (j)   Investment Policies; Valuation Policy.  The Administrative Agent shall have   received the Investment Policies and Valuation Policy as in effect on the Effective Date in form   and substance reasonably satisfactory to the Administrative Agent.                (k)   Borrowing Base Certificate.  The Administrative Agent shall have received   a Borrowing Base Certificate dated as of the Effective Date, showing a calculation of the   Borrowing Base as of the date immediately prior to the Effective Date, in form and substance   reasonably satisfactory to the Administrative Agent.                (l)   Insurance Certificates.  The Administrative Agent shall have received   certificates from the Borrower’s insurance broker or other evidence reasonably satisfactory to it   that the directors and officers liability insurance required to be maintained pursuant to the Loan   Documents is in full force and effect.                (m)   Beneficial Ownership Regulation.  The Administrative Agent shall have   received, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial   Ownership Regulation, at least five days prior to the Effective Date, a Beneficial Ownership   Certification.                (n)   Fees and Expenses.  The Borrower shall have paid in full to the   Administrative Agent, the Joint Lead Arrangers and the Lenders all fees and expenses (including   reasonable legal fees to the extent invoiced) related to this Agreement owing on or prior to the   Effective Date, including any upfront fee due to any Lender on or prior to the Effective Date.                (o)   Other Documents.  The Administrative Agent shall have received such other   documents, instruments, certificates, opinions and information as the Administrative Agent may                                          90                                                                                      





 






                                          reasonably request or require in form and substance reasonably satisfactory to the Administrative  Agent.               The contemporaneous exchange and release of executed signature pages by each of  the Persons contemplated to be a party hereto shall render this Agreement effective and any such  exchange and release of such executed signature pages by all such persons shall constitute  satisfaction or waiver (as applicable) of any condition precedent to such effectiveness set forth  above.  Each Lender on the Effective Date acknowledges receipt of, and satisfaction with, each of  the documents set forth above.               SECTION 4.02   Conditions to Each Credit Event.  The obligation of each Lender  to make any Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit,  including in each case any such extension of credit on the Effective Date, is additionally subject  to the satisfaction of the following conditions:               (a)   the representations and warranties of the Obligors set forth in this  Agreement and in the other Loan Documents shall be true and correct in all material respects (other  than any representation or warranty already qualified by materiality or Material Adverse Effect,  which shall be true and correct in all respects) on and as of the date of such Loan or the date of  issuance, amendment, renewal or extension of such Letter of Credit, as applicable, or, as to any  such representation or warranty that refers to a specific date, as of such specific date;               (b)   at the time of and immediately after giving effect to such Loan or the date  of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default  or Event of Default shall have occurred and be continuing or would result from such extension of  credit after giving effect thereto and to the use of proceeds thereof on a pro forma basis;               (c)   no Borrowing Base Deficiency shall exist at the time of and immediately  after giving effect to such extension of credit and either (i) the aggregate Covered Debt Amount  (after giving effect to such Loan) shall not exceed the Borrowing Base reflected on the Borrowing  Base Certificate most recently delivered to the Administrative Agent or (ii) the Borrower shall  have delivered an updated Borrowing Base Certificate demonstrating that the Covered Debt  Amount (after giving effect to such Loan) shall not exceed the Borrowing Base after giving effect  to such Loan as well as any concurrent acquisitions of Portfolio Investments by the Borrower or  payment of outstanding Loans or Other Covered Indebtedness;               (d)   after giving effect to such extension of credit, the Borrower shall be in pro  forma compliance with each of the covenants set forth in Section 6.07; and               (e)   the proposed date of such extension of credit shall take place during the  Availability Period.               Each Borrowing, and each issuance, amendment, renewal or extension of a Letter  of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date  thereof as to the matters specified in the preceding sentence.                                          91                                                                                    





 






                                                                             ARTICLE V.                                                                       AFFIRMATIVE COVENANTS                Until the Termination Date, the Borrower covenants and agrees with the Lenders   that:                SECTION 5.01   Financial Statements and Other Information.  The Borrower will   furnish to the Administrative Agent for distribution to each Lender (provided that, the   Administrative Agent shall not be required to distribute any document or report to any Lender to   the extent such distribution would cause the Administrative Agent to breach or violate any   agreement that it has with another Person (including any non-reliance or non-disclosure letter with   any Approved Third-Party Appraiser)):                (a)   within 90 days after the end of each fiscal year of the Borrower   (commencing with the fiscal year ending December 31, 2018), the audited consolidated balance  sheet and the related audited consolidated statements of operations, audited consolidated   statements of changes in net assets, audited consolidated statements of cash flows and related   audited consolidated schedule of investments of the Borrower and its Subsidiaries on a   consolidated basis as of the end of and for such year, setting forth in each case in comparative form   the figures for the previous fiscal year (to the extent full fiscal year information is available), all   reported on by Ernst & Young LLP or other independent public accountants of recognized national   standing to the effect that such consolidated financial statements present fairly in all material   respects the financial condition and results of operations of the Borrower and its Subsidiaries on a   consolidated basis in accordance with GAAP consistently applied (which report shall be   unqualified as to going concern and scope of audit and shall not contain any explanatory paragraph   or paragraph of emphasis with respect to going concern); provided that the requirements set forth   in this clause (a) may be fulfilled by providing to the Administrative Agent for distribution to each   Lender the report filed by the Borrower with the SEC on Form 10-K for the applicable fiscal year;                (b)   within 45 days after the end of each of the first three (3) fiscal quarters of   each fiscal year of the Borrower (commencing with the fiscal quarter ending March 31, 2019), the   consolidated balance sheet and the related consolidated statements of operations, consolidated  statements of changes in net assets, consolidated statements of cash flows and related consolidated  schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end  of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each  case in comparative form the figures for (or, in the case of the statement of assets and liabilities,  as of the end of) the corresponding period or periods of the previous fiscal year (to the extent such  information is available for the previous fiscal year), all certified by a Financial Officer of the  Borrower as presenting fairly in all material respects the financial condition and results of  operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP  consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;   provided that the requirements set forth in this clause (b) may be fulfilled by providing to the   Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC   on Form 10-Q for the applicable quarterly period;                                          92                                                                                      





 






                                                      (c)   concurrently with any delivery of financial statements under clause (a) or  (b) of this Section, a certificate of a Financial Officer of the Borrower (i) to the extent the  requirements in clauses (a) and (b) of this Section are not fulfilled by the Borrower delivering the  applicable report delivered to (or filed with) the SEC, certifying that such statements are consistent  with the financial statements filed by the Borrower with the SEC, (ii) certifying as to whether the  Borrower has knowledge that a Default has occurred during the most recent period covered by  such financial statements and, if a Default has occurred during such period (or has occurred and is  continuing from a prior period), specifying the details thereof and any action taken or proposed to  be taken with respect thereto, (iii) setting forth reasonably detailed calculations (which reconcile  to the financial statements) demonstrating compliance with Sections 6.01(b), (h) and (k), 6.03(e),  (g) and (i), 6.04(j), 6.05(b) and (d) and 6.07, (iv) stating whether any change in GAAP as applied  by (or in the application of GAAP by) the Borrower has occurred since the Effective Date (but  only if the Borrower has not previously reported such change to the Administrative Agent and if  such change has had a material effect on the financial statements) and, if any such change has  occurred (and has not been previously reported to the Administrative Agent), specifying the effect  of such change on the financial statements accompanying such certificate, and (v) attaching a list  of Subsidiaries as of the date of delivery of such certificate or a confirmation that there is no change  in such information since the date of the last such list;               (d)   as soon as available and in any event not later than thirty (30) calendar days  after the end of each monthly accounting period (ending on the last day of each calendar month)  of the Borrower and its Subsidiaries, commencing with the monthly accounting period ending  February 28, 2019, a Borrowing Base Certificate as of the last day of such accounting period  (which Borrowing Base Certificate shall include: (i) an Excel schedule containing information  substantially similar to the information included on the Excel schedule included in the Borrowing  Base Certificate delivered to the Administrative Agent on the Effective Date and (ii) a calculation  of the External Quoted Value in accordance with methodologies described in Sections  5.12(b)(ii)(A)(w), (x), (y) and (z));               (e)   promptly but no later than two Business Days after any Financial Officer of  the Borrower shall at any time have knowledge (based upon facts and circumstances known to  him) that there is a Borrowing Base Deficiency or knowledge that the Borrowing Base has declined  by more than 15% from the Borrowing Base stated in the Borrowing Base Certificate last delivered  by the Borrower to the Administrative Agent (other than in connection with an asset sale or return  of capital the proceeds of which are used to prepay the Loans), a Borrowing Base Certificate as at  the date such Financial Officer has knowledge of such Borrowing Base Deficiency or decline  indicating the amount of the Borrowing Base Deficiency or decline as at the date such Financial  Officer obtained knowledge of such deficiency or decline;               (f)   promptly upon receipt thereof copies of all significant and non-routine  written reports submitted to the management or Board of Directors of the Borrower by the  Borrower’s independent public accountants in connection with each annual, interim or special  audit or review of any type of the financial statements or related internal control systems of the  Borrower or any of its Subsidiaries delivered by such accountants to the management or board of  directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors  provide, in the ordinary course, to the audit committee of the Borrower’s Board of Directors);                                         93                                                                                    





 






                                                      (g)   [reserved];               (h)   to the extent not previously delivered, within 45 days after the end of each  of the first three (3) fiscal quarters of each fiscal year of the Borrower and within 90 days after the  end of the fourth fiscal quarter of each fiscal year of the Borrower, all final internal and external  valuation reports relating to the Eligible Portfolio Investments (including all valuation reports  delivered by an Approved Third-Party Appraiser in connection with the quarterly appraisals of  Unquoted Investments in accordance with Section 5.12(b)(ii)(B)), and any other information  relating to the Eligible Portfolio Investments as reasonably requested by the Administrative Agent  or any other Lender;               (i)   to the extent not otherwise provided by the Custodian, within thirty (30)  days after the end of each month, full, correct and complete updated copies of custody reports  (including, to the extent available, (i) activity reports with respect to Cash and Cash Equivalents  included in the calculation of the Borrowing Base, (ii) an itemized list of each account and the  amounts therein with respect to Cash and Cash Equivalents included in the calculation of the  Borrowing Base and (iii) an itemized list of each Portfolio Investment held in any Custodian  Account owned by the Borrower or any of its Subsidiary reflecting all assets being held in any  Custodian Account owned by the Borrower or any of its Subsidiaries or otherwise subject to the  Custodian Agreement;               (j)   within 45 days after the end of each of the first three fiscal quarters of the  Borrower and 90 days after the end of each fiscal year of the Borrower, a certificate of a Financial  Officer of the Borrower certifying that attached thereto is a complete and correct description of all  Portfolio Investments as of the date thereof, including, with respect to each such Portfolio  Investment, the name of the Borrower or Subsidiary holding such Portfolio Investment and the  amounts held by each;               (k)   to the extent such information is not otherwise available in the financial  statements delivered pursuant to clause (a) or (b) of this Section, upon the reasonable request of  the Administrative Agent, within five (5) Business Days of the due date set forth in clause (a) or  (b) of this Section for any quarterly or annual financial statements, as the case may be, a schedule  prepared in accordance with GAAP setting forth in reasonable detail with respect to each Portfolio  Investment owned by the Borrower or any of its Subsidiaries (other than Financing Subsidiaries)  where there has been a realized gain or loss in the most recently completed fiscal quarter, (i) the  cost basis of such Portfolio Investment, (ii) the realized gain or loss associated with such Portfolio  Investment, (iii) the associated reversal of any previously unrealized gains or losses associated  with such Portfolio Investment, (iv) the proceeds received with respect to such Portfolio  Investment representing repayments of principal during the most recently ended fiscal quarter, and  (v) any other amounts received with respect to such Portfolio Investment representing exit fees or  prepayment penalties during the most recently ended fiscal quarter;               (l)   any change in the information provided in the Beneficial Ownership  Certification, if any, delivered to a Lender that would result in a change to the list of beneficial  owners identified in such certificate;                                         94                                                                                    





 






                                                      (m)   information and documentation reasonably requested by the Administrative  Agent or any Lender for purposes of compliance with applicable “know your customer” and anti- money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership  Regulation; and               (n)   promptly following any request therefor, such other information regarding  the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries,  or compliance with the terms of this Agreement and the other Loan Documents, as the  Administrative Agent or any Lender may reasonably request.               SECTION 5.02   Notices of Material Events.  Promptly after the Borrower  becoming aware of any of the following, the Borrower will furnish to the Administrative Agent  and each Lender prompt written notice of the following:               (a)   the occurrence of any Default or Event of Default (unless the Borrower first  became aware of such Default from a notice delivered by the Administrative Agent); provided that  if such Default is subsequently cured (i) within the time periods set forth herein and (ii) before the  Borrower became aware of such Default, the failure to provide notice of such Default shall not  itself result in an Event of Default hereunder;               (b)   the filing or commencement of any action, suit or proceeding by or before  any arbitrator or Governmental Authority against or affecting the Borrower or any of its Affiliates  that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;               (c)   the occurrence of any ERISA Event that, alone or together with any other  ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse  Effect; and               (d)   any other development (excluding matters of a general economic, financial  of political nature to the extent that they could not reasonably be expected to have a  disproportionate effect on the Borrower) that results in, or could reasonably be expected to result  in, a Material Adverse Effect.               Each notice delivered under this Section shall be accompanied by a statement of a  Financial Officer or other executive officer of the Borrower setting forth the details of the event or  development requiring such notice and any action taken or proposed to be taken with respect  thereto.               SECTION 5.03   Existence; Conduct of Business.  The Borrower will, and will  cause each of its Subsidiaries (other than Immaterial Subsidiaries) to, do or cause to be done all  things necessary to preserve, renew and keep in full force and effect its legal existence and the  rights, licenses, permits, privileges and franchises material to the conduct of its business; provided  that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted  under Section 6.03.               SECTION 5.04   Payment of Obligations.  The Borrower will, and will cause each  of its Subsidiaries to, pay its obligations, including material contractual obligations, that, if not                                         95                                                                                    





 






                                            paid, could reasonably be expected to result in a Material Adverse Effect before the same shall   become delinquent or in default, except where (a) the validity or amount thereof is being contested   in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its  books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make  payment pending such contest could not reasonably be expected to result in a Material Adverse  Effect.                SECTION 5.05   Maintenance of Properties; Insurance.  The Borrower will, and   will cause each of its Subsidiaries (other than Immaterial Subsidiaries) to, (a) keep and maintain   all property material to the conduct of its business in good working order and condition, ordinary   wear and tear excepted, (b) maintain, with financially sound and reputable insurance companies,   insurance in such amounts and against such risks as are customarily maintained by externally   managed business development companies and (c) upon the reasonable request of the   Administrative Agent, promptly deliver to the Administrative Agent any certificate or certificates   from the Borrower’s insurance broker or other documentary evidence, in each case, demonstrating   the effectiveness of, or any changes to, such insurance.                SECTION 5.06   Books and Records; Inspection and Audit Rights.                (a)   Books and Records; Inspection Rights.  The Borrower will, and will cause   each of its Subsidiaries to, keep, or cause to be kept, books of record and account in accordance   with GAAP.  The Borrower will, and will cause each of its Subsidiaries to, permit any   representatives designated by the Administrative Agent or any Lender, upon reasonable prior   notice to the Borrower and, in the case of representatives designated by the Administrative Agent,   at the sole expense of the Borrower, to (i) visit and inspect its properties during normal business   hours, to examine and make extracts from its books and records, and (ii) discuss its affairs, finances   and condition with its officers and independent accountants, all at such reasonable times and as   often as reasonably requested, in each case to the extent such information can be provided or   discussed without violation of law, rule or regulation (it being understood that the Obligors will   use their commercially reasonable efforts to be able to provide such information not in violation   of law, rule or regulation); provided that the Borrower or such Subsidiary shall be entitled to have   its representatives and advisors present during any inspection of its books and records; provided,   further, that the Borrower shall not be required to pay for more than two (2) such visits and   inspections in any calendar year unless an Event of Default has occurred and is continuing at the   time of any subsequent visits and inspections during such calendar year.                (b)   Audit Rights.  The Borrower will, and will cause each of its Subsidiaries   (other than Financing Subsidiaries) to, permit any representatives designated by Administrative   Agent (including any consultants, accountants and lawyers retained by the Administrative   Agent) to conduct evaluations of the Borrower’s computation of the Borrowing Base and the assets  included in the Borrowing Base (including, for clarity, audits of any Agency Accounts, funds  transfers and custody procedures), all at such reasonable times and as often as reasonably  requested.  The Borrower shall pay the reasonable, documented out-of-pocket fees and expenses  of representatives retained by the Administrative Agent to conduct any such evaluation; provided   that the Borrower shall not be required to pay such fees and expenses for more than one such   evaluation during any calendar year unless an Event of Default has occurred and is continuing at                                          96                                                                                      





 






                                          the time of any subsequent evaluation during such calendar year.  The Borrower also agrees to  modify or adjust the computation of the Borrowing Base and/or the assets included in the  Borrowing Base, to the extent required by the Administrative Agent or the Required Lenders as a  result of any such evaluation indicating that such computation or inclusion of assets is not  consistent with the terms of this Agreement, provided that if the Borrower demonstrates that such  evaluation is incorrect, the Borrower shall be permitted to re-adjust its computation of the  Borrowing Base.               (c)   Notwithstanding the foregoing, nothing contained in this Section 5.06 shall  impair or affect the rights of the Administrative Agent under Section 5.12(b)(ii) in any respect.               SECTION 5.07   Compliance with Laws and Agreements.  The Borrower will,  and will cause each of its Subsidiaries to, comply with all laws, rules, regulations, including the  Investment Company Act (if applicable to such Person), and orders of any Governmental  Authority applicable to it (including orders issued by the SEC) or its property and all indentures,  agreements and other instruments, except where the failure to do so, individually or in the  aggregate, could not reasonably be expected to result in a Material Adverse Effect.  Policies and  procedures will be maintained and enforced by or on behalf of the Borrower that are designed in  good faith and in a commercially reasonable manner to promote and achieve compliance, in the  reasonable judgment of the Borrower, by the Borrower and each of its Subsidiaries and, when  acting on behalf of the Borrower or any of its Subsidiaries, their respective directors, officers,  employees and agents with any applicable Anti-Corruption Laws and applicable Sanctions.               SECTION 5.08   Certain Obligations Respecting Subsidiaries; Further  Assurances.               (a)   Subsidiary Guarantors.               (i)   In the event that (1) the Borrower or any of its Subsidiaries shall form or        acquire any new Subsidiary (other than a Financing Subsidiary, a CFC, an Immaterial        Subsidiary or a Transparent Subsidiary), or any other Person shall become a “Subsidiary”        within the meaning of the definition thereof (other than a Financing Subsidiary, a CFC, an        Immaterial Subsidiary or a Transparent Subsidiary); (2) any Structured Subsidiary shall no        longer constitute a “Structured Subsidiary” pursuant to the definition thereof (in which case        such Person shall be deemed to be a “new” Subsidiary for purposes of this Section 5.08);        (3) any SBIC Subsidiary shall no longer constitute an “SBIC Subsidiary” pursuant to the        definition thereof  (in which case such Person shall be deemed to be a “new” Subsidiary        for purposes of this Section 5.08); (4) any CFC shall no longer constitute a “CFC” pursuant        to the definition thereof (in which case such Person shall be deemed to be a “new”        Subsidiary for purposes of this Section 5.08); (5) any Transparent Subsidiary shall no        longer constitute a “Transparent Subsidiary” pursuant to the definition thereof (in which        case such Person shall be deemed to be a “new” Subsidiary for purposes of this Section        5.08); or (6) any Immaterial Subsidiary shall no longer constitute an “Immaterial        Subsidiary” pursuant to the definition thereof (in which case such Person shall be deemed        to be a “new” Subsidiary for purposes of this Section 5.08), the Borrower will, in each case,        on or before thirty (30) days (or such longer period as may be agreed to by the        Administrative Agent in its sole discretion) following such Person becoming a Subsidiary                                        97                                                                                    





 






                                                or such Financing Subsidiary, CFC, Transparent Subsidiary or Immaterial Subsidiary, as        the case may be, no longer qualifying as such, cause such new Subsidiary or former        Financing Subsidiary, former CFC, former Transparent Subsidiary or former Immaterial        Subsidiary, as the case may be, to become a “Subsidiary Guarantor” (and, thereby, an       “Obligor”) under the Guarantee and Security Agreement pursuant to a Guarantee       Assumption Agreement and to deliver such proof of corporate or other action, incumbency       of officers, opinions of counsel and other documents as is consistent with those delivered       by the Borrower pursuant to Section 4.01 on the Effective Date and as the Administrative        Agent shall have reasonably requested.               (ii)  The Borrower acknowledges that the Administrative Agent and the Lenders        have agreed to exclude each Structured Subsidiary, each SBIC Subsidiary, each CFC, each       Transparent Subsidiary and each Immaterial Subsidiary as an Obligor only for so long as        such Person qualifies as a “Structured Subsidiary”, “SBIC Subsidiary”, “CFC”,        “Transparent Subsidiary” or “Immaterial Subsidiary”, respectively, pursuant to the        definition thereof, and thereafter such Person shall no longer constitute a “Structured        Subsidiary”, “SBIC Subsidiary”, “CFC”, “Transparent Subsidiary” or “Immaterial        Subsidiary”, as applicable, for any purpose of this Agreement or any other Loan Document.               (b)   Ownership of Subsidiaries.  The Borrower will, and will cause each of its  Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of its  Subsidiaries is a direct or indirect wholly owned Subsidiary; provided that the foregoing shall not  prohibit any transaction permitted under Section 6.03 or 6.04, so long as after giving effect to such  permitted transaction each of the remaining Subsidiaries is a direct or indirect wholly owned  Subsidiary.               (c)   Further Assurances.  The Borrower will, and will cause each of the  Subsidiary Guarantors to, take such action from time to time as shall reasonably be requested by  the Administrative Agent to effectuate the purposes and objectives of this Agreement.  Without  limiting the generality of the foregoing, the Borrower will, and will cause each of the Subsidiary  Guarantors, to:               (i)   take such action from time to time (including filing appropriate Uniform        Commercial Code financing statements and executing and delivering such assignments,        security agreements and other instruments) as shall be reasonably requested by the        Administrative Agent to create, in favor of the Collateral Agent for the benefit of the        Lenders (and any affiliate thereof that is a party to any Hedging Agreement entered into        with the Borrower) and the holders of any Secured Longer-Term Indebtedness, perfected       first-priority security interests and Liens in the Collateral; provided that any such security        interest or Lien shall be subject to the relevant requirements of the Security Documents;               (ii)  with respect to each deposit account or securities account of the Obligors        (other than (A) any such account that is maintained by the Borrower in its capacity as        “servicer” for a Financing Subsidiary or any Agency Account, (B) any such accounts which        hold solely money or financial assets of a Financing Subsidiary, (C) any payroll account        so long as such payroll account is coded as such, (D) withholding tax and fiduciary        accounts or any trust account maintained solely on behalf of a Portfolio Investment, (E)                                        98                                                                                    





 






                                      any checking account of the Obligors in which the aggregate value of deposits therein,   together with all other such accounts under this clause (E), does not at any time exceed   $1,000,000, provided that the Borrower will, and will cause each of its Subsidiary   Guarantors to, use commercially reasonable efforts to obtain control agreements governing   any such account in this clause (E), and (F) any account in which the aggregate value of   deposits therein, together with all other such accounts under this clause (F), does not at any   time exceed $75,000; provided that in the case of each of the foregoing clauses (A) through   (F), no other Person (other than the depository institution at which such account is   maintained) shall have “control” (within the meaning of the Uniform Commercial Code)  over such account, cause each bank or securities intermediary (within the meaning of the  Uniform Commercial Code)) to enter into such arrangements with the Collateral Agent as  shall be appropriate in order that the Collateral Agent has “control” (within the meaning of  the Uniform Commercial Code) over each such deposit account or securities account (each,  a “Control Account”) and in that connection, the Borrower agrees, subject to Sections   5.08(c)(iv) and (v) below, to cause all cash and other proceeds of Portfolio Investments   received by any Obligor to be immediately deposited into a Control Account (or otherwise   delivered to, or registered in the name of, the Collateral Agent) and, both prior to and   following such deposit, delivery or registration such cash and other proceeds shall be held   in trust by the Borrower for the benefit and as the property of the Collateral Agent and shall   not be commingled with any other funds or property of such Obligor or any other Person   (including with any money or financial assets of the Borrower in its capacity as “servicer”   for a Structured Subsidiary, or any money or financial assets of a Structured Subsidiary, or   any money or financial assets of the Borrower in its capacity as an “agent” or   “administrative agent” for any other Bank Loans subject to Section 5.08(c)(v) below);          (iii) cause the Financing Subsidiaries to execute and deliver to the   Administrative Agent such certificates and agreements, in form and substance reasonably   satisfactory to the Administrative Agent, as it shall determine are necessary to confirm that   such Financing Subsidiary qualifies or continues to qualify as a “Structured Subsidiary” or  an “SBIC Subsidiary”, as applicable, pursuant to the definitions thereof;          (iv)  in the case of any Portfolio Investment consisting of a Bank Loan that does   not constitute all of the credit extended to the underlying borrower under the relevant   underlying loan documents and a Financing Subsidiary holds any interest in the loans or   other extensions of credit under such loan documents, (x) cause such Financing Subsidiary   to be party to such underlying loan documents as a “lender” having a direct interest (or a   participation interest not acquired from such Borrower or other Obligor) in such underlying   loan documents and extensions of credit thereunder; and (y) ensure that, subject to Section   5.08(c)(v) below, all amounts owing to any Obligor by the underlying borrower or other   obligated party are remitted by the borrower or obligated party (or the applicable   administrative agents, collateral agents or equivalent Person) directly  to the Custodian   Account and no other amounts owing by such underlying borrower or obligated party are   remitted to the Custodian Account;          (v)   in the event that any Obligor is acting as an agent or administrative agent   under any loan documents with respect to any Bank Loan (or is acting in an analogous   agency capacity under any agreement related to any Portfolio Investment) and such Obligor                                   99                                                                                            





 






                                                does not hold all of the credit extended to the underlying borrower or issuer under the        relevant underlying loan documents or other agreements, ensure that (1) all funds held by        such Obligor in such capacity as agent or administrative agent are segregated from all other        funds of such Obligor and clearly identified as being held in an agency capacity (an        “Agency Account”); (2) all amounts owing on account of such Bank Loan or Portfolio        Investment by the underlying borrower or other obligated party are remitted by such        borrower or obligated party to either (A) such Agency Account or (B) directly to an account        in the name of the underlying lender to whom such amounts are owed (for the avoidance        of doubt, no funds representing amounts owing to more than one underlying lender may be        remitted to any single account other than the Agency Account); and (3) within two (2)        Business Days after receipt of such funds, such Obligor acting in its capacity as agent or        administrative agent shall distribute any such funds belonging to any Obligor to the        Custodian Account (provided that if any distribution referred to in this clause (v) is not        permitted by applicable bankruptcy law to be made within such two (2) Business Day        period as a result of the bankruptcy of the underlying borrower, such Obligor shall use        commercially reasonable efforts to obtain permission to make such distribution and shall        make such distribution as soon as legally permitted to do so); and               (vi)  in the case of any Portfolio Investment held by any Financing Subsidiary,        including any cash collection related thereto, ensure that such Portfolio Investment shall        not be held in any Custodian Account, or any other account of any Obligor.               SECTION 5.09   Use of Proceeds.  The Borrower will use the proceeds of the  Loans and the issuances of Letters of Credit only for general corporate purposes of the Borrower  and its Subsidiaries in the ordinary course of business, including making distributions not  prohibited by this Agreement and the acquisition and funding (either directly or indirectly as  permitted hereunder) of leveraged loans, mezzanine loans, high-yield securities, convertible  securities, preferred stock, common stock and other Investments in each case to the extent  otherwise permitted hereunder; provided that neither the Administrative Agent nor any Lender  shall have any responsibility as to the use of any of such proceeds.  No part of the proceeds of any  Loan will be used in violation of applicable law, rule or regulation or, directly or indirectly, for the  purpose, whether immediate, incidental or ultimate, of buying or carrying any Margin Stock.  On  the Effective Date, the first day (if any) an Obligor acquires any Margin Stock and at any other  time requested by the Administrative Agent or any Lender, the Borrower shall furnish to the  Administrative Agent and each Lender a statement to the foregoing effect in conformity with the  requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.  Margin  Stock shall be purchased by the Obligors only with the proceeds of Indebtedness not directly or  indirectly secured by Margin Stock (within the meaning of Regulation U), or with the proceeds of  equity capital of the Borrower.  No Obligor will (and each Obligor will procure that its Subsidiaries  and its or their respective directors, officers, employees and agents shall not) directly or indirectly  use the proceeds of the Loans or otherwise make available such proceeds (I) to any Person for the  purpose of financing the activities or business of or with any Person, or in any country or territory,  that, at the time of such funding, is, or whose government is, the subject of any Sanctions or in any  other manner that would result in a violation of Sanctions by any Person or (II) in violation of  Anti-Corruption Laws or for any payments to any governmental official or employee, political  party, official of a political party, candidate for political office, or anyone else acting in an official                                        100                                                                                    





 






                                            capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation   of any Anti-Corruption Laws.  For the avoidance of doubt, Letters of Credit may be issued to   support obligations of any Portfolio Company; provided that the underlying obligations of such   Portfolio Company to the applicable Obligors in respect of such Letters of Credit shall not be   included in the Borrowing Base.                SECTION 5.10   Status of RIC and BDC.  The Borrower shall at all times   maintain its status as a “business development company” under the Investment Company Act and   as a RIC under the Code.                SECTION 5.11   Investment Policies; Valuation Policy.  The Borrower shall at all   times be in compliance in all material respects with its Investment Policies and its Valuation   Policy, in each case as amended by Permitted Policy Amendments.                SECTION 5.12   Portfolio Valuation and Diversification Etc.  (a)   Industry   Classification Groups.  For purposes of this Agreement, the Borrower shall assign each Eligible   Portfolio Investment to an Industry Classification Group as reasonably determined by the   Borrower. To the extent that the Borrower reasonably determines that any Eligible Portfolio   Investment is not correlated with the risks of other Eligible Portfolio Investments in an Industry   Classification Group, such Eligible Portfolio Investment may be assigned by the Borrower to an   Industry Classification Group that is more closely correlated to such Eligible Portfolio Investment.   In the absence of adequate correlation, the Borrower shall be permitted to, upon notice to the  Administrative Agent for distribution to each Lender, create up to three additional industry  classification groups for purposes of this Agreement; provided that no more than three different   additional industry classification groups may be created pursuant to this paragraph (a).                (b)   Portfolio Valuation Etc.                (i)   Settlement-Date Basis.  For purposes of this Agreement and the other Loan         Documents, all determinations of whether a Portfolio Investment is an Eligible Portfolio         Investment shall be determined on a Settlement-Date Basis, provided that no such         investment shall be included as an Eligible Portfolio Investment to the extent it has not         been paid for in full.                (ii)  Determination of Values.  The Borrower will conduct reviews of the value         to be assigned to each of its Eligible Portfolio Investments as follows:                      (A)   Quoted Investments External Review.  With respect to Eligible               Portfolio Investments (including Cash Equivalents) traded in an active and orderly               market for which market quotations are readily available (“Quoted Investments”),               the Borrower shall, not less frequently than once each calendar week, determine the               market value of such Quoted Investments which shall, in each case, be determined               in accordance with one of the following methodologies as selected by the Borrower               (each such value, an “External Quoted Value”):                                          101                                                                                      





 






                                                  (w)   in the case of public and 144A securities, the average         of the most recent bid prices as determined by two Approved Dealers         selected by the Borrower,                      (x)   in the case of Bank Loans, the average of the most        recent bid prices as determined by two Approved Dealers selected by the        Borrower or an Approved Pricing Service which makes reference to at least        two Approved Dealers with respect to such Bank Loans,                     (y)   in the case of any Quoted Investment traded on an        exchange, the closing price for such Eligible Portfolio Investment most        recently posted on such exchange,                     (z)    in the case of any other Quoted Investment, the fair         market value thereof as determined by an Approved Pricing Service; and          (B)   Unquoted Investments External Review.  With respect to all   Portfolio Investments (other than Portfolio Investments which are not included in   the Borrowing Base and the fair value of which does not exceed (x) $2,000,000 in   the case of any such individual Portfolio Investment and (y) $20,000,000 in the case   of all such Portfolio Investments in the aggregate) owned by an Obligor for which   market quotations are not readily available (“Unquoted Investments”), the   Borrower shall value such Unquoted Investments in a manner consistent with its   Valuation Policy, and shall request an Approved Third-Party Appraiser to assist the  Directing Body of the Borrower in determining the fair market value of such   Unquoted Investments, as of the last day of each fiscal quarter (except that an asset   acquired in any quarter shall not be required to be valued by the Approved Third-  Party Appraiser until the end of the fiscal quarter immediately succeeding the   quarter in which such asset was acquired) (values determined in accordance with   this sub-clause (B) are referred to as “Borrower External Unquoted Values”), such   assistance each quarter to include providing the Directing Body of the Borrower   (with a copy to the Administrative Agent) with a written independent valuation   report.  Each such valuation report shall also include the information required to   comply with paragraph (16) of Schedule 1.01(c).           (C)   Internal Review.  The Borrower shall conduct internal reviews to   determine the value of all Eligible Portfolio Investments in accordance with its   Valuation Policy at least once each calendar quarter, and shall conduct internal   reviews with respect to the Eligible Portfolio Investments at least once each   calendar week for the purpose of reviewing and discussing the Borrower’s asset  portfolio (which shall take into account any events of which the Borrower has  knowledge that adversely affect the value of any Eligible Portfolio Investment   (other than in an immaterial manner)) (each such value established pursuant to this   clause (C), an “Internal Value”).          (D)   Failure of Borrower to Determine Values.  If the Borrower shall fail   to determine the value of any Portfolio Investment as at any date pursuant to the                            102                                                                                      





 






                                requirements (but subject to the exclusions) of the foregoing sub-clauses (A), (B)   or (C) then the “Value” of such Portfolio Investment for purposes of the Borrowing   Base as at such date shall be deemed to be zero for purposes of the Borrowing Base.          (E)   Value of Quoted Investments. Subject to Section 5.12(b)(iii), the   “Value” of each Quoted Investment for all purposes of this Agreement shall be the   lowest of (1) the Internal Value of such Quoted Investment as most recently  determined by the Borrower pursuant to Section 5.12(b)(ii)(C), (2) the External   Quoted Value of such Quoted Investment as most recently determined pursuant to   Section 5.12(b)(ii)(A) and (3) if such Quoted Investment is a debt investment, the   par or face value of such Quoted Investment.          (F)   Value of Unquoted Investments. Subject to Section 5.12(b)(iii),                      (x)   if the Internal Value of any Unquoted Investment as         most recently determined by the Borrower pursuant to         Section 5.12(b)(ii)(C) falls below or within the range of the Applicable         External Value of such Unquoted Investment as most recently determined         pursuant to Section 5.12(b)(ii)(B), then the “Value” of such Unquoted         Investment for all purposes of this Agreement shall be deemed to be the         lower of (i) the Internal Value and (ii) if such Unquoted Investment is a debt         investment, the par or face value of such Unquoted Investment; and                      (y)   if the Internal Value of any Unquoted Investment as         most recently determined by the Borrower pursuant to         Section 5.12(b)(ii)(C) falls above the range of the Applicable External         Value of such Unquoted Investment as most recently determined pursuant         to Section 5.12(b)(ii)(B) (and the Applicable External Value of such         Unquoted Investment is such Borrower External Unquoted Value), then the         “Value” of such Unquoted Investment for all purposes of this Agreement         shall be deemed to be the lower of (i) the midpoint of the range of the         Borrower External Unquoted Value and (ii) if such Unquoted Investment is         a debt investment, the par or face value of such Unquoted Investment.    except that if an Unquoted Investment is acquired during a fiscal quarter, the   “Value” of such Unquoted Investment shall be deemed to be equal to the lowest of   (i) the Internal Value of such Unquoted Investment as determined by the Borrower   pursuant to Section 5.12(b)(ii)(C), (ii) the cost of such Unquoted Investment; and   (iii) if such Unquoted Investment is a debt investment, the par or face value of such  Unquoted Investment, until such time as the Borrower External Unquoted Value of   such Unquoted Investment is determined (or required to be determined) in   accordance with Section 5.12(b)(ii)(B) .          (G)   Actions Upon a Borrowing Base Deficiency. If, based upon such   weekly internal review, the Borrower determines that a Borrowing Base Deficiency   exists, then the Borrower shall, promptly and in any event within two Business  Days as provided in Section 5.01(e), deliver a Borrowing Base Certificate                            103                                                                                      





 






                              reflecting the new amount of the Borrowing Base and shall take the actions, and  make prepayments (and, to the extent necessary, provide cover for Letters of Credit  as contemplated by Section 2.04(k)), but only to the extent required by Section  2.09(b).         (H)   Initial Value of Assets.  Notwithstanding anything to the contrary  contained herein, from the Effective Date until the date when the valuation reports  are required to be delivered under Section 5.01(h) for the quarter ending March 31,  2019, the Value of any Portfolio Investment included in the Borrowing Base shall  be the Value as determined in a manner consistent with this Section 5.12 and, with  respect to assets acquired before the Effective Date, as delivered to the  Administrative Agent on or prior to the Effective Date.   (iii) Testing of Values         (A)   Each February 28, April 30, July 31 and October 31 of each calendar  year, commencing on April 30, 2019 (or such other dates as are agreed to by the  Borrower and the Administrative Agent, but in no event less frequently than once  per calendar quarter, each a “Valuation Testing Date”), the Administrative Agent  through an Independent Valuation Provider will value those Portfolio Investments  selected by the Administrative Agent and communicated in writing to the Borrower  at least ten (10) days prior to the applicable Valuation Testing Date (and which, for  the avoidance of doubt, may include Portfolio Investments other than Unquoted  Investments) (values assigned pursuant to this Section 5.12(b)(iii)(A), together with  values assigned by an Independent Valuation Provider pursuant to Section  5.12(b)(iii)(C) below, the “Agent External Values”); provided that the assets that  the Administrative Agent will have the right to value under this Section  5.12(b)(ii)(A) will not exceed assets with a Value approximately equal to the  Calculation Amount (as defined below).  For the avoidance of doubt, Unquoted  Investments that are part of the Collateral but not included in the Borrowing Base  as of a Valuation Testing Date shall not be subject to testing under this Section  5.12(b)(iii); provided that such Unquoted Investment shall continue to be excluded  from the Borrowing Base until such time as the Borrower determines (subject to  the other terms and conditions contained herein) to include it in the Borrowing  Base.         (B)   For purposes of this Agreement, the “Calculation Amount” shall be  equal to the greater of (a)(i) 125% of the Adjusted Covered Debt Balance (as of the  applicable Valuation Testing Date) minus (ii) the sum of the Values of all Quoted  Investments included in the Borrowing Base (as of the applicable Valuation Testing  Date) and (b) 10% of the aggregate Value (or as near thereto as reasonably  practicable) of all Unquoted Investments included in the Borrowing Base (as of the  applicable Valuation Testing Date); provided that in no event shall more than 25%  (or, if clause (b) applies, 10% or as near thereto as reasonably practicable) of the  aggregate Value of the Unquoted Investments in the Borrowing Base be tested by  the Independent Valuation Provider on any Valuation Testing Date.                            104                                                                                     





 






                                      (C)   Supplemental Testing of Values:  Notwithstanding the foregoing, the   Administrative Agent, individually or at the request of the Required Lenders, shall  at any time have the right, solely for purposes of the Borrowing Base, to request in  its reasonable discretion any Portfolio Investment included in the Borrowing Base  with a value assigned by the Borrower (other than Portfolio Investments with Agent  External Values as of the most recent Valuation Testing Date) to be independently  valued by an Independent Valuation Provider for purposes of the Borrowing Base.   There shall be no limit on the number of such appraisals requested by the  Administrative Agent in its reasonable discretion and, subject to   Section 5.12(b)(iv)(C) below, the costs of any such valuation shall be at the expense   of the Borrower.          (D)   Value Dispute Resolution: If the difference in the Value of any   Portfolio Investment determined by the Borrower pursuant to Section 5.12(b)(ii)   and any Agent External Value is (1) less than or equal to 5% of the Value thereof,   then the Borrower’s Value shall be used, (2) greater than 5% and less than or equal   to 20% of the Value thereof, then the Value of such Portfolio Investment shall be   the average of the Value determined by the Borrower pursuant to Section 5.12(b)(ii)   and the Agent External Value and (3) greater than 20% of the Value thereof, then   either (i) the Value shall be the lesser of the two Values or (ii) if the Borrower so   elects, the Borrower and the Administrative Agent shall retain (at the Borrower’s   sole cost and expense) an additional Approved Third-Party Appraiser and the Value  of such Portfolio Investment shall be the average of the three valuations (with the  lesser of the Agent External Value and the value determined by the Borrower  pursuant to Section 5.12(b)(ii) to be used until the third Value is obtained).  For   purposes of this Section 5.12(b)(iii)(C), if the Agent External Value is a range, then   the Value shall be deemed the midpoint of the range.          (E)   Failure of Administrative Agent to Determine Values.  If the   Administrative Agent shall fail to determine the value, at any date pursuant to this   Section 5.12(b)(iii), of any Eligible Portfolio Investment identified to the Borrower   in advance of such date as a result of any action, inaction or lack of cooperation of   the Borrower or any of its Affiliates, then the “Value” of such Eligible Portfolio   Investment shall be deemed to be zero.  If the Administrative Agent shall fail to   determine the value, at any date pursuant to this Section 5.12(b)(iii), of any Eligible   Portfolio Investment identified to the Borrower in advance of such date for any   other reason, then the Value of such Eligible Portfolio Investment shall be the lower   of the Internal Value and, if such Unquoted Investment is a debt investment, the par   or face value of such Eligible Portfolio Investment; provided, however that if a   Borrower Eternal Unquoted Value has been obtained with respect to such asset for   the quarterly period immediately preceding the current quarterly period, then the   “Value” of such Eligible Portfolio will be determined as provided in Section   5.2(b)(ii)(F) above.    (iv)  Generally Applicable Valuation Provisions                             105                                                                                      





 






                                                            (A)   The Value of any Portfolio Investment for which the Independent              Valuation Provider’s value is used shall be the midpoint of the range (if any)              determined by the Independent Valuation Provider.  The Independent Valuation              Provider shall apply a recognized valuation methodology that is commonly              accepted in the Borrower’s industry for valuing Portfolio Investments of the type             being valued and held by the Obligors.  Other procedures relating to the valuation             will be reasonably agreed upon by the Administrative Agent and the Borrower.                     (B)   All valuations shall be on a Settlement-Date Basis.  For the              avoidance of doubt, the value of any Portfolio Investments determined in              accordance with any provision of this Section 5.12 shall be the Value of such              Portfolio Investment for purposes of this Agreement until a new Value for such              Portfolio Investment is subsequently determined in good faith in accordance with              this Section 5.12.                     (C)   Subject to the last sentence of Section 9.03(a), the reasonable and              documented out-of-pocket costs of any valuation reasonably incurred by the              Administrative Agent under this Section 5.12 shall be at the expense of the              Borrower; provided that the Borrower’s obligation to reimburse valuation costs              incurred by the Administrative Agent under Section 5.12(b)(iii)(C) shall under no              circumstances be in excess of the IVP Supplemental Cap.                     (D)   The values determined by the Independent Valuation Provider shall              be deemed to be “Information” hereunder and subject to Section 9.13 hereof.                     (E)   The Administrative Agent shall provide a copy of the final results of              any valuation received by the Administrative Agent and performed by the              Independent Valuation Provider or an Approved Third-Party Appraiser to any              Lender within ten (10) Business Days after such Lender’s request, except to the              extent that such recipient has not executed and delivered a non-reliance letter,              confidentiality agreement or similar agreement requested or required by such              Independent Valuation Provider or Approved Third-Party Appraiser, as applicable.                     (F)   The foregoing valuation procedures shall only be required to be used              for purposes of calculating the Borrowing Base and related concepts and shall not              be required to be utilized by the Borrower for any other purpose, including, without              limitation, the delivery of financial statements or valuations required under              ASC820 or the Investment Company Act.                     (G)   The Administrative Agent shall notify the Borrower of its receipt of              the written final results of any such test within ten (10) Business Days after its              receipt thereof and shall provide a copy of such results and the related report to the              Borrower within ten (10) Business Days after the Borrower’s request.               (c)   Investment Company Diversification Requirements.  The Borrower  (together with its Subsidiaries to the extent required by the Investment Company Act) will at all  times comply in all material respects with the portfolio diversification and similar requirements                                       106                                                                                    





 






                                            set forth in the Investment Company Act applicable to business development companies.  The   Borrower will at all times, subject to applicable grace periods set forth in the Code, comply with   the portfolio diversification and similar requirements set forth in the Code applicable to RICs.                SECTION 5.13   Calculation of Borrowing Base.  For purposes of this   Agreement, the “Borrowing Base” shall be determined, as at any date of determination, as the sum   of the products obtained by multiplying (x) the Value of each Eligible Portfolio Investment   (excluding any cash held by the Administrative Agent pursuant to Section 2.04(k)) by (y) the   applicable Advance Rate; provided that:                (a)   the Advance Rate applicable to the aggregate Value of all Eligible Portfolio   Investments in their entirety shall be 0% at any time when the Borrowing Base is composed   entirely of Eligible Portfolio Investments issued by fewer than 20 different issuers;                (b)   the Advance Rate applicable to that portion of the aggregate Value of the   Eligible Portfolio Investments issued by all issuers in a consolidated group of corporations or other   entities in accordance with GAAP exceeding (i) 5% of the aggregate Value of all Eligible Portfolio   Investments included in the Borrowing Base (for the avoidance of doubt, the calculation of fair   value for purposes of this subclause shall be made without taking into account any Advance Rate)   (the “Total Eligible Portfolio”), shall be 50% of the otherwise applicable Advance Rate and (ii) the   Advance Rate applicable to that portion of the aggregate fair value of Eligible Portfolio   Investments of all issuers in a consolidated group of corporations or other entities in accordance  with GAAP exceeding 7.5% of the Total Eligible Portfolio of the Total Eligible Portfolio shall be  0%;  provided that at any time the Consolidated Asset Coverage Ratio is less than 175%, the   Advance Rate applicable to that portion of the aggregate fair value of Eligible Portfolio   Investments of all issuers in a consolidated group of corporations or other entities in accordance   with GAAP exceeding 5% of the Total Eligible Portfolio shall be 0%;                (c)   the Advance Rate applicable to that portion of the Total Eligible Portfolio   issued by Portfolio Companies in the same Industry Classification Group that exceeds (x) 20% of   the Total Eligible Portfolio for each of the Two Largest Industry Classification Groups, and (y)  15% of the Total Eligible Portfolio for any other industry sector, shall be 0%;               (d)   the Advance Rate applicable to that portion of the aggregate Value of  Portfolio Investments that are not Cash, Cash Equivalents, Long-Term U.S. Government Securities  or Performing First Lien Bank Loans that exceeds 30% of the Total Eligible Portfolio shall be 0%;               (e)   the Advance Rate applicable to that portion of the aggregate Value of  Portfolio Investments that are  Performing Mezzanine Investments, Performing High Yield  Securities, Performing PIK Obligations and Performing DIP Loans that exceeds 20% of the Total  Eligible Portfolio shall be 0%;               (f)   the Advance Rate applicable to that portion of the aggregate Value of  Portfolio Investments that are Performing PIK Obligations that exceeds 5% of the Total Eligible  Portfolio shall be 0%;                                          107                                                                                      





 






                                                        (g)   the Advance Rate applicable to that portion of the aggregate Value of   Portfolio Investments that are Performing DIP Loans that exceeds 10% of the Total Eligible   Portfolio shall be 0%;                (h)   the Advance Rate applicable to that portion of the aggregate Value of   Portfolio Investments that are Performing Covenant-Lite Loans (excluding, for clarity, Broadly  Syndicated Loans) that exceeds 10% of the Total Eligible Portfolio shall be 0%;  and               (i)   the Advance Rate applicable to that portion of the aggregate Value of  Portfolio Investments that are investments in Permitted Foreign Jurisdiction Portfolio Investments  that exceeds 10% of the Total Eligible Portfolio Investments shall be 0%.                For all purposes of this Section 5.13, (A) all issuers of Eligible Portfolio   Investments that are Affiliates of one another shall be treated as a single issuer (unless such issuers   are Affiliates of one another solely because they are under the common Control of the same private   equity sponsor or similar sponsor) and (B) to the extent the Total Eligible Portfolio is required to   be reduced to comply with this Section 5.13, the Borrower shall be permitted to choose the Eligible   Portfolio Investments to be so removed to effect such reduction.  For the avoidance of doubt, no   Portfolio Investment shall be an Eligible Portfolio Investment unless, among the other   requirements set forth in this Agreement, (i) such Investment is subject only to Eligible Liens, (ii)   such Investment is Transferable and (iii) such Investment meets all of the other criteria set forth   on Schedule 1.01(c) hereto.In addition, as used herein, the following terms have the following   meanings:                “Advance Rate” means, as to any Eligible Portfolio Investment and subject to   adjustment as provided above, the following percentages with respect to such Eligible Portfolio   Investment:                 Eligible Portfolio Investment            Unquoted      Quoted    Cash and Cash Equivalents (including Short-Term U.S.    n/a         100%    Government Securities)    Long-Term U.S. Government Securities                    n/a         95%    Performing Broadly Syndicated Loans                     n/a         75%    Performing First Lien Bank Loans                        70%         75%    Performing First Lien Middle Market Loans               65%         70%    Performing Last Out Loans                               60%         60%    Performing Second Lien Bank Loans                       55%         60%    Performing High Yield Securities                        45%         50%    Performing Mezzanine Investments and Performing Covenant- 40%       45%    Lite Loans    Performing PIK Obligations and Performing DIP Loans     20%         20%                                         108                                                                                      





 






                                             All other Portfolio Investments (including all Non-Performing 0%     0%    Portfolio Investments)    provided, that at any time the Consolidated Asset Coverage Ratio is less than 167% (as reported   in the most recently delivered monthly Borrowing Base Certificate pursuant to Section 5.01(d)),   every Advance Rate in the table above that is below the line for “Performing First Lien Middle   Market Loans” shall be five percentage points less than the applicable rate indicated in the table.    For the avoidance of doubt, the categories above are intended to be indicative of the traditional   investment types.  All determinations of whether a particular Portfolio Investment belongs to one   category or another shall be made by the Borrower on a consistent basis with the foregoing.  For   example, a secured bank loan solely at a holding company, the only assets of which are the shares   of an operating company, may constitute Mezzanine Investments, but would not ordinarily   constitute a First Lien Bank Loan.                “Bank Loans” means debt obligations (including, without limitation, term loans,   revolving loans, debtor-in-possession financings, the funded portion of revolving credit lines and   letter of credit facilities and other similar loans and investments including interim loans, bridge   loans and second lien loans) that are generally provided under a syndicated loan or credit facility   or pursuant to any loan agreement or other similar credit facility, whether or not syndicated.                “Broadly Syndicated Loan” means any syndicated loan that is widely distributed   and (i) that has a tranche size of $250,000,000 or greater, (ii) that is a Performing First Lien Bank   Loan, (iii) that is rated by both S&P and Moody’s and is rated at least B- and B3, respectively, for   any measurement date, and (iv) that is a Quoted Investment.                “Cash” has the meaning assigned to such term in Section 1.01 of this Agreement.                “Cash Equivalents” has the meaning assigned to such term in Section 1.01 of this   Agreement.                “Covenant-Lite Loan” means a Bank Loan (other than a Broadly Syndicated Loan)   that does not require the Portfolio Company thereunder to comply with at least one financial   maintenance covenant (including, without limitation, any covenant relating to a borrowing base,   asset valuation or similar asset-based requirement), in each case, regardless of whether compliance   with one or more incurrence covenants is otherwise required by such Bank Loan.                “Defaulted Obligation” means any Investment in Indebtedness (a) as to which, (x)   a default as to the payment of principal and/or interest has occurred and is continuing for a period   of thirty two (32) consecutive days with respect to such Indebtedness (without regard to any grace   period applicable thereto, or waiver thereof) or (y) a default not set forth in clause (x) has occurred   and the holders of such Indebtedness have accelerated all or a portion of the principal amount   thereof as a result of such default; (b) as to which a default as to the payment of principal and/or   interest has occurred and is continuing on another material debt obligation of the Portfolio  Company  under such Indebtedness which is senior or pari passu in right of payment to such  Indebtedness; (c) as to which the Portfolio Company under such Indebtedness or others have                                         109                                                                                      





 






                                            instituted proceedings to have such Portfolio Company adjudicated bankrupt or insolvent or placed   into receivership and such proceedings have not been stayed or dismissed or such Portfolio   Company has filed for protection under the United States Bankruptcy Code or any similar foreign   proceeding (unless, in the case of clause (b) or (c), such Indebtedness is a DIP Loan, in which case  it shall not be deemed to be a Defaulted Obligation under such clause); (d) as to which a default  rate of interest has been and continues to be charged for more than 120 consecutive days, or  foreclosure on collateral for such Indebtedness has been commenced and is being pursued by or  on behalf of the holders thereof; or (e) as to which the Borrower has delivered written notice to the  Portfolio Company declaring such Indebtedness in default or as to which the Borrower otherwise  exercises significant remedies following a default.                “DIP Loan” means any Bank Loan (whether revolving or term) that is originated   after the commencement of a case under Chapter 11 of the Bankruptcy Code by a Portfolio   Company, which is a debtor-in-possession as described in Section 1107 of the Bankruptcy Code   or a debtor as defined in Section 101(13) of the Bankruptcy Code in such case (a “Debtor”)   organized under the laws of the United States or any state therein and domiciled in the United   States, which loan satisfies the following criteria:  (a) the DIP Loan is duly authorized by a final   order of the applicable bankruptcy court or federal district court under the provisions of subsection   (b), (c) or (d) of 11 U.S.C. Section 364; (b) the Debtor’s bankruptcy case is still pending as a case   under the provisions of Chapter 11 of Title 11 of the Bankruptcy Code and has not been dismissed   or converted to a case under the provisions of Chapter 7 of Title 11 of the Bankruptcy Code; (c)   the Debtor’s obligations under such loan have not been (i) disallowed, in whole or in part, or (ii)   subordinated, in whole or in part, to the claims or interests of any other Person under the provisions   of 11 U.S.C. Section 510; (d) the DIP Loan is secured and the Liens granted by the applicable   bankruptcy court or federal district court in relation to the Loan have not been subordinated or   junior to, or pari passu with, in whole or in part, to the Liens of any other lender under the   provisions of 11 U.S.C. Section 364(d) or otherwise; (e) the Debtor is not in default on its   obligations under the loan; (f) neither the Debtor nor any party in interest has filed a Chapter 11   plan with the applicable federal bankruptcy or district court that, upon confirmation, would (i)   disallow or subordinate the loan, in whole or in part, (ii) subordinate, in whole or in part, any Lien   granted in connection with such loan, (iii) fail to provide for the repayment, in full and in cash, of   the loan upon the effective date of such plan or (iv) otherwise impair, in any manner, the claim   evidenced by the loan; (g) the DIP Loan is documented in a form that is commercially reasonable;   (h) the DIP Loan shall not provide for more than 50% (or a higher percentage with the consent of   the Required Lenders) of the proceeds of such loan to be used to repay prepetition obligations   owing to all or some of the same lender(s) in a “roll-up” or similar transaction; (i) no portion of  the DIP Loan is payable in consideration other than cash; and (j) no portion of the DIP Loan has  been credit bid under Section 363(k) of the Bankruptcy Code or otherwise.  For the purposes of  this definition, an order is a “final order” if the applicable period for filing a motion to reconsider  or notice of appeal in respect of a permanent order authorizing the Debtor to obtain credit has  lapsed and no such motion or notice has been filed with the applicable bankruptcy court or federal  district court or the clerk thereof.                “EBITDA” means the consolidated net income of the applicable Person (excluding   extraordinary, unusual or non-recurring gains and extraordinary losses (to the extent excluded in   the definition of “EBITDA”, adjusted EBITDA, adjusted consolidated EBITDA or such similar                                         110                                                                                      





 






                                            term as may be used in the applicable documentation) in the relevant agreement relating to the   applicable Eligible Portfolio Investment) for the relevant period plus, without duplication, the   following to the extent deducted in calculating such consolidated net income in the relevant   agreement relating to the applicable Eligible Portfolio Investment for such period: (i) consolidated   interest charges for such period, (ii) the provision for Federal, state, local and foreign income taxes   payable for such period, (iii) depreciation and amortization expense for such period, and (iv) such   other adjustments included in the definition of “EBITDA” (or similar defined term used for the   purposes contemplated herein) in the relevant agreement relating to the applicable Eligible   Portfolio Investment, provided that such adjustments are usual and customary and substantially   comparable to market terms for substantially similar debt of other similarly situated borrowers at   the time such relevant agreements are entered into as reasonably determined in good faith by the   Borrower.                “Eligible Liens” has the meaning assigned to such term in Section 1.01 of this   Agreement.                “Eligible Portfolio Investment” has the meaning assigned to such term in Section   1.01 of this Agreement.                “First Lien Bank Loan” means a Bank Loan that is entitled to the benefit of a first   lien and first priority perfected security interest on all or substantially all of the assets of the   respective borrower and guarantors obligated in respect thereof, and which has the most senior   pre-petition priority in any bankruptcy, reorganization, arrangement, insolvency, or liquidation  proceedings; provided, however, that, in the case of accounts receivable and inventory (and the  proceeds thereof), such lien and security interest may be second in priority to a Permitted Prior  Working Capital Lien; and further provided that any portion of such a Bank Loan (other than a  Broadly Syndicated Loan) which has a total debt to EBITDA ratio above 4.50 to 1.00 will, in each  case, have the advance rates of a Second Lien Bank Loan applied to such portion and such portion  of such Bank Loan which has a total debt to EBITDA ratio above 6.00 to 1.00 will, in each case,  have the advance rates of a Mezzanine Investment applied to such portion.  For the avoidance of  doubt, in no event shall a First Lien Bank Loan include a Last Out Loan.                “High Yield Securities” means debt Securities, in each case (a) issued by public or   private issuers, (b) issued pursuant to an effective registration statement or pursuant to Rule 144A   under the Securities Act (or any successor provision thereunder) and (c) that are not Cash   Equivalents, Mezzanine Investments (described under clause (i) of the definition thereof) or Bank   Loans.                “Last Out Loan” means, with respect to any loan that would otherwise qualify as a   First Lien Bank Loan but is a term loan structured in a first out tranche and a last out tranche (with   the first out tranche entitled to a lower interest rate but priority with respect to payments), that   portion of such Bank Loan that is the last out tranche; provided that:                (a) such last out tranche is entitled (along with the first out tranche) to the benefit   of a first lien and first priority perfected security interest on all or substantially all of the assets of   the respective borrower and guarantors obligated in respect thereof (subject to customary   exceptions), and which has the most senior pre-petition priority in any bankruptcy, reorganization,                                        111                                                                                      





 






                                            arrangement, insolvency, or liquidation proceedings (taking into account the payment priority of   the first out tranche and subject to customary permitted liens as contemplated by the applicable   credit facility documents);                (b) the ratio of (x) the amount of the first out tranche to (y) EBITDA of the   underlying obligor does not at any time exceed 2.25 to 1.00;                (c) such last out tranche (i) gives the holders of such last out tranche full   enforcement rights during the existence of an event of default (subject to customary exceptions,   including standstill periods and if the holders of the first out tranche have previously exercised   enforcement rights), (ii) shall have the same maturity date as the first out tranche, (iii) is entitled   to the same representations, covenants and events of default as the holders of the first out tranche   (subject to customary exceptions), and (iv) provides the holders of such last out tranche with   customary protections (including, without limitation, consent rights with respect to (1) any   increase of the principal balance of the first out tranche, (2) any increase of the margins (other than   as a result of the imposition of default interest) applicable to the interest rates with respect to the   first out tranche,  (3) any reduction of the final maturity of the first out tranche, and (4) amending   or waiving any provision in the underlying loan documents that is specific to the holders of such   last out tranche); and                (d) such first out tranche is not subject to multiple drawings (unless, at the time of   such drawing and after giving effect thereto, the ratio referenced in clause (b) above is not   exceeded).                For clarity, any last out loan that complies with subsection (a) above, but fails to   qualify under any of (b), (c) and/or (d) above, will have the advance rates of a Second Lien Bank  Loan (to the extent it otherwise meets the definition of Second Lien Bank Loan) applied to such   Loan.                “Letter of Credit Collateral Account” has the meaning set forth in the definition of   “Cash Collateralize”.                “Long-Term U.S. Government Securities” means U.S. Government Securities   maturing more than three months from the applicable date of determination.                “Mezzanine Investments” means (i) debt Securities (including convertible debt   Securities (other than the “in-the-money” equity component thereof))  (a) issued by public or   private Portfolio Companies, (b) issued without registration under the Securities Act, (c) not issued   pursuant to Rule 144A under the Securities Act (or any successor provision thereunder), (d) that   are not Cash Equivalents and (e) contractually subordinated in right of payment to other debt of   the same Portfolio Company and (ii) a loan that is not a First Lien Bank Loan, a Last Out Loan, a   Second Lien Bank Loan, a Covenant-Lite Loan or a High Yield Security.                “Non-Performing Portfolio Investment” means any Eligible Portfolio Investment   that is not a Performing (as defined below) Eligible Portfolio Investment.                                          112                                                                                      





 






                                                        “Performing” means, with respect to any Eligible Portfolio Investment, that such   Eligible Portfolio Investment (i) is not a Defaulted Obligation, (ii) other than with respect to DIP   Loans, does not represent debt or Capital Stock of an issuer that has issued any Defaulted   Obligation and (iii) is not on non-accrual (provided that for this clause (iii), any Eligible Portfolio   Investment that is on “PIK non-accrual” may continue to be Performing for so long as such Eligible  Portfolio Investment is not a PIK Obligation).                “Performing Covenant-Lite Loans” means funded Covenant-Lite Loans that (a) are   not PIK Obligations and (b) are Performing.                “Performing DIP Loans” means funded DIP Loans that (a) are not PIK Obligations   and (b) are not Defaulted Obligations.                “Performing First Lien Bank Loans” means funded First Lien Bank Loans that (a)   are not PIK Obligations, DIP Loans or Covenant-Lite Loans and (b) are Performing.                “Performing First Lien Middle Market Loans” means funded First Lien Bank Loans   to a Portfolio Company with trailing 12 month EBITDA of less than $15,000,000 that (a) are not   PIK Obligations, DIP Loans, Covenant-Lite Loans, Last Out Loans or Second Lien Bank Loans  and (b) are Performing.                “Performing High Yield Securities” means funded High Yield Securities that (a)   are not PIK Obligations or DIP Loans and (b) are Performing.                “Performing Last Out Loans” means funded Last Out Loans that (a) are not PIK   Obligations, DIP Loans or Covenant-Lite Loans and (b) are Performing.                “Performing Mezzanine Investments” means funded Mezzanine Investments that   (a) are not PIK Obligations, DIP Loans or Covenant-Lite Loans and (b) are Performing.                “Performing PIK Obligations” means PIK Obligations that (a) are not DIP Loans   and (b) are Performing.                “Performing Second Lien Bank Loans” means Second Lien Bank Loans that (a) are   not PIK Obligations, DIP Loans, Covenant-Lite Loans or Last Out Loans and (b) are Performing.                “Permitted Foreign Jurisdiction” means Canada, Germany, Ireland, Luxembourg,   the Netherlands, Australia and the United Kingdom.                “Permitted Foreign Jurisdiction Portfolio Investment” means any Portfolio   Investment that meets the eligibility criteria under paragraph (8) of Schedule 1.01(c) by reference   to a Permitted Foreign Jurisdiction.                “Permitted Prior Working Capital Lien” means, with respect to a Portfolio   Company that is a borrower under a Bank Loan, a security interest to secure a working capital   facility for such Portfolio Company in the accounts receivable and/or inventory (and all related   property and all proceeds thereof) of such Portfolio Company and any of its subsidiaries that are   guarantors of such working capital facility; provided that (i) such Bank Loan has a second priority                                        113                                                                                      





 






                                            lien on such accounts receivable and/or inventory, as applicable (and all related property and all   proceeds thereof), (ii) such working capital facility is not secured by any other assets (other than a   second priority lien, subject to the first priority lien of the Bank Loan) and does not benefit from   any standstill rights or other agreements (other than customary rights) with respect to any other   assets and (iii) the maximum principal amount of such working capital facility is not at any time   greater than 15% of the aggregate enterprise value of the Portfolio Company (as determined   pursuant to the enterprise value as determined at closing of the transaction, and thereafter an   enterprise value for the applicable Portfolio Company determined in a manner consistent with the   valuation methodology applied in the valuation for such Portfolio Company as determined by the   Directing Body of the Borrower in a commercially reasonable manner including the use of an   Approved Third-Party Appraiser in the case of Unquoted Investments).                “PIK Obligation” means an obligation that provides that any portion of the interest   accrued for a specified period of time or until the maturity thereof is, or at the option of the obligor   may be, added to the principal balance of such obligation or otherwise deferred and accrued rather   than being paid in cash, provided that any such obligation shall not constitute a PIK Obligation if   it (i) is a fixed rate obligation and requires payment of interest in cash on an at least semi-annual   basis at a rate of not less than 8% per annum or (ii) is not a fixed rate obligation and requires   payment of interest in cash on an at least semi-annual basis at a rate of not less than 4.5% per   annum in excess of the applicable index.                “Restructured Investment” means, as of any date of determination, (a) any Portfolio   Investment that has been a Defaulted Obligation within the past six months, (b) any Portfolio  Investment that has in the past six months been on cash non-accrual, or (c) any Portfolio   Investment that has in the past six months been amended or subject to a deferral or waiver if both  (i) the effect of such amendment, deferral or waiver is either, among other things, to (1) change   the amount of previously required scheduled debt amortization (other than by reason of repayment   thereof) or (2) extend the tenor of previously required scheduled debt amortization, in each case   such that the remaining weighted average life of such Portfolio Investment is extended by more   than 20% and (ii) the reason for such amendment, deferral or waiver is related to the deterioration   of the credit profile of the underlying borrower such that, in the absence of such amendment,   deferral or waiver, it is reasonably expected by the Borrower that such underlying borrower either   (x) will not be able to make any such previously required scheduled debt amortization payment or   (y) is anticipated to incur a breach of a material financial covenant.  A DIP Loan shall not be   deemed to be a Restructured Investment, so long as it does not meet the conditions of the definition   of Restructured Investment.  An “exit” financing for an obligor that emerges from a case under  Chapter 11 of the Bankruptcy Code in accordance with a Chapter 11 plan that has been duly  confirmed by the federal bankruptcy court exercising jurisdiction over the obligor pursuant to a  final non-appealable order and such “exit” financing has been duly approved by a final non- appealable order of the federal bankruptcy court exercising jurisdiction over the obligor in  connection with the confirmed Chapter 11 plan of the obligor shall not be deemed to be a  Restructured Investment, so long as such “exit” financing is a new facility and does not otherwise  meet the conditions of the definition of Restructured Investment.                “Second Lien Bank Loan” means a Bank Loan (other than a First Lien Bank Loan   and a Last Out Loan) that is entitled to the benefit of a first and/or second lien and first and/or                                         114                                                                                      





 






                                            second priority perfected security interest on all or substantially all of the assets of the respective   borrower and guarantors obligated in respect thereof; and provided further that any portion of such   Bank Loan which has a total debt to EBITDA ratio above 6.00x will, in each case, have the advance   rates of a Mezzanine Investment applied to such portion.                “Securities” means common and preferred stock, units and participations,  member   interests in limited liability companies, partnership interests in partnerships, notes, bonds,   debentures, trust receipts and other obligations, instruments or evidences of indebtedness,   including debt instruments of public and private issuers and tax-exempt securities (including   warrants, rights, put and call options and other options relating thereto, representing rights, or any   combination thereof) and other property or interests commonly regarded as securities or any form   of interest or participation therein, but not including Bank Loans.                “Securities Act” means the United States Securities Act of 1933, as amended.                “Short-Term U.S. Government Securities” means U.S. Government Securities   maturing within three months of the applicable date of determination.                “Structured Finance Obligation” means any obligation issued by a special purpose   vehicle (or any similar obligor in the principal business of offering, originating or financing pools   of receivables or other financial assets) and secured directly by, referenced to, or representing   ownership of or investment in, a pool of receivables or other financial assets of any obligor,   including collateralized loan obligations, collateralized debt obligations and mortgage-backed   securities, or any finance lease.  For the avoidance of doubt, if an obligation satisfies this definition   of “Structured Finance Obligation”, such obligation (a) shall not qualify as any other category of   Portfolio Investment and (b) shall not be included in the Borrowing Base.                “Third Party Finance Company” means a Person that is (i) an operating company   with employees, officers and directors and (ii) in the primary business of originating loans or   factoring or financing receivables, inventory or other current assets.                “Transferable” means:  (i) the applicable Obligor may create a security interest in   or pledge all of its rights under and interest in such Portfolio Investment to secure its obligations   under this Agreement or any other Loan Document, and that such pledge or security interest may   be enforced in any manner permitted under applicable law; and (ii)  such Portfolio Investment (and   all documents related thereto) contains no provision that directly or indirectly restricts the   assignment of such Obligor’s, or any assignee of such Obligor’s, rights under such Portfolio   Investment (including any requirement that the Borrower maintain a minimum ownership   percentage of such Portfolio Investment); provided that, such Portfolio Investment may contain   the following restrictions on customary and market based terms: (a) restrictions pursuant to which   assignments may be subject to the consent of the obligor or issuer or agent under the Portfolio   Investment so long as the applicable provision also provides that such consent may not be   unreasonably withheld, (b) customary restrictions in respect of minimum assignment amounts, (c)   restrictions on transfer to parties that are not ‘eligible assignees’ within the customary and market  based meaning of the term, and (d) restrictions on transfer to the applicable obligor or issuer under   the Portfolio Investment or its equity holders or financial sponsor entities or competitors or, in   each case, their affiliates; provided, further, that in the event that an Obligor is a party to an                                        115                                                                                      





 






                                          intercreditor arrangement with other lenders thereof with payment rights or lien priorities that are  junior or senior to the rights of such Obligor, such Portfolio Investment may be subject to  customary and market based rights of first refusal, rights of first offer and purchase rights in favor,  in each case, of such other lenders thereof (so long as the Value used in determining the Borrowing  Base is not greater than the amount of such right of first refusal, first offer or purchase rights).               “U.S. Government Securities” has the meaning assigned to such term in Section  1.01 of this Agreement.               “Value” means, with respect to any Eligible Portfolio Investment, the value thereof  determined for purposes of this Agreement in accordance with Section 5.12(b)(ii) or 5.12(b)(iii),  as applicable.               SECTION 5.14   Taxes.   Each of the Borrower and its Subsidiaries will timely  file or cause to be timely filed all material Tax returns that are required to be filed by it and will  pay all Taxes for which it is directly or indirectly liable and any assessments made against it or  any of its property and all other Taxes, fees or other charges imposed on it or any of its property  by any Governmental Authority, except Taxes that are being contested in good faith by appropriate  proceedings, and with respect to which reserves in conformity with GAAP are provided on the  books of the Borrower or its Subsidiaries, as the case may be.  The charges, accruals and reserves  on the books of the Borrower and any of its Subsidiaries in respect of Taxes and other  governmental charges will be adequate in accordance with GAAP.               SECTION 5.15   Post-Closing Matters.   Notwithstanding anything to the contrary  contained herein, within thirty (30) days (or such longer period as may be agreed by the  Administrative Agent in its sole discretion), the Borrower shall deliver an executed control  agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of  the Borrower’s account #7000009618 held at State Street Global Markets, LLC; provided that, for  the avoidance of doubt, assets in such account shall not be included in the Borrowing Base prior  to delivery of such control agreement.                                    ARTICLE VI.                                                                      NEGATIVE COVENANTS               Until the Termination Date, the Borrower covenants and agrees with the Lenders  that:               SECTION 6.01   Indebtedness.  The Borrower will not nor will it permit any of  its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:               (a)   Indebtedness created under this Agreement;               (b)   (i) Unsecured Shorter-Term Indebtedness in an aggregate principal amount  not to exceed $25,000,000 and (ii) Secured Longer-Term Indebtedness, so long as, in the case of  each clause (i) and (ii), (w) no Default or Event of Default exists at the time of the incurrence,  refinancing or replacement thereof (or immediately after the incurrence, refinancing or                                        116                                                                                    





 






                                            replacement thereof), (x) prior to and immediately after giving effect to the incurrence, refinancing   or replacement thereof, the Borrower is in pro forma compliance with each of the covenants set   forth in Section 6.07, and on the date of such incurrence, refinancing or replacement the Borrower   delivers to the Administrative Agent a certificate of a Financial Officer to such effect, (y) prior to   and immediately after giving effect to the incurrence, refinancing or replacement thereof, the   Covered Debt Amount does not or would not exceed the Borrowing Base then in effect and (z) on   the date of the incurrence, refinancing or replacement thereof, the Borrower delivers to the   Administrative Agent and each Lender a Borrowing Base Certificate as at such date demonstrating   compliance with subclause (y) after giving effect to such incurrence, refinancing or replacement.    For purposes of preparing such Borrowing Base Certificate, (A) the Value of any Quoted   Investment shall be the most recent quotation available for such Eligible Portfolio Investment and   (B) the Value of any Unquoted Investment shall be the Value set forth in the Borrowing Base   Certificate most recently delivered by the Borrower to the Administrative Agent pursuant to   Section 5.01(d) or (e) or if an Unquoted Investment is acquired after the delivery of the Borrowing   Base Certificate most recently delivered, the Value of such Unquoted Investment shall be equal to   the lowest of (i) the Internal Value of such Unquoted Investment as determined by the Borrower   pursuant to Section 5.12(b)(ii)(C), (ii) the cost of such Unquoted Investment; and (iii) if such   Unquoted Investment is a debt investment, the par or face value of such Unquoted Investment;   provided, that the Borrower shall reduce or increase, as applicable, the Value of any Eligible   Portfolio Investment referred to in this subclause (B), in a manner consistent with the valuation   methodology set forth in Section 5.12, to the extent necessary to take into account any events of   which the Borrower has knowledge that adversely or positively, as applicable, affect the value of   any Eligible Portfolio Investment;                (c)   Unsecured Longer-Term Indebtedness, so long as (x) no Default or Event  of Default exists at the time of the incurrence, refinancing or replacement thereof (or immediately  after the incurrence, refinancing or replacement thereof) and (y) prior to and immediately after  giving effect to the incurrence, refinancing or replacement thereof, the Borrower is in pro forma  compliance with each of the covenants set forth in Section 6.07 and on the date of such incurrence,   refinancing or replacement (or such later date as the Administrative Agent may agree in its sole   discretion) the Borrower delivers to the Administrative Agent a certificate of a Financial Officer   to such effect;                (d)   Indebtedness of Financing Subsidiaries; provided that (i) except for any   such Indebtedness incurred prior to the Effective Date, on the date that such Indebtedness is   incurred (for clarity, with respect to any and all revolving loan facilities, term loan facilities, staged   advance loan facilities or any other credit facilities, “incurrence” shall be deemed to take place at   the time such facility is entered into, and not upon each borrowing thereunder), prior to and   immediately after giving effect to the incurrence thereof, the Borrower is in pro forma compliance   with each of the covenants set forth in Section 6.07 and on the date of such incurrence (or such   later date as the Administrative Agent may agree in its sole discretion) Borrower delivers to the   Administrative Agent a certificate of a Financial Officer to such effect and (ii) in the case of   revolving loan facilities or staged advance loan facilities, upon each borrowing thereunder, the   Borrower is in pro forma compliance with each of the covenants set forth in Section 6.07;                                          117                                                                                      





 






                                                      (e)   repurchase obligations arising in the ordinary course of business with  respect to U.S. Government Securities;               (f)   obligations payable to clearing agencies, brokers or dealers in connection  with the purchase or sale of securities in the ordinary course of business;               (g)   obligations of the Borrower under a Permitted SBIC Guarantee and  obligations (including Guarantees) in respect of Standard Securitization Undertakings;               (h)   Indebtedness of the Borrower under any Hedging Agreements entered into  in the ordinary course of the Borrower’s business and not for speculative purposes, in an aggregate  amount not to exceed $20,000,000 at any time outstanding (for the avoidance of doubt, the amount  of any Indebtedness under any Hedging Agreement shall be the amount such Obligor would be  obligated for under such Hedging Agreement if such Hedging Agreement were terminated at the  time of determination);               (i)   Indebtedness in respect of judgments or awards that have been in force for  less than the applicable period for taking an appeal, so long as such judgments or awards do not  constitute an Event of Default;               (j)   Indebtedness (i) of an Obligor to any other Obligor, (ii) of a Financing  Subsidiary to any Obligor to the extent such Indebtedness is an Investment permitted under Section  6.04(e), (iii) of an Immaterial Subsidiary to any Obligor to the extent such Indebtedness is an  Investment permitted under Section 6.04(i) and (iv) of any other Subsidiary to any Obligor to the  extent such Indebtedness is an Investment permitted under Section 6.04(j); and               (k)   additional Indebtedness not for borrowed money, in an aggregate amount  not to exceed $20,000,000 at any time outstanding;               SECTION 6.02   Liens.  The Borrower will not, nor will it permit any of its  Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now  owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts  receivable) or rights in respect of any thereof except:               (a)   any Lien on any property or asset of the Borrower existing on the Effective  Date and set forth in Schedule 3.11(b), provided that (i) no such Lien shall extend to any other  property or asset of the Borrower or any of its Subsidiaries, and (ii) any such Lien shall secure  only those obligations which it secures on the Effective Date and extensions, renewals and  replacements thereof that do not increase the outstanding principal amount thereof;               (b)   Liens created pursuant to the Security Documents;               (c)   Liens on assets owned by Financing Subsidiaries;               (d)   Permitted Liens;               (e)   Liens on Equity Interests in any SBIC Subsidiary created in favor of the  SBA and Liens on Equity Interests in any Structured Subsidiary described in clause (a) of the                                       118                                                                                    





 






                                          definition thereof in favor of and required by any lender providing third-party financing to such  Structured Subsidiary;               (f)   Liens on assets owned by (i) Immaterial Subsidiaries created in favor of an  Obligor to the extent solely securing Indebtedness permitted under Section 6.01(j)(iii) and (ii) any  other Subsidiary (other than (1) an Obligor or (2) a Financing Subsidiary) created in favor of an  Obligor to the extent solely securing Indebtedness permitted under Section 6.01(j)(iv); and               (g)   additional Liens securing Indebtedness not for borrowed money not to  exceed $5,000,000 in the aggregate.               SECTION 6.03   Fundamental Changes and Dispositions of Assets.  The  Borrower will not, nor will it permit any of its Subsidiaries (other than a Financing Subsidiary or  an Immaterial Subsidiary) to, enter into any transaction of merger or consolidation or  amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).   The Borrower will not reorganize under the laws of a jurisdiction other than any jurisdiction in the  United States.  The Borrower will not, nor will it permit any of its Subsidiaries (other than a  Financing Subsidiary or an Immaterial Subsidiary) to, acquire any business or property from, or  capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions  of Portfolio Investments and other assets in the normal course of the day-to-day business activities  of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this  Agreement or any other Loan Document.  The Borrower will not, nor will it permit any of its  Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease,  transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets  (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter  acquired, but excluding (x) assets (including Cash and Cash Equivalents but excluding Portfolio  Investments) sold or disposed of in the ordinary course of business of the Borrower and its  Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day  business activities of the Borrower and its Subsidiaries (other than a Financing Subsidiary)) and  (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments.  The Borrower  will not, nor will it permit any of its Subsidiaries to, file a certificate of division, adopt a plan of  division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the  Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable  law with respect to any corporation, limited liability company, partnership or other entity).               Notwithstanding the foregoing provisions of this Section:               (a)   any Subsidiary of the Borrower may be merged or consolidated with or into  the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be  between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary  Guarantor shall be the continuing or surviving corporation;               (b)   any Subsidiary of the Borrower may sell, lease, transfer or otherwise  dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any  wholly owned Subsidiary Guarantor of the Borrower;                                        119                                                                                    





 






                                                        (c)   the capital stock of any Subsidiary of the Borrower may be sold, transferred   or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the   Borrower;                (d)   the Obligors may sell, transfer or otherwise dispose of Portfolio Investments  (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale,  transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment  of outstanding Loans or Other Covered Indebtedness) the Covered Debt Amount does not exceed   the Borrowing Base;                (e)   the Obligors may sell, transfer or otherwise dispose of Portfolio Investments   (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a   Financing Subsidiary (including, for clarity, as investments (debt or equity) or capital   contributions) so long as (i) prior to and immediately after giving effect to such sale, transfer or   other disposition (and any concurrent acquisitions of Portfolio Investments or payment of   outstanding Loans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the   Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the   Administrative Agent a certificate of a Financial Officer to such effect, (ii) after giving effect to   such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments   or payment of outstanding Loans or Other Covered Indebtedness), either (x) the amount by which   the Borrowing Base exceeds the Covered Debt Amount immediately prior to such sale, transfer or   other disposition is not diminished as a result of such sale, transfer or other disposition or (y) the   Covered Debt Amount does not exceed 90% of the Borrowing Base immediately after giving effect   to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments   or payment of outstanding Loans or Other Covered Indebtedness) and (iii) the Consolidated Asset   Coverage Ratio calculated on a pro forma basis after giving effect to such sale, transfer or other   disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding   Loans or Other Covered Indebtedness) is not less than 160%; provided that, notwithstanding   anything to the contrary herein or in any other Loan Document, no Portfolio Investments, Cash or   Cash Equivalents may be transferred, directly or indirectly, to any Specified CLO following the   Specified CLO Effective Date.                (f)   the Borrower may merge or consolidate with any other Person, so long as   (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof   and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing;                (g)   the Borrower and its Subsidiaries may sell, lease, transfer or otherwise   dispose of equipment or other property or assets that do not consist of Portfolio Investments so   long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed   $10,000,000 in any fiscal year;                (h)   any Subsidiary of the Borrower may be liquidated or dissolved; provided   that in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary   shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary   Guarantor of the Borrower; and                                         120                                                                                      





 






                                                        (i)   an Obligor may transfer assets to a Financing Subsidiary for the sole   purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that   was a Financing Subsidiary immediately prior to such disposition) to another Financing   Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”),   provided that (i) no Default or Event of Default exists or is continuing at such time, (ii) the Covered   Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets   were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day  that such assets are transferred by such Obligor to the transferee Financing Subsidiary.                SECTION 6.04   Investments.  The Borrower will not, nor will it permit any of its   Subsidiaries to, acquire, make or enter into, or hold, any Investments except:                (a)   operating deposit accounts with banks;                (b)   Investments by the Borrower and the Subsidiary Guarantors in the Borrower   and the Subsidiary Guarantors;                (c)   Hedging Agreements entered into in the ordinary course of the Borrower’s   business for financial planning and not for speculative purposes;                (d)   Portfolio Investments by the Borrower and its Subsidiaries to the extent   such Portfolio Investments are permitted under the Investment Company Act (to the extent such   applicable Person is subject to the Investment Company Act) and the Investment Policies (as   amended by Permitted Policy Amendments);                (e)   Investments in (or capital contribution to) Financing Subsidiaries to the   extent expressly permitted by Section 6.03(e) or 6.03(i);                (f)   Investments by any Financing Subsidiary, Immaterial Subsidiary, CFC or   Transparent Subsidiary;                (g)   Investments in Cash and Cash Equivalents;                (h)   Investments described on Schedule 3.12(b) hereto;                (i)   Investments in Immaterial Subsidiaries; and                (j)   other Investments (including, for the avoidance of doubt, in Financing   Subsidiaries, Immaterial Subsidiaries, CFCs and Transparent Subsidiaries), in an aggregate   amount for all such Investments not to exceed $25,000,000 (for purposes of this clause (j), the   aggregate amount of an Investment at any time shall be deemed to be equal to (A) the aggregate   amount of cash, together with the aggregate fair market value of property loaned, advanced,   contributed, transferred or otherwise invested that gives rise to such Investment (calculated at the   time such Investment is made), minus (B) the aggregate amount of dividends, distributions or other   payments received in cash in respect of capital or principal on account of such Investment (other   than, for the avoidance of doubt, interest or on account of taxes), provided that in no event shall   the aggregate amount of any Investment be less than zero, and provided further that the amount of                                         121                                                                                      





 






                                            any Investment shall not be reduced by reason of any write-off of such Investment, nor increased  by way of any increase in the amount of earnings retained in the Person in which such Investment  is made that have not been dividended, distributed or otherwise paid out).                SECTION 6.05   Restricted Payments.  The Borrower will not, nor will it permit   any of its Subsidiaries (other than the Financing Subsidiaries) to, declare or make, or agree to pay   or make, directly or indirectly, any Restricted Payment, except that:                (a)   the Borrower may declare or make, or agree to pay or make, dividends with   respect to the capital stock of the Borrower (including, for the avoidance of doubt, pursuant to any   distribution reinvestment plan of the Borrower) payable solely in additional shares of the   Borrower’s common stock;                (b)   (1) the Borrower may declare or make, or agree to pay or make, dividends   and distributions in either case in cash or other property (excluding for this purpose the Borrower’s   common stock) in or with respect to any taxable year of the Borrower (or any calendar year, as   relevant) in amounts not to exceed the higher of (x) the net investment income of the Borrower for   the applicable fiscal year determined in accordance with GAAP and as specified in the annual   financial statements most recently delivered pursuant to Section 5.1(a) and (y) 110% of the amount   that is estimated by the Borrower in good faith to be required by the Borrower 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 its liability for federal income taxes   imposed on (y) its investment company taxable income pursuant to Section 852(b)(1) of the Code   (or any successor thereto), and (z) its net capital gain pursuant to Section 852(b)(3) of the Code   (or any successor thereto), and (iii) reduce to zero its liability for federal excise taxes for any such   calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto) (the “Tax   Amount”) (such higher amount of (x) and (y) (and without, for the avoidance of doubt, taking into   account the 110% multiplier), the “Required Payment Amount”), and (2) with respect to any other   Restricted Payment, if at the time of any such Restricted Payment, (i) no Default or Event of   Default shall have occurred and be continuing, (ii) the Covered Debt Amount does not exceed 90%   of the Borrowing Base calculated on a pro forma basis after giving effect to any such Restricted   Payment) and (iii) on the date of such Restricted Payment (or such later date as the Administrative  Agent may agree in its sole discretion) the Borrower delivers to the Administrative Agent a  Borrowing Base Certificate as at such date demonstrating compliance with subclause (ii) above.    For purposes of preparing such Borrowing Base Certificate, (A) the Value of any Quoted   Investment shall be the most recent quotation available for such Eligible Portfolio Investment, (B)   the Value of any Unquoted Investment shall be the Value set forth in the Borrowing Base   Certificate most recently delivered by the Borrower pursuant to Section 5.01(d) or (e) or if an   Unquoted Investment is acquired after the delivery of the Borrowing Base Certificate most recently   delivered, the Value of such Unquoted Investment shall be equal to the lowest of (i) the Internal   Value of such Unquoted Investment as determined by the Borrower pursuant to Section   5.12(b)(ii)(C), (ii) the cost of such Unquoted Investment and (iii) if such Unquoted Investment is   a debt investment, the par or face value of such Unquoted Investment; provided that the Borrower   shall reduce or increase, as applicable, the Value of any Eligible Portfolio Investment referred to   in this subclause (B), in a manner consistent with the valuation methodology set forth in Section                                         122                                                                                      





 






                                            5.12,  to the extent necessary to take into account any events of which the Borrower has knowledge   that adversely or positively, as applicable, affect the value of such Portfolio Investment;                (c)   the Subsidiaries of the Borrower may declare or make, or agree to pay or  make, directly or indirectly, Restricted Payments to the Borrower, to any Subsidiary Guarantor or  to any other entity to the extent the applicable Subsidiary is a wholly-owned Subsidiary of such  entity; and               (d)   the Obligors may declare or make, or agree to pay or make, directly or  indirectly, Restricted Payments to repurchase Equity Interests of the Borrower from officers,  directors and employees of the Investment Advisor, the Borrower or any of its Subsidiaries or their  respective authorized representatives upon the death, disability or termination of employment of  such employees or termination of their seat on the Board of Directors of the Investment Advisor,  the Borrower or any of its Subsidiaries, in an aggregate amount not to exceed $1,000,000 in any  calendar year with unused amounts in any calendar year being carried over to succeeding calendar  years subject to a maximum of $2,000,000 in any calendar year.               For the avoidance of doubt, (1) the Borrower shall not declare any dividend to the   extent such declaration violates the provisions of the Investment Company Act that are applicable   to it and (2) the determination of the amounts referred to in paragraph (b) above shall be made   separately for the taxable year of the Borrower and the calendar year of the Borrower, and the   limitation on dividends or distributions imposed by such paragraphs shall apply separately to the   amounts so determined.                SECTION 6.06   Certain Restrictions on Subsidiaries.  The Borrower will not   permit any of its Subsidiaries (other than Financing Subsidiaries) to enter into or suffer to exist   any indenture, agreement, instrument or other arrangement (other than (i) the Loan Documents,   (ii) any indenture, agreement, instrument or other arrangement pertaining to other Indebtedness of   the Borrower or its Subsidiaries permitted hereby to the extent any such indenture, agreement,   instrument or other arrangement does not prohibit, in each case in any material respect, or impose   materially adverse conditions upon, the material requirements applicable to the Borrower and its   Subsidiaries under the Loan Documents or (iii) any agreement, instrument or other arrangement   pertaining to any lease, sale or other disposition of any asset permitted by this Agreement so long   as the applicable restrictions (x) only apply to such assets and (y) do not restrict prior to the   consummation of such sale or disposition the creation or existence of the Liens in favor of the   Collateral Agent pursuant to the Security Documents or otherwise required by this Agreement, or   the incurrence or payment of Indebtedness under this Agreement or the ability of the Borrower  and its Subsidiaries to perform any other obligation under any of the Loan Documents) that  prohibits, in each case in any material respect, or imposes materially adverse conditions upon, the  incurrence or payment of Indebtedness for borrowed money of the Borrower, the granting of Liens  by the Borrower, the declaration or payment of dividends by the Borrower, the making of Loans  or the making of Investments or the sale, assignment, transfer or other disposition of property, in  each case of the Borrower.                SECTION 6.07   Certain Financial Covenants.                                         123                                                                                      





 






                                                        (a)   Minimum Stockholders’ Equity.  After the Effective Date, the Borrower will   not permit Stockholders’ Equity as of the last day of any fiscal quarter of the Borrower to be less   than the sum of (i) $394,077,101 plus (ii) 50% of the aggregate net proceeds of all sales of Equity   Interests by the Borrower after the Effective Date.                (b)   Consolidated Asset Coverage Ratio.  After the Effective Date, the Borrower   will not permit the Consolidated Asset Coverage Ratio to be less than (x) 150% at any time that   Portfolio Investments that are Tier One Investments listed on the Investment Schedule represent   more than 70% of the total “fair value” of all Investments set forth on such Investment Schedule,  (y) 167% at any time that the Portfolio Investments that are Tier One Investments listed on the  Investment Schedule represent more than 60% but less than or equal to 70% of the total “fair  value” of all Investments set on such Investment Schedule and (z) 200% at any other time (in each  case after giving effect to any Exemptive Order granted by the SEC relating to the exclusion of  any indebtedness of any SBIC subsidiary from the definition of Senior Securities).  For purposes  of this clause (b), “Tier One Investments” means Portfolio Investments that are Cash, Cash   Equivalents, Long-Term U.S. Government Securities and First Lien Bank Loans and “Investment   Schedule” means the consolidated schedule of investments set forth in the financial statements of   the Borrower most recently delivered pursuant to Section 5.01(a) or (b) or, following the Effective   Date but prior to the first such delivery, the consolidated schedule of investments set forth in the   draft financial statements of the Borrower attached to the draft report to be filed by the Borrower   with the SEC on Form 10-K for the fiscal year ending December 31, 2018 delivered to the   Administrative Agent prior to the Effective Date.                (c)   Liquidity Test.  After the Effective Date, the Borrower will not permit the   aggregate Value of the Eligible Portfolio Investments that can be converted to Cash in fewer than   10 Business Days without more than a 5% change in price to be less than 10% of the Covered Debt   Amount for more than 30 Business Days during any period when (x) the Adjusted Covered Debt   Balance is greater than 90% of the Adjusted Borrowing Base and (y) the Consolidated Asset   Coverage Ratio is less than 160%.                (d)   Obligors’ Net Worth Test.  After the Effective Date, the Borrower will not   permit the Obligors’ Net Worth as of the last day of any fiscal quarter to be less than $200,000,000.                SECTION 6.08   Transactions with Affiliates.  The Borrower will not, and will   not permit any of its Subsidiaries to, enter into any transactions with any of its Affiliates, even if   otherwise permitted under this Agreement, except (a) transactions in the ordinary course of   business at prices and on terms and conditions not less favorable to the Borrower or such   Subsidiary (or, in the case of a transaction between an Obligor and a non-Obligor Subsidiary, not  less favorable to such Obligor) than could be obtained at the time on an arm’s-length basis from  unrelated third parties, (b) transactions between or among the Obligors not involving any other  Affiliate, (c) Restricted Payments permitted by Section 6.05, dispositions permitted by Section   6.03(e) and 6.03(i) and Investments permitted by Section 6.04(e), (d) the transactions provided in   the Affiliate Agreements as the same may be amended in accordance with Section 6.11(b), (e)   existing transactions with Affiliates as set forth in Schedule 6.08, (f) the payment of compensation   and reimbursement of expenses of directors in a manner consistent with current practice of the   Borrower and general market practice, and indemnification to directors in the ordinary course of                                         124                                                                                      





 






                                            business, and (g) co-investments with other funds or client accounts advised by Barings shall be   permitted to the extent permitted by applicable law and/or SEC guidance (including exemptive   relief from the SEC and/or a no-action letter).                SECTION 6.09   Lines of Business.  The Borrower will not, nor will it permit any   of its Subsidiaries (other than Immaterial Subsidiaries) to, engage to any material extent in any   business other than in accordance with its Investment Policies as amended by Permitted Policy   Amendments.                SECTION 6.10   No Further Negative Pledge.  The Borrower will not, and will   not permit any of its Subsidiaries to, enter into any agreement, instrument, deed or lease which   prohibits or limits in any material respect the ability of any Obligor to create, incur, assume or   suffer to exist any Lien upon any of its properties, assets or revenues, whether now owned or   hereafter acquired, or which requires the grant of any security for an obligation if security is   granted for another obligation, except the following: (a) this Agreement and the other Loan   Documents and documents with respect to Indebtedness permitted under Sections 6.01(b)(ii) and   6.01(k); (b) covenants in documents creating Liens permitted by Section 6.02 prohibiting further   Liens on the assets encumbered thereby; (c) customary restrictions contained in leases not subject   to a waiver; and (d) any other agreement that does not restrict in any manner (directly or indirectly)   Liens created pursuant to the Loan Documents on any Collateral securing the “Secured   Obligations” under and as defined in the Guarantee and Security Agreement and does not require   the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue   of the granting of Liens on or pledge of property of any Obligor to secure the Loans or any Hedging   Agreement.                SECTION 6.11   Modifications of Indebtedness and Affiliate Agreements.  The   Borrower will not, and will not permit any of its Subsidiaries to, consent to any modification,   supplement or waiver of:                (a)    any of the provisions of any agreement, instrument or other document   evidencing or relating to any Secured Longer-Term Indebtedness, Unsecured Longer-Term   Indebtedness or Unsecured Shorter-Term Indebtedness that would result in such Indebtedness not   meeting the requirements of the definition of “Secured Longer-Term Indebtedness”, clause (B) of   the definition of “Unsecured Longer-Term Indebtedness” or the definition of “Unsecured Shorter-  Term Indebtedness”, as applicable, set forth in Section 1.01 of this Agreement, unless, in the case   of Unsecured Longer-Term Indebtedness, such Indebtedness would have been permitted to be   incurred as Unsecured Shorter-Term Indebtedness at the time of such modification, supplement or   waiver and the Borrower so designates such Indebtedness as “Unsecured Shorter-Term   Indebtedness” (whereupon such Indebtedness shall be deemed to constitute “Unsecured Shorter-  Term Indebtedness” for all purposes of this Agreement);                (b)   any of the Affiliate Agreements, unless such modification, supplement or   waiver is not materially less favorable to the Borrower than could be obtained on an arm’s-length  basis from unrelated third parties.   The Administrative Agent and the Lenders hereby acknowledge and agree that the Borrower may,  at any time and from time to time, without the consent of the Administrative Agent, freely amend,                                        125                                                                                      





 






                                          restate, terminate, or otherwise modify any documents, instruments and agreements evidencing,  securing or relating to Indebtedness permitted pursuant to Section 6.01(d), including increases in  the principal amount thereof, modifications to the advance rates and/or modifications to the interest  rate, fees or other pricing terms; provided that no such amendment, restatement or modification  shall, for so long as the Borrower complies with the terms of Section 5.08(a)(i) hereof, cause a  Financing Subsidiary to fail to be a “Financing Subsidiary” in accordance with the definition  thereof.               SECTION 6.12   Payments of Longer-Term Indebtedness.  The Borrower will not,  nor will it permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire for value,  or set apart any money for a sinking, defeasance or other analogous fund for the purchase,  redemption, retirement or other acquisition of or make any voluntary or involuntary payment or  prepayment of the principal of or interest on, or any other amount owing in respect of, any Secured  Longer-Term Indebtedness or Unsecured Longer-Term Indebtedness (other than (i) to refinance  any such Secured Longer-Term Indebtedness or Unsecured Longer-Term Indebtedness with  Indebtedness permitted under Section 6.01(b)(ii) and (c) and (ii) with the proceeds of any issuance  of Equity Interests (in each case with respect to clauses (i) and (ii) of this Section 6.12 to the extent  not required to be used to repay Loans), except (a) for regularly scheduled payments of interest in  respect thereof required pursuant to the instruments evidencing such Indebtedness and the payment  when due of the types of fees and expenses that are customarily paid in connection with such  Indebtedness (it being understood that (w) the conversion features into Permitted Equity Interests  under convertible notes, (x) the triggering of such conversion and/or settlement thereof solely with  Permitted Equity Interests, and (y) any cash payment on account of interest or expenses on such  convertible notes made by the Borrower in respect of such triggering and/or settlement thereof,  shall be permitted under this clause (a)) or (b) for payments and prepayments of Secured Longer- Term Indebtedness required to comply with requirements of Section 2.09(b).               SECTION 6.13   Modification of Investment and Valuation Policies.  Other than  with respect to Permitted Policy Amendments, the Borrower will not amend, supplement, waive  or otherwise modify in any material respect the Investment Policies or its Valuation Policies as in  effect on the Effective Date.               SECTION 6.14   SBIC Guarantees.  The Borrower will not, nor will it permit any  of its Subsidiaries to, cause or permit the occurrence of any event or condition that would result in  any recourse to any Obligor under any Permitted SBIC Guarantee.               SECTION 6.15   Derivative Transactions.  The Borrower will not, nor will it  permit any of its Subsidiaries (other than any Financing Subsidiary) to, enter into any swap or  derivative transactions (including any total return swap) or other similar transactions or agreements  except for Hedging Agreements to the extent permitted pursuant to Section 6.01(h) and Section  6.04(c).                                   ARTICLE VII.                                                                        EVENTS OF DEFAULT               If any of the following events (“Events of Default”) shall occur and be continuing:                                       126                                                                                    





 






                                                        (a)   (i) the Borrower shall fail to pay any principal of any Loan (including,   without limitation, any principal payable under Section 2.09(b) or (c)) or any reimbursement   obligation in respect of any LC Disbursement when and as the same shall become due and payable,   whether at the due date thereof or at a date fixed for prepayment thereof or otherwise or (ii) fail to   Cash Collateralize any LC Exposure as and when required by Section 2.04(k);                (b)   the Borrower shall fail to pay any interest on any Loan or any fee or any   other amount (other than an amount referred to in clause (a) of this Article) payable under this   Agreement or under any other Loan Document, when and as the same shall become due and   payable, and such failure shall continue unremedied for a period of five (5) or more Business Days;                (c)   any representation or warranty made or deemed made by or on behalf of the   Borrower or any of its Subsidiaries in or in connection with this Agreement or any other Loan   Document or any amendment or modification hereof or thereof, or in any report, certificate,   financial statement or other document furnished pursuant to or in connection with this Agreement   or any other Loan Document or any amendment or modification hereof or thereof, shall prove to   have been incorrect when made or deemed made in any material respect (except that such   materiality qualifier shall not be applicable to any representation or warranty already qualified by   materiality or Material Adverse Effect);                (d)   the Borrower shall fail to observe or perform any covenant, condition or   agreement contained in (i) Section 5.01(e), Section 5.03 (with respect to the Borrower’s and its   Subsidiaries’ existence only, and not with respect to the Borrower’s and its Subsidiaries’ rights,  licenses, permits, privileges or franchises), Sections 5.08(a) or (b), Section 5.09, Section 5.10,   Section 5.12(c), Section 5.15 or Article VI or any Obligor shall default in the performance of any   of its obligations contained in Section 7 of the Guarantee and Security Agreement or   (ii) Section 5.01(f) or Section 5.02 and, in the case of this clause (ii), such failure shall continue   unremedied for a period of five (5) or more days after the earlier of (A) notice thereof by the   Administrative Agent (given at the request of any Lender) to the Borrower and (B) a Financial   Officer of the Borrower’s actual knowledge of such failure;                (e)   the Borrower or any Obligor, as applicable, shall fail to observe or perform   any covenant, condition or agreement contained in this Agreement (other than those specified in   clause (a), (b) or (d) of this Article) or any other Loan Document and such failure shall continue   unremedied for a period of thirty (30) or more days after the earlier of (A) notice thereof by the   Administrative Agent (given at the request of any Lender) to the Borrower and (B) a Financial   Officer of the Borrower’s actual knowledge of such failure;                (f)   the Borrower or any of its Subsidiaries shall fail to make any payment   (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness,   when and as the same shall become due and payable, taking into account any applicable grace  period;               (g)   any event or condition occurs that (i) results in all or any portion of any  Material Indebtedness becoming due prior to its scheduled maturity or (ii) enables or permits  (after   giving effect to any applicable grace periods) the holder or holders of any Material Indebtedness   or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or                                        127                                                                                      





 






                                          to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled  maturity, unless, in the case of this clause (ii), such event or condition is no longer continuing or  has been waived in accordance with the terms of such Material Indebtedness such that the holder  or holders thereof or any trustee or agent on its or their behalf are no longer enabled or permitted  to cause such Material Indebtedness to become due, or to require the prepayment, repurchase,  redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall  not apply to (1) secured Indebtedness that becomes due as a result of the voluntary sale or transfer  of the property or assets securing such Indebtedness; or (2) convertible debt that becomes due as  a result of a contingent mandatory conversion or redemption event provided such conversion or  redemption is effectuated only in capital stock that is not Disqualified Equity Interests (other than  interest or expenses or fractional shares, which may be payable in cash);               (h)   an involuntary proceeding shall be commenced or an involuntary petition  shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or  any of its Subsidiaries (other than Immaterial Subsidiaries) or its debts, or of a substantial part of  its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law  now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,  conservator or similar official for the Borrower or any of its Subsidiaries (other than Immaterial  Subsidiaries) or for a substantial part of its assets, and, in any such case, such proceeding or petition  shall continue undismissed and unstayed for a period of 60 or more days or an order or decree  approving or ordering any of the foregoing shall be entered;               (i)   the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries)  shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,  reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency,  receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to  contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of  this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,  sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries (other than  Immaterial Subsidiaries) or for a substantial part of its assets, (iv) file an answer admitting the  material allegations of a petition filed against it in any such proceeding, (v) make a general  assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of  the foregoing;               (j)   the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries)  shall become unable, admit in writing its inability or fail generally to pay its debts as they become  due;               (k)   there is rendered against the Borrower or any of its Subsidiaries (other than  Immaterial Subsidiaries) or any combination thereof (i) one or more judgments or orders for the  payment of money in an aggregate amount (as to all such judgments and orders) in excess of  $20,000,000 (to the extent not covered by independent third-party insurance as to which the insurer  has been notified of the potential claim and does not dispute coverage) or (ii) any one or more non- monetary judgments that, individually or in the aggregate, has resulted in or could reasonably be  expected to result in a Material Adverse Effect and, in either case, (1) enforcement proceedings,  actions or collection efforts are commenced by any creditor upon such judgment or order, or (2)                                        128                                                                                    





 






                                          there is a period of thirty (30) consecutive days during which such judgment is undischarged or a  stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;               (l)   an ERISA Event shall have occurred that, when taken together with all other  ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse  Effect;               (m)   a Change in Control shall occur;               (n)   any SBIC Subsidiary shall become the subject of an enforcement action and  be transferred into liquidation status by the SBA;               (o)   the Liens created by the Security Documents shall, at any time with respect  to Portfolio Investments held by Obligors having an aggregate Value in excess of 5% of the  aggregate Value of all Portfolio Investments held by Obligors, not be valid and perfected (to the  extent perfection by filing, registration, recordation, possession or control is required herein or  therein) in favor of the Collateral Agent (or any Obligor or any Affiliate of an Obligor shall so  assert in writing), free and clear of all other Liens (other than Liens permitted under Section 6.02  or under the respective Security Documents) except as a result of a disposition of Portfolio  Investments in a transaction or series of transactions permitted under this Agreement; provided  that if such default is as a result of any action of the Administrative Agent or the Collateral Agent  or a failure of the Administrative Agent or the Collateral Agent to take any action within its control,  then there shall be no Default or Event of Default hereunder unless such default shall continue  unremedied for a period of ten consecutive Business Days after the Borrower receives written  notice of such default thereof from the Administrative Agent and the continuance thereof is a result  of a failure of the Administrative Agent or the Collateral Agent to take an action within their  control;               (p)   except for expiration or termination in accordance with its terms, any of the  Security Documents shall for whatever reason be terminated or cease to be in full force and effect  in any material respect, or the enforceability thereof shall be contested by any Obligor, or there  shall be any actual invalidity of any guaranty thereunder or any Obligor or any Affiliate of an  Obligor shall so assert in writing;               (q)   the Borrower or any of its Subsidiaries shall cause or permit the occurrence  of any condition or event that would result in any recourse to any Obligor under any Permitted  SBIC Guarantee; or               (r)   the Investment Advisor shall cease to be the investment advisor of the  Borrower;   then, and in every such event (other than an event described in clause (h),  (i) or (j) of this Article),  and at any time thereafter during the continuance of such event, the Administrative Agent may,  and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of  the following actions, at the same or different times: (i) terminate the Commitments, and thereupon  the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be  due and payable in whole (or in part, in which case any principal not so declared to be due and                                       129                                                                                    





 






                                          payable may thereafter be declared to be due and payable), and thereupon the principal of the  Loans so declared to be due and payable, together with accrued interest thereon and all fees and  other obligations of the Borrower accrued hereunder and under the other Loan Documents, shall  become due and payable immediately, without presentment, demand, protest or other notice of any  kind, all of which are hereby waived by the Borrower; and in case of any event described in clause  (h),  (i) or (j) of this Article, the Commitments shall automatically terminate and the principal of  the Loans then outstanding, together with accrued interest thereon and all fees and other  obligations of the Borrower accrued hereunder and under the other Loan Documents, shall  automatically become due and payable, without presentment, demand, protest or other notice of  any kind, all of which are hereby waived by the Borrower.   In the event that the Loans shall be declared, or shall become, due and payable pursuant to the  immediately preceding paragraph then, upon notice from the Administrative Agent, the Issuing  Bank or Lenders with LC Exposure representing more than 50% of the total LC Exposure  demanding the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall  immediately Cash Collateralize such LC Exposure plus any accrued and unpaid interest thereon;  provided that the obligation to Cash Collateralize such LC Exposure shall become effective  immediately, and such deposit shall become immediately due and payable, without demand or  other notice of any kind, upon the occurrence of any Event of Default described in clause (h),  (i) or  (j) of this Article.                                   ARTICLE VIII.                                                                   THE ADMINISTRATIVE AGENT               SECTION 8.01   Appointment.               (a)   Appointment of the Administrative Agent.  Each of the Lenders and the  Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent hereunder and  under the other Loan Documents and authorizes the Administrative Agent to take such actions on  its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms  hereof or thereof, together with such actions and powers as are reasonably incidental thereto.               (b)   Appointment of the Collateral Agent.  Each of the Lenders and the Issuing  Bank hereby irrevocably appoints the Collateral Agent as its collateral agent hereunder and under  the other Loan Documents and authorizes the Collateral Agent to have all the rights and benefits  hereunder and thereunder (including Section 9 of the Guarantee and Security Agreement), and to  take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent  by the terms hereof or thereof, together with such actions and powers as are reasonably incidental  thereto.  In addition to the rights, privileges and immunities in the Guarantee and Security  Agreement, the Collateral Agent shall be entitled to all rights, privileges, immunities, exculpations  and indemnities of the Administrative Agent for such purpose and each reference to the  Administrative Agent in this Article VIII shall be deemed to include the Collateral Agent.               SECTION 8.02   Capacity as Lender.  The Person serving as the Administrative  Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other  Lender and may exercise the same as though it were not the Administrative Agent, and such Person                                       130                                                                                    





 






                                            and its Affiliates may (without having to account therefor to any other Lender) accept deposits   from, lend money to, make investments in and generally engage in any kind of business with the   Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent  hereunder, and such Person and its Affiliates may accept fees and other consideration from the  Borrower or any Subsidiary or other Affiliate thereof for services in connection with this  Agreement or otherwise without having to account for the same to the other Lenders.                SECTION 8.03   Limitation of Duties; Exculpation.  The Administrative Agent   shall not have any duties or obligations except those expressly set forth herein and in the other   Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent   shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or   Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any  duty to take any discretionary action or exercise any discretionary powers, except discretionary  rights and powers expressly contemplated hereby or by the other Loan Documents that the  Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except as   expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not   have any duty to disclose, and shall not be liable for the failure to disclose, any information relating   to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving   as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall   not be liable for any action taken or not taken by it with the consent or at the request of the Required   Lenders (or such other number or percentage of the Lenders as shall be expressly provided for   herein or in the other Loan Documents) or in the absence of its own gross negligence or willful   misconduct as determined by a court of competent jurisdiction by final and non-appealable   judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default or   Event of Default unless and until written notice thereof is given to the Administrative Agent by   the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any   duty to ascertain or inquire into (i) any statement, warranty or representation made in or in   connection with this Agreement or any other Loan Document, (ii) the contents of any certificate,   report or other document 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 set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness   of this Agreement, any other Loan Document or any other agreement, instrument or document, or   (v) the creation, perfection or priority of any Lien purported to be created by the Loan Documents   or the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth   in Article IV or elsewhere herein or therein, other than to confirm receipt of items expressly   required to be delivered to the Administrative Agent.  Notwithstanding anything to the contrary   contained herein, in no event shall the Administrative Agent be liable or responsible in any way   or manner for the failure to obtain or receive an Agent External Value for any asset or for the   failure to send any notice required under Section 5.12(b)(iii)(A).                SECTION 8.04   Reliance.  The Administrative Agent shall be entitled to rely   upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,   statement, instrument, document or other writing (including any electronic message, Internet or   intranet website posting or other distribution) believed by it to be genuine and to have been signed   or sent by the proper Person.  The Administrative Agent also may rely upon any statement made   to it orally or by telephone and believed by it to be made by or on behalf of the proper Person or                                         131                                                                                      





 






                                          Persons, and shall not incur any liability for relying thereon.  The Administrative Agent may  consult with legal counsel (who may be counsel for the Borrower), independent accountants and  other experts selected by it, and shall not be liable for any action taken or not taken by it in  accordance with the advice of any such counsel, accountants or experts.               SECTION 8.05   Sub-Agents.  The Administrative Agent may perform any and  all its duties and exercise its rights and powers by or through any one or more sub-agents appointed  by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any  and all its duties and exercise its rights and powers through their respective Related Parties.  The  exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the  Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their  respective activities in connection with the syndication of the credit facilities provided for herein  as well as activities as Administrative Agent.               SECTION 8.06   Resignation; Successor Administrative Agent.  The  Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the  Borrower.  Upon any such resignation, the Required Lenders shall have the right, with the consent  of the Borrower not to be unreasonably withheld (provided that no such consent shall be required  if an Event of Default has occurred and is continuing), to appoint a successor, which is not a  Disqualified Lender.  If no successor shall have been so appointed by the Required Lenders and  shall have accepted such appointment within 30 days after the retiring Administrative Agent gives  notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless  become effective except that in the case of any collateral security held by the Administrative Agent  on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring or  removed Administrative Agent shall continue to hold such collateral security until such time as a  successor Administrative Agent is appointed and (1) the retiring Administrative Agent shall be  discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform  the duties of the Administrative Agent (and all payments and communications provided to be made  by, to or through the Administrative Agent shall instead be made by or to each Lender directly)  until such time as the Required Lenders appoint a successor agent as provided for above in this  paragraph.  Upon the acceptance of its appointment as Administrative Agent hereunder by a  successor, such successor shall succeed to and become vested with all the rights, powers, privileges  and duties of the retiring (or retired) Administrative Agent and the retiring Administrative Agent  shall be discharged from its duties and obligations hereunder (if not already discharged therefrom  as provided above in this paragraph).  The fees payable by the Borrower to a successor  Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed  between the Borrower and such successor.  After the Administrative Agent’s resignation  hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for its  benefit in respect of any actions taken or omitted to be taken by it while it was acting as  Administrative Agent.               SECTION 8.07   Reliance by Lenders.  Each Lender acknowledges that it has,  independently and without reliance upon the Administrative Agent or any other Lender and based  on such documents and information as it has deemed appropriate, made its own credit analysis and  decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently  and without reliance upon the Administrative Agent or any other Lender and based on such                                        132                                                                                    





 






                                            documents and information as it shall from time to time deem appropriate, continue to make its   own decisions in taking or not taking action under or based upon this Agreement, any other Loan   Document or any related agreement or any document furnished hereunder or thereunder.                SECTION 8.08   Modifications to Loan Documents.  Except as otherwise   provided in Section 9.02(b) or 9.02(c) with respect to this Agreement, the Administrative Agent   may, with the prior consent of the Required Lenders (but not otherwise), consent to any   modification, supplement or waiver under any of the Loan Documents; provided that, without the   prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in   the Security Documents) release all or substantially all of the Collateral or otherwise terminate all   or substantially all of the Liens under any Security Document providing for collateral security,   agree to additional obligations being secured by all or substantially all of such collateral security,   or alter the relative priorities of the obligations entitled to the benefits of the Liens created under   the Security Documents with respect to all or substantially all of the Collateral, except that no such   consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien   covering property that is the subject of either (x) a disposition of property permitted hereunder   (which release described in this clause (x) shall be automatic and require no further action from   any party) or (y) a disposition to which the Required Lenders have consented.                SECTION 8.09   Certain ERISA Matters.                (a)   Each Lender (x) represents and warrants, as of the date such Person became   a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party   hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the   Administrative Agent, each Joint Lead Arranger, and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Obligor, that at least one of   the following is and will be true:                (i)   such Lender is not using “plan assets” (within the meaning of Section 3(42)        of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance        into, participation in, administration of and performance of the Loans, the Letters of Credit,        the Commitments or this Agreement;                (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-       14 (a class exemption for certain transactions determined by independent qualified        professional asset managers), PTE 95-60 (a class exemption for certain transactions        involving insurance company general accounts), PTE 90-1 (a class exemption for certain        transactions involving insurance company pooled separate accounts), PTE 91-38 (a class        exemption for certain transactions involving bank collective investment funds) or PTE 96-       23 (a class exemption for certain transactions determined by in-house asset managers), is        applicable with respect to, and covers, such Lender’s entrance into, participation in,        administration of and performance of the Loans, the Letters of Credit, the Commitments        and this Agreement;               (iii) (A)  such Lender is an investment fund managed by a “Qualified        Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such        Qualified Professional Asset Manager made the investment decision on behalf of such                                        133                                                                                      





 






                                                  Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,         the Commitments and this Agreement, (C) the entrance into, participation in,         administration of and performance of the Loans, the Letters of Credit, the Commitments         and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of        PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection        (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,        participation in, administration of and performance of the Loans, the Letters of Credit, the         Commitments and this Agreement; or                (iv)  such other representation, warranty and covenant as may be agreed in         writing between the Administrative Agent, in its sole discretion, and such Lender.                (b)   In addition, unless either (1) sub-clause (i) in the immediately preceding   clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,   warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a),   such Lender further (x) represents and warrants, as of the date such Person became a Lender party   hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date   such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and   each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or   for the benefit of the Borrower or any other Obligor, that none of the Administrative Agent or any   Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of   such Lender involved in such Lender’s entrance into, participation in, administration of and  performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including  in connection with the reservation or exercise of any rights by the Administrative Agent under this  Agreement, any Loan Document or any documents related hereto or thereto).                  SECTION 8.10   Agents.  None of the Syndication Agent, any Documentation   Agent or any Lead Arranger shall have obligations or duties whatsoever in such capacity under   this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder   in such capacity, but all such persons shall have the benefit of the indemnities provided for   hereunder.                SECTION 8.11   Collateral Matters.  (a)  Except with respect to the exercise of   setoff rights in accordance with Section 9.08 or with respect to a Secured Party’s right to file a   proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to   realize upon any of the Collateral or to enforce any Guarantee of the Guaranteed Obligations (as   defined in the Guarantee and Security Agreement), it being understood and agreed that all powers,   rights and remedies under the Loan Documents may be exercised solely by the Administrative   Agent and/or the Collateral Agent on behalf of the Secured Parties in accordance with the terms   thereof.                (b)   In furtherance of the foregoing and not in limitation thereof, no   arrangements in respect of any Hedging Agreement the obligations under which constitute   Hedging Agreement Obligations, will create (or be deemed to create) in favor of any Secured Party   that is a party thereto any rights in connection with the management or release of any Collateral or   of the obligations of any Obligor under any Loan Document. By accepting the benefits of the   Collateral, each Secured Party that is a party to any such arrangement in respect of Hedging                                        134                                                                                      





 






                                            Agreements shall be deemed to have appointed the Administrative Agent and Collateral Agent to   serve as administrative agent and collateral agent, respectively, under the Loan Documents and  agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations  set forth in this paragraph.               (c)   Neither the Administrative Agent nor the Collateral Agent shall be  responsible for or have a duty to ascertain or inquire into any representation or warranty regarding  the existence, value or collectability of the Collateral, the existence, priority or perfection of the  Administrative Agent’s or the Collateral Agent’s Lien thereon or any certificate prepared by any  Obligor in connection therewith, nor shall the Administrative Agent or the Collateral Agent be  responsible or liable to the Lenders or any other Secured Party for any failure to monitor or  maintain any portion of the Collateral.                SECTION 8.12   Credit Bidding.  The Secured Parties hereby irrevocably   authorize the Collateral Agent, at the direction of the Required Lenders, to credit bid all or any   portion of the Secured Obligations (including by accepting some or all of the Collateral in   satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or   otherwise) and in such manner purchase (either directly or through one or more acquisition   vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions   of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or   any similar laws in any other jurisdictions to which an Obligor is subject, or (b) at any other sale,   foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the   direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any   applicable law. In connection with any such credit bid and purchase, the Secured Obligations owed   to the Secured Parties shall be entitled to be, and shall be, credit bid by the Collateral Agent at the  direction of the Required Lenders on a ratable basis (with Secured Obligations with respect to  contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable  basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated  portion of the contingent claim amount used in allocating the contingent interests) for the asset or  assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or  vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the  Collateral Agent shall be authorized to form one or more acquisition vehicles and to assign any  successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable  interests in the Secured Obligations which were credit bid shall be deemed without any further  action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing  such sale, (iii) the Collateral Agent shall be authorized to adopt documents providing for the  governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent  with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity  interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall  provide for, control by the vote of the Required Lenders or their permitted assignees under the  terms of this Agreement or the governing documents of the applicable acquisition vehicle or  vehicles, as the case may be, irrespective of the termination of this Agreement and without giving  effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this  Agreement), (iv) the Collateral Agent on behalf of such acquisition vehicle or vehicles shall be  authorized to issue to each of the Secured Parties, ratably on account of the relevant Secured  Obligations which were credit bid, interests, whether as equity, partnership, limited partnership                                         135                                                                                      





 






                                          interests or membership interests, in any such acquisition vehicle and/or debt instruments issued  by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to  take any further action, and (v) to the extent that Secured Obligations that are assigned to an  acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid  being higher or better, because the amount of Secured Obligations assigned to the acquisition  vehicle exceeds the amount of Secured Obligations credit bid by the acquisition vehicle or  otherwise), such Secured Obligations shall automatically be reassigned to the Secured Parties pro  rata with their original interest in such Secured Obligations and the equity interests and/or debt  instruments issued by any acquisition vehicle on account of such Secured Obligations shall  automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to  take any further action. Notwithstanding that the ratable portion of the Secured Obligations of each  Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii)  above, each Secured Party shall execute such documents and provide such information regarding  the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt  instruments issued by such acquisition vehicle) as the Collateral Agent may reasonably request in  connection with the formation of any acquisition vehicle, the formulation or submission of any  credit bid or the consummation of the transactions contemplated by such credit bid.                                    ARTICLE IX.                                                                         MISCELLANEOUS               SECTION 9.01   Notices; Electronic Communications.               (a)   Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone, all notices and other communications provided for  herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by  certified or registered mail or sent by telecopy or to the extent permitted by Section 9.01(b) or  otherwise herein, e-mail, as follows:               (i)   if to the Borrower, to it at:                           Barings BDC, Inc.                         300 South Tryon Street, Suite 2500                         Charlotte, NC 28202                         Attention:  Chris Cary                         Telephone:  (980) 417-5830                         Facsimile: (980) 259-6762                         E-Mail: chris.cary@barings.com                                         136                                                                                    





 






                                                                    with a copy to (which shall not constitute notice):                            Dechert LLP                          1095 Avenue of the Americas                           New York, New York 10036                           Attention:  Jay R. Alicandri, Esq.                           Telephone:  (212) 698-3800                           Facsimile:  (212) 698-3599                           E-Mail:jay.alicandri@dechert.com               (ii)  if to the Administrative Agent or the Issuing Bank, to it at:                           ING Capital LLC                          1133 Avenue of the Americas                          New York, New York 10036                          Attention:  Grace Fu                          Telephone:  (646) 424-7213                          Facsimile:  (646) 424-6919                          E-Mail: grace.fu@ing.com                           with a copy, which shall not constitute notice, to:                           Fried, Frank, Harris, Shriver & Jacobson LLP                          One New York Plaza                          New York, New York 10004                          Attention:  Andrew J. Klein, Esq.                          Telephone:  (212) 859-8030                          Facsimile:  (212) 859-4000                          E-Mail:andrew.klein@friedfrank.com               (iii) if to any other Lender, to it at its address (or telecopy number) set forth in        its Administrative Questionnaire.               Any party hereto may change its address, telecopy number or e-mail address for  notices and other communications hereunder by notice to the other parties hereto.  All notices and  other communications given to any party hereto in accordance with the provisions of this  Agreement shall be deemed to have been given on the date of receipt.  Notices delivered through  electronic communications to the extent provided in paragraph (b) below, shall be effective as  provided in said paragraph (b).                (b)   Electronic Communications.  Notices and other communications to the   Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic   communication (including e-mail and Internet or intranet websites) pursuant to procedures   approved by the Administrative Agent; provided that the foregoing shall not apply to notices to   any Lender or the Issuing Bank pursuant to Section 2.03 if such Lender or the Issuing Bank, as   applicable, has notified the Administrative Agent that it is incapable of receiving notices under   such Article by electronic communication.  The Administrative Agent or the Borrower may, in its                                         137                                                                                      





 






                                            discretion, agree to accept notices and other communications to it hereunder by electronic   communications pursuant to procedures approved by it; provided that approval of such procedures   may be limited to particular notices or communications.                Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of  an acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return e-mail or other written acknowledgement); provided that if such   notice or other communication is not sent during the normal business hours of the recipient, such   notice or communication shall be deemed to have been sent at the opening of business on the next   Business Day, and (ii) notices or communications posted to an Internet or intranet website shall be   deemed received upon the deemed receipt by the intended recipient at its e-mail address as   described in the foregoing clause (i) of notification that such notice or communication is available   and identifying the website address therefor.                (c)   Posting of Communications                (i)   For so long as a DebtdomainTM or equivalent website is available to each of         the Lenders hereunder, the Borrower may satisfy its obligation to deliver documents to the         Administrative Agent or the Lenders under Section 5.01 by delivering one hard copy         thereof to the Administrative Agent and either an electronic copy or a notice identifying         the website where such information is located for posting by the Administrative Agent on         DebtdomainTM or such equivalent website; provided that the Administrative Agent shall         have no responsibility to maintain access to DebtdomainTM or an equivalent website.                (ii)  The Obligors agree that the Administrative Agent may, but shall not be         obligated to, make any Communications (as defined below) available to the Lenders by         posting the Communications on IntraLinksTM, DebtdomainTM, SyndTrak, ClearPar or any         other electronic platform chosen by the Administrative Agent to be its electronic         transmission system (the “Approved Electronic Platform”).                (iii) Although the Approved Electronic Platform and its primary web portal are         secured with generally-applicable security procedures and policies implemented or         modified by the Administrative Agent from time to time (including, as of the Restatement         Effective Date, a user ID/password authorization system) and the Approved Electronic         Platform is secured through a per-deal authorization method whereby each user may access         the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and        each of the Obligors acknowledges and agrees that the distribution of material through an        electronic medium is not necessarily secure, that the Administrative Agent is not        responsible for approving or vetting the representatives or contacts of any Lender that are        added to the Approved Electronic Platform, and that there are confidentiality and other        risks associated with such distribution. Each of the Lenders and each Obligor hereby        approves distribution of the Communications through the Approved Electronic Platform        and understands and assumes the risks of such distribution.               (iv)  THE APPROVED ELECTRONIC PLATFORM AND THE        COMMUNICATIONS ARE PROVIDED “AS IS”          AND   “AS AVAILABLE”.   THE                                         138                                                                                      





 






                                      APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE   ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE   ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY   DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED   ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF   ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY   OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-  INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR   OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN   CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED   ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT,   ANY LEAD ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY   SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES   (COLLE C T IV E LY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY   OBLIGOR, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES   OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR   CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,   CONTRACT   OR OTHERWISE) ARISING OUT OF ANY OBLIGOR’S OR THE   ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS   THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.          (v)   Each Lender and Issuing Bank agrees that notice to it (as provided in the   next sentence) specifying that Communications have been posted to the Approved   Electronic Platform shall constitute effective delivery of the Communications to such   Lender or Issuing Bank for purposes of the Loan Documents; provided that the foregoing   shall not apply to notices to any Lender or the Issuing Bank pursuant to Section 2.03 if   such Lender or the Issuing Bank, as applicable, has notified the Administrative Agent that   it is incapable of receiving notices under such Article by electronic communication.  Each   Lender and Issuing Bank agrees (A) to notify the Administrative Agent in writing (which   could be in the form of electronic communication) from time to time of such Lender’s or   Issuing Bank’s email address to which the foregoing notice may be sent by electronic  transmission and (B) that the foregoing notice may be sent to such email address.          (vi)  Each of the Lenders, Issuing Bank and Obligors agrees that the   Administrative Agent may, but (except as may be  required by applicable law) shall not be   obligated to, store the Communications on the Approved Electronic Platform in accordance   with the Administrative Agent’s generally applicable document retention policies and   procedures.          (vii) Nothing herein shall prejudice the right of the Administrative Agent, any   Lender or Issuing Bank to give any notice or other communication pursuant to any Loan   Document in any other manner specified in such Loan Document.          (viii) “Communications” means, collectively, any notice, demand,   communication, information, document or other material provided by or on behalf of any   Obligor pursuant to any Loan Document or the transactions contemplated therein which is   distributed by the Administrative Agent, any Lender or Issuing Bank by means of electronic                                   139                                                                                            





 






                                                  communications pursuant to this Section, including through an Approved Electronic         Platform.                SECTION 9.02   Waivers; Amendments.                (a)   No Deemed Waivers; Remedies Cumulative.  No failure or delay by the   Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder   shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power,   or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other   or further exercise thereof or the exercise of any other right or power.  The rights and remedies of   the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not   exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision   of this Agreement or consent to any departure by the Borrower therefrom shall in any event be   effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver   or consent shall be effective only in the specific instance and for the purpose for which given.    Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of  Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether  the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of  such Default or Event of Default at the time.                (b)   Amendments to this Agreement.  Except as set forth in the definition of   Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness as in effect on the  date hereof, neither this Agreement nor any provision hereof may be waived, amended or modified  except pursuant to an agreement or agreements in writing entered into by the Borrower and the  Required Lenders or by the Borrower and the Administrative Agent with the consent of the  Required Lenders; provided that, subject to Section 2.17(b), no such agreement shall                (i)   increase the Commitment of any Lender without the written consent of such         Lender,                (ii)  reduce the principal amount of any Loan or LC Disbursement or reduce the         rate of interest thereon, or reduce any fees payable hereunder, without the written consent         of each Lender directly affected thereby,                (iii) postpone the scheduled date of payment of the principal amount of any Loan         or LC Disbursement, or any interest thereon, or any fees or other amounts payable to a         Lender hereunder, or reduce the amount or waive or excuse any such payment, or postpone         the scheduled date of expiration of any Commitment, without the written consent of each         Lender directly affected thereby,                (iv)  change Section 2.16(b), (c) or (d) or Section 2.09(f) (or other sections         referred to therein to the extent relating to pro rata payments) in a manner that would alter         the pro rata reduction of commitments, sharing of payments, or making of disbursements,         required thereby without the written consent of each Lender directly affected thereby,                (v)   change any of the provisions of this Section, the definition of the term         “Required Lenders” (including the percentage therein) or any other provision hereof                                         140                                                                                      





 






                                                  specifying the number or percentage of Lenders required to waive, amend or modify any         rights hereunder or make any determination or grant any consent hereunder, without the         written consent of each Lender,                (vi)  other than as permitted by this Agreement, the Guarantee and Security         Agreement or any other applicable Loan Document, release all or substantially all of the         Collateral from the Lien created under the Guarantee and Security Agreement or release         all or substantially all the Obligors from their obligations as Subsidiary Guarantors         hereunder, without the written consent of each Lender,                (vii) amend the definition of “Applicable Percentage”, “Applicable Dollar         Percentage” or “Applicable Multicurrency Percentage” without the written consent of each         Lender directly affected thereby, or                (viii) permit the assignment or transfer by any Obligor of any of its rights or         obligations under any Loan Document without the consent of each Lender;    provided further that (x) no such agreement shall amend, modify or otherwise affect the rights or   duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent   of the Administrative Agent or the Issuing Bank, as the case may be, and (y) the consent of Lenders   holding not less than two-thirds of the total Credit Exposures and unused Commitments will be   required for (A) any change adverse to the Lenders affecting the provisions of this Agreement   relating to the Borrowing Base (including the definitions used therein), and (B) any release of any   material portion of the Collateral other than for fair value or as otherwise permitted hereunder or   under the other Loan Documents.                For purposes of this Section, the “scheduled date of payment” of any amount shall   refer to the date of payment of such amount specified in this Agreement, and shall not refer to a   date or other event specified for the mandatory or optional prepayment of such amount.  In  addition, whenever a waiver, amendment or modification requires the consent of a Lender  “affected” thereby, such waiver, amendment or modification shall, upon consent of such Lender,   become effective as to such Lender whether or not it becomes effective as to any other Lender, so   long as the Required Lenders consent to such waiver, amendment or modification as provided   above.                Anything in this Agreement to the contrary notwithstanding, no waiver or   modification of any provision of this Agreement or any other Loan Document that could   reasonably be expected to adversely affect the Lenders of any Class in a manner that does not   affect all Classes equally shall be effective against the Lenders of such Class unless the Required   Lenders of such Class shall have concurred with such waiver, amendment or modification as   provided above; provided, however, in no other circumstances shall the concurrence of the   Required Lenders of a particular Class be required for any waiver, amendment or modification of   any provision of this Agreement or any other Loan Document.                (c)   Amendments to Security Documents.  No Security Document nor any   provision thereof may be waived, amended or modified, except to the extent otherwise expressly   contemplated by the Guarantee and Security Agreement, and the Liens granted under the                                         141                                                                                      





 






                                            Guarantee and Security Agreement may not be spread to secure any additional obligations   (including any increase in Loans hereunder, but excluding (i) any such increase pursuant to a   Commitment Increase under Section 2.07(e) and (ii) any Secured Longer-Term Indebtedness   permitted hereunder) except to the extent otherwise expressly contemplated by the Guarantee and   Security Agreement and except pursuant to an agreement or agreements in writing entered into by   the Borrower, and by the Collateral Agent with the consent of the Required Lenders; provided that,   subject to Section 2.17(b), (i) without the written consent of the holders of not less than two-thirds   of the total Credit Exposures and unused Commitments, no such waiver, amendment or   modification to the Guarantee and Security Agreement shall (A) release any Obligor representing   more than 10% of the Stockholders’ Equity from its obligations under the Security Documents,   (B) release any guarantor representing more than 10% of the Stockholders’ Equity under the   Guarantee and Security Agreement from its guarantee obligations thereunder, or (C) amend the   definition of “Collateral” under the Security Documents (except to add additional collateral) and   (ii) without the written consent of each Lender, no such agreement shall (W) release all or   substantially all of the Obligors from their respective obligations under the Security Documents,   (X) release all or substantially all of the collateral security or otherwise terminate all or   substantially all of the Liens under the Security Documents, (Y) release all or substantially all of   the guarantors under the Guarantee and Security Agreement from their guarantee obligations   thereunder, or (Z) alter the relative priorities of the obligations entitled to the Liens created under   the Security Documents (except in connection with securing additional obligations equally and   ratably with the Loans and other obligations hereunder) with respect to all or substantially all of   the collateral security provided thereby; except that no such consent described in clause (i) or (ii)   above shall be required, and the Administrative Agent is hereby authorized (and so agrees with the   Borrower) to direct the Collateral Agent under the Guarantee and Security Agreement, to (1)   release any Lien covering property (and to release any such guarantor) that is the subject of either   a disposition of property permitted hereunder or a disposition to which the Required Lenders or   the required number or percentage of Lenders have consented (and such Lien shall be released   automatically to the extent provided in Section 10.03(c) of the Guarantee and Security Agreement),   or otherwise in accordance with Section 9.15 and (2) release from the Guarantee and Security   Agreement any Subsidiary Guarantor (and any property of such Subsidiary Guarantor) that is   designated as a Financing Subsidiary in accordance with this Agreement or which ceases to be   consolidated on the Borrower’s financial statements and is no longer required to be a “Subsidiary   Guarantor”, so long as in the case of this clause (2): (A) prior to and immediately after giving  effect to any such release (and any concurrent acquisitions of Portfolio Investments or payment of  outstanding Loans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the   Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the   Administrative Agent a certificate of a Financial Officer to such effect and (B) after giving effect   to such release (and any concurrent acquisitions of Portfolio Investments or payment of   outstanding Loans or Other Covered Indebtedness), either (I) the amount by which the Borrowing   Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a   result of such release or (II) the Borrowing Base immediately after giving effect to such release is   at least 115% of the Covered Debt Amount.                (d)   Replacement of Non-Consenting Lender.  If, in connection with any   proposed amendment, waiver or consent requiring (i) the consent of “each Lender” or “each  Lender affected thereby,” or (ii) the consent of “two-thirds of the holders of the total Credit                                        142                                                                                      





 






                                            Exposures and unused Commitments”, the consent of the Required Lenders is obtained, but the   consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary   but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower shall   have the right, at its sole cost and expense, to replace each such Non-Consenting Lender or Lenders   with one or more replacement Lenders pursuant to Section 2.18(b) so long as at the time of such   replacement, each such replacement Lender consents to the proposed change, waiver, discharge or   termination.                (e)   Ambiguity, Omission, Mistake or Typographical Error.  Notwithstanding   the foregoing, if the Administrative Agent and the Borrower acting together identify any   ambiguity, omission, mistake, typographical error or other defect in any provision of this   Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be   permitted to amend, modify or supplement such provision to cure such ambiguity, omission,   mistake, typographical error or other defect, and such amendment shall become effective without   any further action or consent of any other party to this Agreement.                SECTION 9.03   Expenses; Indemnity; Damage Waiver.                (a)   Costs and Expenses. The Borrower shall pay (i) all reasonable and   documented out-of-pocket fees, costs and expenses incurred by the Administrative Agent, the   Collateral Agent and their Affiliates (including the reasonable fees, charges and disbursements of   one outside counsel and of any necessary special and/or local counsel for the Administrative Agent   and the Collateral Agent collectively (other than the allocated costs of internal counsel)), in   connection with the syndication of the credit facilities provided for herein, the preparation and   administration (other than internal overhead charges) of this Agreement and the other Loan   Documents and any amendments, modifications or waivers of the provisions hereof or thereof   (whether or not the transactions contemplated hereby or thereby shall be consummated) including   all costs and expenses of the Independent Valuation Provider, (ii) all reasonable and documented   out-of-pocket fees, costs and expenses incurred by the Issuing Bank in connection with the  issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment  thereunder, (iii) all out-of-pocket fees, costs and expenses incurred by the Administrative Agent,  the Collateral Agent, the Issuing Bank or any Lender, (including fees, charges and disbursements  of counsel for the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender), in  connection with the enforcement or protection of its rights in connection with this Agreement and  the other Loan Documents, including its rights under this Section, or in connection with the Loans  made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred  during any workout, restructuring or negotiations in respect thereof and (iv) all reasonable out-of- pocket costs, expenses, taxes, assessments and other charges incurred in connection with any  filing, registration, recording or perfection of any security interest contemplated by any Security  Document or any other document referred to therein.  Unless an Event of Default has occurred and  is continuing, the Borrower shall not be responsible for the reimbursement of any fees, costs and  expenses of the Independent Valuation Provider incurred pursuant to 5.12(b)(iii) in excess of the   greater of (x) $200,000 and (y) 0.05% of the total Commitments, in each case in the aggregate  incurred for all such fees, costs and expenses in any 12-month period (the “IVP Supplemental   Cap”).                                         143                                                                                      





 






                                                      (b)   Indemnification by the Borrower.  The Borrower shall indemnify the  Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any of the  foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each  Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses  (other than Taxes or Other Taxes which shall only be indemnified by the Borrower to the extent  provided in Section 2.15), including the reasonable and documented out-of-pocket fees, charges  and disbursements of any counsel for any Indemnitee (other than the allocated costs of internal  counsel), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a  result of (i) the execution or delivery of this Agreement or any agreement or instrument  contemplated hereby, the performance by the parties hereto of their respective obligations  hereunder or the consummation of the Transactions or any other transactions contemplated hereby  (including any arrangement entered into with an Independent Valuation Provider), (ii) any Loan or  Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to  honor a demand for payment under a Letter of Credit if the documents presented in connection  with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any direct,  indirect, actual or prospective claim, litigation, investigation or proceeding (including any  investigation or inquiry) relating to any of the foregoing, whether based on contract, tort or any  other theory and whether brought by the Borrower, any Indemnitee or a third party and regardless  of whether any Indemnitee is a party thereto; provided that such indemnity shall not as to any  Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related  expenses are determined by a court of competent jurisdiction by final and nonappealable judgment  to have resulted from (x) the willful misconduct or gross negligence of such Indemnitee, (y) a  material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan  Document or (z) a claim between any Indemnitee or Indemnitees, on the one hand, and any other  Indemnitee or Indemnitees, on the other hand (other than (1) any dispute involving claims against  the Administrative Agent or the Issuing Bank, in each case in their respective capacities as such,  and (2) claims arising out of any act or omission by the Borrower and/or its Related Parties).               The Borrower shall not be liable to any Indemnitee for any special, indirect,  consequential or punitive damages (as opposed to direct or actual damages (other than in respect  of any such damages incurred or paid by an Indemnitee to a third party)) arising out of, in  connection with, or as a result of the Transactions asserted by an Indemnitee against the Borrower  or any other Obligor; provided that the foregoing limitation shall not be deemed to impair or affect  the obligations of the Borrower under the preceding provisions of this subsection (including  reimbursement of such amounts required to be paid by an Indemnity to a third party).               (c)   Reimbursement by Lenders.  To the extent that the Borrower fails to pay  any amount required to be paid by it to the Administrative Agent or the Issuing Bank under  paragraph (a) or (b) of this Section (and without limiting its obligation to do so) or to the extent  that the fees, costs and expenses of the Independent Valuation Provider incurred pursuant to  Section 5.12(b)(iii) exceed the IVP Supplemental Cap for any 12-month period (provided that prior  to incurring expenses in excess of the IVP Supplemental Cap, the Administrative Agent shall have  afforded the Lenders an opportunity to consult with the Administrative Agent regarding such  expenses), each Lender severally agrees to pay to the Administrative Agent or the Issuing Bank,  as the case may be, such Lender’s Applicable Percentage (determined as of the time that the  applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;                                        144                                                                                    





 






                                            provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related   expense, as the case may be, was incurred by or asserted against the Administrative Agent or the   Issuing Bank in its capacity as such.                (d)   Waiver of Consequential Damages, Etc.  To the extent permitted by   applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,   on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to   direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or   any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit   or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages arising from the  use by unauthorized Persons of any information or other materials distributed by it through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby,  except to the extent caused by the willful misconduct or gross negligence of such Indemnitee, as  determined by a final, non-appealable judgment of a court of competent jurisdiction.                (e)   Payments.  All amounts due under this Section shall be payable promptly   after written demand therefor.                (f)   No Fiduciary Relationship. The Administrative Agent, each Lender and   their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have  economic interests that conflict with those of the Borrower or any of its Subsidiaries, their  stockholders and/or their affiliates. The Borrower, on behalf of itself and each of its Subsidiaries,  agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory,  fiduciary or agency relationship or fiduciary or other implied duty between the Lender, on the one  hand, and the Borrower or any of its Subsidiaries, its stockholders or its Affiliates, on the other.  The Borrower and each of its Subsidiaries each acknowledge and agree that (i) the transactions  contemplated by the Loan Documents (including the exercise of rights and remedies hereunder  and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand,  and the Borrower and its Subsidiaries, on the other, and (ii) in connection therewith and with the  process leading thereto, (x) except as otherwise provided in any of the Loan Documents, no Lender  has assumed an advisory or fiduciary responsibility in favor of the Borrower or any of its  Subsidiaries, any of their stockholders or affiliates (irrespective of whether any Lender has  advised, is currently advising or will advise the Borrower or any of its Subsidiaries, their  stockholders or their affiliates on other matters) and (y) each Lender is acting hereunder solely as   principal and not as the agent or fiduciary of the Borrower or any of its Subsidiaries, their   management or stockholders. The Borrower and each Obligor each acknowledge and agree that it   has consulted legal and financial advisors to the extent it deemed appropriate and that it is   responsible for making its own independent judgment with respect to such transactions and the   process leading thereto. The Borrower and each Obligor each agree that it will not claim that any   Lender has rendered advisory services hereunder of any nature or respect, or owes a fiduciary duty   to the Borrower or any of its Subsidiaries, in each case, in connection with such transactions   contemplated hereby or the process leading thereto.                SECTION 9.04   Successors and Assigns.                                         145                                                                                      





 






                                                      (a)   Assignments Generally.  The provisions of this Agreement shall be binding  upon and inure to the benefit of the parties hereto and their respective successors and assigns  permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),  except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations  hereunder without the prior written consent of each Lender (and any attempted assignment or  transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may  assign or otherwise transfer any of its rights or obligations hereunder except in accordance with  this Section (and any attempted assignment or transfer by any Lender which is not in accordance  with this Section shall be treated as provided in the last sentence of Section 9.04(b)(iii)).  Nothing  in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than  the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate  of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated  hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the  Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.               (b)   Assignments by Lenders.               (i)   Assignments Generally.  Subject to the conditions set forth in clause        (ii) below, any Lender may assign to one or more assignees all or a portion of its rights and        obligations under this Agreement (including all or a portion of its Commitment and the        Loans and LC Exposure at the time owing to it) with the prior written consent (such consent        not to be unreasonably withheld, conditioned or delayed) of:                     (A)   the Borrower; provided that (i) no consent of the Borrower shall be             required for an assignment to a Lender, an Affiliate of a Lender, or, if a Default or             an Event of Default has occurred and is continuing, any other assignee, and (ii) the             Borrower shall be deemed to have consented to any such assignment unless it shall              object thereto by written notice to the Administrative Agent within five (5) Business              Days after having received written notice thereof; and                     (B)   the Administrative Agent and the Issuing Bank; provided that no              consent of the Administrative Agent or the Issuing Bank shall be required for an              assignment by a Lender to a Lender or an Affiliate of a Lender with prior written              notice by such assigning Lender to the Administrative Agent and the Issuing Bank.               Notwithstanding anything to the contrary contained herein, Borrower’s consent  shall be required with respect to an assignment to any Disqualified Lender unless an Event of  Default under clause (a), (b), (i), (j) or (k) has occurred and is continuing. The Administrative  Agent shall provide, and the Borrower hereby expressly authorizes the Administrative Agent to  provide, the Disqualified Lender list to each Lender requesting the same.               (ii)  Certain Conditions to Assignments.  Assignments shall be subject to the        following additional conditions:                     (A)   except in the case of an assignment to a Lender or an Affiliate of a              Lender or an assignment of the entire remaining amount of the assigning Lender’s              Commitment or Loans and LC Exposure of a Class, the amount of the Commitment                                       146                                                                                    





 






                                                        or Loans and LC Exposure of a Class of the assigning Lender subject to each such               assignment (determined as of the date the Assignment and Assumption with respect               to such assignment is delivered to the Administrative Agent) shall not be less than               $1,000,000 unless each of the Borrower and the Administrative Agent otherwise               consent; provided that no such consent of the Borrower shall be required if a               Default or an Event of Default has occurred and is continuing;                      (B)   each partial assignment of Commitments or Loans and LC Exposure               of a Class shall be made as an assignment of a proportionate part of all the assigning               Lender’s rights and obligations under this Agreement in respect of such Class of               Commitments and Loans and LC Exposure;                      (C)   the parties to each assignment shall execute and deliver to the              Administrative Agent an Assignment and Assumption, together with a processing              and recordation fee of $3,500 (which fee shall not be payable in connection with an              assignment to a Lender or to an Affiliate of a Lender), for which the Borrower and              the Guarantors shall not be obligated (except in the case of an assignment pursuant              to Section 2.18(b)); and                      (D)   the assignee, if it shall not already be a Lender of the applicable               Class, shall deliver to the Administrative Agent an Administrative Questionnaire.                (iii) Effectiveness of Assignments.  Subject to acceptance and recording thereof         pursuant to paragraph (c) of this Section, from and after the effective date specified in each         Assignment and Assumption the assignee thereunder shall be a party hereto and, to the         extent of the interest assigned by such Assignment and Assumption, have the rights and         obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,         to the extent of the interest assigned by such Assignment and Assumption, be released from         its obligations under this Agreement (and, in the case of an Assignment and Assumption         covering all of the assigning Lender’s rights and obligations under this Agreement, such        Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of         Sections 2.13, 2.14, 2.15 and 9.03 with respect to facts and circumstances occurring prior         to the effective date of such assignment).  Any assignment or transfer by a Lender of rights         or obligations under this Agreement that does not comply with this Section 9.04 shall be         treated for purposes of this Agreement as a sale by such Lender of a participation in such         rights and obligations in accordance with paragraph (f) of this Section.                (c)   Maintenance of Registers by Administrative Agent.  The Administrative   Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at   one of its offices in New York City a copy of each Assignment and Assumption delivered to it and   a register for the recordation of the names and addresses of the Lenders, and the Commitments of,  and principal amount and stated interest of the Loans and LC Disbursements owing to, each Lender  pursuant to the terms hereof from time to time (the “Registers” and each individually, a   “Register”).  The entries in the Registers shall be conclusive absent manifest error, and the   Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person   whose name is recorded in the Registers pursuant to the terms hereof as a Lender hereunder for all   purposes of this Agreement, notwithstanding notice to the contrary.  The Registers shall be                                        147                                                                                      





 






                                            available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time   and from time to time upon reasonable prior notice.                (d)   Acceptance of Assignments by Administrative Agent.  Upon its receipt of a   duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the   assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender  hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any   written consent to such assignment required by paragraph (b) of this Section, the Administrative   Agent shall accept such Assignment and Assumption and record the information contained therein   in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been   recorded in the Register as provided in this paragraph.                (e)   Special Purposes Vehicles.  Notwithstanding anything to the contrary   contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle   other than a Disqualified Lender (an “SPC”) owned or administered by such Granting Lender,   identified as such in writing from time to time by the Granting Lender to the Administrative Agent   and the Borrower, the option to provide all or any part of any Loan that such Granting Lender   would otherwise be obligated to make; provided that (i) nothing herein shall constitute a   commitment to make any Loan by any SPC, (ii) if an SPC elects not to exercise such option or   otherwise fails to provide all or any part of such Loan, the Granting Lender shall, subject to the   terms of this Agreement, make such Loan pursuant to the terms hereof, (iii) the rights of any such   SPC shall be derivative of the rights of the Granting Lender, and such SPC shall be subject to all   of the restrictions upon the Granting Lender herein contained, and (iv) no SPC shall be entitled to   the benefits of Section 2.13 (or any other increased costs protection provision), 2.14 or 2.15.  Each   SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the   exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, the   Administrative Agent, the Lenders and the Borrower, and each of the Administrative Agent, the   Lenders and the Obligors shall be entitled to rely upon and deal solely with the Granting Lender   with respect to Loans made by or through its SPC.  The making of a Loan by an SPC hereunder   shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were   made by the Granting Lender.                Each party hereto hereby agrees (which agreement shall survive the termination of   this Agreement) that, prior to the date that is one year and one day after the payment in full of all  outstanding senior indebtedness of any SPC, it will not institute against, or join any other person   in instituting against, such SPC, any bankruptcy, reorganization, arrangement, insolvency or   liquidation proceedings or similar proceedings under the laws of the United States or any State   thereof, in respect of claims arising out of this Agreement; provided that the Granting Lender for   each SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss,   cost, damage and expense arising out of their inability to institute any such proceeding against its   SPC.  In addition, notwithstanding anything to the contrary contained in this Section, any SPC   may (i) without the prior written consent of the Borrower and the Administrative Agent and   without paying any processing fee therefor, assign all or a portion of its interests in any Loans to   its Granting Lender or to any financial institutions providing liquidity and/or credit facilities to or   for the account of such SPC to fund the Loans made by such SPC or to support the securities (if   any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in                                         148                                                                                      





 






                                          derogation of the obligation of the Granting Lender to make Loans hereunder); provided that  neither the consent of the SPC or of any such assignee shall be required for amendments or waivers  hereunder except for those amendments or waivers for which the consent of participants is required  under paragraph (f) below, and (ii) disclose on a confidential basis (in the same manner described  in Section 9.13(b)) any non-public information relating to its Loans to any rating agency,  commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement to  such SPC.               (f)   Participations.  Any Lender may sell participations to one or more banks or  other entities other than a Disqualified Lender (a “Participant”) in all or a portion of such Lender’s  rights and obligations under this Agreement and the other Loan Documents (including all or a  portion of its Commitments and the Loans and LC Disbursements owing to it); provided that (i)  such Lender’s obligations under this Agreement and the other Loan Documents shall remain  unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the  performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Bank  and the other Lenders shall continue to deal solely and directly with such Lender in connection  with such Lender’s rights and obligations under this Agreement  and the other Loan Documents.   Any agreement or instrument pursuant to which a Lender sells such a participation shall provide  that such Lender shall retain the sole right to enforce this Agreement and the other Loan  Documents and to approve any amendment, modification or waiver of any provision of this  Agreement or any other Loan Document; 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 described in the first proviso to Section 9.02(b) that affects such  Participant.  Subject to paragraph (g) of this Section, the Borrower agrees that each Participant  shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 (subject to the requirements and  limitations therein, including Sections 2.15(f) and (g) (it being understood that the documentation  required under Sections 2.15(f) and (g) shall be delivered to the participating Lender)) to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph  (b) of this Section; provided that such Participant agrees to be subject to the provisions of Section  2.18 as if it were an assignee under paragraph (b) of this Section 9.04.  Each Lender that sells a  participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate  with the Borrower to effectuate the provisions of Section 2.18 with respect to any Participant.  To  the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08  as though it were a Lender, provided such Participant agrees to be subject to Section 2.16(d) as  though it were a Lender hereunder.  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 or other obligations under the Loan Documents (each a  “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, letters of credit or its other  obligations under any Loan Document) to any Person except to the extent that such disclosure is  necessary to establish that such commitment, loan, letter of credit or other obligation is in  registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries  in each Participant Register shall be conclusive absent manifest error, and such Lender shall treat  each Person whose name is recorded in the Participant Register as the owner of such participation                                       149                                                                                    





 






                                          for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance  of doubt, the Administrative Agent (in its capacity as the Administrative Agent) shall have no  responsibility for maintaining a Participant Register.               (g)   Limitations on Rights of Participants.  A Participant shall not be entitled to  receive any greater payment under Section 2.13, 2.14 or 2.15 than the applicable Lender would  have been entitled to receive with respect to the participation sold to such Participant, unless the  sale of the participation to such Participant is made with the Borrower’s prior written consent.  A  Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits  of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and  such Participant agrees, for the benefit of the Borrower, to comply with paragraphs (c) and (f) of  Section 2.15 as though it were a Lender (it being understood that that the documentation required  under Section 2.15(f) shall be delivered to the participating Lender).               (h)   Certain Pledges.  Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement to secure obligations of such Lender,  including any such pledge or assignment to a Federal Reserve Bank or any other central bank, and  this Section shall not apply to any such pledge or assignment of a security interest; provided that  no such pledge or assignment of a security interest shall release a Lender from any of its obligations  hereunder or substitute any such assignee for such Lender as a party hereto.               (i)   No Assignments or Participations to the Borrower or Affiliates or Certain  Other Persons.  Anything in this Section to the contrary notwithstanding, no Lender may (i) assign  or participate any interest in any Commitment, Loan or LC Exposure held by it hereunder to the  Borrower or any of its Affiliates or Subsidiaries without the prior consent of each Lender, or  (ii) assign any interest in any Commitment, Loan or LC Exposure held by it hereunder to a natural  person (or a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of, a natural person) or to any Person known by such Lender at the time of such  assignment to be a Defaulting Lender, a Subsidiary of a Defaulting Lender or a Person who, upon  consummation of such assignment would be a Defaulting Lender.               (j)   Multicurrency Lenders.  Any assignment by a Multicurrency Lender, so  long as no Event of Default has occurred and is continuing with respect to any Borrower, must be  to a Person that is able to fund and receive payments on account of each outstanding Agreed  Foreign Currency at such time without the need to obtain any authorization referred to in clause  (c) of the definition of “Agreed Foreign Currency”.               (k)   Certain matters Relating to Disqualified Lenders.  The Administrative  Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into,  monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders.  Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be  obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective  Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising  out of any assignment or participation of Loans, or disclosure of confidential information, to any  Disqualified Lender.  The list of Disqualified Lenders will be made available by the Administrative  Agent to any Lender, participant or potential Lender or participant upon request.                                        150                                                                                    





 






                                                      SECTION 9.05   Survival.  All covenants, agreements, representations and  warranties made by the Borrower herein and in the certificates or other instruments delivered in  connection with or pursuant to this Agreement shall be considered to have been relied upon by the  other parties hereto and shall survive the execution and delivery of this Agreement and the making  of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any  such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing  Bank or any Lender may have had notice or knowledge of any Default or Event of Default or  incorrect representation or warranty at the time any credit is extended hereunder, and shall continue  in full force and effect as long as the principal of or any accrued interest on any Loan or any fee  or any other amount payable under this Agreement is outstanding and unpaid or any Letter of  Credit is outstanding and so long as the Commitments have not expired or terminated.  The  provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full  force and effect regardless of the consummation of the transactions contemplated hereby, the  repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments  or the termination of this Agreement or any provision hereof.               SECTION 9.06   Counterparts; Integration; Effectiveness; Electronic Execution.               (a)   Counterparts; Integration; Effectiveness.  This Agreement may be executed  in counterparts (and by different parties hereto on different counterparts), each of which shall  constitute an original, but all of which when taken together shall constitute a single contract.  This  Agreement, the other Loan Documents and any separate letter agreements with respect to fees  payable to the Administrative Agent constitute the entire contract between and among the parties  relating to the subject matter hereof and supersede any and all previous agreements and  understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section  4.01, this Agreement shall become effective when it shall have been executed by the  Administrative Agent and when the Administrative Agent shall have received counterparts hereof  which, when taken together, bear the signatures of each of the other parties hereto, and thereafter  shall be binding upon and inure to the benefit of the parties hereto and their respective successors  and assigns.  Delivery of an executed counterpart of a signature page to this Agreement by telecopy  or electronic mail shall be effective as delivery of a manually executed counterpart of this  Agreement.               (b)   Electronic Execution of Assignments.  The words “execution,” “signed,”  “signature,” and words of like import in any Assignment and Assumption shall be deemed to  include electronic signatures or the keeping of records in electronic form, each of which shall be  of the same legal effect validity or enforceability as a manually executed signature or the use of a  paper-based recordkeeping system, as the case may be, to the extent and as provided for in any  applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,  the New York State Electronic Signatures and Records Act, or any other similar state laws based  on the Uniform Electronic Transactions Act.               SECTION 9.07   Severability.  Any provision of this Agreement held to be  invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to  the extent of such invalidity, illegality or unenforceability without affecting the validity, legality                                        151                                                                                    





 






                                            and enforceability of the remaining provisions hereof; and the invalidity of a particular provision   in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.                SECTION 9.08   Right of Setoff.  If an Event of Default shall have occurred and   be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from   time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general   or special, time or demand, provisional or final, in whatever Currency) at any time held and other   obligations at any time owing by such Lender, the Issuing Bank or any such Affiliate to or for the   credit or the account of any Obligor against any of and all the obligations of any Obligor now or   hereafter existing under this Agreement or any other Loan Document held by such Lender or   Issuing Bank, irrespective of whether or not such Lender or Issuing Bank shall have made any   demand under this Agreement and although such obligations may be contingent and unmatured,   or are owed to a branch, office or Affiliate of such Lender or Issuing Bank different from the   branch, office or Affiliate holding such deposit or obligated on such Indebtedness.  The rights of   each Lender, Issuing Bank and their respective Affiliates under this Section are in addition to other   rights and remedies (including other rights of setoff) which such Lender, Issuing Bank or Affiliate   may have; provided that in the event that any Defaulting Lender exercises any such right of setoff,   (a) all amounts so set off will be paid over immediately to the Administrative Agent for further   application in accordance with the provisions of Section 2.17 and, pending such payment, will be   segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit   of the Administrative Agent, the Issuing Bank and the Lenders and (b) the Defaulting Lender will   provide promptly to the Administrative Agent a statement describing in reasonable detail the   obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  Each   Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set- off and application made by such Lender; provided that the failure to give such notice shall not   affect the validity of such set-off and application.                SECTION 9.09   Governing Law; Jurisdiction; Etc.                (a)   Governing Law.  This Agreement and the other Loan Documents shall be   construed in accordance with and governed by the law of the State of New York.                (b)   Submission to Jurisdiction.  The Borrower hereby irrevocably and   unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme   Court of the State of New York sitting in New York County and of the United States District Court  of the Southern District of New York, and any appellate court from any thereof, in any action or  proceeding arising out of or relating to this Agreement or the other Loan Documents, or for  recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and  unconditionally agrees that all claims in respect of any such action or proceeding may be heard  and determined in such New York State or, to the extent permitted by law, in such Federal court.   Each of the parties hereto agrees 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.  Nothing in this Agreement shall affect any right that the Administrative  Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding  relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.                                         152                                                                                      





 






                                                        (c)   Waiver of Venue.  The Borrower hereby irrevocably and unconditionally   waives, to the fullest extent it may legally and effectively do so, any objection which it may now   or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating  to this Agreement in any court referred to in paragraph (b) of this Section.  Each of the parties   hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an   inconvenient forum to the maintenance of such action or proceeding in any such court.                (d)   Service of Process.  Each party to this Agreement (i) irrevocably consents   to service of process in the manner provided for notices in Section 9.01 and (ii) agrees that service   as provided in the manner provided for notices in Section 9.01 is sufficient to confer personal   jurisdiction over such party in any proceeding in any court and otherwise constitutes effective and   binding service in every respect.  Nothing in this Agreement will affect the right of any party to   this Agreement to serve process in any other manner permitted by law.                SECTION 9.10   WAIVER OF JURY TRIAL.  EACH PARTY HERETO   HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,   ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING   DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT   OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON   CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES   THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS   REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD   NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER   AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN   INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE   MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.                SECTION 9.11   Judgment Currency.  This is an international loan transaction in   which the specification of Dollars or any Foreign Currency, as the case may be (the “Specified   Currency”), and payment in New York City or the country of the Specified Currency, as the case   may be (the “Specified Place”), is of the essence, and the Specified Currency shall be the currency   of account in all events relating to Loans denominated in the Specified Currency.  The payment   obligations of the Borrower under this Agreement shall not be discharged or satisfied by an amount   paid in another currency or in another place, whether pursuant to a judgment or otherwise, to the   extent that the amount so paid on conversion to the Specified Currency and transfer to the Specified   Place under normal banking procedures does not yield the amount of the Specified Currency at the   Specified Place due hereunder.  If for the purpose of obtaining judgment in any court it is necessary   to convert a sum due hereunder in the Specified Currency into another currency (the “Second   Currency”), the rate of exchange that shall be applied shall be the rate at which in accordance with   normal banking procedures the Administrative Agent could purchase the Specified Currency with   the Second Currency on the Business Day next preceding the day on which such judgment is   rendered.  The obligation of the Borrower in respect of any such sum due to the Administrative   Agent or any Lender hereunder or under any other Loan Document (in this Section called an   “Entitled Person”) shall, notwithstanding the rate of exchange actually applied in rendering such   judgment, be discharged only to the extent that on the Business Day following receipt by such   Entitled Person of any sum adjudged to be due from the Borrower hereunder in the Second                                         153                                                                                      





 






                                            Currency such Entitled Person may in accordance with normal banking procedures purchase and   transfer to the Specified Place the Specified Currency with the amount of the Second Currency so  adjudged to be due; and the Borrower hereby, as a separate obligation and notwithstanding any  such judgment, agrees to indemnify such Entitled Person against, and to pay such Entitled Person  on demand, in the Specified Currency, the amount (if any) by which the sum originally due from   the Borrower to such Entitled Person in the Specified Currency hereunder exceeds the amount of   the Specified Currency so purchased and transferred.                SECTION 9.12   Headings.  Article and Section headings and the Table of   Contents used herein are for convenience of reference only, are not part of this Agreement and   shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.                SECTION 9.13   Treatment of Certain Information; Confidentiality.                (a)   Treatment of Certain Information.  The Borrower acknowledges that from   time to time financial advisory, investment banking and other services may be offered or provided   to the Borrower or one or more of its Subsidiaries (in connection with this Agreement or   otherwise) by any Lender or by one or more subsidiaries or affiliates of such Lender and the   Borrower hereby authorizes each Lender to share any information delivered to such Lender by the   Borrower and its Subsidiaries pursuant to this Agreement, or in connection with the decision of   such Lender to enter into this Agreement, to any such subsidiary or affiliate, it being understood   that any such subsidiary or affiliate receiving such information shall be bound by the provisions   of paragraph (b) of this Section as if it were a Lender hereunder.  Such authorization shall survive   the repayment of the Loans, the expiration or termination of the Letters of Credit and the   Commitments or the termination of this Agreement or any provision hereof.                (b)   Confidentiality.  Each of the Administrative Agent (including in its capacity   as Collateral Agent), the Lenders and the Issuing Bank agrees to maintain the confidentiality of   the Information (as defined below), except that Information may be disclosed (a) to its Affiliates   and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and  other representatives (it being understood that the Persons to whom such disclosure is made will  be informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction  over it (including any self-regulatory authority), (c) to the extent required by applicable laws or   regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in   connection with the exercise of any remedies hereunder or under any other Loan Document or any   action or proceeding relating to this Agreement or any other Loan Document or the enforcement   of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially   the same as those of this Section, to (i) any assignee of or Participant in, or any prospective   assignee of or Participant in, any of its rights or obligations under this Agreement, or (ii) any actual   or prospective counterparty (or its advisors) to any swap, derivative or securitization transaction   relating to the Borrower and its obligations or (iii) to any credit insurance provider relating to the   Borrower and its obligations, (g) with the consent of the Borrower, (h) on a confidential basis to   (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the Loans and   (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and   monitoring of CUSIP numbers with respect to the Loans, (i) to the extent such Information                                         154                                                                                      





 






                                            (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes   available to the Administrative Agent, any Lender, the Issuing Bank or any of their respective   Affiliates on a nonconfidential basis from a source other than the Borrower or (j) in connection   with the Lenders’ right to grant a security interest pursuant to Section 9.04(h) to the Federal   Reserve Bank or any other central bank, or subject to an agreement containing provisions   substantially the same as those of this Section, to any other pledgee or assignee pursuant to Section   9.04(h).    For purposes of this Section, “Information” means all information received from the Borrower or   any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective   businesses (including any Portfolio Investments), other than any such information that is available   to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to   disclosure by the Borrower or any of its Subsidiaries, provided that, in the case of information   received from the Borrower or any of its Subsidiaries after the Effective Date, such information is   clearly identified at the time of delivery as confidential.  Any Person required to maintain the   confidentiality of Information as provided in this Section shall be considered to have complied   with its obligation to do so if such Person has exercised the same degree of care to maintain the   confidentiality of such Information as such Person would accord to its own confidential   information.                (c)   Confidentiality of COF Rates.  The Administrative Agent and the Borrower   agree to keep each COF Rate confidential and not to disclose it to anyone, and the Borrower further   agrees to cause its Subsidiaries to not disclose any COF Rate, in each case, except for the   following: (i) the Administrative Agent may disclose any COF Rate to the Borrower pursuant to   Section 2.12(a), (ii) the Administrative Agent or the Borrower may disclose any COF Rate to any   of its Affiliates and any of its or their officers, directors, employees, professional advisers and   auditors, if any person to whom that COF Rate is to be disclosed is informed in writing of its  confidential nature and that it may be price-sensitive information except that there shall be no  requirement to so inform if, in the opinion of the disclosing party, it is not practicable to do so in   the circumstances, (iii) to any person to whom information is required to be disclosed in connection   with, and for the purposes of, any litigation, arbitration, administrative or other investigations,   proceedings or disputes if the person to whom that COF Rate is to be disclosed is informed in   writing of its confidential nature and that it may be price-sensitive information except that there   shall be no requirement to so inform if, in the opinion of the disclosing party, it is not practicable   to do so in the circumstance, or (iv) to the extent required by applicable laws or regulations or by   any subpoena or similar legal process.  The Administrative Agent and the Borrower agree to, and   the Borrower shall cause each of its Subsidiaries to, (to the extent permitted by law and regulation)   (x) inform each relevant Lender of the circumstances of any disclosure made pursuant to this   Section 9.13(c) and (y) notify each relevant Lender upon becoming aware that any information   has been disclosed in breach of this Section 9.13(c).  No Default or Event of Default shall arise   under Article VII(f) by reason only of the failure of any Borrower or any of its Subsidiaries to   comply with this Section 9.13(c).                SECTION 9.14   USA PATRIOT Act.  Each Lender hereby notifies the Borrower   that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed   into law October 26, 2001)), it is required to obtain, verify and record information that identifies                                         155                                                                                      





 






                                            each Obligor, which information includes the name and address of such Obligor and other   information that will allow such Lender to identify such Obligor in accordance with said Act.  The   Obligors will, promptly following a request by the Administrative Agent or any Lender, provide   all documentation and other information that the Administrative Agent or such Lender requests in  order to comply with its ongoing obligations under applicable “know your customer” and anti- money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial   Ownership Regulation.                SECTION 9.15   Termination.  Promptly (and in any event within 3 Business   Days) upon the Termination Date, the Administrative Agent shall direct the Collateral Agent to,   on behalf of the Administrative Agent, the Collateral Agent and the Lenders, deliver to Borrower   such termination statements and releases and other documents reasonably necessary or appropriate   to evidence the termination of this Agreement, the Loan Documents, and each of the documents   securing the obligations hereunder as the Borrower may reasonably request, all at the sole cost and   expense of the Borrower.                SECTION 9.16   Acknowledgment and Consent to Bail-In of EEA Financial   Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other   agreement, arrangement or understanding among any such parties, each party hereto acknowledges   that any liability of any EEA Financial Institution arising under any Loan Document, to the extent   such liability is unsecured, may be subject to the write-down and conversion powers of an EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:                (a)   the application of any Write-Down and Conversion Powers by an EEA  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any   party hereto that is an EEA Financial Institution; and                (b)   the effects of any Bail-In Action on any such liability, including, if   applicable:                (i)   a reduction in full or in part or cancellation of any such liability;                (ii)  a conversion of all, or a portion of, such liability into shares or other         instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge         institution that may be issued to it or otherwise conferred on it, and that such shares or         other instruments of ownership will be accepted by it in lieu of any rights with respect to         any such liability under this Agreement or any other Loan Document; or                (iii) the variation of the terms of such liability in connection with the exercise of         the write-down and conversion powers of any EEA Resolution Authority.                SECTION 9.17   Interest Rate Limitation.  Notwithstanding anything to the   contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan   Documents shall not exceed the Maximum Rate.  If Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied  to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower.  In  determining whether the interest contracted for, charged, or received by Administrative Agent or                                         156                                                                                      





 






                                          a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law,  (a) characterize any payment that is not principal as an expense, fee, or premium rather than  interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,  allocate, and spread in equal or unequal parts the total amount of interest throughout the  contemplated term of the Secured Obligations hereunder.                       [Remainder of Page Intentionally Left Blank]                                         157                                                                                    





 






                                                      IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  duly executed by their respective authorized officers as of the day and year first above written.                                       BARINGS BDC, INC.                                       By:         /s/ Christopher Cary                                                      Name: Christopher Cary                                            Title: Treasurer                                                    [Signature Page to the Revolving Credit Agreement]                                                                                  





 






                                    ING CAPITAL LLC, as Administrative Agent,                 Lender and Issuing Bank                  By:         /s/ Patrick Frisch                                   Name: Patrick Frisch                       Title: Managing Director                  By:         /s/ Grace Fu                                         Name: Grace Fu                       Title: Director                                              [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    JPMORGAN CHASE BANK, N.A.,                  as a Lender                  By:         /s/ Matthew Griffith                                 Name: Matthew Griffith                       Title: Executive Director                                              [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    BANK OF MONTREAL, as a Lender                  By:         /s/ Sue R. Blazis                                    Name: Sue R. Blazis                       Title: Managing Director                                              [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    FIFTH THIRD BANK, as a Lender                  By:         /s/ Peter C. Rogers                                  Name: Peter C. Rogers                       Title: Managing Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    STATE STREET BANK AND TRUST                 COMPANY, as a Lender                  By:         /s/ Pallo Blum-Tucker                                Name: Pallo Blum-Tucer                       Title: Managing Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    MUFD UNION BANK, N.A., as a Lender                  By:         /s/ Jeanne Horn                                      Name: Jeanne Horn                       Title: Managing Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    REGIONS BANK, as a Lender                  By:         /s/ Hichem Kerma                                     Name: Hichem Kerma                       Title: Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    MIZUHO BANK, LTD., as a Lender                  By:         /s/ Donna DeMagistris                                Name: Donna DeMagistris                       Title: Authorized Signatory    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    HSBC BANK USA, N.A., as a Lender                  By:         /s/ Shubhendu Kudaisya                               Name: Shubhendu Kudaisya                       Title: SVP, Structured Finance    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    CIT BANK, N.A., as a Lender                  By:         /s/ Robert L. Klein                                  Name: Robert L. Klein                       Title: Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    TIAA, FSB, as a Lender                  By:         /s/ Martin O'Brien                                   Name: Martin O'Brien                       Title: Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    BANK OF AMERICA, N.A., as a Lender                  By:         /s/ Manisha Kumar                                    Name: Manisha Kumar                       Title: Vice President    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    SOCIḖTḖ GḖNḖRALE, as a Lender                  By:         /s/ Rob Roberto                                      Name: Rob Roberto                       Title: Managing Director    [Signature Page to the Revolving Credit Agreement]                                                             





 






                                    BNP PARIBAS, as a Lender                  By:         /s/ Laurent Vanderzyppe                              Name: Laurent Vanderzyppe                       Title: Managing Director                  By:         /s/ Michael Giudice                                  Name: Michael Giudice                       Title: Director                                        [Signature Page to the Revolving Credit Agreement]                                                             





 






                                 NATIXIS, NEW YORK BRANCH, as a Lender               By:         /s/ Michael Lardieri                              Name: Michael Lardieri                    Title: Vice President               By:         /s/ Ronald Lee                                    Name: Ronald Lee                    Title: Director       [Signature Page to the Revolving Credit Agreement]                                                                           





 






                                 FIRST NATIONAL BANK OF PENNSLVANIA, as a              Lender               By:         /s/ Charles W. Jones                              Name: Charles W. Jones                    Title: Senior Vice President       [Signature Page to the Revolving Credit Agreement]                                                                           





 






                                 PINNACLE BANK, as a Lender               By:         /s/ Douglas Ford                                  Name: Douglas Ford                    Title: SVP/Middle Market Manager    [Signature Page to the Revolving Credit Agreement]