exhibit105baringsandbofa






                                                      Exhibit 10.5                                                                                                                                                                                                           AMENDED AND RESTATED CREDIT AGREEMENT               Dated as of December 13, 2018                         among        BARINGS BDC SENIOR FUNDING I, LLC,                      as Borrower,            THE LENDER PARTIES HERETO,               BANK OF AMERICA, N.A.,                 as Administrative Agent                           and              The Other Lender Parties Hereto                                   BANK OF AMERICA MERRILL LYNCH,                          as         Sole Lead Arranger and Sole Book Manager                                                                         





 






                            TABLE OF CONTENTS                                           Section                                                                   Page    ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ........................................................1        1.01    Defined Terms. .............................................................................................................. 1        1.02    Other Interpretive Provisions. ...................................................................................... 21        1.03    Accounting Terms. ...................................................................................................... 22        1.04    Rounding. .................................................................................................................... 23        1.05    Times of Day. .............................................................................................................. 23        1.06    Business Day Convention. ........................................................................................... 23  ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS .......................................23        2.01    Committed Loans. ....................................................................................................... 23        2.02    Borrowings, Conversions and Continuations of Committed Loans. ........................... 23        2.03    Prepayments. ................................................................................................................ 25        2.04    Termination or Reduction of Commitments. ............................................................... 26        2.05    Repayment of Loans; Reborrowing, Repayment on Maturity Date. ........................... 27        2.06    Interest. ........................................................................................................................ 27        2.07    Fees. ............................................................................................................................. 28        2.08    Computation of Interest and Fees. ............................................................................... 30        2.09    Evidence of Debt. ........................................................................................................ 30        2.10    Payments Generally; Administrative Agent’s Clawback. ........................................... 30        2.11    Sharing of Payments by Lenders. ................................................................................ 32        2.12    Defaulting Lenders. ..................................................................................................... 32  ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY .........................................34        3.01    Taxes. ........................................................................................................................... 34        3.02    Illegality. ...................................................................................................................... 38        3.03    Inability to Determine Rates. ....................................................................................... 39        3.04    Increased Costs; Reserves on Eurocurrency Rate Loans. ............................................ 40        3.05    Compensation for Losses. ............................................................................................ 42        3.06    Mitigation Obligations; Replacement of Lenders. ....................................................... 42        3.07    Survival. ....................................................................................................................... 43  ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ...............................43        4.01    Conditions of Initial Credit Extension. ........................................................................ 43        4.02    Conditions to all Credit Extensions. ............................................................................ 45  ARTICLE V. REPRESENTATIONS AND WARRANTIES .......................................................47        5.01    Existence, Qualification and Power. ............................................................................ 47        5.02    Authorization; No Contravention. ............................................................................... 47        5.03    Governmental Authorization; Other Consents. ........................................................... 47        5.04    Binding Effect. ............................................................................................................. 47        5.05    Financial Statements; No Material Adverse Effect. .................................................... 48        5.06    Litigation. .................................................................................................................... 48        5.07    No Default. .................................................................................................................. 48        5.08    Liens and Indebtedness. ............................................................................................... 48        5.09    Taxes. ........................................................................................................................... 49        5.10    ERISA Matters. ........................................................................................................... 49        5.11    Equity Interests. ........................................................................................................... 49        5.12    Margin Regulations; Investment Company Act. ......................................................... 49        5.13    Disclosure. ................................................................................................................... 49        5.14    Compliance with Laws. ............................................................................................... 50                                         i    





 






                            TABLE OF CONTENTS                                     (continued)  Section                                                                   Page          5.15    Taxpayer Identification Number; Other Identifying Information. ............................... 50        5.16    OFAC........................................................................................................................... 50        5.17    Anti-Corruption Laws. ................................................................................................. 51        5.18    EEA Financial Institution. ........................................................................................... 51  ARTICLE VI. AFFIRMATIVE COVENANTS ...........................................................................51        6.01    Financial Statements. ................................................................................................... 51        6.02    Certificates; Other Information. ................................................................................... 52        6.03    Notices. ........................................................................................................................ 53        6.04    Payment of Obligations. .............................................................................................. 54        6.05    Preservation of Existence, Etc. .................................................................................... 54        6.06    Maintenance of Properties. .......................................................................................... 54        6.07    Further Assurances. ..................................................................................................... 54        6.08    Compliance with Laws. ............................................................................................... 54        6.09    Books and Records. ..................................................................................................... 55        6.10    Inspection Rights. ........................................................................................................ 55        6.11    Use of Proceeds. .......................................................................................................... 55        6.12    Approvals and Authorizations. .................................................................................... 55        6.13    Special Purpose Entity Requirements. ......................................................................... 55        6.14    Security Interest. .......................................................................................................... 56        6.15    ERISA Matters. ........................................................................................................... 56        6.16    Anti-Corruption Laws. ................................................................................................. 56  ARTICLE VII. NEGATIVE COVENANTS .................................................................................56        7.01    Liens. ........................................................................................................................... 56        7.02    Investments. ................................................................................................................. 56        7.03    Indebtedness; Bank Accounts. ..................................................................................... 56        7.04    Fundamental Changes. ................................................................................................. 56        7.05    Collateral Assets. ......................................................................................................... 56        7.06    Restricted Payments. ................................................................................................... 57        7.07    Transactions with Affiliates. ........................................................................................ 57        7.08    Burdensome Agreements. ............................................................................................ 58        7.09    Use of Proceeds. .......................................................................................................... 58        7.10    Sanctions. ..................................................................................................................... 58        7.11    Special Purpose Entity Requirements. ......................................................................... 58        7.12    Investment Management Agreement and Sale Agreement Amendment. .................... 58        7.13    ERISA. ......................................................................................................................... 58        7.14    Change in Nature of Business...................................................................................... 59        7.15    Anti-Corruption Laws. ................................................................................................. 59  ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES .....................................................59        8.01    Events of Default. ........................................................................................................ 59        8.02    Remedies Upon Event of Default. ............................................................................... 61        8.03    Application of Funds. .................................................................................................. 61  ARTICLE IX. ADMINISTRATIVE AGENT ...............................................................................62        9.01    Appointment and Authority. ........................................................................................ 62        9.02    Rights as a Lender. ...................................................................................................... 62        9.03    Exculpatory Provisions. ............................................................................................... 63        9.04    Reliance by Administrative Agent. .............................................................................. 64        9.05    Delegation of Duties. ................................................................................................... 64                                           ii                                       





 






                            TABLE OF CONTENTS                                     (continued)  Section                                                                   Page          9.06    Resignation of Administrative Agent. ......................................................................... 64        9.07    Non-Reliance on Administrative Agent and Other Lenders. ....................................... 65        9.08    No Other Duties, Etc. .................................................................................................. 66        9.09    Administrative Agent May File Proofs of Claim; Credit Bidding. .............................. 66        9.10    Collateral Matters. ....................................................................................................... 67  ARTICLE X. MISCELLANEOUS ...............................................................................................68        10.01   Amendments, Etc. ........................................................................................................ 68        10.02   Notices; Effectiveness; Electronic Communication. ................................................... 70        10.03   No Waiver; Cumulative Remedies; Enforcement. ...................................................... 72        10.04   Expenses; Indemnity; Damage Waiver. ...................................................................... 73        10.05   Payments Set Aside. .................................................................................................... 75        10.06   Successors and Assigns. .............................................................................................. 76        10.07   Treatment of Certain Information; Confidentiality. .................................................... 80        10.08   Right of Setoff. ............................................................................................................ 81        10.09   Interest Rate Limitation. .............................................................................................. 81        10.10   Counterparts; Integration; Effectiveness. .................................................................... 82        10.11   Survival of Representations and Warranties. ............................................................... 82        10.12   Severability. ................................................................................................................. 82        10.13   Replacement of Lenders. ............................................................................................. 83        10.14   Governing Law; Jurisdiction; Etc. ............................................................................... 83        10.15   Waiver of Jury Trial. ................................................................................................... 84        10.16   No Advisory or Fiduciary Responsibility. ................................................................... 85        10.17   Electronic Execution of Assignments and Certain Other Documents. ........................ 85        10.18   USA PATRIOT Act. .................................................................................................... 86        10.19   Compliance with Laws. ............................................................................................... 86        10.20   Non-Recourse Obligations; No Petition. ..................................................................... 86        10.21   Time of the Essence. .................................................................................................... 87        10.22   Acknowledgement and Consent to Bail-In of EEA Financial Institutions. ................. 87                                                   iii                                       





 






   SCHEDULES         1.01  Definitions         2.01  Commitments and Applicable Percentages        5.15  Taxpayer Identification Number; Other Identifying Information        10.02 Administrative Agent’s Office; Certain Addresses for Notices    EXHIBITS              Form of         A     Committed Loan Notice        B     Note        C-1   Assignment and Assumption        C-2   Administrative Questionnaire        D-1   Compliance Certificate (BDC Parent)        D-2   Compliance Certificate (Borrower Parent)        D-3   Compliance Certificate (Borrower)        E     U.S. Tax Compliance Certificates           ANNEXES         A     Advance Rates        B     Eligibility and Portfolio Criteria        C     Definitions Relating to Collateral Assets        D     Special Purpose Entity Requirements        E     Competitors                                                       iv    





 






                                CREDIT AGREEMENT         This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered  into as of December 13, 2018, among BARINGS BDC SENIOR FUNDING I, LLC, a Delaware  limited liability company, (the “Company” or the “Borrower”), each lender from time to time  party  hereto  (collectively, the  “Lenders”  and  individually,  a  “Lender”) and  BANK  OF  AMERICA, N.A., as Administrative Agent. This Agreement amends and restates in its entirety  that  certain Credit  Agreement dated  as  of August  3,  2018 (the  “Original  Closing  Date”),  as  amended  by  a  certain  amendment  agreement  dated  as  of October  3,  2018, by  and  among the  Borrower, the Administrative Agent and the Lenders.         The  Company  has  requested  that  the  Lenders provide  a  revolving credit  facility (the  “Facility”), and the Lenders are willing to do so on the terms and conditions set forth herein.         In  consideration  of  the  mutual  covenants  and  agreements  herein  contained,  the  parties  hereto covenant and agree as follows:                                    ARTICLE I.                    DEFINITIONS AND ACCOUNTING TERMS         1.01  Defined Terms.  As used in this Agreement, the following terms shall have the  meanings set forth below:         “Additional Current Pay Criteria” has the meaning specified in Annex C.           “Administrative Agent” means Bank of America in its capacity as administrative agent  under any of the Loan Documents, or any successor administrative agent.         “Administrative  Agent’s  Office” means the  Administrative  Agent’s  address  and,  as  appropriate, account as set forth on Schedule 10.02, or such other address or account with respect  to such currency as the Administrative Agent may from time to time notify to the Company and  the Lenders.         “Administrative Questionnaire” means an Administrative Questionnaire in substantially  the form of Exhibit C-2 or any other form approved by the Administrative Agent.         “Advance Rate” means a percentage applicable to each Collateral Asset as specified in  Annex A under the caption “Advance Rate”.         “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.         “Aggregate Commitments” means the Commitments of all the Lenders.         “Aggregate Market Value” has the meaning specified in Annex C.         “Agreement” means this Credit Agreement.                                        1                                            





 






          “Amendment Date” means December 13, 2018.         “Applicable  Loan Percentage”  means  with  respect  to  any  Lender  at  any  time,  the  percentage (carried out to the ninth decimal place) of the Class A Loan Commitment or Class A- 1 Loan Commitment, as applicable, represented by such Lender’s Class A Loan Commitment or  Class A-1 Loan Commitment at such time, subject to adjustment as provided in Section 2.12.           “Applicable Percentage” means with respect to any Lender at any time, the percentage  (carried  out  to  the  ninth  decimal  place)  of  the  Aggregate  Commitments  represented  by  such  Lender’s  Commitment at  such time, subject  to  adjustment as  provided in Section 2.12.   If the  commitment of each Lender to make Loans has been terminated pursuant to Section 8.02 or if  the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall  be determined based on the Applicable Percentage of such Lender most recently in effect, giving  effect to any subsequent assignments by any Lender.  The initial Applicable Percentage of each  Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and  Assumption pursuant  to  which such  Lender  becomes  a  party  hereto,  as  applicable.  For  the  avoidance of doubt, the Applicable Percentage is based on the Aggregate Commitments and is  determined irrespective  of the amounts  of any Class A Loan Commitment  or Class A-1  Loan  Commitment.          “Applicable  Rate” means  a  per  annum  rate  equal  to the  number  set  forth  in  Schedule  1.01.         “Approved Dealer” has the meaning specified in Annex C.         “Approved  Fund” means  any  Fund  that  is  administered  or  managed  by (a) a  Lender,  (b) an  Affiliate  of  a  Lender  or (c) an  entity  or  an  Affiliate  of  an  entity  that  administers  or  manages a Lender.         “Arranger” means Bank  of  America, an  affiliate  of  Merrill  Lynch,  Pierce,  Fenner  &  Smith Incorporated, in its capacity as sole lead arranger and sole book manager.         “Assignment and Assumption” means  an assignment and assumption entered into by a  Lender and an Eligible Assignee (with the consent of any party whose consent is required by  Section 10.06(b)),  and  accepted  by  the  Administrative  Agent,  in  substantially  the  form  of  Exhibit C-1 or  any  other  form (including  electronic  documentation  generated  by use  of  an  electronic platform) approved by the Administrative Agent.         “Audited  Financial  Statements”  means, for  any  fiscal  year, the  audited  consolidated  balance  sheet  of  the BDC  Parent for  such fiscal  year  ended December  31, and  the  related  consolidated statements of income or operations, shareholders’ equity and cash flows for such  fiscal year of BDC Parent, including the notes thereto.          “Availability Period” means the period (i) beginning on the date on which all conditions  precedent  to  the  initial  Credit  Extension  have  been  satisfied  or  waived  and (ii)  ending  on  the  earlier  of  (A) any  date  on  which an  Event  of  Default has  occurred and  each  Lender’s  commitment has been terminated pursuant to Section 8.02 or (B) the date that is 30 days prior to  the Maturity Date.                                        2                                            





 






          “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 Loan” has the meaning specified in Annex C.         “Bank of America” means Bank of America, N.A. and its successors.         “Base  Rate” means  for  any  day  a  fluctuating  rate  per annum  equal  to  the  highest  of  (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Prime Rate in effect for such day and (c) 1- month LIBOR plus 1.00%.         “Base Rate Loan” means a Loan that bears interest based on the Base Rate.         “BDC Parent” means Barings BDC, Inc.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership required by the Beneficial Ownership Regulation.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Bid Condition” has the meaning specified in Annex C.         “Borrower” has the meaning specified in the introductory paragraph hereto.           “Borrower Certification” means with respect to any request for a Loan or any release of  funds  or  substitution  of  assets  with  respect  to  the  Collateral  Account, a  certification of  the  Investment Adviser on  behalf  of  the  Borrower  stating  that  after  giving  effect  to  such  Loan,  release  of  funds  or  substitution:  (A)  (i)  no  Borrowing  Base  Deficiency  will  exist,  and  (ii)  no  Default would occur or be continuing, in each case based on the most recent Borrowing Base  determination; and (B) in the case of any Loan, the proceeds of such Loan will be used solely for  Permitted Uses and, in the case that such proceeds will be used to purchase a Collateral Asset, no  Borrowing  Base  Deficiency  would  exist  after  giving  effect  to  such  purchase  on  a  pro  forma  basis.         “Borrower Materials” has the meaning specified in Section 6.02.         “Borrower Parent” means Barings BDC Finance I, LLC.         “Borrowing” means a Committed Borrowing.         “Borrowing Base” has the meaning specified in Annex C.         “Borrowing Base Deficiency” has the meaning specified in Annex C.                                        3                                            





 






          “Business  Day” means  any  day  other  than  a  Saturday,  Sunday  or  other  day  on  which  commercial banks are authorized to close under the Laws of, or are in fact closed in, New York  or the state where the Administrative Agent’s Office is located (which is initially North Carolina)  and if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings,  disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any  other  dealings  in  Dollars  to  be  carried  out  pursuant  to  this  Agreement  in  respect  of  any  such  Eurocurrency Rate Loan, means any such day that is also a London Banking Day.         “Cash” means  such funds denominated in currency of the United States as at the time  shall be legal tender for payment of all public and private debts.         “Cash Equivalents” has the meaning specified in Annex C.          “Change in Control” means (i) in relation to any of BDC Parent or Investment Adviser  (each a “Controlled Entity”) (1) any Person or “group” (within the meaning of Rules 13d-3 and  13d-5 under the Exchange Act) not having such ownership, control or power on the date of this  Agreement (a) shall have acquired beneficial ownership or control of 35% or more on a fully  diluted basis of the voting and/or economic interest in the Equity  Interests of such Controlled  Entity or (b) shall have obtained the power (whether or not exercised) to elect a majority of the  members of the board of directors (or similar governing body) of such Controlled Entity; (2) the  majority  of  the  seats  (other  than  vacant  seats)  on  the  board  of  directors  (or  similar  governing  body) of such Controlled Entity cease to be occupied by Persons who either (a) were members of  the board of directors of such Controlled Entity on the Closing Date or (b) were nominated for  election by the board of directors of such Controlled Entity, a majority of whom were directors  on the Closing Date or whose election or nomination for election was previously approved by a  majority of such directors; or (3) any “change of control” or similar event under any material  Indebtedness  of  such  Controlled  Entity;  (ii) BDC  Parent ceases  to  own  directly  100%  of the  Equity Interests of the Borrower Parent; or (iii) Borrower Parent ceases to own directly 100% of  the Equity Interests of the Borrower.          “Change  in  Investment Adviser”  means: the Investment  Adviser (i) ceases  to  be  responsible for the day-to-day management of the Borrower, Borrower Parent or BDC Parent,  including,  without  limitation,  ceasing  to  be  substantially  involved  in  directing  the  investment  decisions  of  the Borrower,  Borrower  Parent  or BDC  Parent; (ii) changes  its  investment  management arrangements with Borrower Parent or BDC Parent such that Investment Adviser  ceases to be an affiliate of Borrower Parent or BDC Parent by virtue of such arrangements; or  (iii) becomes  bankrupt  or  insolvent; a  bankruptcy,  reorganization,  insolvency  or  similar  proceeding involving the Investment Adviser or its property is commenced or preliminary steps  are taken towards such end; or the Investment Adviser admits its inability to pay its debts as they  become due.         “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change  in any law, rule, regulation or treaty or in the administration, interpretation, implementation or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule,  guideline  or  directive  (whether  or  not  having  the  force  of  law)  by  any  Governmental  Authority; provided that  notwithstanding  anything  herein  to  the  contrary, (x) the  Dodd-Frank                                        4                                            





 






    Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (y) 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 or issued.         “Class A Lender” means the Lender identified on its signature page hereto as Class A  Lender.         “Class A-1 Lender” means Bank of America, N.A.         “Class A Loan Commitment” has the meaning set forth in Section 2.01.         “Class A-1 Loan Commitment” has the meaning set forth in Section 2.01.          “Class  A  Loan Fraction”  means  on  any  date  (i)  the  aggregate  of  the Class  A  Loan  Commitments of all Lenders divided by (ii) the Aggregate Commitments.         “Class  A-1 Loan Fraction”  means  on  any  date  (i)  the  aggregate  of  the  Class  A-1  Commitments of all Lenders divided by (ii) the Aggregate Commitments.         “Class A Loan Maturity Date” means August 3, 2019 or such later date as may be agreed  by 100% of the Class A Lenders in their sole discretion at the request of the Borrower and in  accordance with Section 2.01; provided, however, that if such date is not a Business Day, the  Class A Loan Maturity Date shall be the next following Business Day.          “Closing  Date” means the  date  as  of  which  each  of  this  Agreement, the  Security  Agreement and the Fee Letter have been executed.         “Code” means the Internal Revenue Code of 1986, as amended.         “Collateral” shall have the meaning specified in the Security Agreement.         “Collateral Account” shall have the meaning specified in the Collateral  Administration  Agreement.          “Collateral Administration Agreement” means the Collateral Administration Agreement  between the Administrative Agent, the Company and the Collateral Administrator, dated as of  the Original Closing Date.         “Collateral  Administrator”  means State  Street Bank and any  successor  thereto  as  collateral administrator under the Collateral Administration Agreement.         “Collateral Asset” has the meaning specified in Annex C.         “Collateral Dispute Notice” has the meaning specified in Annex C.                                         5                                            





 






          “Commitment” means, as to each Lender, its obligation to make Committed Loans to the  Borrower pursuant to Section 2.01, in an aggregate principal amount at any one time outstanding  not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in  the  Assignment  and  Assumption  pursuant  to  which  such  Lender  becomes  a  party  hereto,  as  applicable,  as  such  amount  may  be  adjusted  from  time  to  time  in  accordance  with  this  Agreement.         “Committed  Borrowing” means  a  borrowing  consisting  of  simultaneous  Committed  Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest  Period made by each of the Lenders pursuant to Section 2.01.         “Commitment Fee Calculation Period” means each period beginning on, and including, a  Commitment  Fee  Payment  Date  and  ending  on,  and  excluding,  the  immediately  following  Commitment Fee Payment Date.          “Commitment Fee Payment Date” means (i) the last Business Day of each March, June,  September and December, (ii) any date on which the Aggregate Commitments are terminated in  whole or in part pursuant to Section 2.04 and (iii) the last day of the Availability Period.         “Commitment Fee Rate” means the rate specified in Schedule 1.01 subject to adjustment  as provided in Section 2.12.         “Committed Loan” has the meaning specified in Section 2.01.         “Committed  Loan  Notice” means  a  notice  of (a) a  Committed  Borrowing, (b) a  conversion  of  Committed  Loans  from  one  Type  to  the other (other  than  the  conversion  of  Eurocurrency Rate  Loans  to  Base Rate  Loans  at the end of the  applicable  Interest  Period), or  (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,  shall be substantially in the form of Exhibit A.         “Company” has the meaning specified in the introductory paragraph hereto.          “Compliance Certificate” means a certificate substantially in the form of Exhibit D.         “Connection  Income  Taxes” means  Other  Connection  Taxes  that  are  imposed  on  or  measured by net  income (however denominated) or that are franchise Taxes  or branch profits  Taxes.         “Contractual Obligation” means, as to any Person, any provision of any security issued  by such Person or of any agreement, instrument or other undertaking to which such Person is a  party or by which it or any of its property is bound.         “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.                                         6                                            





 






          “Controlled Account” means each account that is subject to an account control agreement  in form and substance satisfactory to the Administrative Agent.         “Credit Extension” means a Borrowing.         “Credit  Trigger”  means  any  of  the  following: (i)  a  Regulatory  Event  with  respect  to  Borrower or Investment  Adviser,  (ii) a  Change  in Investment  Adviser, (iii)  any  Change  in  Control occurs or (iv) the Net Asset Value is less than the aggregate Current Market Value of the  Eligible Collateral Assets corresponding to the four obligors for which the Current Market Value  of the Eligible Collateral Assets is the largest.         “Current Market Price” has the meaning specified in Annex C.         “Current Market Value” has the meaning specified in Annex C.         “Current Market Value Percentage” has the meaning specified in Annex C.         “Current Pay Obligation” has the meaning specified in Annex C.           “Debtor  Relief  Laws” means  the  Bankruptcy  Code  of  the  United  States,  and  all  other  liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  Laws  of  the  United States or other applicable jurisdictions from time to time in effect.          “Default” means any event or condition that constitutes an Event of Default or that, with  the giving of any notice, the passage of time, or both, would be an Event of Default.         “Default Rate” means, with respect to any Credit Extension, 2.00% plus (a) in the case of  any Eurocurrency Rate Loan, the Eurocurrency Rate plus the Applicable Rate and (b) in the case  of any Base Rate Loan, the Base Rate plus the Applicable Rate.         “Defaulted Obligation” has the meaning specified in Annex C.         “Defaulting Lender” means, subject to Section 2.12(b), any Lender that (a) has failed to  (i) fund all or any portion of its Loans within two Business Days of the date such Loans were  required to be funded hereunder unless such Lender notifies the Administrative Agent and the  Company in  writing  that  such  failure  is  the  result  of  such  Lender’s  determination  that  one  or  more  conditions  precedent  to  funding  (each  of  which  conditions  precedent,  together  with  any  applicable  default,  shall  be  specifically  identified  in  such  writing)  has  not  been  satisfied,  or  (ii) pay to the Administrative Agent or any other Lender any other amount equal to or greater  than $50,000 required to be paid by it hereunder within two Business Days of the date when due,  (b) has notified the Company and the Administrative Agent in writing that it does not intend to  comply  with  its  funding  obligations  hereunder,  or  has  made  a  public  statement  to  that  effect  (unless  such  writing  or  public  statement  relates  to  such  Lender’s  obligation  to  fund  a  Loan  hereunder and states that such position is based on such Lender’s determination that a condition  precedent to funding (which condition precedent, together with any applicable default, shall be  specifically  identified  in  such  writing  or  public  statement)  cannot  be  satisfied), (c) has  failed,  within three Business Days after written request by the Administrative Agent or the Company, to                                        7                                            





 






    confirm  in  writing  to  the  Administrative  Agent  and  the Company that  it  will  comply  with  its  prospective  funding  obligations  hereunder  (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 Company), or (d) has, or has a direct or indirect parent company  that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed  for  it  a  receiver,  custodian,  conservator,  trustee,  administrator,  assignee  for the  benefit  of  creditors or similar Person charged with reorganization or liquidation of its business or assets,  including  the  Federal  Deposit  Insurance  Corporation  or  any  other  state  or  federal  regulatory  authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a  Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any  Equity  Interest  in  that  Lender  or  any  direct  or  indirect  parent  company  thereof  by  a  Governmental Authority so long as such ownership interest 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.   Any  determination  by  the  Administrative  Agent  that  a  Lender  is  a  Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective  date of such status, shall be conclusive and binding absent manifest error, and such Lender shall  be  deemed  to  be  a  Defaulting  Lender  (subject  to Section 2.12(b))  as  of  the  date  established  therefor by the Administrative Agent in a written notice of such determination, which shall be  delivered  by  the  Administrative  Agent  to  the Company and  each  other  Lender  promptly  following such determination.         “Designated Jurisdiction” means any country or territory to the extent that such country  or territory itself is the subject of any Sanction.         “DIP Loan” has the meaning specified in Annex C.           “Disposition” or “Dispose” means  the  sale,  transfer,  license,  lease  or  other  disposition  (including any sale and leaseback transaction) of any property by any Person, including any sale,  assignment,  transfer  or  other  disposal,  with  or  without  recourse,  of  any  notes  or  accounts  receivable or any rights and claims associated therewith.         “Disqualified Lender” has the meaning specified in Section 10.06(b)(v).         “Disqualified Participation” has the meaning specified in Annex C.         “Distressed Exchange Offer” has the meaning specified in Annex C.           “Dollar” and “$” mean lawful money of the United States.         “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in  Dollars, such amount, and (b) with respect to any amount denominated in the any other currency,  the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time  on the basis of the Spot Rate.         “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                                        8                                            





 






    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.          “Eligible  Assignee” means  any  Person  that  meets  the  requirements  to  be  an  assignee  under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under  Section 10.06(b)(iii)).         “Eligible Collateral Asset” has the meaning specified in Annex C.         “Eligible  Collateral  Asset  Information”  has  the  meaning  specified  in  the  Collateral  Administration Agreement.         “Equity Interests” means, with respect to any Person, all of the shares of capital stock of  (or other ownership or profit interests in) such Person, all of the warrants, options or other rights  for the purchase or acquisition from such Person of shares of capital stock of (or other ownership  or profit interests in) such Person, all of the securities convertible into or exchangeable for shares  of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or  options for the purchase or acquisition from such Person of such shares (or such other interests),  and all of the other ownership or profit interests in such Person (including partnership, member  or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,  options, rights or other interests are outstanding on any date of determination.         “ERISA” means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended  from time to time and the rules and regulations promulgated thereunder.         “ERISA  Affiliate” means  any  trade  or  business  (whether  or  not  incorporated)  under  common control with the Company within the meaning of Section 414(b) or (c) of the Code (and  Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the  Code).         “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.           “Eurocurrency Rate” means:               (a)   With respect to any Eurocurrency Rate Loan, the rate per annum equal to        the LIBOR  Screen  Rate at  approximately  11:00  a.m.(London  time)  on  the  Rate        Determination Date with a term equivalent to such Interest Period; and                                         9                                            





 






                (b)   for any rate calculation with respect to a Base Rate Loan on any date, the        rate  per  annum  equal  to LIBOR, at  or  about 11:00  a.m. (London  time)  on  the  Rate        Determination  Date; provided that  to  the  extent  a  comparable  or  successor  rate  is        approved  by  the  Administrative  Agent  in  connection  with  any  rate  set  forth  in  this        definition, the approved rate shall be applied to the applicable Interest Period in a manner        consistent with market practice; provided, further that to the extent such market practice        is not administratively feasible for the Administrative Agent, such approved rate shall be        applied in a manner as otherwise reasonably determined by the Administrative Agent.               If the Administrative Agent determines it is not administratively feasible for the        Administrative Agent  to apply the approved rate consistently with  market  practice, the        Administrative Agent shall provide notice to the Company of such determination with a        reasonable explanation of the basis of its determination.               If  the rate  determined  under  any  clause  above  is  less  than  zero,  the  applicable        Eurocurrency Rate shall be deemed to be zero.          “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on  clause (a) of the definition of “Eurocurrency Rate”.           “Event of Default” has the meaning specified in Section 8.01.         “Excluded Taxes” means any of the following Taxes imposed on or with respect to any  Recipient   or  required  to  be  withheld  or  deducted  from  a  payment  to  a  Recipient, (a) Taxes  imposed  on  or  measured  by  net  income  (however  denominated),  franchise  Taxes,  and  branch  profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its Lending Office located in,  the  jurisdiction  imposing  such  Tax  (or  any  political  subdivision  thereof)  or (ii) that  are  Other  Connection  Taxes, (b) in  the  case  of  a  Lender,  U.S.  federal  withholding  Taxes  imposed  on  amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Company under Section 10.13) or (ii) such  Lender changes  its  Lending  Office, except  in  each  case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes  were payable either to such Lender’s assignor immediately before such Lender became a party  hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable  to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding  Taxes imposed pursuant to FATCA.          “Facility” has the meaning specified in the recitals hereto.           “FATCA”  means  Sections  1471  through  1474  of  the  Code,  as  of  the  date  of  this  Agreement  (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  and  any  intergovernmental  agreements  implementing  the  foregoing  (including  any  legislation,  rules or practices adopted pursuant to such intergovernmental agreements).                                        10                                           





 






          “Federal  Funds  Rate” means,  for  any  day,  the  rate  per  annum  equal  to  the  weighted  average  of  the  rates  on  overnight  Federal  funds  transactions  with  members  of  the  Federal  Reserve System, as published by the Federal Reserve Bank of New York on the Business Day  next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds  Rate for such day shall be such rate on such transactions on the next preceding Business Day as  so published on the next succeeding Business Day, and (b) if no such rate is so published on such  next  succeeding  Business  Day, the  Federal  Funds  Rate for such day shall  be the average rate  (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America  on such day on such transactions as determined by the Administrative Agent.         “Fee Letter” means, collectively, the letter agreements, dated as of the Original Closing  Date, between the Borrower, the Administrative Agent, the Class A Lender and the Class A-1  Lender.          “First Lien Bank Loan” has the meaning specified in Annex C.         “Fitch” has the meaning specified in Annex C.         “Fitch Rating” has the meaning specified in Annex C.         “Foreign Lender” means, a Recipient that is not a U.S. Person.         “FRB” means  the  Board  of  Governors  of  the  Federal  Reserve  System  of  the  United  States.         “Fund” means  any Person (other than a natural Person) that is  (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions  of credit in the ordinary course of its activities.         “GAAP” means generally accepted accounting principles in the United States set forth in  the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting  Standards Board or such other principles  as  may be approved by a significant  segment of the  accounting profession in the United States, that are applicable to the circumstances as of the date  of determination, consistently applied.         “Governmental  Authority” means  the  government  of  the  United  States  or  any other  nation, or of 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 bodies such as the European Union or the European  Central Bank).         “Guarantee” means, as to any Person, without duplication of amounts, (a) any obligation,  contingent  or  otherwise,  of  such  Person  guaranteeing  or  having  the  economic  effect  of  guaranteeing any Indebtedness or other obligation payable or performable by another Person (the  “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of  such  Person,  direct  or  indirect, (i) to  purchase  or  pay  (or  advance  or  supply  funds  for  the                                        11                                           





 






    purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property,  securities or services for the purpose of assuring the obligee in respect of such Indebtedness or  other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to  maintain working capital, equity capital or any other financial statement condition or liquidity or  level of income or cash flow of the primary obligor so as to enable the primary obligor to pay  such  Indebtedness  or  other  obligation,  or (iv) entered  into  for  the  purpose  of  assuring  in  any  other manner the obligee in respect of such Indebtedness or other obligation of the payment or  performance  thereof  or  to  protect  such  obligee  against  loss  in  respect  thereof  (in  whole  or  in  part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation  of any other Person, whether or not such Indebtedness or other obligation is assumed by such  Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any  such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or  determinable amount of the related primary obligation, or portion thereof, in respect of which  such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated  liability in  respect  thereof as  determined by the guaranteeing Person in  good  faith.   The term  “Guarantee” as a verb has a corresponding meaning.         “Indebtedness” means, as to any Person at a particular time, without duplication, all of  the following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)   all obligations of such Person for borrowed money and all obligations of        such  Person  evidenced  by  bonds,  debentures,  notes,  loan  agreements  or  other  similar        instruments;               (b)   all direct or contingent obligations of such Person arising under letters of        credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety        bonds and similar instruments;               (c)   net obligations of such Person under any Swap Contract;               (d)   all  obligations  of  such  Person  to  pay  the  deferred  purchase  price  of        property or services;               (e)   indebtedness  (excluding  prepaid  interest  thereon)  secured  by  a  Lien  on        property owned or being purchased by such Person (including indebtedness arising under        conditional sales or other title retention agreements), whether or not such indebtedness        shall have been assumed by such Person or is limited in recourse;               (f)   capital leases and Synthetic Lease Obligations;               (g)   all  obligations  of  such  Person  to  purchase,  redeem,  retire,  defease  or        otherwise make any payment in respect of any Equity Interest in such Person or any other        Person,  valued,  in  the  case  of  a  redeemable  preferred  interest,  at  the  greater  of  its        voluntary or involuntary liquidation preference plus accrued and unpaid dividends;                (h)   any Swap Contract under which the Swap Termination Value thereof with        respect to Borrower could be less than zero as of any date during the term of such Swap        Contract, regardless of the actual Swap Termination Value as of any date; and                                        12                                           





 






                (h)   all Guarantees of such Person in respect of any of the foregoing.         For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of  any partnership or joint venture (other than a joint venture that is itself a corporation or limited  liability  company)  in  which  such  Person  is  a  general  partner  or  a  joint  venturer,  unless  such  Indebtedness is expressly made non-recourse to such Person.         “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of the Company under any Loan  Document and (b) to the extent not otherwise described in clause (a), Other Taxes.         “Indemnitees” has the meaning specified in Section 10.04(b).         “Information” has the meaning specified in Section 10.07.         “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last  day of each Interest Period applicable to such Loan and the Maturity Date; and (b) as to any Base  Rate  Loan, the  last  Business  Day  of  each  March,  June,  September  and  December  and  the  Maturity Date.         “Interest Period” means as to each Eurocurrency Rate Loan, the period commencing on  the  date  such Eurocurrency Rate  Loan  is  disbursed  or  converted  to  or  continued  as  a  Eurocurrency Rate  Loan and ending on the date one or three months  thereafter (in each case,  subject to availability), as selected by the Company in its Committed Loan Notice; provided that:               (i)   any  Interest  Period  that  would  otherwise  end  on  a  day  that  is  not  a        Business Day shall be extended to the next succeeding Business Day unless, in the case        of  a Eurocurrency Rate  Loan,  such  Business  Day  falls  in  another  calendar  month,  in        which case such Interest Period shall end on the next preceding Business Day;               (ii)  any Interest Period pertaining to a Eurocurrency Rate Loan that begins on        the last Business Day of a calendar month (or on a day for which there is no numerically        corresponding day in the calendar month at the end of such Interest Period) shall end on        the last Business Day of the calendar month at the end of such Interest Period; and               (iii) no Interest Period shall extend beyond the Maturity Date.         “Investment Adviser” means Barings LLC.         “Investment Company Act” means the Investment Company Act of 1940, as amended.           “Investment  Management  Agreement”  means  the  Investment  Management  Agreement  dated as of the Original Closing Date between the Investment Adviser and the Borrower.         “IRS” means the United States Internal Revenue Service.         “Laws” means,  collectively,  all  international,  foreign,  Federal,  state  and  local  statutes,  treaties,  rules,  guidelines,  regulations,  ordinances,  codes  and  administrative  or  judicial                                        13                                           





 






    precedents  or  authorities,  including  the  interpretation  or  administration  thereof  by  any  Governmental  Authority,  self-regulatory  organization,  market,  exchange,  or  clearing  facility   charged  with  the  enforcement,  interpretation  or  administration  thereof,  and  all  applicable  administrative  orders,  directed  duties,  requests,  licenses,  authorizations  and  permits  of,  and  agreements with, any Governmental Authority, self-regulatory organization, market, exchange,  or clearing facility, in each case whether or not having the force of law.         “Lenders” has the meaning specified in the introductory paragraph hereto.         “Lending Office” means, as to any Lender, the office or offices of such Lender described  as  such  in  such  Lender’s  Administrative  Questionnaire,  or  such  other  office  or  offices  as  a  Lender may from time to time notify the Company and the Administrative Agent.         “LIBOR” means the rate per annum equal to the London Interbank Offered Rate.         “LIBOR  Screen  Rate”  means  the  LIBOR  quote  on  the  applicable  screen  page  the  Administrative  Agent  designates  to  determine  LIBOR  (or  such  other  commercially  available  source providing such quotations as may be designated by the Administrative Agent from time to  time).         “LIBOR Successor Rate” has the meaning specified in Section 10.01.         “LIBOR Successor Rate Amendment” has the meaning specified in Section 10.01.           “LIBOR  Successor  Rate  Conforming  Changes”  means,  with  respect  to  any  proposed  LIBOR  Successor  Rate Amendment,  any  conforming  changes  to  the  definition  of  Base  Rate,  Interest Period, timing and frequency of determining rates and making payments of interest and  other  administrative  matters  as  may  be  appropriate,  in  the reasonable discretion  of  the  Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the  administration  thereof  by  the  Administrative  Agent  in  a  manner  substantially  consistent  with  market practice (or, if the Administrative Agent determines that adoption of any portion of such  market practice is not administratively feasible or that no market practice for the administration  of  such  LIBOR  Successor  Rate  exists,  in  such  other  manner  of  administration  as  the  Administrative Agent determines in consultation with the Company).         “Lien” means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential  arrangement  in  the  nature  of  a  security  interest  of  any  kind  or  nature  whatsoever  (including any conditional sale or other title retention agreement, any easement, right of way or  other  encumbrance  on  title  to  real  property,  and  any  financing  lease  having  substantially  the  same economic effect as any of the foregoing).         “Limited  Liability  Company  Agreement”  means the  Limited  Liability  Company  Agreement of the Company dated as of  August 3, 2018 including any permitted amendments  thereto from time to time.          “Loan” means an extension of credit by a Lender to the Borrower under Article II in the  form of a Committed Loan.                                        14                                           





 






          “Loan  Documents”  means  this  Agreement,  the  Security  Agreement,  the  Collateral  Administration  Agreement,  each  Assignment  and  Assumption, the  Investment  Management  Agreement, the Sale Agreement, each Note and the Fee Letter.          “London  Banking  Day”  means  any  day  on  which  dealings  in  Dollar  deposits  are  conducted by and between banks in the London interbank Eurodollar market.          “Markit” has the meaning specified in Annex C.         “Material  Adverse  Effect”  means,  relative  to  any  occurrence  of  whatever  nature  (including any adverse determination in any litigation, arbitration, or governmental investigation  or  proceeding),  a  materially  adverse  effect  on  (a)  the  financial  condition  or  operations  of  the  Borrower, (b) the legality, validity or enforceability of any of the Loan Documents, (c) the right  or ability of the Borrower to perform any of its obligations under any of the Loan Documents,  (d) the rights or remedies of the Lender under any of the Loan Documents or of the Borrower  under the Collateral Assets, or (e) the imposition of (or increase in the applicable amount of) any  tax (including the requirement for any deduction or withholding for or on account of any tax) in  relation to the receipt of payments by Lender from Borrower in respect of the Facility.          “Maturity Date” means the second anniversary of the Closing Date; provided, however,  that if such date is not a Business Day, the Maturity Date shall be the next following Business  Day.         “Moody’s” has the meaning specified in Annex C.         “Moody’s Rating” has the meaning specified in Annex C.         “Non-Qualifying Assets” has the meaning specified in Annex C.         “Net Asset Value” means an amount equal to the excess of (i) (A) the aggregate of the  Current Market Values of each Collateral Asset meeting the Eligibility Criteria (whether or not  included in the Borrowing Base) other than Cash and Cash Equivalents plus (B) the par value of  all  Cash  and  Cash  Equivalents  owned  by  the  Borrower  over (ii)  the  sum  of  the  Total  Outstandings and other liabilities of the Borrower, in each case expressed as a Dollar Equivalent.         “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (i) requires the approval of a majority of Lenders or all Lenders or all affected  Lenders  in  accordance  with  the  terms  of Section 10.01 and (ii) has  been  approved  by  the  Required Lenders.         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.         “Note” means a promissory note made by the Borrower in favor of a Lender evidencing  Loans made by such Lender to the Borrower, substantially in the form of Exhibit B.         “Obligations” means  all  advances to,  and  debts,  liabilities,  obligations,  covenants  and  duties of, the Company arising under any Loan Document or otherwise with respect to any Loan,                                        15                                           





 






    whether direct or indirect (including those acquired by assumption), absolute or contingent, due  or to become due, now existing or hereafter arising and including interest and fees that accrue  after the commencement by or against the Company or any Affiliate thereof of any proceeding  under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless  of whether such interest and fees are allowed claims in such proceeding.         “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.         “Offer” has the meaning specified in Annex C.           “Organization Documents” means, (a) with respect to any corporation, the certificate or  articles  of  incorporation  and  the  bylaws  (or  equivalent  or  comparable  constitutive  documents  with respect to any non-U.S. jurisdiction); (b) with respect to the Borrower or any other limited  liability company, the certificate or articles of formation or organization and operating agreement  (which, in the case of the Borrower, is the Limited Liability Company Agreement); and (c) with  respect to any partnership, joint venture, trust or other form of business entity, the partnership,  joint  venture  or  other  applicable  agreement  of  formation  or  organization  and  any  agreement,  instrument,  filing  or  notice  with  respect  thereto  filed  in  connection  with  its  formation  or  organization with the applicable Governmental Authority in the jurisdiction of its formation or  organization and, if applicable, any certificate or articles of formation  or organization of such  entity.         “Other  Connection  Taxes” means,  with  respect  to  any  Recipient,  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  Taxes” means  all  present  or  future  stamp,  court  or  documentary,  intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 3.06(b)).         “Outstanding  Amount” means, with  respect  to  Committed Loans  on  any  date,  the  aggregate  outstanding  principal  amount  thereof  after  giving  effect  to  any  borrowings  and  prepayments or repayments of such Committed Loans occurring on such date.         “Overnight  Rate” means,  for  any  day,  (a)  with  respect  to  any  amount  denominated  in  Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the  Administrative Agent, in accordance with banking industry rules on interbank compensation, and  (b)  with  respect  to  any  amount  denominated  in  an  Eligible  Currency  other  than  Dollars,  an  overnight  rate  determined  by  the  Administrative  Agent,  in  accordance  with  banking  industry  rules on interbank compensation.                                        16                                           





 






          “Participant” has the meaning specified in Section 10.06(d).         “Participant Register” has the meaning specified in Section 10.06(d).         “Permitted  Liens” means  any of the following as  to  which no enforcement,  collection,  execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for any state,  municipal or other local Tax that is not  yet due and payable or the validity of which is being  contested  in  good  faith  by  appropriate  proceedings  and  with  respect  to  which  reserves  in  accordance with GAAP have been provided, (b) Liens imposed by Laws, such as materialmen’s,  warehousemen’s,  mechanics’,  carriers’,  workmen’s  and  repairmen’s  Liens  and  other  similar  Liens,  arising  by  operation  of  law  in  the  ordinary  course  of  business  for  sums  that  are  not  overdue or are being contested in good faith, (c) Liens in favor of the Administrative Agent or  any  Lender  granted  pursuant  to  or  by  any  Loan  Document,  (d)  a  Permitted  Collateral  Administrator Lien (as defined in the Collateral Administration Agreement) and (e) with respect  to agented Collateral Assets, Liens in favor of the lead agent, the collateral agent or the paying  agent for the benefit of all holders of indebtedness of such obligor under the related Collateral  Asset.   Notwithstanding  the  preceding  sentence,  no  Lien  for  any  Indebtedness other  than  the  Obligations will be a Permitted Lien.         “Permitted Uses” means (i) the purchase of Collateral Assets, (ii) the payment of Taxes  fees  or  other  expenses  of  Borrower to  maintain  its  corporate  existence or  otherwise directly  related to managing the portfolio of Collateral Assets, including, without limitation, fees payable  under  the  Investment  Management  Agreement, (iii)  distributions  to  Borrower  Parent if  no  Default  has  occurred  or  would  occur  after  giving  effect  to  such  distributions, (iv)  solely with  respect to the initial Credit Extension, the payment of any amounts due under the Fee Letter and  (v) distributions from Borrower to Borrower Parent that are permitted pursuant to Section 7.06.         “Person” means  any  natural  person,  corporation,  limited  liability  company,  trust,  joint  venture, association, company, partnership, Governmental Authority or other entity.         “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.”          “Plan Assets” means assets of any (i) employee benefit plan (as defined in Section 3(3) of  ERISA) subject to Title I of ERISA, (ii) plan (as defined in Section 4975(e)(1) of the Code) to  which Section 4975 of the Code applies, or (iii) non-US, church or governmental plan subject to  non-US, federal, state or local laws, rules or regulations substantially similar to Title I of ERISA  or Section 4975 of the Code.         “Platform” has the meaning specified in Section 6.02.         “Pricing Source” has the meaning specified in Annex C.         “Prime Rate” means the rate of interest in effect for such day as publicly announced from  time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of  America  based  upon  various  factors  including  Bank  of  America’s  costs  and  desired  return,                                        17                                           





 






    general economic conditions and other factors, and is used as a reference point for pricing some  loans, which may be priced at, above, or below such announced rate.  Any change in such prime  rate  announced  by  Bank  of  America shall  take  effect  at  the  opening  of  business  on  the  day  specified in the public announcement of such change.         “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.         “Public Lender” has the meaning specified in Section 6.02.         “Rate Determination Date” means two (2) Business Days prior to the commencement of  such Interest Period (or such other day as is generally treated as the rate fixing day by market  practice in such interbank market, as determined by the Administrative Agent; provided that to  the  extent  such  market  practice  is  not  administratively  feasible  for  the  Administrative  Agent,  such other day as otherwise reasonably determined by the Administrative Agent).         “Recipient” means the Administrative Agent and any Lender, as applicable.         “Register” has the meaning specified in Section 10.06(c).         “Regulatory Event” means with respect to a Person: (a) the indictment of it or any of its  executive officers who are primarily responsible for the management of the Collateral for an act  that constitutes fraud or criminal activity related to its business of providing asset management  services;  or  (b)  the  finding  by  a  court  or  regulator  with  respect  to a willful,  bad  faith or  fraudulent making of a false statement or omission, or the issuance of an injunction from causing  any  material  violations  of  any  securities  or  criminal  laws,  with  respect  to  it  or  any  of  its  executive officers who are primarily responsible for the management of the Collateral and, solely  in  the  case  of  any  such  executive  officer, such  executive  officer  has  not  been  removed  from  having responsibility for the management of the Collateral within ten (10) business days of such  indictments, finding or issuance.         “Related  Parties” means,  with  respect  to  any  Person,  such  Person’s  Affiliates  and  the  partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and  representatives of such Person and of such Person’s Affiliates.         “Request  for  Credit  Extension” means with  respect  to  a  Borrowing,  conversion  or  continuation of Committed Loans, a Committed Loan Notice.         “Required  Lenders”  means,  at  any  time, (a)  Bank  of  America,  N.A.,  as a  Lender  and  (b) Lenders  having  Total  Credit  Exposures  representing  more  than  50%  of  the  Total  Credit  Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded  in determining Required Lenders at any time.         “Required Ratings” has the meaning specified in Annex C.           “Responsible Officer” means with respect to the Company any director or officer or any  other Person who is authorized to act for the Company, solely for purposes of the delivery of  incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of the                                        18                                           





 






    Company and, solely for purposes of notices given pursuant to Article II, any other officer or  employee  of  the Company or  the Investment  Adviser so  designated  by  any  of  the  foregoing  officers  in  a  notice  to  the  Administrative  Agent.   Any  document  delivered  hereunder  that  is  signed by a Responsible Officer of the Company shall be conclusively presumed to have been  authorized by all necessary limited liability company, corporate, partnership and/or other action  on the part of the Company and such Responsible Officer shall be conclusively presumed to have  acted on behalf of the Company.          “Restricted  Payment” means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or  other  property)  with  respect  to  any  capital  stock  or  other  Equity  Interest  of  the  Company or  Borrower  Parent, 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  capital  stock  or  other  Equity  Interest,  or  on  account  of  any  return  of  capital  to  the  Company’s or  Borrower  Parent’s  stockholders, partners or members (or the equivalent Person thereof).         “Revolving  Credit  Exposure”  means,  as  to  any  Lender  at  any  time,  the  aggregate  Outstanding Amount at such time of its Committed Loans.         “S&P” has the meaning specified in Annex C.         “S&P Rating” has the meaning specified in Annex C.         “Sale Agreement” means, collectively, the Sale and Contribution Agreement dated as of  even date herewith, between Borrower as purchaser, the Borrower Parent as subsidiary seller and  the BDC Parent as seller.          “Sanction(s)”  means  any sanction  administered  or  enforced  by the  United  States  Government  (including  without  limitation, OFAC),  the  United  Nations  Security  Council,  the  European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.         “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.         “Second Lien Bank Loan” has the meaning specified in Annex C.         “Secured Parties” shall mean the Lenders and the Administrative Agent.         “Securities Act” means the United States Securities Act of 1933, as amended.           “Security Agreement” means the Security Agreement between the Administrative Agent  and the Company, dated as of the Original Closing Date.         “Senior Secured Bond” has the meaning specified in Annex C.         “Senior Subordinated Bond” has the meaning specified in Annex C.                                         19                                           





 






          “Special Purpose Entity Requirements” means the obligations of the Company to comply  with the provisions set forth in Annex D.         “Special Situation Asset” has the meaning specified in Annex C.         “Specified Default” means (i) any event or condition that, with the giving of any notice,  the passage of time, or both, would be an Event of Default under clauses (a) or (d) of Section  8.01,  (ii)  an  Event  of  Default  arising  from  a  Credit  Trigger  referred to  in  clause  (iv)  of  the  definition thereof or (iii) any Event of Default has occurred and the Administrative Agent has  given  notice  of  acceleration  or  exclusive  control  or  has  exercised  any  other  remedies  under  Section 8.02.         “Spot Rate” for a currency means the rate determined by the Administrative Agent 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 may obtain  such spot rate from another financial institution designated by the Administrative Agent if the  Person acting in such capacity does not have as of the date of determination a spot buying rate  for any such currency.         “Stale Participation” has the meaning specified in Annex C.         “Structured Finance Security” has the meaning specified in Annex C.         “Subordinated Bond” has the meaning specified in Annex C.         “Swap  Contract” means (a) any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative  transactions,  forward  rate  transactions,  commodity  swaps,  commodity  options,  forward commodity contracts,  equity or equity index swaps or options,  bond or bond price or  bond  index  swaps  or  options  or  forward  bond  or  forward  bond  price  or  forward  bond  index  transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor  transactions,  collar  transactions,  currency  swap  transactions,  cross-currency  rate  swap  transactions,  currency  options,  spot  contracts,  or  any  other  similar  transactions  or  any  combination of any of the foregoing (including any options to enter into any of the foregoing),  whether  or  not  any  such  transaction  is  governed  by  or  subject  to  any  master  agreement,  and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the  terms  and  conditions  of,  or  governed  by,  any form  of  master  agreement  published  by  the  International  Swaps  and  Derivatives  Association,  Inc.,  any  International  Foreign  Exchange  Master Agreement, or any other similar master agreement relating to a similar transaction (any  such master agreement, together with any related schedules, a “Master Agreement”), including  any such obligations or liabilities under any Master Agreement.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after  taking into account the effect of any legally enforceable netting agreement relating to such Swap  Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for  any  date  prior  to  the  date  referenced  in  clause  (a),  the  amount(s)  determined  as  the  mark-to-                                       20                                           





 






    market value(s) for such Swap Contracts, as determined based upon one or more mid-market or  other  readily  available  quotations  provided  by  any  recognized  dealer  in  such  Swap  Contracts  (which may include a Lender or any Affiliate of a Lender).         “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so- called  synthetic,  off-balance  sheet  or  tax  retention  lease,  or (b) an  agreement  for  the  use  or  possession  of  property  creating  obligations  that  do  not  appear  on  the  balance  sheet  of  such  Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as  the Indebtedness of such Person (without regard to accounting treatment).         “Taxes” means  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.         “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments  and Revolving Credit Exposure of such Lender at such time.         “Total Outstandings” means the aggregate Outstanding Amount of all Loans.          “Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a  Eurocurrency Rate Loan.         “UCC” shall have the meaning specified in the Security Agreement.         “United States” and “U.S.” mean the United States of America.         “Unused Amount” means, as of any date of determination, the greater of (a) zero and (b)  an amount equal to the Aggregate Commitments minus Total Outstandings; provided, however,  that the Unused Amount shall be deemed to be zero for each day from and including the Closing  Date through but excluding the 90th day after the Closing Date.         “U.S. Person” means any Person that is a “United States person” as defined in Section  7701(a)(30) of the Code.         “U.S. Tax Compliance Certificate” has the meaning specified in  Section 3.01(e)(ii)(B)(III).         “Unsecured Bond” has the meaning specified in Annex C.         “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.         1.02  Other Interpretive Provisions.  With reference to this Agreement and each other  Loan Document, unless otherwise specified herein or in such other Loan Document:                                         21                                           





 






             (a)      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 limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires  otherwise, (i) any  definition  of  or  reference  to  any  agreement,  instrument  or  other  document  (including  any  Organization  Document)  shall  be  construed  as  referring  to  such  agreement, instrument or other document as from time to time amended, restated, supplemented or  otherwise modified (subject to any restrictions on such amendments, restatements supplements or  modifications  set  forth  herein  or  in  any  other  Loan  Document), (ii) any  reference  herein  to  any  Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,”  “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document,  shall be construed to refer to such Loan Document in its entirety and not to any particular provision  thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall  be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document  in  which  such  references  appear, (v) any  reference  to  any  law  shall  include  all  statutory  and  regulatory provisions consolidating, amending, replacing or interpreting such law and any reference  to  any  law  or  regulation  shall,  unless  otherwise  specified,  refer  to  such  law  or  regulation  as  amended, modified or supplemented from time to time, and (vi) 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.         (b)      In the computation of periods  of time from  a specified date to  a later specified  date, the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”         (c)      Section headings  herein  and  in  the  other  Loan Documents  are  included  for  convenience of reference only and shall not affect the interpretation of this Agreement or any other  Loan Document.         (d)      Unless  explicitly  stated  otherwise,  any  reference  to  a  notice,  consent  or  similar  acknowledgement provision, whether or not such action is stated to be written, shall be provided via  email.            1.03  Accounting Terms.  All accounting terms not specifically or completely defined     herein shall be construed in conformity with, and all financial data (including financial ratios and     other  financial  calculations)  required  to  be  submitted  pursuant  to  this  Agreement  shall  be     prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time,     applied  in  a  manner  consistent  with  that  used  in  preparing  the  Audited  Financial  Statements,     except as otherwise specifically prescribed herein.                                            22                                              





 






                1.04  Rounding.  Any  financial  ratios  required  to  be  maintained  by the  Company     pursuant  to  this  Agreement  shall  be  calculated  by  dividing  the  appropriate  component  by  the     other component, carrying the result to one place more than the number of places by which such     ratio  is  expressed  herein  and  rounding  the  result  up  or  down  to  the  nearest  number  (with  a     rounding-up if there is no nearest number).            1.05  Times of Day.  Unless otherwise specified, all references herein to times of day     shall be references to Eastern time (daylight or standard, as applicable).            1.06  Business  Day  Convention.  Unless  otherwise  specified,  in  the  event  any  time     period or any date provided in this Agreement ends or falls on a day other than a Business Day,     then such time period shall be deemed to end and such date shall be deemed to fall on the next     succeeding Business Day, and performance herein may be made on such Business Day, with the     same force and effect as if made on such other day.                                       ARTICLE II.                    THE COMMITMENTS AND CREDIT EXTENSIONS            2.01  Committed  Loans.  Subject  to  the  terms  and  conditions  set  forth  herein,  each     Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower in     Dollars from time to time, on any Business Day during the Availability Period, in an aggregate     amount  not  to  exceed  at  any  time  outstanding  the  amount  of  such  Lender’s  Commitment;     provided, however,  that  after  giving  effect  to  any  Committed  Borrowing, (i) the  Total     Outstandings  shall  not  exceed  the Aggregate  Commitments and (ii) the Revolving  Credit     Exposure of any Lender shall not exceed such Lender’s Commitment.  Within the limits of each     Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may     borrow under this Section 2.01, prepay under Section 2.03 or Section 2.05 and reborrow under     this Section 2.01 or Section 2.05.  Committed Loans may be Base Rate Loans or Eurocurrency     Rate Loans, as further provided herein.            The Lenders’ total Commitments shall be allocated between a Class A Loan Commitment     and a Class A-1 Loan Commitment as set forth on Schedule 2.01.  On the Class A Loan Maturity     Date, the Class A Loan Commitment shall expire and be reduced to zero.  The Class A Loan     Maturity  Date  may  be  extended  upon  request  of  the  Borrower,  subject  to  the  prior  written     consent of 100% of the Class A Lenders in their sole discretion.  Such request must be made no     later than 10 Business Days prior to the then current Class A Loan Maturity Date in a form of     extension request specified in Schedule 1.  The Class A Lenders shall give written notice to the     Administrative Agent of any agreement to extend the Class A Loan Maturity Date, and the date     of such extended Class A Loan Maturity Date, at least 5 Business Days prior to the then current     Class A Loan Maturity Date.            2.02  Borrowings,  Conversions  and  Continuations  of  Committed  Loans.  Each  Committed  Borrowing,  each  conversion  of  Committed  Loans  from  one  Type  to  the  other (other  than the conversion of Eurocurrency Loans to Base Rate Loans at the end of the applicable Interest  Period),  and  each  continuation  of  Eurocurrency  Rate  Loans  shall  be  made  upon  the  Company’s  irrevocable notice to the Administrative Agent and Collateral Administrator, which may be given in  writing, including via email.  Each such notice must be received by the Administrative Agent not                                           23                                              





 






       later  than 11:00  am New  York  time (a) three  Business  Days  prior  to  the  requested  date  of  any  Borrowing of, conversion to or continuation of any Eurocurrency Rate Loans and (b) one Business  Day prior to the requested date of any Borrowing of, or conversion to, any Base Rate Loan.  Each  written notice  by  the  Company  pursuant  to  this Section 2.02(a) must  be  confirmed  promptly  by  delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed  and  signed  by  a  Responsible  Officer  of  the  Company.   Each  Borrowing of,  conversion  to or  continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole  multiple of $500,000 in excess thereof or in the amount of the unused portion of the Commitments.   Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000  or a whole multiple of $500,000 in excess thereof or in the amount of the unused portion of the  Commitments.  Each Committed Loan Notice shall specify (i) whether the Company is requesting a  Committed Borrowing, a conversion of Committed Loans from one Type to the other (other than  the  conversion  of  Eurocurrency  Loans  to  Base  Rate  Loans  at  the  end  of  the  applicable  Interest  Period),  or  a  continuation  of  Eurocurrency  Rate  Loans,  (ii) the  requested  date  of  the  Borrowing,  conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal  amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed  Loans to be borrowed or continued or to which existing Committed Loans are to be converted and  (v) if applicable, the duration of the Interest Period with respect thereto.  If the Company fails to  specify a Type of Committed Loan in a Committed Loan Notice or if the Company fails to give a  timely notice requesting a conversion or continuation, then the applicable Committed Loans shall  be made as, or converted to, Base Rate Loans.  Any automatic conversion to Base Rate Loans shall  be effective as  of the last  day of the  Interest  Period then in  effect  with  respect  to  the applicable  Eurocurrency Rate Loans.  If the Company requests a Borrowing of, conversion to, or continuation  of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest  Period, it will be deemed to have specified an Interest Period of one month.             (b)   All Committed Loans shall be allocated between the Class A-1 Commitment and  Class A Commitment pro rata based on the Class A Loan Fraction and the Class A-1 Loan Fraction  on the date of the Committed Loan Notice.  Following receipt of a Committed Loan Notice, the  Administrative Agent shall promptly notify each Lender of the applicable Class A Loan Fraction,  Class A-1 Loan Fraction, and the amount of its Applicable Percentage of the applicable Committed  Loans,  and if no timely  notice of a conversion or continuation is  provided by the Company, the  Administrative Agent shall notify each Lender of the details of any automatic conversion to Base  Rate Loans as described in the preceding subsection.  In the case of a Committed Borrowing, each  Lender  shall  make  the  amount  of  its  Committed  Loan  available  to  the  Administrative  Agent  in  Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day  specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions  set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the  Administrative Agent shall make all funds so received available to the Company in like funds as  received  by  the  Administrative  Agent  either  by (i) crediting  the  account  of the  Borrower on  the  books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each  case in accordance with instructions provided to (and reasonably acceptable to) the Administrative  Agent by the Borrower.            (c)   Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued  or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the  Borrower  pays  the  amount  due,  if  any,  under Section 3.05 in  connection  therewith.   During  the                                           24                                              





 






       existence of a Default, no  Loans  may be converted to  or continued as  Eurocurrency Rate  Loans  without the consent of the Required Lenders.            (d)   The Administrative Agent shall promptly notify in writing the Company and the  Lenders  of  the  interest  rate  applicable  to  any  Interest  Period  for  Eurocurrency  Rate  Loans  upon  determination  of  such  interest  rate.   At  any  time  that  Base  Rate  Loans  are  outstanding,  the  Administrative Agent  shall notify in  writing the  Company  and the  Lenders of any change in the  Prime Rate used in determining the Base Rate promptly following the public announcement of such  change.            (e)   After giving effect to all Committed Borrowings, all conversions of Committed  Loans from one Type to the other, and all continuations of Committed Loans as the same Type,  there shall not be more than ten Interest Periods in effect with respect to Eurocurrency Rate Loans.            2.03  Prepayments.              (a)   The Borrower may, upon notice to the Administrative Agent, at any time or from  time to time voluntarily prepay Committed Loans, in whole or in part without premium or penalty;  provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m.  (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (B) on  the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans shall  be  in  a  principal  amount  of  $1,000,000 or  a  whole  multiple  of $500,000 in  excess  thereof; and  (iii) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole  multiple of $500,000 in excess thereof or, in each case, if less, the entire principal amount thereof  then outstanding.  Each such notice shall be irrevocable and specify the date and amount of such  prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are  to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify  each  Lender  of  its  receipt  of  each  such  notice,  and  of  the  amount  of  such  Lender’s  Applicable  Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make  such prepayment and the payment amount specified in such notice shall be due and payable on the  date specified therein.  All repayments of outstanding Loans pursuant to this Section 2.03(a) shall  be allocated pro rata based on the Revolving Credit Exposure of the respective Lenders on the date  of  the relevant  repayment.  Notwithstanding  anything  herein  to  the  contrary,  the  Borrower  may  rescind any such notice not later than 1:00 p.m. on the Business Day before such prepayment was  scheduled to take place if such prepayment would have resulted from a refinancing of the Loans,  which refinancing will not be consummated or will otherwise be delayed.              (b)   If the Administrative Agent or the Calculation Agent notifies the Borrower at any  time that a Borrowing Base Deficiency exists at such time (the date of such notice, the “Borrowing  Base Deficiency Notice Date”), then the Borrower shall (i) give notice to the Administrative Agent  and Lenders of its intent to cure any Borrowing Base Deficiency by 5:00 p.m. on the Business Day  following  the delivery of  notice  via  electronic  mail  to  the  Borrower  of the Borrowing  Base  Deficiency  arose  (unless  Borrower  has  actually  cured  such  Borrowing  Base  Deficiency  by  such  time) and (ii) cure any Borrowing Base Deficiency by 5:00 p.m. on the fourth Business Day after  the  Borrowing  Base  Deficiency Notice Date by either  (A) repaying  outstanding  Loans,  selling  Collateral  Assets  and  depositing  the  proceeds  of  such  sale  into  the  Collateral  Account or  transferring  additional  Eligible  Collateral  Assets,  Cash or  Cash  Equivalents to  the  Collateral                                           25                                              





 






       Account so that the Borrowing Base will thereupon equal or exceed the Total Outstandings or (B)  delivering to the Administrative Agent a written report showing a projected cure of any Borrowing  Base Deficiency based on actions described in clause (A), if any, and pending purchases and sales  of  Collateral  Assets,  which  report  shall  (1)  be  satisfactory  to  the  Administrative  Agent,  (2)  give  effect to all committed purchases of Collateral Assets and other financial assets by the Borrower  and  account in  a  manner  satisfactory  to  the  Administrative  Agent for  any  change  in  the  market  value of any such Collateral Asset and (3) give effect to sales of Collateral Assets (including sales  committed to on the date of such report) only if such sales are to Approved Dealers and Borrower  reasonably expects such sales to be settled within 30 days of the Borrower’s commitment to such  sale; provided,  however,  Borrower  shall  not  have  the  right  to  cure  any  such  Borrowing  Base  Deficiency  to  the  extent  Borrower disposed  of  any  Collateral  Asset  with  knowledge  that  such  disposition  would  give  rise  to  such  Borrowing  Base  Deficiency  hereunder.  All  repayments  of  outstanding  Loans  pursuant  to  this Section  2.03(b)  shall  be  allocated  pro  rata  based  on the  Revolving Credit Exposure of the respective Lenders on the date of the relevant repayment.            (c)   Any  prepayment  of  any Eurocurrency  Rate Loan  shall  be  accompanied  by  all  accrued and unpaid interest, amounts owing under Section 2.06 in respect of the amount prepaid  and any additional amounts required pursuant to Section 3.05.            2.04  Termination or Reduction of Commitments.   The  Company  may, at  its  discretion, and  upon  notice  to  the  Administrative  Agent,  on  any  date  terminate the  Aggregate  Commitments or from time to time, permanently reduce the Aggregate Commitments; provided that  (i) any  such  notice  shall  be  received  by  the  Administrative  Agent  not  later  than  11:00  a.m.  five  Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be  in an aggregate amount of at least $1,000,000 and in multiples of $500,000 in excess thereof or, if  less,  the  entire  Aggregate  Commitments (iii) the  Company  shall  not  terminate  or  reduce  the  Aggregate  Commitments  if,  after  giving  effect  thereto  and  to  any  concurrent  prepayments  hereunder,  the  Total  Outstandings  would  exceed  the  Aggregate  Commitments.  Each  optional  termination  of  the  Aggregate  Commitments shall  be  allocated between  the  Class  A  Loan  Commitment and Class A-1 Loan Commitment at the election of the Borrower; provided, however,  that  in  no  event  may  the  Borrower  effect  a  termination  of  the  Class  A-1  Loan  Commitment  in  whole or in part that would result in a Class A-1 Loan Fraction that is lower than the Class A-1  Loan Fraction as of the Closing Date.  The Administrative Agent will promptly notify the Lenders  of any such notice of termination or reduction of the Aggregate Commitments.  Any termination of  the Class A Loan Commitment shall be applied to the Class A Loan Commitment of each Lender,  and any termination of the Class A-1  Loan Commitment shall be applied to the Class A-1 Loan  Commitment of each Lender, in each case, according to its Applicable Loan Percentage.   All fees  accrued until the effective date of any termination of the Aggregate Commitments shall be paid on  the  effective  date  of  such  termination.  Notwithstanding  anything  herein  to  the  contrary,  the  Borrower may rescind any such notice not later than 1:00 p.m. on the Business Day before such  termination was scheduled to take place if such termination would have resulted from a refinancing  of the Commitments, which refinancing will not be consummated or will otherwise be delayed.          (b)      On  any date on  which  the  Borrower terminates  or  permanently  reduces the  Aggregate Commitments as set forth above, unless the Commitment reductions are solely pro rata  based on the Class A Loan Commitment and Class A-1 Loan Commitment as of the date, (i) the  Borrower  shall prepay on  the relevant date in  accordance  with  Section  2.03  the aggregate                                           26                                              





 






       Outstanding  Amount  of  all  Committed  Loans,  pro  rata  to  all  Lenders  based  on  their  respective  Revolving  Credit  Exposure,  and  irrespective  of  the  portion  of  such  Lenders’ Class  A  Loan  Commitment or Class A-1 Loan Commitment that is being terminated or reduced, (ii) the Borrower  may reborrow on such date the amounts repaid to the extent of the available Class A Commitment  and  Class  A-1  Commitment  after  the  relevant  termination  or  reduction  (such  reborrowing  to  be  made pro rata based on the Class A Loan Fraction and Class A-1 Loan Fraction after giving effect  to  such termination or reduction), in  accordance with  and subject  to  the terms  and conditions  of  Section  2.02  and  Section  4.02  and  (iii)  to  the  extent  a  Lender  would  receive  repayment  of  Committed Loans on such date of repayment and would also fund a Committed Loan in respect of  the Class A Commitment or Class A-1 Commitment on such date, such amounts shall be netted.  If  for any reason the Borrower would not be able to re-borrow the entire amount required under the  preceding clause (ii), the Commitment reductions shall be solely pro rata based on the Class A Loan  Commitment and Class A-1 Loan Commitment as of the relevant date.  For the avoidance of doubt,  prepayment and reborrowing of Committed Loans in accordance with the foregoing on any Interest  Payment Date will not result in any breakage or related costs, and prepayment and reborrowing of  Committed Loans  in  accordance with  the  foregoing other than on an  Interest  Payment  Date will  result  in  breakage  or  related  costs  with  respect  to  any  Lender  only  to  the  extent  of  the  net  prepayment to such Lender resulting from the relevant repayment and reborrowing.             2.05  Repayment  of  Loans;  Reborrowing,  Repayment  on  Maturity  Date.  The     Borrower shall repay to the Lenders on the Class A Loan Maturity Date the Outstanding Amount     of the Committed Loans made to the Borrower by the Class A Lenders. For the avoidance of     doubt, repayment in full of the Class A Loan Commitment on the Class A Loan Maturity Date     will not result in any breakage or related costs.             For  the  avoidance  of  doubt,  after  the  Class  A  Loan  Maturity  Date,  the Borrower  may     continue to borrow on the Class A-1 Commitment, to the extent available. Any such borrowing     shall be in accordance with and subject to the terms and conditions of Section 2.02 and Section     4.02.  To the extent a Lender would receive repayment of Committed Loans on the Class A Loan     Maturity Date and  would  also  fund  a  Committed  Loan  in  respect  of  the Class A-1  Loan     Commitment on such date, such amounts shall be netted.             The Borrower shall repay to the Lenders on the Maturity Date the Outstanding Amount     of the Committed Loans made to the Borrower from all Lenders.            2.06  Interest.              (a)   Subject  to  the  provisions  of subsection  (b) below,  (i)  each  Eurocurrency  Rate  Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a  rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate and  (ii) each Base Rate Loan shall bear interest on the Outstanding Amount thereof from the applicable  borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.             (b)   (i)   If  any  amount  of  principal  of  any  Loan  is  not  paid  when  due  (without  giving  effect to any  applicable  grace  periods),  whether  at  stated  maturity,  by  acceleration  or  otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all  times equal to the Default Rate to the fullest extent permitted by applicable Laws.                                           27                                              





 






                      (ii)  If any amount (other than principal of any Loan) payable by the Borrower           under  any  Loan  Document  is  not  paid  when  due  (after giving  effect to  any  applicable           grace  periods),  whether  at  stated  maturity,  by  acceleration  or  otherwise,  then  upon  the           written request of the Required Lenders, such amount shall thereafter bear interest at a           fluctuating  interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to  the  fullest           extent permitted by applicable Laws and shall continue to bear interest at such rate until           but excluding the date on which such Event of Default is cured or waived.                  (iii) Upon  the  request  of  the  Required  Lenders, while  any Event  of  Default           exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrower shall pay           interest on the principal amount of all outstanding Obligations hereunder at a fluctuating           interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to  the  fullest  extent           permitted by applicable Laws.                    (iv)  Accrued  and  unpaid  interest  on  past  due  amounts  (including  interest  on           past due interest) shall be due and payable upon written demand.            (c)   Interest  on  each  Loan  shall  be  due  and  payable  in  arrears  on  each  Interest  Payment  Date  applicable  thereto  and  at  such  other  times  as  may  be  specified  herein.   Interest  hereunder shall be due and payable in accordance with the terms hereof before and after judgment,  and before and after the commencement of any proceeding under any Debtor Relief Law.            2.07  Fees.              (a)   Commitment Fee.  Subject to Section 2.12(a)(iii), the Borrower shall pay to the  Administrative Agent for the account of each Lender                  (i)    in accordance with its Applicable Loan Percentage, a commitment fee in           Dollars  equal  to the Class  A  Loan Fraction times (i) the  actual  daily  Unused  Amount           times (2) the Commitment Fee Rate, divided by (ii) 360                  (ii)  in accordance with its Applicable Loan Percentage, a commitment fee in           Dollars equal to the Class A-1 Loan Fraction times (i) the actual daily Unused Amount           times the Commitment Fee Rate, divided by (ii) 360.            The commitment fee shall accrue at all times from and including the Closing Date to and  excluding the date that is 30 days prior to the Maturity Date, including at any time during which  one  or  more  of  the  conditions  in Article  IV is  not  met,  and  shall  be  due  and  payable on  each  Commitment  Fee  Payment  Date.   The  commitment  fee  shall be  calculated  in  arrears for  each  Commitment Fee Calculation Period and if there is any change in the Commitment Fee Rate, Class  A Loan Fraction, Class A-1 Loan Fraction or Applicable Loan Percentage during any Commitment  Fee  Calculation  Period,  the  actual daily  amount  shall  be  computed  and  multiplied  by  the  Commitment  Fee Rate  separately  for  each day during  such Commitment  Fee  Calculation  Period  that such Commitment Fee Rate, Class A Loan Fraction, Class A-1 Loan Fraction or Applicable  Loan Percentage was in effect.                                            28                                              





 






             (b)      Makewhole Fee.  Subject to Section 2.12(a)(iii), if the Aggregate Commitments  are terminated in whole or in part pursuant to Section 2.04 prior to the six month anniversary of the  Closing Date, then Borrower shall pay to the Administrative Agent for the account of each Lender:                  (i)    in accordance with its Applicable Loan Percentage in respect of the Class           A Loan Commitment, a fee equal to the value in Dollars of all future amounts that would           have been payable in  respect  of the Class A Loan Commitment (or terminated portion           thereof) during the period from the termination date amounts to Class A Loan Maturity           Date assuming that the Outstanding Amount is equal to the Aggregate Commitments (or           terminated portion thereof), the Applicable Rate is equal to the Makewhole Fee Rate set           forth in Schedule 1.01 and LIBOR is zero; and                  (ii)  in accordance with its Applicable Loan Percentage in respect of the Class           A-1 Loan Commitment a  fee equal  to  the  value  in  Dollars of  all  future  amounts  that           would have been payable in respect of the Class A-1 Loan Commitments (or terminated           portion  thereof)  during  the  period  from  the  termination  date to the Maturity  Date           assuming  that  the  Outstanding  Amount  is  equal  to  the  Aggregate  Commitments  (or           terminated portion thereof), the Applicable Rate is equal to the Makewhole Fee Rate set           forth in Schedule 1.01 and LIBOR is zero.        Any Aggregate Commitments terminated in whole or in part after the six month anniversary of     the Closing Date shall not be subject to a Makewhole Fee.              (c)   Other Fees.                    (i)   The Borrower shall pay to the Arranger and the Administrative Agent for           their own respective accounts, in Dollars, fees in the amounts and at the times specified           in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable           for any reason whatsoever.                    (ii)  The Borrower shall pay to the Lenders, in Dollars, such fees as shall have           been separately agreed upon in writing in the amounts and at the times so specified in the           Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any           reason whatsoever.                                            29                                              





 






                2.08  Computation of Interest and Fees.  All computations of interest for Base Rate     Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate)  shall be     made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All     other computations of fees and interest shall be made on the basis of a 360-day year and actual     days elapsed (which results in more fees or interest, as applicable, being paid than if computed     on the basis of a 365-day  year).  Interest shall accrue on each Loan for the day on which the     Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the     Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is     made  shall,  subject  to Section 2.10(a),  bear  interest  for  one  day.   Each  determination  by  the     Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all     purposes, absent manifest or demonstrable error.              2.09  Evidence  of  Debt.  The  Credit  Extensions  made  by  each  Lender  shall  be     evidenced  by  one  or  more  accounts  or  records  maintained  by  such Lender  and  by  the     Administrative Agent in the ordinary course of business in accordance with its usual practice.      Subject to Section 10.06(c), the accounts or records maintained by the Administrative Agent and     each  Lender  shall  be  conclusive  absent  manifest or  demonstrable error  of  the  amount  of  the     Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.      Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the     obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.      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 or  demonstrable     error.  Upon the request of any Lender to the Borrower made through the Administrative Agent,     the Borrower  shall  execute  and  deliver  to  such  Lender  (through  the  Administrative  Agent)  a     Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or     records.  Each  Lender  may  attach schedules to  a Note and  endorse thereon the date, Type (if     applicable), amount, currency and maturity of its Loans and payments with respect thereto.            2.10  Payments Generally; Administrative Agent’s Clawback.              (a)   General.  All payments to be made by the Borrower shall be made free and clear  of  and without  condition  or  deduction  for  any  counterclaim,  defense,  recoupment  or  setoff.  All  payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of  the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s  Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein.  The  Administrative  Agent  may  require  that  any  payments  due  under  this  Agreement  be  made  in  the  United  States.   The  Administrative  Agent  will promptly  distribute  to  each  Lender  its  Applicable  Percentage (or other applicable share as provided herein) of such payment in like funds as received  by wire transfer to  such  Lender’s  Lending Office.  All  payments  received by the Administrative  Agent after 2:00 p.m. shall in each case be deemed received on the next following Business Day  and  any  applicable  interest  or  fee  shall  continue  to  accrue.   If  any  payment  to  be  made  by the  Borrower shall come due on a day other than a Business Day, payment shall be made on the next  following Business Day, and such extension of time shall be reflected in computing interest or fees,  as the case may be; provided that this sentence shall not apply to payments made on the Maturity  Date without giving effect to the proviso in the definition of such term.                                            30                                              





 






                (b)   (i)  Funding  by  Lenders;  Presumption  by  Administrative  Agent.   Unless  the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Committed Borrowing of  Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender  will  not  make  available  to  the  Administrative  Agent  such  Lender’s  share  of  such  Committed  Borrowing, the Administrative Agent may assume that such Lender has made such share available  on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base  Rate  Loans,  that  such  Lender  has  made  such  share  available  in  accordance  with  and  at  the  time  required by Section 2.02) and may, in reliance upon such assumption, make available to Borrower a  corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable  Committed Borrowing available to the Administrative Agent, then the applicable Lender and the  Borrower (so long as the applicable Lender is not Bank of America or an Affiliate thereof) severally  agree to pay to the Administrative Agent forthwith on written demand such corresponding amount  in Same Day Funds 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 (A) in  the  case  of  a  payment  to  be  made  by  such  Lender,  the  Overnight Rate,  plus  any  administrative,  processing  or  similar  fees  customarily  charged  by  the  Administrative  Agent  in  connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the  interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest  to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall  promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.   If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent,  then  the  amount  so  paid  shall  constitute  such  Lender’s  Committed  Loan  included  in  such  Committed Borrowing.  Any payment by the Borrower 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.                  (ii)  Payments  by  Borrower;  Presumptions  by  Administrative  Agent.   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 the account of the Lenders           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 the amount due.  In           such event, if the Borrower has not in fact made such payment, then each of the Lenders           severally agrees to repay to the Administrative Agent forthwith on written demand the           amount so distributed to such Lender in Same Day Funds 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 Overnight Rate.            A  notice  of  the  Administrative  Agent  to  any  Lender  or  Borrower  with  respect  to  any     amount  owing  under  this subsection (b) shall  be  conclusive,  absent  manifest or  demonstrable     error.            (c)   Failure  to  Satisfy  Conditions  Precedent.   If  any  Lender  makes available  to  the  Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided  in the foregoing provisions of this Article II, and such funds are not made available to the Borrower  by the Administrative Agent because the conditions to the applicable Credit Extension set forth in                                           31                                              





 






       Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent  shall  return  such  funds  (in  like  funds  as  received  from  such  Lender)  to  such  Lender,  without  interest.            (d)   Obligations  of  Lenders  Several.   The  obligations  of  the  Lenders  hereunder  to  make  Committed  Loans and  to  make  payments  pursuant  to Section 10.04(c) are  several  and not  joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to  make  any  payment  under Section 10.04(c) on  any  date  required  hereunder  shall  not  relieve  any  other  Lender  of  its  corresponding  obligation  to  do  so  on  such  date,  and  no  Lender  shall  be  responsible  for  the  failure  of  any  other  Lender  to  so  make  its  Committed  Loan,  to  purchase  its  participation or to make its payment under Section 10.04(c).            (e)   Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.            2.11  Sharing of Payments by Lenders.  If any Lender shall, by exercising any right     of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest     on any of the Committed Loans made by it resulting in such Lender’s receiving payment of a     proportion  of  the  aggregate  amount  of  such  Committed  Loans  or  participations  and  accrued     interest  thereon  greater  than  its pro rata share  thereof  as  provided  herein,  then  the  Lender     receiving  such  greater  proportion  shall  (a) notify  the  Administrative  Agent  of  such  fact,  and     (b) purchase (for cash at face value) participations in the Committed Loans, or make such other     adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the     Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on     their respective Committed Loans and other amounts owing them, provided that:                  (i)   if any such participations or subparticipations are purchased and all or any           portion  of  the  payment  giving  rise  thereto  is  recovered,  such  participations  or           subparticipations shall be rescinded and the purchase price restored to the extent of such           recovery, without interest; and                  (ii)  the  provisions  of  this  Section  shall  not  be  construed  to  apply  to  (x) any           payment  made  by  or  on  behalf  of  Borrower  pursuant  to  and  in  accordance  with  the           express  terms  of  this  Agreement  (including  the  application  of  funds  arising  from  the           existence  of  a  Defaulting  Lender)  or  (y) any  payment  obtained  by  a  Lender  as           consideration for  the  assignment  of  or  sale  of  a  participation  in  any  of  its  Committed           Loans  to  any  assignee  or  participant,  other  than  an  assignment  to  the  Company  (as  to           which the provisions of this Section shall apply).            The Company 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 Company’s rights of setoff and counterclaim with respect     to  such  participation  as  fully  as  if  such  Lender  were  a  direct  creditor  of the  Company in  the     amount of such participation.            2.12  Defaulting Lenders.                                             32                                              





 






                (a)   Adjustments.   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable Law:                  (i)   Waivers and Amendments.  Such Defaulting Lender’s right to approve or           disapprove any amendment,  waiver or consent  with  respect  to  this  Agreement shall be           restricted as set forth in the definition of “Required Lenders” and Section 10.01.                  (ii)  Defaulting Lender Waterfall.  Any payment of principal, interest, fees or           other amounts received by the Administrative Agent for the account of such Defaulting           Lender  (whether  voluntary  or  mandatory,  at  maturity,  pursuant  to Article  VIII or           otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to           Section 10.08 shall  be  applied  at  such  time  or  times  as  may  be  determined  by  the           Administrative  Agent  as  follows: first,  to  the  payment  of  any  amounts  owing  by  such           Defaulting Lender to the Administrative Agent hereunder; second, as the Company may           request  (so  long  as no Default or  Event  of  Default exists and  is  continuing),  to  the           funding of any Loan in  respect of which such Defaulting Lender has  failed to fund its           portion  thereof  as  required  by  this  Agreement,  as  determined  by the  Administrative           Agent; third, if so determined by the Administrative Agent and the Company, to be held           in  a  deposit  account  and  released  pro  rata  in  order  to satisfy  such  Defaulting  Lender’s           potential future funding obligations with respect to Loans under this Agreement; fourth,           to the payment of any amounts owing to the Lenders as  a result of any judgment of a           court of competent jurisdiction obtained by any Lender against such Defaulting Lender as           a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth,           so long as no Default or Event of Default exists or is continuing, to the payment of any           amounts  owing  to the  Company as  a  result  of  any  judgment  of  a  court  of  competent           jurisdiction obtained by the Company against such Defaulting Lender as a result of such           Defaulting  Lender’s breach of its  obligations under this  Agreement;  and sixth, to  such           Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided           that  if such  payment  is  a  payment  of  the  principal  amount  of  any  Loans  in  respect of           which such Defaulting Lender has not fully funded its appropriate share, such payment           shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis           prior to being applied to the payment of any Loans of such Defaulting Lender until such           time as all Loans are held by the Lenders pro rata in accordance with the Commitments           hereunder.  Any payments, prepayments or other amounts paid or payable to a Defaulting           Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be           deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably           consents hereto.                    (iii) Certain Fees.  No Defaulting Lender shall be entitled to receive any fee           payable under Section 2.07(a) or 2.07(b) for  any  period during which that  Lender is  a           Defaulting  Lender  and  the  Company  shall  not  be  required  to  pay  any  such  fee  that           otherwise would have been required to have been paid to such Defaulting Lender.            (b)   Defaulting Lender Cure.  If the Company and the Administrative Agent agree in  writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the  parties  hereto,  whereupon  as  of  the  effective  date  specified in  such  notice  and  subject  to  any                                           33                                              





 






       conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of  outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may  determine  to  be  necessary  to  cause  the  Committed  Loans  to  be  held  on  a  pro  rata  basis  by  the  Lenders in accordance with their Applicable Percentages, whereupon such Lender will cease to be a  Defaulting  Lender; provided that  no  adjustments  will  be  made  retroactively  with  respect  to  fees  accrued or payments  made by or on behalf of the Company while that  Lender was  a Defaulting  Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected  parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release  of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.                                      ARTICLE III.                     TAXES, YIELD PROTECTION AND ILLEGALITY            3.01  Taxes.            (a)   Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.   (i) Any  and  all  payments  by  or  on  account  of  any  obligation  of the  Company under  any  Loan  Document shall be made without deduction or withholding for any  Taxes,  except  as  required  by  applicable  Laws.   If  any  applicable  Laws  (as  determined  in  the  good  faith  discretion  of  the  applicable  withholding  agent) require  the  deduction  or  withholding  of  any  Tax  from  any  such  payment  by  the  Administrative  Agent  or the  Company,  then  the  Administrative  Agent  or the  Company shall be entitled to make such deduction or withholding, upon the basis of the information  and documentation to be delivered pursuant to subsection (e) below.                  (ii)  If the  Company or the  Administrative  Agent  shall  be  required  by  any           applicable Laws to withhold or deduct any Taxes (including, for the avoidance of doubt,           both  United  States  Federal  backup  withholding  and  withholding  Taxes) from  any           payment under any Loan Document, then (A) the Company or the Administrative Agent,           as required by such Laws, shall withhold or make such deductions as are determined by it           to be required based upon the information and documentation it has received pursuant to           subsection (e) below, (B) the  Company or  the  Administrative  Agent,  to  the  extent           required  by  such  Laws,  shall  timely  pay  the  full  amount  withheld  or  deducted  to  the           relevant  Governmental  Authority  in  accordance  with  such  Laws,  and (C) to  the  extent           that  the  withholding  or  deduction  is  made on  account  of  Indemnified  Taxes,  the  sum           payable  by the  Company shall  be  increased  as  necessary  so  that  after  any  required           withholding or the making of all required deductions (including deductions applicable to           additional  sums  payable  under  this Section 3.01)  the  applicable  Recipient  receives  an           amount equal to the sum it would have received had no such withholding or deduction           been made.            (b)   Payment  of  Other  Taxes  by the Company.   Without  limiting  the  provisions  of  subsection (a) above, the Company shall  timely  pay  to  the  relevant  Governmental  Authority  in  accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it  for the payment of, any Other Taxes.            (c)   Tax Indemnifications.  (i)  The Company shall, and does hereby, indemnify each  Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the                                           34                                              





 






       full  amount  of  any  Indemnified  Taxes  (including  Indemnified  Taxes  imposed  or  asserted  on  or  attributable  to  amounts  payable  under  this Section 3.01)  payable  or  paid  by  such  Recipient  or  required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses  arising therefrom or with respect thereto, whether or not such Indemnified 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  Company  by  a  Lender  (with  a  copy  to  the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,  shall be conclusive absent manifest error.                    (ii)  Each Lender shall, and does hereby, severally indemnify, and shall make           payment in respect thereof within 10 days after demand therefor, (x) the Administrative           Agent against any Indemnified Taxes attributable to such Lender (but only to the extent           that  the  Company  has  not  already  indemnified  the  Administrative  Agent  for  such           Indemnified Taxes and without limiting the obligation of the Company to do so), (y) the           Administrative Agent and the Company, as applicable, against any Taxes attributable to           such  Lender’s  failure to  comply with  the provisions  of Section 10.06(d) relating to  the           maintenance  of  a  Participant  Register  and  (z) the  Administrative  Agent  and  the           Company, as applicable, against any Excluded Taxes attributable to such Lender, in each           case, that are payable or paid by the Administrative Agent or the Company in connection           with any Loan Document, and any reasonable expenses arising therefrom or with respect           thereto, whether or not such 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 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, as the case may be, under           this  Agreement  or  any  other  Loan  Document  against  any  amount  due  to  the           Administrative Agent under this clause (ii).            (d)   Evidence of Payments.  As soon as practicable, after any payment of Taxes by the  Company  or  by  the  Administrative  Agent  to  a  Governmental  Authority  as  provided  in  this  Section 3.01, the Company shall notify the Administrative Agent or the Administrative Agent shall  notify the Company, as the case may be, and upon request by the Company or the Administrative  Agent, the Company shall deliver to the Administrative Agent or the Administrative Agent shall  deliver to the Company, as the case may be, the original or a certified copy of a receipt issued by  such Governmental Authority evidencing such payment, a copy of any return required by Laws to  report such payment or other evidence of such payment reasonably satisfactory to the Company or  the Administrative Agent, as the case may be.            (e)   Status of  Lenders;  Tax  Documentation.  (i) Any  Recipient  that  is  entitled  to  an  exemption from or reduction of withholding Tax with respect to payments made under any Loan  Document  shall  deliver  to  the  Company  and  the  Administrative  Agent,  at  the  time  or  times  reasonably requested by the Company or the Administrative Agent, such properly completed and  executed  documentation  prescribed  by  applicable Law  or  the  taxing  authorities  of  a  jurisdiction  pursuant  to  such  applicable Law  or  reasonably  requested  by  the  Company  or  the  Administrative  Agent  as  will  permit  such  payments  to  be  made  without  withholding  or  at  a  reduced  rate  of  withholding.   In  addition,  any  Recipient,  if  reasonably  requested  by  the  Company  or  the  Administrative  Agent,  shall  deliver  such  other  documentation  prescribed  by  applicable Law  or                                           35                                              





 






       reasonably requested by the Company or the Administrative Agent as will enable the Company or  the  Administrative  Agent  to  determine  whether  or  not  such  Recipient  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 either (x) set forth in Section 3.01(e)(ii)(A), (B) or (D) or (y) required by  applicable Law  other  than  the  Code  or  the  taxing  authorities  of  a  jurisdiction  pursuant  to  such  applicable Law to comply with the requirements for exemption or reduction of withholding Tax in  that jurisdiction) shall not be required if in the Recipient’s reasonable judgment such completion,  execution  or  submission  would  subject  such Recipient to  any  material  unreimbursed  cost  or  expense or would materially prejudice the legal or commercial position of such Recipient.                  (ii)  Without limiting the generality of the foregoing,                         (A)   any Recipient that is a U.S. Person shall deliver to the Company                 and  the  Administrative  Agent  on  or  prior  to  the  date  on which  such Recipient                 becomes  a party  to this  Agreement  (and  from  time  to  time  thereafter  upon  the                 reasonable  request  of  the  Company  or  the  Administrative  Agent),  executed                 originals  of  IRS  Form W-9  certifying  that  such Recipient is  exempt  from  U.S.                 federal backup withholding Tax;                         (B)   any Foreign Lender shall, to the extent it is legally entitled to do                 so,  deliver  to  the  Company  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  party  to this  Agreement  (and  from  time  to  time                 thereafter  upon  the  reasonable  request  of  the  Company  or  the  Administrative                 Agent), whichever of the following is applicable:                           (I) in the case of a Foreign Lender claiming the benefits of an income                    tax treaty to which the United States is a party (x) with respect to payments of                    interest under any Loan Document, executed originals of IRS Form W-8BEN                    (which  for  all  purposes  of  this  Agreement  shall  include  an  IRS  Form                    W-8BEN-E  where  applicable) establishing  an  exemption  from,  or  reduction                    of, U.S. federal withholding Tax pursuant to the “interest” article of such tax                    treaty and (y) with respect to any other applicable payments under any Loan                    Document, IRS Form W-8BEN establishing an exemption from, or reduction                    of, U.S. federal withholding Tax pursuant to the “business profits” or “other                    income” article of such tax treaty;                           (II)     executed originals of IRS Form W-8ECI;                           (III)    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  substantially  in  the  form  of  Exhibit  E-1  to  the  effect  that  such                    Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of                    the Code, a “10-percent shareholder” of the BDC Parent within the meaning                    of  Section  881(c)(3)(B)  of  the  Code,  or  a  “controlled  foreign  corporation”                                            36                                              





 






                          described  in  Section  881(c)(3)(C)  of  the  Code  (a  “U.S.  Tax  Compliance           Certificate”) and (y) executed originals of IRS Form W-8BEN; or                  (IV)     to the extent a Foreign Lender is not the beneficial owner,           executed  originals  of  IRS  Form  W-8IMY,  accompanied  by  IRS  Form  W-          8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in           the  form  of Exhibit  E-2  or  Exhibit E-3,  IRS  Form  W-9,  and/or  other           certification  documents  from  each  beneficial  owner,  as  applicable; provided           that if the Foreign Lender is a partnership and one or more direct or indirect           partners of such Foreign Lender are claiming the portfolio interest exemption,           such  Foreign  Lender may  provide  a  U.S.  Tax  Compliance  Certificate           substantially  in  the  form  of  Exhibit E-4  on  behalf  of  each  such  direct  and           indirect partner;               (C)   any Foreign Lender shall, to the extent it is legally entitled to do        so,  deliver  to  the  Company  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  party  to this  Agreement  (and  from  time  to  time        thereafter  upon  the  reasonable  request  of  the  Company  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,  together  with  such  supplementary  documentation  as  may  be        prescribed by applicable Law to permit the Company or the Administrative Agent        to determine the withholding or deduction required to be made; and               (D)   if a payment made to a Recipient under any Loan Document would        be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient        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 Recipient shall deliver to the Company and the Administrative        Agent at the time or times prescribed by Law and at such time or times reasonably        requested  by the  Company or  the  Administrative  Agent  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 Company or the Administrative Agent as may be necessary for        the  Company and  the  Administrative  Agent  to  comply  with  their  obligations        under  FATCA  and  to  determine  that  such Recipient has  complied  with  such        Recipient’s obligations under FATCA or to determine the amount to deduct and        withhold from such payment.  Solely for purposes of this clause (D), “FATCA”        shall include any amendments made to FATCA after the date of this Agreement.         (iii) Each Recipient agrees  that  if  any  form  or  certification  it  previously  delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any  respect, or if a successor version of such form or certification is published,  it shall update  such form or certification or promptly notify the Company and the Administrative Agent  in writing of its legal inability to do so.                                   37                                                        





 






                      (iv)  Borrower  shall  deliver  to  the  Administrative  Agent  on  or  prior  to  the           Closing Date an executed original of IRS Form W-9. If such form becomes obsolete or           inaccurate  in  any  respect,  or  if  a  successor  version  of  such  form  or  certification  is           published, Borrower shall update such form or promptly notify the Administrative Agent           in writing of its legal inability to do so.            (f)   Treatment of Certain Refunds.  Unless required by applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have  any obligation to  pay to  any  Lender, any refund of  Taxes  withheld or deducted  from funds paid for the account of such Lender, as the case may be.  If any Recipient determines, in  its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it  has been indemnified by the Company or with respect to which the Company has paid additional  amounts pursuant to this Section 3.01, it shall pay to the Company an amount equal to such refund  (but only to the extent of indemnity payments made, or additional amounts paid, by the Company  under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest  paid  by  the  relevant  Governmental  Authority  with  respect  to  such  refund), provided that the  Company, upon the request of the Recipient, agrees to repay the amount paid over to the Company  (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to  the  Recipient  in  the  event  the  Recipient  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding  anything  to  the  contrary  in  this  subsection,  in  no  event  will  the  applicable Recipient be required to pay any amount to the Company pursuant to this subsection the  payment of which would place the Recipient in a less favorable net after-Tax position than such  Recipient 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  subsection  shall  not  be  construed  to  require  any  Recipient  to  make  available  its  tax  returns  (or  any  other  information  relating to its taxes that it deems confidential) to the Company or any other Person.            (g)   Survival.   Each  party’s  obligations  under  this Section 3.01 shall  survive  the  resignation  or  replacement  of  the  Administrative  Agent  or  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.            3.02  Illegality.  If  any  Lender  determines  that  any Change  in Law  has  made  it     unlawful, or that any Governmental Authority has asserted after the date of this Agreement that it     is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans     whose interest is determined by reference to the Eurocurrency Rate, 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  in  the  applicable  interbank  market,  then,  on  notice  thereof  by  such  Lender  to the     Company through  the  Administrative  Agent, (i) any  obligation  of  such  Lender to make  or     continue Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans,     shall  be  suspended,  and (ii) if  such  notice  asserts  the  illegality  of  such  Lender  making  or     maintaining  Base  Rate  Loans  the  interest  rate  on  which  is  determined  by  reference  to  the     Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of     such  Lender  shall,  if necessary  to  avoid  such  illegality,  be  determined  by  the  Administrative                                           38                                              





 






    Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until  such Lender notifies the Administrative Agent and the Company that the circumstances giving  rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall,  upon  demand  from  such  Lender  (with  a  copy  to  the  Administrative  Agent), prepay  or,  if  applicable, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest  rate on  which  Base Rate  Loans  of such  Lender shall, if necessary  to  avoid  such illegality, be  determined by the Administrative Agent without reference to the Eurocurrency Rate component  of  the  Base  Rate),  either  on  the  last  day of  the  Interest  Period  therefor,  if  such  Lender  may  lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such  Lender  may  not  lawfully  continue  to  maintain  such Eurocurrency  Rate Loans  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 Base Rate applicable to such Lender without reference to the 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 prepayment or conversion, the Borrower shall also pay accrued interest on the  amount so prepaid or converted and any amounts due pursuant to Section 3.05.         3.03  Inability  to  Determine  Rates. If in  connection  with  any  request  for  a  Eurocurrency Rate Loan or a conversion to or continuation thereof,  (a) (i) the Administrative  Agent  determines  that  (i) deposits  are  not  being  offered  to  banks  in  the  applicable  offshore  interbank market for Dollars for the applicable amount and Interest Period of such Eurocurrency  Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurocurrency  Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or in  connection with an existing or proposed Base Rate Loan, (in each case with respect to clause (a)  above, “Impacted Loans”), or (b) the Administrative Agent or the Required Lenders  determine  that  for  any  reason  the Eurocurrency Rate for  any  requested  Interest  Period  with  respect  to  a  proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders  of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the  Company and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain  Eurocurrency  Rate  Loans  in Dollars shall  be  suspended, (to  the  extent  of  the  affected  Eurocurrency Rate Loans or Interest Periods), and (y) in the event of a determination described  in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the  utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended,  in  each  case until  the  Administrative  Agent  (upon  the  instruction  of  the  Required  Lenders)  revokes such notice.  Upon receipt of such notice, the Company may revoke any pending request  for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in Dollars (to the  extent  of  the  affected  Eurocurrency  Rate  Loans  or  Interest  Periods) or,  failing  that,  will  be  deemed to have converted such request into a request for a Committed Borrowing of Base Rate  Loans in the amount specified therein.         Notwithstanding the foregoing, if the Administrative Agent has made the determination  described in this Section, the Administrative Agent, in consultation with the Borrower and the  Required Lenders, may establish an alternative interest rate for the Impacted Loans,  in which  case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the  Administrative  Agent revokes  the  notice  delivered  with  respect  to  the  Impacted  Loans  under  clause  (a)  of  the  first  sentence  of  this  section,  (2)  the Administrative  Agent  or  the Required                                        39                                           





 






          Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does     not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3)     any Lender determines that any Law has made it unlawful, or that any Governmental Authority     has  asserted  that  it  is  unlawful,  for  such  Lender  or  its  applicable  Lending  Office to  make,     maintain  or  fund  Loans  whose  interest  is  determined  by  reference  to  such  alternative  rate  of     interest  or  to  determine  or  charge  interest  rates  based  upon  such  rate  or  any  Governmental     Authority  has  imposed  material  restrictions  on  the  authority  of  such  Lender  to  do  any  of  the     foregoing and provides the Administrative Agent and the Borrower written notice thereof.            3.04  Increased Costs; Reserves on Eurocurrency Rate Loans.              (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 or participated in  by, any  Lender (except any           reserve requirement contemplated by Section 3.04(e), other than as set forth below);                  (ii)  subject  any  Recipient  to  any  Taxes  (other  than (A) Indemnified  Taxes,           (B) Taxes  described in clauses (b) through (d) of the definition of Excluded Taxes  and           (C) Connection Income 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  London  interbank  market  any  other           condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by           such Lender or participation therein;      and the result of any of the foregoing shall be to increase the cost to such Lender of making,     converting  to,  continuing  or  maintaining any  Loan  the  interest  on  which  is  determined  by     reference to the Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or     to reduce the amount of any sum received or receivable by such Lender hereunder (whether of     principal, interest or any other amount) then, upon written request of such Lender, the Company     will pay to such Lender, such additional amount or amounts as will compensate such Lender, for     such additional  costs incurred or  reduction suffered; provided that the amounts  payable under     this Section  3.04(a) shall  be  without  duplication  of  amounts  payable  under Sections  3.01,     3.04(b), 3.04(e) or 3.05 and such amount or amounts shall be no greater than that which such     Lender  is  generally  claiming  from  its  other  borrowers  similarly  situated  to  Borrower,  as     reasonably evidenced to the Borrower at the time such amount is requested.            (b)   Capital  Requirements.   If  any  Lender  determines  that  any  Change  in  Law  affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if  any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of  return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a  consequence  of  this  Agreement,  the  Commitments  of  such  Lender  or the  Loans  made  by such  Lender to  a  level  below  that  which  such  Lender  or  such  Lender’s  holding  company  could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration  such  Lender’s  policies  and  the                                           40                                              





 






       policies  of  such  Lender’s  holding  company  with respect  to  capital  adequacy),  then  from  time  to  time the Company will pay to such Lender such additional amount or amounts as will compensate  such Lender or such Lender’s holding company for any such reduction suffered.            (c)   Certificates  for  Reimbursement.   A  certificate  of  a  Lender  setting  forth  the  amount or amounts necessary to compensate such Lender or its holding company, as the case may  be,  as  specified  in subsection (a) or (b) of  this Section and  delivered  to  the  Company  shall  be  conclusive absent manifest error.  The Company shall pay such Lender the amount shown as due on  any such certificate within 10 days after receipt thereof.         (d)      Delay  in  Requests.   Failure  or  delay  on  the  part  of  any  Lender  to  demand  compensation  pursuant  to  the  foregoing  provisions  of Article  III and this Section 3.04 shall  not  constitute  a  waiver  of  such  Lender’s  right  to  demand  such  compensation, provided that the  Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this  Section for any increased costs incurred or reductions suffered more than 180 days prior to the date  that such Lender notifies the Company of the Change in Law giving rise to such increased costs or  reductions  and  of  such  Lender’s  intention  to  claim  compensation  therefor  (except  that,  if  the  Change in  Law  giving rise to  such increased  costs or reductions  is  retroactive, then the 180-day  period  referred  to  above  shall  be  extended  to  include  the period of  retroactive  effect  thereof);  provided, further, that such Lender at that time has a general policy of demanding the same type of  compensation from similarly situated borrowers.             (e)   Additional Reserve Requirements.  The Company shall pay to each Lender, (i) as  long  as  such  Lender  shall  be  required  to  maintain  reserves  with  respect  to  liabilities  or  assets  consisting  of  or  including  Eurocurrency  funds  or  deposits  (currently  known  as “Eurocurrency  liabilities”),  additional  interest  on  the  unpaid  principal  amount  of  each  Eurocurrency  Rate  Loan  equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by  such Lender in good faith, which determination shall be conclusive absent manifest error), and (ii)  as long as such Lender shall be required to comply with any reserve ratio requirement or analogous  requirement of any other central banking or financial regulatory authority imposed in respect of the  maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional  costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five  decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as  determined by such Lender in good faith, which determination shall be conclusive absent manifest  error), which in each case shall be due and payable on each date on which interest is payable on  such Loan, provided the Company shall have received at least 10 days’ prior written notice (with a  copy  to  the  Administrative  Agent) of  such  additional interest  or costs  from  such  Lender which  notice will include the amount of such interest or costs, the methodology for the calculation and the  calculation  thereof, provided that (x) the  amounts  payable  under  this  Section  3.04(e)  shall  be  without duplication of amounts payable under Section 3.01, 3.04(a) or 3.05 and no amount shall be  payable under this Section 3.04(e) on account of any Excluded Taxes and (y) each Lender agrees  that it will not  claim  from  the Borrower the payment of any  amounts  referred to  in  this  Section  3.04(e)  if  it  is  not  generally  claiming  similar  compensation  from  its  other  similar  borrowers  in  substantially similar circumstances.  If a Lender fails to give notice 10 days prior to the relevant  Interest  Payment  Date,  such  additional interest  or costs  shall  be  due  and  payable  10 days  from  receipt of such notice.                                            41                                              





 






                3.05  Compensation for Losses. Upon demand of any Lender (which writing shall set     forth  in  reasonable  detail  the  basis  for  requesting any  such  amounts, with  a  copy  to  the     Administrative Agent) from time to time, the Company shall promptly compensate such Lender     for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:            (a)   any continuation, conversion, payment or prepayment of any Loan other than a  Base  Rate  Loan  on  a  day  other  than  the  last  day  of  the  Interest  Period  for  such  Loan  (whether  voluntary,  mandatory,  automatic,  by  reason  of  acceleration,  or  otherwise),  including,  for  the  avoidance of doubt, the net prepayment of any amount to a Lender other than on the last day of the  Interest Period resulting from a repayment and reborrowing under Section 2.04(b).            (b)   any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the  date or in the amount notified by the Company or the Borrower unless such notice is rescinded in  accordance with the terms hereof; or            (c)   any assignment of a Eurocurrency Rate Loan on a day other than the last day of  the Interest Period therefor as a result of a request by the Company pursuant to Section 10.13;      excluding any loss of anticipated profits, but including and any loss or expense arising from the     liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to     terminate the deposits from which such funds were obtained.  The Company shall also pay any     customary administrative fees charged by such Lender in connection with the foregoing.      For purposes of calculating amounts payable by the Company (or the Borrower) to the Lenders     under this Section 3.05, each Lender shall be deemed to  have  funded  each Eurocurrency Rate     Loan  made  by  it  at the  Eurocurrency  Rate  for  such  Loan  by  a  matching  deposit  or  other     borrowing  in  the  offshore  interbank  market  for Dollars for  a  comparable  amount  and  for  a     comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.            3.06  Mitigation Obligations; Replacement of Lenders.              (a)   Designation of a Different  Lending Office.  Each Lender may make any Credit  Extension to the Borrower through any Lending Office, provided that the exercise of this option  shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with the  terms of this Agreement. If any Lender requests compensation under Section 3.04, or requires the  Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental  Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice  pursuant  to Section 3.02,  then  at  the  request  of  the Company such  Lender  shall  use  reasonable  efforts  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  judgment of such  Lender, such designation or assignment (i) would eliminate or reduce amounts  payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for  the  notice  pursuant  to Section 3.02,  as  applicable,  and (ii) in  each  case,  would  not  subject  such  Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such  Lender.  The Company hereby agrees to pay all reasonable and documented out-of-pocket costs and  expenses incurred by any Lender in connection with any such designation or assignment.                                           42                                              





 






             (b)      Replacement  of  Lenders.   If  any  Lender  requests  compensation  under  Section 3.04, or if any Lender gives a notice pursuant to Section 3.02, or if the Borrower is required  to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority  for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined  or is unable to designate a different lending office in accordance with Section 3.06(a) that would  eliminate the amounts payable under Section 3.01 or Section 3.04 or eliminate the need for notice  pursuant to Section 3.02, the Company may replace such Lender in accordance with Section 10.13.            3.07  Survival.  All  obligations of the  Company under  this Article  III shall  survive     termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and     resignation of the Administrative Agent.                                      ARTICLE IV.                  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS            4.01  Conditions of Initial Credit Extension.  The obligation of each Lender to make     its  initial  Credit  Extension  hereunder  is  subject  to  satisfaction  of  the  following  conditions     precedent:            (a)   The  Administrative  Agent’s  receipt  of  the  following,  each  of  which  shall  be  originals or telecopies (followed promptly by originals) unless otherwise specified, each properly  executed by a Responsible Officer of the Company, each dated the Closing Date (or, in the case of  certificates of governmental officials, a reasonably recent date before the Closing Date) and each in  form and substance satisfactory to the Administrative Agent and each of the Lenders:                  (i)   executed  counterparts  of  this  Agreement, the  Security  Agreement,  the           Collateral  Administration  Agreement, and the  Investment  Management  Agreement,           sufficient  in  number for distribution to  the Administrative Agent,  each  Lender  and the           Company;                  (ii)  Notes executed by the Borrower in favor of each Lender requesting Notes;                  (iii) such  certificates  of  resolutions  or  other  action,  incumbency  certificates           and/or other certificates of a Responsible Officer of the Company as the Administrative           Agent  may reasonably require  evidencing  the  identity,  authority  and  capacity  of  each           Responsible Officer thereof authorized to act as a Responsible Officer in connection with           this Agreement and the other Loan Documents to which the Company is a party;                  (iv)  such  documents  and  certifications  as  the  Administrative  Agent  may           reasonably require to evidence that the Company is duly organized, and that the Borrower           is validly existing, in good standing and qualified to engage in business in Delaware;                   (v)   a favorable opinion of Dechert LLP, counsel to the Company, addressed to           the Administrative Agent and each Lender, as to the matters concerning the Company,           the  Investment  Adviser and  the  Loan  Documents  as  the  Required  Lenders  may           reasonably request;                                            43                                              





 






                (vi)  a  certificate  signed  by  a  Responsible  Officer  of  the  Company  certifying        (A) that  the  conditions  specified  in Sections 4.02(a) and (b) have  been  satisfied and        (B) that there has been no event or circumstance since the date of the Audited Financial        Statements that has had or could be reasonably expected to have, either individually or in        the aggregate, a Material Adverse Effect;                (vii) a certificate of a Responsible Officer of the Company either (A) attaching        copies of all consents, licenses and approvals required in connection with the execution,        delivery and performance by the Company and the validity against the Company of the        Loan Documents to which it is a party, and such consents, licenses and approvals shall be        in full force and effect, or (B) stating that no such consents, licenses or approvals are so        required;               (viii) evidence satisfactory to the Administrative Agent in its sole discretion that        the Net Asset Value of Borrower is at least equal to $10,000,000;               (ix)  such other assurances, certificates, documents, consents or opinions as the        Administrative Agent or the Required Lenders reasonably may require;               (x)   a favorable opinion of Dechert  LLP, counsel  to  the  Investment  Adviser,        addressed to the Administrative Agent and each Lender, as to such matters concerning        the  Investment  Adviser  and  the  Loan  Documents  as  the  Required  Lenders  may        reasonable request;                (xi)  a favorable opinion of Dechert LLP, counsel to the Borrower, addressed to        the Administrative Agent and each Lender, to the effect that the Borrower would not be        consolidated  with  the BDC  Parent in  the  event  of  a  proceeding  under  the  Bankruptcy        Code;               (xii) an opinion  of  Dechert  LLP,  counsel  to  the  Borrower,  addressed  to  the        Administrative  Agent,  each  Lender  and  the  Collateral  Administrator,  in  form  and        substance  reasonably  satisfactory  to  the  Administrative  Agent,  to  the  effect  that  the        security interest hereunder is an enforceable and perfected security interest, subject to no        other Liens of record except as provided herein or otherwise permitted hereunder;                (xiii) the Company shall have provided to such Lender, and such Lender shall        be  reasonably  satisfied  with,  the  documentation  and  other  information  so  requested  in        connection with applicable “know your customer” and anti-money-laundering rules and        regulations, including, without limitation, the PATRIOT Act; and                (xiv) the Borrower  that  qualifies  as  a  “legal  entity  customer”  under  the        Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a        Beneficial Ownership Certification in relation to such Borrower.         (b)   Any  fees  required  to  be  paid  on  or  before  the  Closing  Date that  have  been  invoiced shall have been paid.                                         44                                           





 






          (c)   Unless waived by the Administrative Agent, the Company shall have paid all fees,  charges and disbursements of counsel to the Administrative Agent (directly to such counsel if  requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date,  plus  such  additional  amounts  of  such  fees,  charges  and  disbursements  as  shall  constitute  its  reasonable  estimate  of  such  fees,  charges  and  disbursements  incurred  or  to  be  incurred  by  it  through the closing proceedings (provided that such estimate shall not thereafter preclude a final  settling of accounts between the Company and the Administrative Agent); provided, however,  that such fees, charges and disbursements shall only be due and payable to the extent provided  pursuant to Section 10.04.           (d)   The representations and warranties of (i) the Borrower contained in Article V and  (ii) the  Borrower and Borrower Parent  contained in  each other  Loan Document, or  which  are  contained in any document (including the Beneficial Ownership Certification) furnished at any  time  under  or  in  connection  herewith  or  therewith, shall  be  true  and  correct in  all  material  respects on  and  as  of  the Closing  Date, except  to  the  extent  that  such  representations  and  warranties specifically refer to an earlier date, in which case they shall be true and correct (in all  material respects, or as so qualified, as applicable) as of such earlier date.         (e)   No Default shall exist, or would result from  such Credit Extension  or from the  application of the proceeds thereof.         (f)   The  Administrative  Agent  and  the  Lenders  shall  have  a  valid  and  perfected  first-priority  lien  and  security  interest  in  the  Collateral,  all  filings, recordations  and  searches  necessary or desirable in connection with the Collateral shall have been duly made, and all filing  and  recording  fees  and  taxes  shall  have  been  duly  paid,  including  in  each  case  under,  and  as  required by, all applicable laws.         (g)   All governmental and third party approvals necessary or, in the discretion of the  Lender, advisable in connection with the Credit Extension shall have been obtained and be in full  force and effect, and all applicable waiting periods shall have expired without any action being  taken or threatened by any competent authority that would restrain, prevent or otherwise impose  adverse conditions on the Lender making the Credit Extension.         (h)   The  initial  Lender  shall  have  received  and  reviewed  all  financial  statements  required to be delivered under Section 6.01 and, in each case, such financial statements shall be  satisfactory to the initial Lender in its sole discretion.         Without limiting the generality of the provisions of the last paragraph of Section 9.03, for  purposes  of  determining  compliance  with  the  conditions  specified  in  this Section 4.01,  each  Lender  that  has  signed  this  Agreement  shall  be  deemed  to  have  consented  to,  approved  or  accepted  or  to  be  satisfied  with,  each  document  or  other  matter  required  thereunder  to  be  consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative  Agent shall have received notice from such Lender prior to the proposed Closing Date specifying  its objection thereto.         4.02  Conditions to all Credit Extensions.  The  obligation of each Lender to honor  any Request for Credit Extension is subject to the following conditions precedent:                                        45                                           





 






             (a)      The representations and warranties of the Borrower contained in (i) Article V and  (ii)  each other Loan Document, or which are contained in any document (including the Beneficial  Ownership Certification) furnished at any time under or in connection herewith or therewith, shall  be true and correct in all material respects on the Amendment Date and as of the date of such Credit  Extension,  except  to  the  extent  that  such  representations  and  warranties  specifically  refer  to  an  earlier date, in which case they shall be true and correct in all material respects as of such earlier  date, and except that for purposes of this Section 4.02, the representations and warranties contained  in subsections (a) and (b) of Section 5.05 shall  be  deemed  to  refer  to  the  most  recent  statements  furnished pursuant to subsections (a) and (b), respectively, of Section 6.01.         (b)      No Default or Event of Default shall exist on the Amendment Date and no Default  shall  exist,  or  would  result  from  such proposed  Credit  Extension  or from the  application  of  the  proceeds thereof.         (c)      The  Administrative  Agent and Collateral  Administrator shall  have  received  a  Request  for  Credit  Extension  in  accordance  with  the  requirements  hereof,  which  shall  include  a  Borrower Certification.         (d)      No Borrowing Base Deficiency shall exist on the date of such Advance or would  arise after giving effect to the relevant Advance.         (e)      After  giving  effect  to  the  proposed  Credit  Extension,  the  Total  Outstandings  would not exceed the Aggregate Commitments.         (f)      The Borrower and Borrower Parent have complied with all Special Purpose Entity  Requirements.         (g)      The Administrative Agent has received on the Amendment Date executed copies  of (i) this Agreement, (ii) the Sale Agreement and (iii) favorable opinions of Dechert LLP, counsel  to  the  Borrower,  Borrower  Parent  and  BDC  Parent,  addressed  to  and  in  form  and  substance  satisfactory to the Administrative Agent, as to (I) validity, enforceability, lack of conflict with law  or agreements, and similar matters in relation to the obligations of the Borrower, BDC Parent and  Borrower  Parent  under  the  Sale  Agreement, (II)  treatment as  a  “true  sale”  for  purposes  of  the  Bankruptcy Code of the purchases of Collateral Assets from time to time by the Borrower Parent  from the BDC Parent and by the Borrower from the Borrower Parent under the Sale Agreement,  (III) an  updated  nonconsolidation  opinion  in  relation  to  the  opinion  in  Section  4.01(a)(xi),  (IV)  perfection  of  the  back-up  security  interest  referenced  in  (h)  below  and  (V) such other matters  concerning such sale as the Required Lenders may reasonably request.          (h)      The  Administrative  Agent  and  the  Lenders  shall  have  a  valid  and  perfected  first-priority  lien  and  security  interest  in  the  Collateral, including  without  limitation  that  (i) the  Borrower Parent has submitted back-up filings against the BDC Parent and (ii) the Borrower has  submitted  back-up  filing  against  the  Borrower  Parent,  in  each  case  in  relation  to all Collateral  Assets purchased under the Sale Agreement from time to time, under the UCC or other appropriate  filing offices in each relevant jurisdiction which are effective to perfect  a security interest of the  Borrower Parent  and  Borrower,  respectively, over  the  relevant  Collateral  Asset  in  the  event  the  relevant sale were to be characterized as a financing.                                           46                                              





 






          Each Request for Credit Extension submitted by the Company shall be deemed to be a  representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been  satisfied on and as of the date of the applicable Credit Extension.                                    ARTICLE V.                     REPRESENTATIONS AND WARRANTIES         The Borrower represents and warrants to the Administrative Agent and the Lenders that:         5.01  Existence,  Qualification  and  Power.  The  Company (a) is  duly organized,  validly  existing  and,  as  applicable,  in  good  standing  under  the  Laws  of  the  jurisdiction  of  its  incorporation  or  organization, (b) has  all  requisite  power  and  authority and  all  requisite  governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and  carry on its business in  which it is  currently engaged and (ii) execute, deliver and perform its  obligations  under  the  Loan  Documents  to  which  it  is  a  party,  and (c) is  duly qualified  and  is  licensed  and,  as  applicable, in  good  standing  under  the  Laws  of  each  jurisdiction  where  its  ownership,  lease  or  operation  of  properties  or  the  conduct  of  its  business  requires  such  qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that  failure to do so could not reasonably be expected to have a Material Adverse Effect.         5.02  Authorization; No Contravention.           The  execution,  delivery  and  performance  by  the  Company  of  each  Loan  Document  to  which the  Company is  party,  have  been  duly  authorized  by  all  necessary  corporate  or  other  organizational  action,  and  do  not  and  will  not  (a) violate the  terms  of  any  of the  Company’s  Organization Documents; (b) result in any breach or contravention of, or the creation of any Lien  (other than a Permitted Lien) under, or require any payment to be made under (i) any Contractual  Obligation to which the Company is a party or affecting the Company or the properties of the  Company or  (ii) any  order,  injunction,  writ  or  decree  of  any  Governmental  Authority  or  any  arbitral award to which the Company or its property is subject; or (c) violate any Law; except in  each case referred to in clause (c), to the extent such failure would not reasonably be expected to  have a Material Adverse Effect.         5.03  Governmental  Authorization;  Other  Consents.  No  approval,  consent,  exemption,  authorization,  or  other  action  by,  or  notice  to,  or  filing  with,  any  Governmental  Authority or any other Person is necessary or required in connection with the execution, delivery  or performance by, or enforcement against, the Company of this Agreement or any other Loan  Document.         5.04  Binding  Effect.  This  Agreement  has  been,  and  each  other  Loan  Document to  which  the  Company  is  a  party,  when  delivered  hereunder,  will  have  been,  duly  executed  and  delivered  by the  Company.   This  Agreement  constitutes,  and  each  other  Loan  Document to  which the Company is a party when so delivered, and when executed and delivered by the other  parties thereto, will constitute, a legal, valid and binding obligation of the Company, enforceable  against the Company in accordance with its terms, except as such enforceability may be limited  by  Debtor  Relief  Laws  or  other  Laws  affecting  creditors’  rights  generally  and  by  general  principles of equity, regardless of whether considered in a proceeding in equity or at Law.                                        47                                           





 






          5.05  Financial Statements; No Material Adverse Effect.           (a)   The  Audited  Financial  Statements  (i) were  prepared  in  accordance  with  GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein; (ii) fairly present in all material respects the financial condition of BDC Parent as of the  date  thereof  and its results  of  operations  for  the  period  covered  thereby  in  accordance  with  GAAP consistently applied throughout the period covered thereby, except as otherwise expressly  noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent,  of BDC Parent as of the date thereof, including liabilities for taxes, material commitments and  Indebtedness.         (b)   The  unaudited  consolidated  balance  sheet  of BDC  Parent dated as  of  the  most  recent  fiscal quarter of BDC  Parent,  and  the  related  consolidated  statements  of  income  or  operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were  prepared in accordance with GAAP consistently applied throughout the period covered thereby,  except  as  otherwise  expressly  noted  therein,  and  (ii) fairly  present  in  all  material  respects  the  financial  condition  of BDC  Parent as  of  the  date  thereof  and  its  results  of  operations  for  the  period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and  to normal year-end audit adjustments.         (c)   Since  the  date  of  the  Audited  Financial  Statements,  there  has  been  no  event  or  circumstance,  either  individually  or  in  the  aggregate,  that  has  had  or  could  reasonably  be  expected to have a Material Adverse Effect.         5.06  Litigation.  There are no material actions, suits, proceedings, claims or disputes  pending or, to the knowledge of the Company threatened or contemplated, at law, in equity, in  arbitration or before any Governmental Authority, by or against the Company or against any of  its properties or revenues.         5.07  No  Default.  The  Company has  no  Contractual  Obligations  other  than (A)  pursuant to (i) the Loan Documents,  (ii) the Investment Management Agreement, and (iii) the  purchase  or  sale  of Collateral  Assets  and  other financial  assets as  permitted  under  the  Loan  Documents,  or,  in  each  case,  Contractual  Obligations  that  are  incidental  thereto, and (B) as  indicated  in Schedule 5.07 (as  such  Schedule  may  be  updated  from  time  to  time  by  written  agreement of the Company and the Administrative Agent).  The Company is not in default in any  material respect under or with respect to any Contractual Obligation.  No Default has occurred  and is continuing or would result from the consummation of the transactions contemplated by  this Agreement or any other Loan Document.         5.08  Liens and Indebtedness.   The property of the Company is subject to no Liens  other  than  Permitted  Liens. The Company has  no  Indebtedness  other  than  the  Indebtedness  created under the Loan Documents.  The Company is not a party to any outstanding agreement  or contract other than the Loan Documents and the documents related thereto, and the Company  has  no  actual  or  contingent  liabilities  in  respect  of  any  agreements  or  contracts  to  which  the  Company has previously been a party but which are no longer outstanding as of the date of this  Agreement.                                          48                                           





 






                5.09  Taxes.             (a)   Each  of  the  Company, Borrower  Parent and BDC  Parent has  filed  all  Federal,  state and other material tax returns and reports required to be filed by it, and has paid or caused to  be  paid  all  Federal,  state  and  other  material  Taxes,  assessments,  fees  and  other  governmental  charges levied or imposed upon it or its properties, income or assets otherwise due and payable by  it,  except  those  which  are  being  contested  in  good  faith  by  appropriate  proceedings  diligently  conducted and with respect to which reserves in accordance with GAAP have been provided.  There  is no tax assessment proposed in writing against the Company.  The Company is not party to any  tax sharing agreement.            (b)   For  U.S.  federal  income  tax  purposes, (i) Borrower  is  a  disregarded  entity  and     Borrower  Parent  is  its  sole beneficial owner, (ii) Borrower Parent is  a  disregarded  entity  and     BDC Parent is its sole beneficial owner and (iii) BDC Parent is a U.S. Person.            5.10  ERISA Matters.  (i) Neither  the  Company  nor  any  ERISA  Affiliate  of  the     Company has incurred or is subject to any liability under Title IV of ERISA or Section 4975 of     the Code (other than for premiums due) or maintains or contributes to, or is or has been required     to  maintain  or  contribute  to,  any  Plan,  except  as  could  not  reasonably  be  expected  to  have  a     Material Adverse Effect, and (ii) the Company is not and will not be using “plan assets” (within     the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more     Plans in connection with the Loans or the Commitments;.            5.11  Equity  Interests.  All  Equity  Interests of the  Company are  duly  and  validly     issued.  There are no outstanding warrants, options or other rights to purchase, or shareholder,     voting trust or similar agreements outstanding with respect to, or property that is convertible into,     or that requires  the issuance or sale of, any such Equity  Interests.  All Equity  Interests of the     Company are owned by Borrower Parent.  All Equity Interests of the Borrower Parent are owned     by BDC Parent.            5.12  Margin Regulations; Investment Company Act.             (a)   The Borrower  is not  engaged  nor will it engage,  principally  or  as  one  of  its     important activities, in the business of purchasing or carrying margin stock (within the meaning     of  Regulation  U  issued  by  the  FRB),  or  extending  credit  for  the  purpose  of  purchasing  or     carrying margin stock.            (b)   The  Company  is  not, and  is  not  required  to  be, registered  as  an  “investment     company” under the Investment Company Act.            5.13  Disclosure.  The Company has made available to the Administrative Agent and     the Lenders all agreements, instruments and corporate or other restrictions to which it is subject,     and has  disclosed all  other  matters  known  to  it,  that,  individually  or  in  the  aggregate,  could     reasonably  be  expected  to  result  in  a  Material  Adverse  Effect (other  than  forward-looking     information  and  pro  forma  information  regarding  obligors  on  Collateral  Assets,  information     related to third parties and general economic or industry information or projections).  No report,     financial statement, certificate or other information furnished (whether orally or in writing) by or     on  behalf  of the  Company to  the  Administrative  Agent  or  any  Lender  in  connection  with  the                                           49                                              





 






    transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder  or  under  any  other  Loan  Document  (in  each  case,  as  modified  or  supplemented  by  other  information so furnished) as of its date contains any material misstatement of fact or omits to  state any material fact necessary to make the statements therein, taken as a whole and in the light  of the circumstances under which they were made, not misleading; provided that, with respect to  projected financial information, the Company represents only that such information was prepared  in  good  faith based  upon assumptions  believed  to  be  reasonable  at  the  time  of  preparation;  provided further that solely with respect to information furnished by the Company which was  provided to the Company from a third party, such information need only be true and correct in all  material respects to the knowledge of the Company.         5.14  Compliance with Laws.  (a) The  Company is  in  compliance in  all  material  respects with  the  requirements  of  all  Laws  and  all  orders,  writs,  injunctions  and  decrees  applicable to it or to its properties, except in such instances in which such requirement of Law or  order,  writ,  injunction  or  decree  is  being  contested  in  good  faith  by  appropriate  proceedings  diligently conducted.         (b)   Without limitation of (a), none of the execution, delivery and performance by the  Company of each Loan Document, the purchases and sales of Collateral Assets by the Company  from time to time, or the borrowing of Committed Loans by the Company and application of the  proceeds thereof, will result in any violation of the Investment Company Act by the Company,  the Borrower Parent or the BDC Parent.          (c)   Borrower  acknowledges  that  Bank  of  America’s  and  the Class  A Lender’s  obligations  hereunder  shall  be  subject  to  all  Laws  and,  without  limitation,  the  transaction  documents shall not limit the ability of Bank of America to take any actions that it determines, in  the exercise of its sole discretion, to  be necessary  or  advisable to comply fully  and prudently  with any Law, including without limitation any regulatory margin requirement.         5.15  Taxpayer  Identification  Number;  Other Identifying  Information.  The  true  and correct U.S. taxpayer identification number of the Borrower, that of the Borrower Parent and  that of the BDC Parent are set forth on Schedule 5.15.  The Borrower’s exact legal name at the  date  of  this  Agreement  and  any  prior  legal  names, and  the Borrower’s,  jurisdiction  of  organization, organizational identification number, registered office, and the place of business of  Investment Adviser, or if Investment Adviser has more than one place of business, Investment  Adviser’s  chief  executive  office,  in  each  case  at  the  date  of  this Agreement and  for  the  four  months immediately preceding the date of this Agreement are, in each case, as set forth in are set  forth on Schedule 5.15.         5.16  OFAC.  Neither  the  Borrower  nor,  to  the  knowledge  of  the  Borrower,  any  director, officer, employee, agent, affiliate or representative thereof is an individual or entity that  is, or is owned or controlled by an individual or entity that is (i) currently the subject or target of  any  Sanctions, (ii)  included  on  OFAC’s  List  of  Specially  Designated  nationals,  HMT’s  Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list  enforced  by  any other  relevant  sanctions  authority  or  (iii)  located,  organized  or  resident  in  a  Designated Jurisdiction.                                         50                                           





 






          5.17  Anti-Corruption Laws.  The Borrower has conducted its business in compliance  with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, and  other similar anti-corruption legislation in other jurisdictions.         5.18  EEA Financial Institution.           None  of the  Borrower, the  Borrower Parent or  the BDC  Parent is  an  EEA  Financial  Institution.                                    ARTICLE VI.                           AFFIRMATIVE COVENANTS         So  long  as  any  Lender shall  have  any  Commitment  hereunder, or any  Loan  or  other  Obligation (other than unasserted  contingent  Obligations  that  expressly survive termination of  this Agreement) hereunder shall remain unpaid or unsatisfied the Company shall:         6.01  Financial Statements.  Deliver (including by causing the BDC Parent to deliver)  to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the  Administrative Agent:         (a)   as soon as available, but in any event within 90 days after the end of each fiscal  year of BDC Parent (beginning with the fiscal year ending December 31, 2018), a consolidated  balance  sheet  of BDC  Parent as  at  the  end  of  such  fiscal  year,  and  the  related  consolidated  statements  of  income  or  operations,  changes  in  shareholders’  equity, and  cash  flows  for  such  fiscal  year, all  in  reasonable  detail  and  prepared  in  accordance  with  GAAP,  audited  and  accompanied by a report and opinion of an independent certified public accountant of nationally  recognized standing reasonably  acceptable to  the Required  Lenders,  which report  and opinion  shall  be  prepared  in  accordance  with  generally  accepted  auditing standards and  shall  not  be  subject  to  any  “going  concern”  or  like  qualification  or  exception  or  any  qualification  or  exception as  to  the scope of such audit, and such consolidated statements  to  be certified by  a  Responsible  Officer of BDC  Parent to  the  effect  that  such  statements  are  fairly  stated  when  considered in relation to the consolidated financial statements of BDC Parent;         (b)   as soon as available, but in any event within 60 days after the end of each of the  first three fiscal quarters of each fiscal year of BDC Parent (commencing with the first full fiscal  quarter ended after the Closing Date), a consolidated balance sheet of BDC Parent as at the end  of such fiscal quarter, the related consolidated statements of income or operations for such fiscal  quarter and for the portion of BDC Parent’s fiscal year then ended, and the related consolidated  statements  of  changes  in  shareholders’  equity,  and  cash  flows  for  the  portion  of  the BDC  Parent’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the  figures  for  the  corresponding  fiscal  quarter  of  the  previous  fiscal  year  and  the  corresponding  portion  of  the  previous  fiscal  year, all  in  reasonable  detail  and  prepared  in  accordance  with  GAAP, subject only to normal year-end audit adjustments and the absence of footnotes, certified  by a Responsible Officer of BDC Parent as fairly presenting the financial condition, results of  operations, net assets and cash flows of BDC Parent in accordance with GAAP, subject only to  normal year-end audit adjustments and the absence of footnotes;                                         51                                           





 






                (c)   as soon as available and in any event not later than the last Business Day of the     calendar  month  following  each  monthly  accounting  period  (ending  on  the  last  day  of  each     calendar  month)  of  the  Borrower,  performance  returns  and  the  Net  Asset  Value  and,  if     reasonably requested by the Administrative Agent, supporting calculations thereof, in each case,     of the Borrower, as at the last day of such accounting period; and            (d)   promptly  following  any  request  therefor,  such  other  information  regarding  the     operations, business affairs and financial condition of the Borrower, the Borrower Parent, BDC     Parent or Investment  Adviser,  or  compliance  with  the  terms  of  this  Agreement  and  the  other     Loan Documents, as the Administrative Agent or any Lender may reasonably request.            6.02  Certificates; Other Information.  Deliver or cause BDC Parent to deliver to the     Administrative  Agent and  each  Lender,  in  form  and  detail satisfactory  to  the  Administrative     Agent and the Required Lenders:            (a)   promptly after any reasonable written request by the Administrative Agent or any     Lender copies of any detailed audit reports, management letters or recommendations submitted     to  the  management  board  of  directors  or  investment  manager  of BDC  Parent by independent     accountants  in  connection  with the  accounts  or  books  of BDC  Parent,  or  any  audit  of  any  of     them;             (b)   concurrently with the delivery of any of the financial statements or monthly report     referred  to  in Section 6.01,  a  duly  completed  Compliance  Certificate of each  of BDC  Parent,     Borrower Parent and Borrower signed by a Responsible Officer of BDC Parent, Borrower Parent     or Borrower, as applicable (which delivery may, unless the Administrative Agent, or a Lender     requests executed originals, be by electronic communication including fax or email and shall be     deemed to be an original authentic counterpart thereof for all purposes);             (c)   promptly,  and  in  any  event  within five Business  Days  after  receipt  thereof by     Borrower, Borrower Parent or Investment Adviser, copies of each notice or other correspondence     received from  the  SEC  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction) to  the     extent  permitted  by  applicable  Law  and  subject  to  reasonable  confidentiality  and  other     restrictions imposed by the Borrower or Borrower Parent concerning any material non-routine     investigation  or  possible  investigation or  other material  non-routine inquiry by  such  agency     regarding financial or other operational results of any such entity;             (d)   promptly,  such  additional  information  regarding  the  business,  financial  or     corporate affairs of the Company, or compliance with the terms of the Loan Documents, as the     Administrative Agent or any Lender may from time to time reasonably request; and            (e)    if  the  information  in  the  Borrower’s  Beneficial  Ownership  Certification  has  changed  in  any  material  respect,  promptly  provide  notice  of  such  updated  information  to  the  Lenders.             Documents  required  to  be  delivered  pursuant  to Sections 6.01(a) and 6.02  may  be     delivered electronically and if so delivered, shall be deemed to have been delivered on the date     on which (i) BDC Parent posts such documents, or provides a link thereto on the website listed     on Schedule 10.02, (ii)  such  documents  are  posted  on BDC  Parent’s  behalf  on  an  Internet  or                                           52                                              





 






    intranet  website,  if  any,  to  which  each  Lender  and  the  Administrative  Agent  have  access  (whether a commercial, third-party website or whether sponsored by the Administrative Agent),  or (iii)  the Company provides to the Administrative Agent by electronic mail electronic versions  (i.e., soft copies) of such documents; provided that: (x) the Company shall deliver paper copies  of such documents to the Administrative Agent upon its request to the Company to deliver such  paper  copies  and  (y)  the  Company  shall  notify  the  Administrative  Agent  (by  facsimile  or  electronic mail) of the posting pursuant to clause (i) and (ii) above of any such documents, and  the Administrative Agent hereby agrees that it shall use commercially reasonable efforts to post  such  documents  received  pursuant  to  clause  (iii)  above  on  the  Company’s  behalf  to  a  commercial, third-party or other website sponsored by the Administrative Agent and notify the  Lenders  of  such  posting.   The  Administrative  Agent  shall  have  no  obligation  to  request  the  delivery or to maintain any copies of the documents referred to  above, and in any event shall  have  no  responsibility  to  monitor  compliance  by  the  Company  with  any  such  request  for  delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining  its copies of such documents.         Borrower  hereby  acknowledges  that  (a) the  Administrative  Agent  and/or  the  Arranger  may, but shall not be obligated to, make available to the Lenders materials and/or information  provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting  the  Borrower  Materials  on  DebtDomain,  IntraLinks,  Syndtrak  or another similar  electronic  system  (the  “Platform”)  and  (b) certain  of  the  Lenders  (each,  a  “Public  Lender”)  may  have  personnel who do not wish to receive material non-public information with respect to Borrower  or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in  investment and other market-related activities with respect to such Persons’ securities.  Borrower  hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders  shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the  word  “PUBLIC”  shall  appear  prominently  on  the  first  page  thereof;  (x) by  marking  Borrower  Materials “PUBLIC,” Borrower shall be deemed to have authorized the Administrative Agent,  the Arranger and the Lenders to treat such Borrower Materials  as not  containing any material  non-public information with respect to Borrower or its securities for purposes of United States  Federal and state securities laws (provided, however, that to the extent such Borrower Materials  constitute  Information,  they  shall  be  treated  as  set  forth  in Section 10.07);  (y) all  Borrower  Materials  marked  “PUBLIC”  are  permitted  to  be  made  available  through  a  portion  of  the  Platform  designated  “Public  Side  Information;”  and  (z) the  Administrative  Agent  and  the  Arranger  shall  be  entitled  to  treat  any  Borrower  Materials  that  are  not  marked  “PUBLIC”  as  being  suitable  only  for  posting  on  a  portion  of  the  Platform  not  designated  “Public  Side  Information.”         6.03  Notices.  Promptly  notify the  Administrative  Agent,  upon  Borrower  becoming  aware:          (a)   of the occurrence of any Default;         (b)   of  any  matter  that  has  resulted  or would  reasonably  be  expected to  result  in  a  Material  Adverse  Effect,  including, (i) breach  or  non-performance  of,  or  any  default  under,  a  Contractual  Obligation  of the  Company, Borrower  Parent or BDC  Parent; (ii) any  dispute,  litigation,  investigation,  proceeding  or  suspension  between the Company, Borrower  Parent or                                        53                                           





 






    BDC  Parent and  any  Governmental  Authority;  or (iii) the  commencement  of,  or  any  material  development in, any litigation or proceeding affecting the Company, Borrower Parent or BDC  Parent; and         (c)   of any material change in accounting policies or financial reporting practices by  the Company, Borrower Parent or BDC Parent.         Each  notice  pursuant  to  this Section 6.03 shall  be  accompanied  by  a  statement  of  a  Responsible Officer of the Company setting forth details  of the occurrence referred to  therein  and stating what action the Company has taken and proposes to take with respect thereto.  Each  notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this  Agreement and any other Loan Document that have been breached.         6.04  Payment of Obligations.  Pay and discharge as the same shall become due and  payable,  all  its  obligations  and  liabilities,  including (a) all tax liabilities,  assessments  and  governmental  charges  or  levies  upon  it  or  its  properties  or  assets,  unless  the  same  are  being  contested in good faith by appropriate proceedings diligently conducted and adequate reserves in  accordance with GAAP are being maintained by the Company; (b) all lawful claims which, if  unpaid, would by law become a Lien upon its property, unless the same are being contested in  good faith by appropriate proceedings diligently conducted and adequate reserves in accordance  with GAAP are being maintained by the Company; and (c) all Indebtedness, as and when due  and  payable,  but  subject  to  any  subordination  provisions  contained  in  any  instrument  or  agreement evidencing such Indebtedness.         6.05  Preservation of Existence, Etc.   (a) To the maximum extent permitted pursuant  to applicable Laws, preserve, renew and maintain in full force and effect its legal existence and  good  standing  under  the  Laws  of  the  jurisdiction of  its organization except  in  a  transaction  permitted  by Section 7.04 or 7.05 and (b) take  all  reasonable  action  to  maintain  all  rights,  privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its  business,  except,  in  each  case, to  the  extent  that  failure  to  do  so  would  not  reasonably  be  expected to have a Material Adverse Effect.         6.06  Maintenance of Properties.   (a) Maintain,  preserve  and  protect  all  of  its  material  properties  and  equipment  necessary  in  the  operation  of  its  business  in  good  working  order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto  and renewals and replacements thereof, in each case, except where the failure to do so could not  reasonably be expected to have a Material Adverse Effect.         6.07  Further  Assurances.  At  any  time  or  from  time  to  time  upon  the reasonable  request of the Administrative Agent, Borrower shall execute and deliver such further documents  and do such other acts and things as the Administrative Agent may reasonably request in order to  effect  fully  the  purposes  of  this  Agreement  or  the  other  Loan  Documents and  to  provide  for  payment of the Loans made hereunder, with interest thereon, in accordance with the terms of this  Agreement.         6.08  Compliance with Laws.  Comply in all material respects with the requirements  of all  Laws and all orders, writs,  injunctions  and decrees  applicable to  it or to  its  business  or                                        54                                           





 






    property, except in such instances in which such requirement of Law or order, writ, injunction or  decree is being contested in good faith by appropriate proceedings diligently conducted.          6.09  Books and Records.  (a) Maintain  proper  books of  record  and  account,  in  which full, true and correct entries in conformity with GAAP consistently applied shall be made  of  all material financial  transactions  and  matters  involving  the  assets  and  business  of  the  Company;  and (b) maintain  such  books  of record  and  account  in  material  conformity  with  all  applicable requirements of any Governmental Authority having regulatory jurisdiction over the  Company.         6.10  Inspection  Rights.  Permit  representatives  and  independent  contractors  of  the  Administrative Agent and each Lender to visit and inspect any of its properties (or to the extent  reasonably necessary or  appropriate to  examine  the  foregoing  records,  the  properties  of  Investment  Adviser, Borrower Parent or BDC  Parent),  to  examine  its  corporate,  financial  and  operating records, and make copies thereof or abstracts therefrom other than items protected by  attorney-client privilege or that may not be disclosed pursuant to applicable Law or contractual  confidentiality  obligations,  and  to  discuss  its  affairs,  finances  and  accounts  with  its  directors,  officers  and  independent  public  accountants or Investment  Adviser all  at  the  expense  of  the  Company and at such reasonable times during normal business hours upon reasonable advance  notice to the Company (which notice shall not be less than five Business Days except during the  occurrence  and  continuation  of  an  Event  of  Default); provided that,  so  long  as  no  Event  of  Default  has  occurred  and  is  continuing,  such  visits  will  be  limited  to  a  maximum  of  two  per  calendar  year; provided, further that the  Administrative  Agent shall  schedule  such  visits  on  behalf of the Lenders, and shall (1) coordinate in good faith with the Lenders to determine dates  which are acceptable to a majority of the Lenders and (2) provide ten days’ prior notice to the  Lenders of any such visit (or such lesser period acceptable to the Lenders) and any Lender shall  be permitted to join in such visit.         6.11  Use of Proceeds.  Use the proceeds of the Credit Extensions solely for Permitted  Uses.         6.12  Approvals and Authorizations.  Maintain all material authorizations, consents,  approvals  and  licenses  from,  exemptions  of,  and  filings  and  registrations  with,  each  Governmental Authority of the jurisdiction in which the Company is organized and existing, and  all  approvals  and  consents  of  each  other  Person  in  such  jurisdiction,  in  each  case  that  are  required in connection with the Loan Documents.         6.13  Special Purpose Entity Requirements.   Conduct at all times its business and  operations  in  accordance  with  the  Special  Purpose  Entity  Requirements and  the  provisions  of  Section 1.7 of  the  Limited  Liability  Company  Agreement  and maintain  at  all  times  100%  ownership of all Equity Interests of the Company by Borrower Parent.  The Company shall give  reasonable  prior  notice  to  the  Administrative  Agent  of  any  amendment  to  the  Investment  Management Agreement, the Limited Liability Company Agreement or the Sale Agreement.                                           55                                           





 






          6.14  Security Interest.  Maintain a first-priority (subject to Permitted Liens), perfected  security interest in the Collateral for the benefit of the Lenders, their successors, transferees and  assigns so long as this Agreement is in effect.         6.15  ERISA Matters.  Do, or cause to be done, all things necessary to ensure that it  will not be deemed to hold Plan Assets at any time.         6.16  Anti-Corruption  Laws.  Conduct  its  business  in  compliance  with  the  United  States  Foreign Corrupt  Practices  Act  of 1977, the UK  Bribery Act  of 2010, and other similar  anti-corruption legislation in other jurisdictions and maintain policies and procedures designed to  promote and achieve compliance with such laws.                                   ARTICLE VII.                             NEGATIVE COVENANTS         So  long  as  any  Lender  shall  have  any  Commitment hereunder  or any  Loan  or  other  Obligation (other than unasserted  contingent  Obligations  that  expressly survive termination of  this Agreement) hereunder shall remain unpaid or unsatisfied, the Company shall not, directly or  indirectly:         7.01  Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property,  assets or revenues, whether now owned or hereafter acquired, other than Permitted Liens.         7.02  Investments.  Own any Structured Finance Security.          7.03  Indebtedness; Bank Accounts.  (a) Create, incur, assume or suffer to exist any  Indebtedness (including incurring any swap or other hedging contract obligation that could result  in  payment  obligations  of  the  Company),  except Indebtedness  under  the  Loan  Documents  (including with respect to amounts owed to service providers or otherwise arising in the ordinary  course  of  the  Company’s  business;  or (b)  open  or  establish  any  bank  accounts  except  as  contemplated by the Loan Documents.         7.04  Fundamental Changes.  Merge, dissolve, liquidate, wind-up, consolidate with or  into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or  substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any  Person; provided that the company may Dispose of all or substantially all assets if the proceeds  of such Disposition are used to repay the Loans in full.         7.05  Collateral  Assets.  Sell,  assign,  transfer,  convey  or  otherwise  dispose  of  any  Collateral Asset, or purchase any Collateral Asset, unless, after giving effect to any such sale,  assignment  transfer,  conveyance, disposition or  purchase, and  any  simultaneous sales  or  purchases  of  Collateral  Assets  and/or  simultaneous  prepayments  of  Loans in  accordance  with  Section 2.03, (i) based  on  the  most  recent  Borrowing  Base  determination  received  from  the  Administrative Agent or the Calculation Agent, no Borrowing Base Deficiency will exist and (ii)  no Default  would  occur  or  be  continuing after  giving  effect  thereto; provided that,  for  the  avoidance of doubt, the Borrower shall at all times be permitted to sell any Collateral Asset to an                                         56                                           





 






    Approved Dealer in order to cure any Borrowing Base Deficiency so long as no Default would  otherwise occur or be continuing after giving effect thereto.         Apply  the  proceeds  of  any  Disposition  of  all  or  any  portion  of  the  Collateral  except  toward (i)  a Permitted  Use, (ii) the  repayment  of  Loans  or the payment  of fees  or interest  on  Loans hereunder or (iii) subject to Section 7.06, a Restricted Payment.         7.06  Restricted  Payments.  Declare  or  make,  directly  or  indirectly,  any  Restricted  Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity  Interests, except that, so long as no Default shall have occurred and be continuing or would result  therefrom, the Company may make distributions to Borrower Parent; provided that even during  the occurrence and continuance of a Default, so long as no Specified Default or Borrowing Base  Deficiency shall have occurred and be continuing or would result therefrom, and the Company  has  provided  the  Administrative  Agent  with  evidence  reasonably  satisfactory  to  it  of  such  payment requirement and the amount thereof at least five Business Days prior to the date of the  Restricted  Payment, the  Company  may  make  Restricted  Payments  to  Borrower  Parent  to (i)  allow Borrower Parent or BDC Parent to pay any unpaid Taxes then due and owing resulting  from the income of the Company claimed on the tax reporting of BDC Parent or (ii) to enable  Borrower  Parent  to  make  distributions  to  BDC  Parent  to  the  extent  necessary  to  allow  BDC  Parent to make sufficient distributions to qualify as a “regulated investment company” under the  Code and to otherwise minimize or eliminate federal or state income or excise taxes payable by  BDC  Parent  in  or  with  respect  to  any  taxable  year  of  BDC  Parent  (or  any  calendar  year,  as  relevant); provided, further, that the amount of any such payments made in respect of any such  taxable year (or calendar year, as relevant) of BDC Parent shall not exceed 110% of the amounts  that the Company would have been required to  distribute to Borrower Parent to: (i) allow the  Company to satisfy the minimum distribution requirements that would be imposed by Section  852(a) of the Code (or any successor thereto) to maintain its eligibility to be taxed as a regulated  investment company for any such taxable year, (ii) reduce to zero for any such taxable year such  Company’s  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  such  Company’s  liability  for  federal  excise  taxes  for  any  such  taxable  year  imposed  pursuant to Section 4982 of the Code (or any successor thereto), in the case of each of (i), (ii)  and  (iii),  calculated  assuming  that  the  Company  had qualified  to  be  taxed  as  a  “regulated  investment company” under the Code and had the same taxable year end as BDC Parent.         7.07  Transactions  with  Affiliates.  Enter into any transaction of any kind with any  Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair  and reasonable terms no less favorable to the Borrower as would be obtainable by the Borrower  at  the  time  in  a  comparable  arm’s  length  transaction  with  a  Person  other  than  an  Affiliate.   Without limitation of the foregoing, (i) the Borrower shall not sell any Collateral Asset to the  Borrower Parent, BDC Parent or to any Affiliate of the Borrower Parent unless the cash price of  such sale is at least equal to the Current Market Value of the relevant Collateral Asset and (ii) the  Borrower shall not purchase any Collateral Assets from Borrower Parent, BDC Parent or from  any other Affiliates unless such purchase is effected pursuant to the Sale Agreement.                                         57                                           





 






          7.08  Burdensome Agreements.  Enter into any Contractual Obligation (other than this  Agreement, any other Loan Document or the Investment Management Agreement) that (a) limits  the ability of the Company to create, incur, assume or suffer to exist Liens on property of the  Company or (b) requires the grant of a Lien to secure an obligation of the Company if a Lien is  granted to secure another obligation of the Company.         7.09  Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or  indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin  stock  (within  the  meaning  of  Regulation  U  of  the  FRB)  or  to  extend  credit  to  others  for  the  purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for  such  purpose or  (b)  to  purchase  securities  or  other assets  in  a  manner  that  would  cause  such  credit  extension  to  become  a  “covered  transaction”  as  defined  in  Section  23A  of  the  Federal  Reserve Act (12 U.S.C. § 371c) and Regulation W of the FRB, including any transaction where  the proceeds of any Credit Extension are used for the benefit of, or transferred to, an Affiliate of  a Lender.         7.10  Sanctions.  Directly or indirectly its agents, affiliates or representatives shall), use  the proceeds of any Credit Extension, or lend or contribute  such proceeds to any individual or  entity, to fund any activities of or business with any individual, or entity, or in any Designated  Jurisdiction, that, at the time of such funding, is the subject of Sanctions or in any other manner  that will result in a violation by any individuals or entity participating in the transaction (whether  as Lender, Arranger, Administrative Agent or otherwise) of Sanctions.         7.11  Special  Purpose  Entity Requirements.  Conduct  at  any  time  its  business  or  operations in contravention of the Special Purpose Entity Requirements.         Modify, amend or supplement its Organizational Documents in any manner inconsistent  with the Special Purpose Entity Requirements or otherwise materially adverse to the Lenders.         Be party to any agreement under which it has any material obligation or liability (direct  or  contingent)  without  including  customary  “non-petition”  provisions  substantially  similar  to  Section 10.20(b), other than with the consent of the Administrative Agent.         Fail  at  any  time  to  maintain one Independent Manager (as  such  term  is  defined  in  the  Organizational Documents); provided that the Borrower shall have ten Business Days to replace  any Independent Manager upon the receipt by a Responsible Officer of the Borrower of notice of  the death, resignation or incapacity of the current Independent Manager.         7.12  Investment  Management  Agreement and  Sale  Agreement  Amendment.         Amend the Investment Management Agreement or Sale Agreement other than an amendment (i)  (A) that solely cures any  ambiguity,  typographical or manifest error,  or  defect  in  either  agreement and (B) of which the Administrative Agent was provided notice before execution of  such  amendment or (ii) to  which  the  Administrative  Agent  has  consented  in  writing (such  consent not to be unreasonably withheld or delayed).           7.13  ERISA.                                           58                                           





 






          (a)   Maintain  or  contribute  to,  or  agree  to  maintain  or  contribute  to,  or  permit  any  ERISA Affiliate of the Company to maintain or contribute to or agree to maintain or contribute  to, any Plan, except as could not reasonably be expected to have a Material Adverse Effect.         (b)   Hold Plan Assets.         7.14  Change in Nature of Business.         Engage  in  any  material  line  of  business  substantially  different  from  those  lines  of  business conducted by the Borrower as of the date hereof or change its fiscal year or accounting  practices.          7.15  Anti-Corruption Laws.           Directly or indirectly use the proceeds  of any Credit Extension  for any  purpose which  would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act of  2010, or other similar anti-corruption legislation in other jurisdictions.                                   ARTICLE VIII.                      EVENTS OF DEFAULT AND REMEDIES          8.01  Events of Default.  Any of the following shall constitute an Event of Default:         (a)   Non-Payment.   The Borrower  fails  to  pay (i) when  and  as  required  to  be  paid  herein, and in the currency required hereunder, (A) any amount of principal of any Loan, or (B)  on  the  Maturity Date any  interest  on  any  Loan  or  any  fee  due  hereunder, (ii) other  than  with  respect to the Maturity Date, within two Business Days (or five Business Days in the event of  any error on the part of the Calculation Agent) after the same becomes due, any interest on any  Loan,  or  any  fee  due  hereunder, (iii) within  five days  after  the  same  becomes  due,  any  other  amount payable hereunder or under any other Loan Document or (iv) any principal and interest  due on the Class A Loan Commitment on the Class A Loan Maturity Date; or         (b)   Borrowing Base Deficiency. A  Borrowing  Base  Deficiency  exists  and  the  Borrower fails to give written notice of its intent to cure or fails to actually cure the Borrowing  Base Deficiency in accordance with Section 2.03(b); or         (c)   Specified  Covenants.  (i) The  Company  fails  to  perform  or  observe in  any  material respect any covenant in Sections 6.01, 6.02, 6.03, 6.05, 6.11, 6.13, 6.14 or Article VII  (ii) the Investment Adviser fails to perform or observe in any material respect any covenant in  Section  14 of  the Investment  Management  Agreement, (iii)  the  Borrower  Parent  or  the  BDC  Parent  fails  to  perform  or  observe  in  any  material  respect  any  covenant  in  Sections  5.1(d)  or  5.2(d) of the Sale Agreement, (iv) the Collateral Administrator fails to perform or observe in any  material respect the reporting covenants in Section 7 of the Collateral Administration Agreement  solely due to a failure of the Borrower or Investment Adviser to provide necessary information in  a timely manner (a “Reporting Failure”) and such failure of the Borrower or Investment Adviser  to provide necessary information has not been cured after 5 Business Days after notice of the  Reporting  Failure  to  the  Borrower  or  Investment  Adviser,  (v)  the  Borrower  Parent  fails  to                                        59                                           





 






          comply with Section 10.01 of its Amended and Restated Limited Liability Company Agreement     or (vi)  the  Borrower  Parent  or  BDC  Parent  fails,  in  a  material  respect,  to  comply  with     assumptions made in the substantive non-consolidation opinion letter delivered on the Closing     Date;              (d)   Insolvency  Proceedings,  Etc.  The  Company  institutes or  consents  to  the     institution  of  any  proceeding  under  any  Debtor  Relief  Law,  or  makes  an  assignment  for  the     benefit  of  creditors;  or  applies  for  or  consents  to  the  appointment  of  any  receiver,  trustee,     custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material     part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or     similar  officer  is  appointed  without  the  application  or  consent  of such Person and  the     appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under     any Debtor Relief Law relating to any such Person or to all or any material part of its property is     instituted  without  the  consent  of such  Person and  continues  undismissed  or  unstayed  for 60     calendar days, or an order for relief is entered in any such proceeding; or            (e)   Other Defaults.  The Company fails to perform or observe in a material respect  any other covenant  or agreement (not specified in subsection (a) through (d) above)  contained in  any Loan Document on its part to be performed or observed and such failure continues for 30 days  following notice by the Administrative Agent to the Borrower and the Investment Advisor or the  Borrower  Parent  or  BDC  Parent  fails  to  perform  or  observe  in  any  material  respect  any  other  covenant or agreement (not specified in subsection (c) above) contained in the Sale Agreement on  its part to be performed or observed and such failure continues for 30 days following notice from  the Administrative Agent.             (f)   Certifications.  Any Borrower Certification or  Compliance  Certificate  of  the     Company, Borrower Parent or BDC Parent proves to have been materially inaccurate; or            (g)   Representations  and  Warranties.   Any representation,  warranty,  certification  or  statement of fact (other than a Borrower Certification) made or deemed made by or on behalf of the  Company, the Investment Adviser or the Borrower Parent herein, in any other Loan Document, or  in any document delivered in connection herewith or therewith shall be incorrect or misleading in a  material respect when made or deemed made, and such representation (i) is not capable of cure or  (ii) has not been cured within 30 days following notice; or            (h)   Security  Interest Failure.  Any  Lender  fails  for  any  reason  to  have  a  perfected     security  interest  in any Collateral in  accordance  with  the  terms  of  the  Security  Agreement     (provided that it will not be an Event of Default if such failure is a result of any action or inaction     by (i) the Collateral Administrator and such failure is remedied within three (3) days after notice     or (ii) the Administrative Agent); or            (i)   Credit Triggers.  Any Credit Trigger shall occur; or            (j)   Invalidity  of  Loan  Documents.   Any material obligation  of  the  Company  or  its     Affiliates  under any Loan  Document  at  any  time  after  its  execution  and  delivery  and  for  any     reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the     Obligations, ceases to be in full force and effect; or the Company or any other Person contests in                                           60                                              





 






    any manner the validity or enforceability of any material provision of any Loan Document; or  the Company denies that it has any or further liability or obligation under any Loan Document,  or purports to revoke, terminate or rescind any material provision of any Loan Document.         8.02  Remedies  Upon  Event  of  Default.  If  any  Event  of  Default  occurs  and  is  continuing, the Administrative Agent shall at the request of the Required Lenders (or may with  the consent of the Required Lenders) take any or all of the following actions:         (a)   declare  the  commitment  of  each  Lender  to  make  Loans to  be  terminated,  whereupon such commitments and obligation shall be terminated;          (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document  to  be  immediately  due  and  payable,  without  presentment,  demand,  protest  or  other  notice of any kind, all of which are hereby expressly waived by the Borrower; or         (c)   deliver a notice of exclusive control in relation to the Collateral Account and give  instructions  to  the Collateral  Administrator in  relation  thereto  under  the  provisions  of  the  Security  Agreement, and  may  (in  addition  to  all  other  rights  and  remedies  under  the Loan  Documents and/or  of  a  secured  party  under  the  UCC  and  other  legal  or  equitable  remedies)  realize  upon  the  Collateral,  and/or  may  immediately  sell,  assign,  give  option  or  options  to  purchase or otherwise dispose of and deliver the Collateral or any part thereof, subject to, and in  accordance with the terms of the Security Agreement; and         (d)   exercise on behalf of itself and the Lenders all rights and remedies available to it  and the Lenders under the Loan Documents;   provided, however, that (1) upon the occurrence of an actual or deemed entry of an order for  relief with respect to the Borrower under the Bankruptcy Code of the United States or (2) the  failure of the Borrower to repay in full the Outstanding Amount of all Loans on the Class A Loan  Maturity  Date  in  accordance  with  Section  2.05, the  obligation  of  each  Lender  to  make  Loans  shall  automatically  terminate,  the  unpaid  principal  amount  of  all  outstanding  Loans  and  all  interest and other amounts as aforesaid shall automatically become due and payable, in each case  without further act of the Administrative Agent or any Lender.  For the avoidance of doubt, an  Event of Default arising from failure of the Borrower to repay in full the Outstanding Amount of  all Loans on the Class A Loan Maturity Date in accordance with Section 2.05 may not be waived  without the unanimous consent of the Lenders.         8.03  Application of Funds.           After  the  exercise  of  remedies  provided  for  in Section 8.02 (or  after  the  Loans  have  automatically become immediately due and payable as set forth in the proviso to Section 8.02),  any amounts received on account of the Obligations shall, subject to the provisions of Section  2.12, and  subject  to  any  prior  claims  of  the Collateral  Administrator under  the  Security  Agreement, be applied by the Administrative Agent in the following order:         First,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities,  expenses and other amounts (including fees, charges and disbursements  of external counsel to                                        61                                           





 






    the Administrative Agent and amounts payable under Article III) payable to the Administrative  Agent in its capacity as such;         Second, to payment of that portion of the Obligations constituting fees, indemnities and  other amounts (other than principal and interest) payable to the Lenders (including  fees, charges  and  disbursements  of external counsel  to  the  respective  Lenders  and  amounts  payable  under  Article III), ratably among them in proportion to the respective amounts described in this clause  Second payable to them;         Third,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid  interest  on  the  Loans and  other  Obligations,  ratably  among  the  Lenders  in  proportion  to  the  respective amounts described in this clause Third payable to them;         Fourth, to payment of that portion of the Obligations constituting unpaid principal of the  Loans,  ratably  among  the  Lenders in  proportion  to  the  respective  amounts  described  in  this  clause Fourth held by them; and         Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to  the Company or as otherwise required by Law.                                   ARTICLE IX.                            ADMINISTRATIVE AGENT         9.01  Appointment and Authority.  Each of the Lenders hereby irrevocably appoints  Bank of America to act on its behalf as the Administrative 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.   The  provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders  and the Company shall have no rights as third party beneficiary of any such provisions, except  that that the Company shall be entitled to rely on and enforce the provisions of Sections 9.06 and  9.10.  It is understood and agreed that the use of the term “agent” herein or in any other Loan  Documents (or any other similar term) with reference to the Administrative Agent is not intended  to connote any fiduciary or other implied (or express) obligations arising under agency doctrine  of any applicable Law. Instead such term is used as a matter of market custom, and is intended to  create or reflect only an administrative relationship between contracting parties.         9.02  Rights as a 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  the  term “Lender” or  “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,  include  the  Person  serving  as  the  Administrative  Agent  hereunder  in  its  individual  capacity.   Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as  the financial advisor or in any other advisory capacity for and generally engage in any kind of  business  with the Borrower or Affiliate thereof  as  if such Person were  not  the Administrative  Agent hereunder and without any duty to account therefor to the Lenders.                                        62                                           





 






          9.03  Exculpatory Provisions.  The Administrative Agent shall not have any duties or  obligations  except  those  expressly  set  forth  herein  and  in  the  other  Loan  Documents,  and  its  duties  hereunder  shall  be  administrative  in  nature.  Without  limiting  the  generality  of  the  foregoing, the Administrative Agent:         (a)   shall not be subject to any fiduciary or other implied duties, regardless of whether  a Default has occurred and is continuing;         (b)   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 or  those  rights  and  powers that  the  Administrative  Agent  is  required  to  exercise  as  directed  in  writing  by 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), provided that the Administrative Agent shall not be required to take any action that,  in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or  that is contrary to any Loan Document or applicable law, including for the avoidance of doubt  any action that may be in violation of the automatic stay under any Debtor Relief Law or that  may  effect  a  forfeiture,  modification  or  termination  of  property  of  a  Defaulting  Lender  in  violation of any Debtor Relief Law; and         (c)   shall not, except as expressly set forth herein and in the other Loan Documents,  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 Affiliates  that  is  communicated  to  or  obtained  by  the  Person serving as the 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  (i) with  the  consent  or  at  the  request  of  the  Required  Lenders  (or  such  other  number  or  percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in  good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or  (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of  competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be  deemed not to have knowledge of any Default unless and until notice describing such Default is  given in writing to the Administrative Agent by the Company or a Lender.         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  or  the  occurrence  of  any  Default, (iv) the  validity,  enforceability,  effectiveness  or  genuineness  of  this  Agreement,  any  other  Loan  Document  or  any  other  agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to  the Administrative Agent.         Furthermore, 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                                        63                                           





 






    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 prospective Lender 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.         9.04  Reliance by Administrative Agent.  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, sent or otherwise authenticated 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 have  been made by the proper Person, and shall not incur any liability for relying thereon or on any  representation or warranty in any document delivered in connection with the Credit Agreement.   In  determining  compliance  with  any  condition  hereunder  to  the  making  of  a  Loan that  by  its  terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume  that  such  condition  is  satisfactory  to  such  Lender  unless  the  Administrative  Agent  shall  have  received  notice  to  the  contrary  from  such  Lender  prior  to  the  making  of  such  Loan.   The  Administrative Agent may consult with legal counsel (who may be counsel for the Company),  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.         9.05  Delegation of Duties.  The Administrative Agent may perform any and all of its  duties  and exercise its  rights  and powers hereunder or under  any other  Loan Document 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 of its duties and exercise its rights and  powers by or through their respective Related Parties.  The exculpatory provisions of this Article  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.  The  Administrative  Agent  shall  not  be  responsible  for  the  negligence  or  misconduct  of  any  sub- agents  except  to  the  extent  that  a  court  of  competent  jurisdiction  determines  in  a  final  and  nonappealable  judgment  that  the  Administrative  Agent  acted  with  gross  negligence  or  willful  misconduct in the selection of such sub-agents.         9.06  Resignation of Administrative Agent.  (a) The  Administrative  Agent  may  at  any time give notice of its resignation to the Lenders and the Company.  Upon receipt of any  such  notice  of  resignation,  the  Required  Lenders  shall  have  the  right, if  no  Event  of  Default  exists or is continuing upon the prior written consent of the Borrower (such consent not to be  unreasonably  withheld  or  delayed),  and  if  an  Event  of  Default  exists  and  is  continuing  in  consultation with the Company, to appoint a successor, which at all times shall be a bank with an  office in the United States, or an Affiliate of any such bank with an office in the United States.  If  no such 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 (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation  Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on                                        64                                           





 






    behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set  forth  above.   Whether  or  not  a  successor  has  been  appointed,  such  resignation  shall  become  effective in accordance with such notice on the Resignation Effective Date.         (b)   If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of  the  definition  thereof,  the  Required  Lenders  may,  to  the  extent  permitted  by  applicable  law,  by  notice  in  writing  to  the Company and  such  Person  remove such  Person  as  Administrative Agent and, in consultation with the Company, appoint a successor.  If no such  successor shall have been so appointed by the Required Lenders and shall have accepted such  appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the  “Removal Effective Date”), then such removal shall nonetheless become effective in accordance  with such notice on the Removal Effective Date.         (c)   With effect from the Resignation Effective Date or the Removal Effective Date  (as  applicable) (1) the  retiring  or  removed  Administrative  Agent  shall  be  discharged  from  its  duties  and  obligations  hereunder  and  under  the  other  Loan  Documents  and (2) except  for  any  indemnity  payments  or  other  amounts  then  owed  to  the  retiring  or  removed  Administrative  Agent, all payments, communications and determinations provided to be made by, to or through  the Administrative Agent shall instead be made by or to each Lender directly, until such time, if  any, as the Required Lenders appoint a successor Administrative Agent as provided for above.   Upon  the  acceptance  of  a  successor’s  appointment  as  Administrative  Agent  hereunder,  such  successor shall succeed to and become vested with all of the rights, powers, privileges and duties  of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and  other than any rights to indemnity payments or other amounts owed to the retiring or removed  Administrative  Agent  as  of  the  Resignation  Effective  Date  or  the  Removal  Effective  Date,  as  applicable), and the retiring or removed Administrative Agent shall be discharged from all of its  duties and obligations hereunder or under the other Loan Documents (if not already discharged  therefrom as provided above in this Section) .  The fees payable by the Company to a successor  Administrative  Agent  shall  be  the  same  as  those  payable  to  its  predecessor  unless  otherwise  agreed between the Company and such successor.  After the retiring or removed Administrative  Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions  of  this  Article  and Section 10.04 shall  continue  in  effect  for  the  benefit  of  such  retiring  or  removed Administrative Agent, its sub agents and their respective Related Parties in respect of  any  actions  taken  or  omitted  to  be  taken  by  any  of  them  while  the  retiring  or  removed  Administrative Agent was acting as Administrative Agent.          9.07  Non-Reliance  on  Administrative  Agent  and  Other  Lenders.  Each  Lender  acknowledges that it has, independently and without reliance upon the Administrative Agent or  any other Lender or any of their Related Parties 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 or any of their Related Parties and based on  such 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.                                         65                                           





 






          9.08  No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of  the Book Manager or Arranger listed on the cover page hereof shall have any powers, duties or  responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,  as applicable, as the Administrative Agent or a Lender hereunder.         9.09  Administrative Agent May File Proofs of Claim; Credit Bidding.  In case of  the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding  relative to the Company, the Administrative Agent (irrespective of whether the principal of any  Loan  shall  then  be  due  and  payable  as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective of whether the Administrative Agent shall have made any demand on the Borrower)  shall be entitled and empowered, by intervention in such proceeding or otherwise         (a)   to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file  such  other  documents  as  may  be  necessary  or  advisable  in  order  to  have  the  claims  of  the  Lenders  and  the  Administrative  Agent  (including  any  claim  for  the  reasonable  compensation,  expenses,  disbursements  and  advances  of  the  Lenders  and  the  Administrative  Agent  and  their  respective  agents  and  counsel  and  all  other  amounts  due  the  Lenders  and  the  Administrative  Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and         (b)   to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Lender to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making  of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for  the reasonable compensation, expenses, disbursements and advances of the Administrative Agent  and its agents and counsel, and any other amounts due the Administrative Agent under Sections  2.09 and 10.04.         Nothing  contained  herein  shall  be  deemed  to  authorize  the  Administrative  Agent  to  authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,  arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to  authorize the Administrative Agent  to  vote in  respect  of the claim  of any  Lender in  any such  proceeding.         The  Secured  Parties  hereby  irrevocably  authorize  the  Administrative  Agent,  at  the  direction of the Required Lenders, to credit bid all or any portion of the Obligations (including  accepting some or all of the Collateral in satisfaction of some or all of the 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 of the United States, including  under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar  Laws  in  any  other  jurisdictions  to  which  a  Loan  Party  is  subject,  (b)  at  any  other  sale  or  foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the  direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance                                        66                                           





 






    with any applicable Law.  In connection with any such credit bid and purchase, the Obligations  owed to  the Secured Parties  shall be entitled to  be, and shall be,  credit  bid  on a ratable basis  (with Obligations with respect to contingent or unliquidated claims receiving contingent interests  in the acquired assets on a ratable basis that would 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) in  the asset or assets  so  purchased  (or in  the Equity  Interests or debt  instruments of the acquisition vehicle or vehicles that are used to consummate such purchase).   In connection with any such bid (i) the Administrative Agent shall be authorized to form one or  more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of  the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 the vote of the Required Lenders,  irrespective of the termination of this Agreement and without giving effect to the limitations on  actions  by the Required  Lenders contained in  clauses  (a) through (g) of Section 10.01 of this  Agreement, (iii) the Administrative Agent shall be authorized to assign the relevant Obligations  to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders  shall  be  deemed  to  have  received  a  pro  rata  portion  of  any  Equity  Interests  and/or  debt  instruments  issued  by  such  an  acquisition  vehicle  on  account  of  the  assignment  of  the  Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to  take any further action, and (iv) to the extent that 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  Obligations  assigned  to  the  acquisition  vehicle  exceeds  the  amount  of  debt  credit  bid  by  the  acquisition  vehicle  or  otherwise),  such  Obligations  shall  automatically  be  reassigned  to  the  Lenders  pro  rata  and  the  Equity  Interests  and/or  debt  instruments  issued  by  any  acquisition  vehicle  on  account  of  the  Obligations  that  had  been  assigned  to  the  acquisition  vehicle  shall  automatically  be  cancelled,  without  the  need  for  any  Secured Party or any  acquisition vehicle to take any further action.         9.10  Collateral Matters.  Without limiting the provisions of Section 9.09, the Lenders  irrevocably authorize the Administrative Agent, at its option and in its discretion,         (a)   to  release  any  Lien on  any  property  granted  to  or  held  by  the  Administrative  Agent  under  any  Loan  Document (i) upon  termination  of  the  Aggregate  Commitments  and  payment in full of all Obligations (other than contingent indemnification obligations), (ii) that is  sold or otherwise disposed of  or to be sold or otherwise disposed of as part of or in connection  with any sale or other disposition permitted hereunder or under any other Loan Document, or  (iii) subject  to Section 10.01,  if  approved,  authorized  or  ratified  in  writing  by  the  Required  Lenders; and         (b)   to subordinate any Lien on any property granted to or held by the Administrative  Agent under any Loan Document to the holder of any Lien on such property that is permitted by  Section 7.01(i).         Upon  request  by  the  Administrative  Agent  at  any  time,  the  Required  Lenders  will  confirm in writing the Administrative Agent’s authority to release or subordinate its interest in  particular types or items of property pursuant to this Section 9.10.                                         67                                           





 






          The  Administrative  Agent  shall  not  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  Lien thereon, or  any certificate prepared by the Company in connection therewith, nor shall the Administrative  Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion  of the Collateral.                                    ARTICLE X.                                MISCELLANEOUS         10.01 Amendments,  Etc.  Other  than  in  the  case  of a LIBOR  Successor  Rate  Amendment,  no  amendment  or  waiver  of  any  provision  of  this  Agreement  or  any  other  Loan  Document, and no consent to any departure by the Company therefrom, shall be effective unless  in  writing  signed  by  the  Required  Lenders  and  the  Company and  acknowledged  by  the  Administrative Agent,  and each such waiver or  consent  shall be effective only in  the specific  instance  and  for  the  specific  purpose  for  which  given; provided, however,  that  no  such  amendment, waiver or consent shall:         (a)   waive  any  condition  set  forth  in Section 4.01(a) without  the  written  consent  of  each Lender;         (b)   extend or increase the Commitment of any Lender (or reinstate any Commitment  terminated pursuant to Section 8.02) without the written consent of such Lender;         (c)   postpone any date fixed by this Agreement or any other Loan Document for any  payment  of  principal,  interest,  fees  or  other  amounts  due  to  the  Lenders  (or  any  of  them)  hereunder  or  under  any  other  Loan  Document  without  the  written  consent  of  each  Lender  directly affected thereby;         (d)   reduce the principal of, or the rate of interest specified herein on, any Loan, or  (subject  to  clause (ii) of  the  second  proviso  to  this Section 10.01)  any  fees  or  other  amounts  payable hereunder or under any other Loan Document, or change the manner of computation of  any financial ratio (including any change in any applicable defined term) used in determining the  Applicable  Rate  that  would  result  in  a  reduction  of  any  interest  rate  on  any  Loan  or  any  fee  payable  hereunder  without  the  written  consent  of  each  Lender  directly  affected  thereby;  provided, however, that only the consent of the Required Lenders shall be necessary to amend  the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the  Default  Rate and,  for  the  avoidance  of  doubt,  this  clause (d) shall  not  apply  in  the  case  of  a  LIBOR Successor Rate Amendment;         (e)   change Section 8.03 in a manner that would alter the pro rata sharing of payments  required thereby without the written consent of each Lender; or         (f)   change any provision of this Section or the definition of “Required Lenders” or  any other provision hereof specifying the number or percentage of Lenders required to amend,  waive or otherwise modify any rights hereunder or make any determination or grant any consent  hereunder without the written consent of each Lender;                                         68                                           





 






    and, provided further,  that (i) no  amendment,  waiver  or  consent  shall,  unless  in  writing  and  signed by the Administrative Agent in addition to the Lenders required above, affect the rights or  duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii)  the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed  only  by  the  parties  thereto.  Notwithstanding  anything  to  the  contrary  herein,  no  Defaulting  Lender  shall  have  any  right  to approve  or  disapprove  any  amendment,  waiver  or  consent  hereunder (and any amendment, waiver or consent which by its terms requires the consent of all  Lenders  or  each  affected  Lender  may  be  effected  with  the  consent  of  the  applicable  Lenders  other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may  not be increased or extended without the consent of such Lender and (y) any waiver, amendment  or modification requiring the consent  of all  Lenders or each affected  Lender that by its  terms  affects  any  Defaulting  Lender disproportionately adversely relative  to other  affected  Lenders  shall require the consent of such Defaulting Lender.         Notwithstanding  anything  to  the  contrary  in  this  Agreement  or any other  Loan  Documents, if  the  Administrative  Agent  determines  (which  determination  shall  be  conclusive  absent manifest or demonstrable error), or the Company notifies the Administrative Agent that  the Company has determined, that:         (a)   adequate  and  reasonable  means  do  not  exist  for  ascertaining  LIBOR for  any  requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not  available or published on a current basis and such circumstances are unlikely to be temporary,           (b)   the administrator of the LIBOR Screen Rate or a Governmental Authority having  jurisdiction  over  the  Administrative  Agent  has  made  a  public  statement  identifying  a  specific  date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used  for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”)  or         (c)   syndicated loans currently being executed, or that include language similar to that  contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a  new benchmark interest rate to replace LIBOR,          then,  reasonably  promptly  after  such  determination  by  the  Administrative  Agent  or  receipt  by  the  Administrative  Agent  of  such  notice from  the  Company,  as  applicable,   the  Administrative Agent and the Company may mutually agree to amend this Agreement to replace  LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the  benchmark  (if  any)  incorporated  therein),  giving  due  consideration  to  any  evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated  syndicated  credit  facilities  for  such  alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any  proposed LIBOR Successor Rate Conforming Changes, and any such amendment shall become  effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent  shall  have  posted  such  proposed  amendment to  all  Lenders  and  the  Company (any  such  amendment,  a  “LIBOR  Successor  Rate  Amendment”) unless,  prior  to  such  time,  Lenders  comprising the Required Lenders have delivered to the Administrative Agent written notice that  such Required Lenders do not accept such amendment.                                           69                                           





 






          If no LIBOR Successor Rate has been determined and the circumstances under clause (i)  above  exist  or  the  Scheduled  Unavailability  Date  has  occurred  (as  applicable), the  Administrative Agent will promptly so notify the Company and each Lender.  Thereafter, (x) the  obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended (to  the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) the Eurocurrency  Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt of such  notice,  the  Borrower  may  revoke  any  pending  request  for  a  Borrowing  of,  conversion to  or  continuation of Eurocurrency Rate Loans (to the extent of the affected Eurocurrency Rate Loans  or Interest Periods) or, failing that, will be deemed to have converted such request into a request  for  a  Committed  Borrowing  of  Base  Rate  Loans (subject  to  the  foregoing  clause  (y) in  the  amount specified therein).         Notwithstanding  anything  else  herein,  any  definition  of  LIBOR  Successor  Rate  shall  provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this  Agreement.         10.02 Notices; Effectiveness; Electronic Communication.           (a)   Notices  Generally.   Except  in  the  case  of  notices  and  other  communications  expressly permitted to be given by telephone (and except as provided in subsection (b) below),  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  facsimile or  electronic  mail as  follows,  and  all  notices  and  other  communications  expressly  permitted hereunder to be given by telephone shall be made to the applicable telephone number,  as follows:               (i)   if to the Company or the Administrative Agent, to the address, facsimile        number,  electronic  mail  address  or  telephone  number  specified  for  such  Person  on        Schedule 10.02; and                (ii)  if to any other Lender, to the address, facsimile number, electronic mail        address or telephone number specified in its Administrative Questionnaire (including, as        appropriate,  notices  delivered  solely  to  the  Person  designated  by  a  Lender  on  its        Administrative Questionnaire then in effect for the delivery of notices that may contain        material non-public information relating to the Company).   Notices  and  other  communications  sent  by  hand  or  overnight  courier  service,  or  mailed  by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by facsimile shall be deemed to have been given when sent (except that, if  not given during normal business hours for the recipient, shall be deemed to have been given at  the  opening  of  business  on  the next  Business  Day for  the  recipient).   Notices  and  other  communications  delivered  through  electronic  communications  to  the  extent  provided  in  subsection (b) below, shall be effective as provided in such subsection (b).         (b)   Electronic Communications.  Notices  and other  communications  to  the Lenders  hereunder may be delivered or furnished by electronic communication (including e-mail, FpML  messaging, and  Internet  or  intranet  websites)  pursuant  to  procedures  approved  by  the                                        70                                           





 






    Administrative  Agent, provided that  the  foregoing  shall  not  apply  to  notices  to  any  Lender  pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of  receiving notices under such Article by electronic communication.  The Administrative Agent or  the Company may each, in its 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 sending,  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; provided that, for both clauses (i) and (ii), if such notice, email or  other communication is not sent during the normal business hours of the recipient, such notice,  email or communication shall be deemed to have been sent at the opening of business on the next  business day for the recipient.         (c)   The  Platform.   THE  PLATFORM  IS  PROVIDED   “AS  IS” AND   “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY  OR  COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE  ADEQUACY  OF  THE  PLATFORM,  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  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 ANY AGENT PARTY  IN  CONNECTION WITH  THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative  Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the  Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of  any  kind  (whether  in  tort,  contract  or  otherwise)  arising  out  of the  Company’s or  the  Administrative Agent’s transmission of Borrower Materials through the Internet.         (d)   Effectiveness of Facsimile of Electronic Mail Documents.  Loan Documents may  be  transmitted  by  facsimile  or  electronic  mail.   The  effectiveness  of  any  such  documents  and  signatures shall, subject to applicable Law, have the same force and effect as manually-signed  originals and shall be binding on the Company, the Administrative Agent and the Lenders.  The  Administrative Agent may also require that any such documents and signatures be confirmed by  a manually-signed original thereof; provided, however, that the failure to request or deliver the  same shall not limit the effectiveness of any facsimile or electronic mail document or signature.         (e)   Change  of  Address,  Etc.  The  Borrower and the  Administrative  Agent  may  change its address, electronic mail address, facsimile or telephone number for notices and other  communications hereunder by notice to the other parties hereto.  Each other Lender may change  its  address, electronic  mail  address, facsimile or  telephone  number  for  notices  and  other  communications hereunder by notice to the Company and the Administrative Agent.  In addition,  each  Lender  agrees  to  notify  the  Administrative  Agent from  time  to  time  to  ensure  that  the  Administrative  Agent  has  on  record (i) an  effective  address,  contact  name,  telephone  number,                                        71                                           





 






    facsimile number and electronic mail address to which notices and other communications may be  sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees  to cause at least one individual at or on behalf of such Public Lender to at all times have selected  the “Private  Side  Information” or  similar  designation  on  the  content  declaration  screen of  the  Platform in order to enable such Public Lender or its delegate, in accordance with such Public  Lender’s compliance procedures and applicable Law, including United States Federal and state  securities Laws, to make reference to Borrower Materials that are not made available through the  “Public  Side  Information” portion  of  the  Platform  and  that  may  contain  material  non-public  information with respect to the Company or its securities for purposes of United States Federal  or state securities laws.         (f)   Reliance by Administrative Agent and Lenders.  The Administrative Agent and  the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic  Committed  Loan  Notices) purportedly  given  by  or  on  behalf  of the  Borrower even  if (i) such  notices were not made in a manner specified herein, were incomplete or were not preceded or  followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by  the  recipient,  varied  from  any  confirmation  thereof.   The  Company  shall  indemnify  the  Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs,  expenses  and liabilities resulting from  the reliance by such Person on each notice purportedly  given  by  or  on  behalf  of the  Borrower.  All  telephonic  notices  to  and  other  telephonic  communications with the Administrative Agent may be recorded by the Administrative Agent,  and each of the parties hereto hereby consents to such recording.         10.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender or  the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,  remedy,  power  or  privilege  hereunder or  under  any  other  Loan  Document shall  operate  as  a  waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege  hereunder  preclude  any  other  or  further  exercise  thereof  or  the  exercise  of  any  other  right,  remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and  provided  under  each other  Loan  Document, are  cumulative  and  not  exclusive  of  any  rights,  remedies, powers and privileges provided by law.         Notwithstanding  anything  to  the  contrary  contained  herein  or  in  any  other  Loan  Document,  the  authority  to  enforce  rights  and  remedies  hereunder  and  under  the  other  Loan  Documents against the Company shall be vested exclusively in, and all actions and proceedings  at law in connection with such enforcement shall be instituted and maintained exclusively by, the  Administrative  Agent  in  accordance  with Section 8.02 for  the  benefit  of  all  the  Lenders;  provided, however,  that  the  foregoing  shall  not  prohibit (a) the  Administrative  Agent  from  exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity  as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from  exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.11),  or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf  during the pendency of a proceeding relative to the Company under any Debtor Relief Law; and  provided, further, that if at any time there is no Person acting as Administrative Agent hereunder  and  under  the  other  Loan  Documents,  then (i) the  Required  Lenders  shall  have  the  rights  otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to  the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.11,                                        72                                           





 






          any  Lender  may,  with  the  consent  of  the  Required  Lenders,  enforce  any  rights  and  remedies     available to it and as authorized by the Required Lenders.            10.04 Expenses; Indemnity; Damage Waiver.              (a)   Costs and Expenses.  The Company shall pay (i) all reasonable and documented     out-of-pocket  expenses  incurred  by  the  Administrative  Agent and  each  Lender  and  their     respective Affiliates (including the reasonable and documented out-of-pocket fees, charges and     disbursements  of  counsel  for  the  Administrative  Agent),  in  connection  with  the  preparation,     negotiation,  execution,  delivery and  administration  of  this  Agreement  and  the  other  Loan     Documents  or  any  amendments,  modifications  or  waivers  thereof  (whether  or  not  the     transactions contemplated hereby or thereby shall be consummated) other than those which result     from a claim brought by the Borrower or the Borrower Parent against the Administrative Agent     for  breach  of  its  obligations  hereunder  or  under  any  other  Loan  Document  and  such  claim  is     determined in favor of the Borrower or Borrower Parent by a court of competent jurisdiction by     final  and  non-appealable  judgment and  (ii) all  out-of-pocket  expenses  incurred  by  the     Administrative  Agent  or  any  Lender  (including  reasonable  and  documented fees,  charges  and     disbursements of any counsel for the Administrative Agent or any Lender), in connection with     the enforcement or protection of its rights (A) in connection with this Agreement and the other     Loan  Documents,  including  its  rights  under  this  Section,  or  (B) in  connection  with  the  Loans     made hereunder, including all such reasonable and documented out-of-pocket expenses incurred     during any workout, restructuring or negotiations in respect of such Loans.         (b)      Indemnification  by  the  Company.   The  Company  shall  indemnify  the  Administrative Agent (and any sub-agent thereof) 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 costs, losses, claims, damages,  liabilities  and  related  expenses (including reasonable and documented out-of-pocket fees, charges and disbursements of  any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by  any Person (including the Company) other than such Indemnitee and its Related Parties arising out  of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other  Loan Document or any agreement or instrument contemplated hereby or thereby, the performance  by the parties hereto of their respective obligations hereunder or thereunder, the consummation of  the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and  any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the  other  Loan  Documents  (including  in  respect  of  any  matters  addressed  in Section 3.01), (ii) any  Loan or the use or proposed use of the proceeds therefrom or (iii) any actual or prospective claim,  litigation, investigation or proceeding relating to any of the foregoing (including without limitation  any such claim, litigation or proceeding arising from any sale or distribution of securities by the  Borrower, Borrower Parent or BDC Parent), whether based on contract, tort or any other theory,  whether brought by a third party or by the Company, and regardless of whether any Indemnitee is a  party thereto in all cases; provided that such indemnity shall not, as to any Indemnitee, be available  to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by  a court of competent jurisdiction by final and nonappealable judgment to have resulted from fraud,  gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the  Company against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder  or  under  any  other  Loan  Document,  if  the  Company  has  obtained  a  final  and  nonappealable                                           73                                              





 






       judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) arise  out of actions solely between the Lenders and/or the Administrative Agent.  Without limiting the  provisions of Section 3.01(c), this Section 10.04(b) shall not apply with respect to Taxes other than  any  Taxes  that  represent  losses,  claims,  damages,  etc.  arising  from any  non-Tax  claim. If  the  Borrower  has  made  any  prepayments  pursuant  to  this  Section  10.04(b)  and  the  recipient  thereof  later collects any payments from others (including insurance companies) in respect of such amounts  or is found in a final non-appealable judgment by a court of competent jurisdiction not to be entitled  to such indemnification, then the recipient agrees that it shall promptly repay to the Borrower such  amounts collected.             (c)   Reimbursement by Lenders.  To the extent that the Company for any reason fails     to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by     it to the Administrative Agent (or any sub-agent thereof), or any Related Party of the foregoing,     each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), or such     Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that     the applicable unreimbursed  expense or indemnity payment is  sought based on  each  Lender’s     share  of  the  Total  Credit  Exposure  at  such  time)  of  such  unpaid  amount  (including  any  such     unpaid  amount  in  respect  of  a  claim  asserted  by  such  Lender),  such  payment  to  be  made     severally among them based on such Lender’s Applicable Percentage (determined as of the time     that the applicable unreimbursed expense or indemnity payment is sought), provided further 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 any such sub-    agent) or against any Related Party of any of the foregoing acting for the Administrative Agent     (or any sub-agent) in connection with such capacity.  The obligations of the Lenders under this     subsection (c) are subject to the provisions of Section 2.10(d).            (d)   Waiver  of  Consequential  Damages,  Etc.  To  the  fullest  extent  permitted  by     applicable law, the Borrower shall not assert, and hereby waives, and acknowledges that no other     Person  shall  have,  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,  any  other  Loan  Document  or  any     agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,     any Loan or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above     shall be liable for any damages arising from the use by unintended recipients of any information     or  other  materials  distributed  to  such  unintended  recipients  by  such  Indemnitee  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     other than for direct or actual damages resulting from the gross negligence or willful misconduct     of such Indemnitee as determined by a final and nonappealable judgment of a court of competent     jurisdiction.            (e)   Payments.  All amounts due under this Section shall be payable not later than ten     Business  Days  after written  demand  therefor  and  shall  be  evidenced  by  a  certificate  by  the     applicable Indemnitee setting forth in reasonable detail the basis for and the computations of the     amounts with respect to which such indemnification is requested.            (f)   Sufficiency of Remedies.                                           74                                              





 






          Borrower hereby acknowledges that (i) any and all claims, damages and demands against  the Lender  arising  out  of,  or  in  connection  with,  the  exercise  by  the Lender of  any  of the  Lender’s rights or remedies under the Facility can be sufficiently and adequately remedied by  monetary  damages,  (ii) no  irreparable  injury  will  be  caused  to  the  Borrower,  the  Borrower  Parent, BDC  Parent or the Investment  Adviser as  a result  of, or in  connection with,  any such  claims,  damages  or  demands,  and  (iii) no  equitable  or  injunctive  relief  shall  be  sought  by  the  Borrower,  the  Borrower Parent, BDC  Parent or  the Investment  Adviser as  a  result  of,  or  in  connection with, any such claims, damages or demands.         (g)   Survival.   The  agreements  in  this Section and  the  indemnity  provisions  of  Section 10.02(f) shall  survive  the  resignation  of  the  Administrative  Agent,  the  replacement  of  any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or  discharge of all the other Obligations.         10.05 Payments  Set  Aside.  To  the  extent  that  any  payment  by  or  on  behalf  of the  Borrower is  made  to  the  Administrative  Agent,  any  Lender,  or  the  Administrative  Agent any  Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part  thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required  (including pursuant to any settlement entered into by the Administrative Agent or such Lender in  its  discretion)  to  be  repaid  to  a  trustee,  receiver  or  any  other  party,  in  connection  with  any  proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery,  the obligation or part thereof originally intended to be satisfied shall be revived and continued in  full force and effect as if such payment had not been made or such setoff had not occurred, and  (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable  share  (without  duplication)  of  any  amount  so  recovered  from  or  repaid  by  the  Administrative  Agent, plus interest thereon from the date of such demand to the date such payment is made at a  rate  per  annum  equal  to  the  applicable  Overnight  Rate from  time  to  time  in  effect,  in  the  applicable currency of such recovery or payment.  The obligations of the Lenders under clause  (b) of  the  preceding  sentence  shall  survive  the  payment  in  full  of  the  Obligations  and  the  termination of this Agreement.                                         75                                           





 






          10.06 Successors and Assigns.           (a)   Successors  and  Assigns  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, except that the Company may not assign or otherwise transfer any of  its rights or obligations hereunder without the prior written consent of the Administrative Agent  and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations  hereunder except (i) to  an assignee in  accordance with  the provisions of subsection (b) of this  Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this  Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of  subsection (f) of  this  Section.   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, Participants to the extent provided in subsection (d) of this Section  and,  to  the  extent  expressly  contemplated  hereby,  the  Related  Parties  of  each  of  the  Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by  reason of this Agreement.         (b)   Assignments  by  Lenders.   Any  Lender  may  at  any  time  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  at  the  time  owing  to  it); provided that any  such  assignment shall be subject to the following conditions:               (i)   Minimum Amounts.                     (A)   in the case of an assignment of the entire remaining amount of the              assigning  Lender’s  Commitment or  contemporaneous  assignments  to  related              Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of              this Section in the aggregate and the Loans at the time owing to it or in the case of              an  assignment  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved  Fund,  no              minimum amount need be assigned; and                     (B)   in  any  case  not  described  in subsection  (b)(i)(A) of  this  Section,              the aggregate amount of the Commitment (which for this purpose includes Loans              outstanding thereunder) or, if the Commitment is not then in effect, the principal              outstanding  balance  of  the  Loans  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 or, if “Trade              Date” is specified in the Assignment and Assumption, as of the Trade Date, shall              not be less than $10,000,000 unless each of the Administrative Agent and, so long              as  no Event  of Default  has  occurred and is  continuing, the Company otherwise              consents (each such consent not to be unreasonably withheld or delayed).               (ii)  Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an        assignment  of  a  proportionate  part  of  all  the  assigning  Lender’s  rights  and  obligations        under this Agreement with respect to the Loans or the Commitment assigned;                                         76                                           





 






                       (iii) Required  Consents.  In  addition  to  any  consents required  by subsection  (b)(i)(B) of  this Section,  so  long  as  no Specified  Default  or  Event  of  Default  under  Section  8.01(b) is  continuing,  the  consent  of  the  Borrower shall  be  required  for  any  assignment by a Lender of its rights or obligations hereunder if such assignment is to a  Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect  to  such  Lender,  provided  that  such  consent  shall not  be  unreasonably  withheld  or  delayed, and  will be deemed granted if the Borrower fails to  respond to a request  for  consent  within  10  Business  Days;  provided,  however,  that  the  Borrower  shall  not  be  considered  to  have  unreasonably  withheld  its  consent  in  relation  to  any  prospective  assignee  of  a  Lender  where  Borrower  reasonably  demonstrates  that  such  prospective  assignee  is  an  Affiliate  of,  or  acts  as  an  investment  adviser  to,  any Competitor. In  addition, the consent of the Administrative Agent (such consent not to be unreasonably  withheld  or  delayed)  shall  be  required  if  such  assignment  is  to  a  Person  that  is  not  a  Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.         (iv)  Assignment  and  Assumption.   The  parties  to  each  assignment  shall  execute and deliver to the Administrative Agent an Assignment and Assumption, together  with a processing and recordation fee in the amount of $3,500; provided, however, that  the Administrative Agent may, in its sole discretion, elect to waive such processing and  recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.         (v)   No Assignment to Certain Persons. No such assignment shall be made (A)  to the Company or any of the Company’s Affiliates, (B) to any Defaulting Lender or any  of its  subsidiaries,  or  any  Person  who,  upon  becoming  a  Lender  hereunder,  would  constitute any of the foregoing Persons described in this clause (B), (C) other than when a  Specified  Default  or Event  of Default under  Section  8.01(b) has  occurred  and  is  continuing, to any Person listed on Annex E (a “Competitor”) or (D) to a natural Person  (any such Person described in clause (A), (B), (C) or (D), a “Disqualified Lender”).          (vi)  Certain Additional Payments.  In connection with any assignment of rights  and  obligations  of  any  Defaulting  Lender  hereunder,  no  such  assignment  shall  be  effective unless and until, in addition to the other conditions thereto set forth herein, the  parties  to  the  assignment  shall  make  such  additional  payments  to  the  Administrative  Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which  may  be  outright  payment,  purchases  by  the  assignee  of  participations  or  subparticipations, or other compensating actions, including funding, with the consent of  the  Company and  the  Administrative  Agent,  the  applicable  pro  rata  share  of  Loans  previously  requested  but  not  funded  by  the  Defaulting  Lender,  to  each  of  which  the  applicable  assignee  and  assignor  hereby  irrevocably  consent),  to (x) pay  and  satisfy  in  full  all payment liabilities  then owed  by such Defaulting  Lender to  the  Administrative  Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund  as  appropriate)  its  full  pro  rata  share  of  all  Loans  accordance  with  its  Applicable  Percentage.  Notwithstanding the foregoing, in the event  that  any  assignment of  rights  and  obligations  of  any  Defaulting  Lender  hereunder  shall  become  effective  under  applicable  Law  without  compliance  with  the  provisions  of  this  paragraph,  then  the                                   77                                                        





 






          assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of        this Agreement until such compliance occurs.          Subject  to  acceptance  and  recording  thereof  by  the  Administrative  Agent  pursuant  to  subsection (c) of this Section, from and after the effective date specified in each Assignment and  Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05, and 10.04  with respect to facts and circumstances occurring prior to the effective date of such assignment;  provided,  that  except  to  the  extent  otherwise  expressly  agreed  by  the  affected  parties,  no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party  hereunder  arising  from  that  Lender’s  having  been  a  Defaulting  Lender.  Upon  request,  the  Borrower  (at  its  expense)  shall  execute  and  deliver  a  Note  to  the  assignee  Lender.   Any  assignment or transfer by a Lender of rights or obligations under this Agreement that does not  comply with this subsection 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 subsection (d) of this  Section.         (c)   Register.  The Administrative Agent, acting solely for this purpose as an agent of  the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment  and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the  recordation of the names and addresses of the Lenders, and the Commitments of, and principal  amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof  from  time  to  time  (the “Register”).   The  entries  in  the  Register  shall  be  conclusive absent  manifest  error,  and the Borrower,  the  Administrative  Agent  and  the  Lenders shall treat  each  Person  whose  name  is  recorded  in  the  Register  pursuant  to  the  terms  hereof  as  a  Lender  hereunder for all purposes of this Agreement.  The Register shall be available for inspection by  the Borrower and any  Lender, at  any reasonable time and  from  time to  time upon reasonable  prior notice.           (d)   Participations.  Any Lender may at any time, without the consent of, or notice to,  the  Borrower or  the  Administrative  Agent,  sell  participations  to  any  Person (other  than  a  Competitor or any party which is in the good faith determination of such Lender, an Affiliate of,  or  investment  adviser  to,  any Competitor) (each,  a “Participant”)  in  all  or  a  portion  of  such  Lender’s  rights  and/or  obligations  under  this  Agreement  (including  all  or  a  portion  of  its  Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this  Agreement 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 and the Lenders  shall continue to deal solely and directly with such Lender in connection  with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt,  each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the  existence of any participation.                                         78                                           





 






          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 to approve any  amendment,  modification  or  waiver  of  any   provision  of  this  Agreement; provided that  such  agreement  or  instrument  may  provide  that  such  Lender  will  not,  without  the  consent  of  the  Participant, agree to any amendment, waiver or other modification described in the first proviso  to Section 10.01 that affects such Participant.  The Company agrees that each Participant shall be  entitled  to  the  benefits  of Sections 3.01, 3.04 and 3.05 (subject  to  the  requirements  and  limitations therein, including the requirements under Section 3.01(e) (it being understood that the  documentation  required  under Section 3.01(e) shall  be  delivered  to  the  Lender  who  sells  the  participation)) 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 (A) agrees to  be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph  (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections  3.01 or 3.04,  with  respect  to  any  participation,  than  the  Lender  from  whom  it acquired  the  applicable  participation  would  have  been  entitled  to  receive,  except  to  the  extent  that  such  entitlement  to  receive  a  greater  payment  results  from  a  Change  in  Law  that  occurs  after  the  Participant acquired the applicable participation and the same greater payment would also have  applied to the relevant Lender.  Each Lender that sells a participation agrees, at the Company’s  request and expense, to use reasonable efforts to cooperate with the Company to effectuate the  provisions of Section 3.06 with respect to any Participant.  To the extent permitted by law, each  Participant  also  shall  be  entitled  to  the  benefits  of Section 10.08 as  though  it  were  a  Lender;  provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender.   Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent  of the Company, 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  (the “Participant  Register”); provided that  no  Lender  shall have any obligation to disclose all or any portion of the Participant Register (including the  identity  of  any  Participant  or  any  information  relating  to  a  Participant’s  interest  in  any  commitments, loans or its other obligations under any Loan Document) to any Person except to  the  extent  that  such  disclosure  is  necessary  to  establish  that  such  commitment,  loan  or  other  obligation is in registered form under Section 163(f) of the Code.  The entries in the 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  for  all  purposes  of this  Agreement  notwithstanding any notice to  the contrary.  For the avoidance of  doubt,  the  Administrative  Agent  (in  its  capacity  as  Administrative  Agent)  shall  have  no  responsibility for maintaining a Participant Register.         (e)   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 (including under its Note, if any) to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of  its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party  hereto.         (f)   Status as Qualified Purchaser.  Notwithstanding anything to the contrary set forth  herein or in any other Loan Document, each Lender hereunder, and each Participant, must at all                                         79                                           





 






    times  be  a  “qualified  purchaser”  as  defined  in  the  Investment  Company  Act  (a  “Qualified  Purchaser”).  Accordingly:               (i)   each Lender represents to the Borrower, (A) on the date that it becomes a        party  to  this  Agreement  (whether  by  being  a  signatory  hereto  or  by  entering  into  an        Assignment and Assumption) and (B) on each date on which it makes a Credit Extension        hereunder, that it is a Qualified Purchaser;                 (ii)  each Lender agrees that it shall not assign, or grant any participations in,        any of its rights or obligations under this Agreement to any Person unless such Person is        a Qualified Purchaser; and               (iii) the Borrower agrees that, to the extent it has the right to consent to any        assignment or participation herein, it shall not consent to such assignment or participation        hereunder  unless  it  reasonably  believes  that  the  assignee  or  participant  is  a  Qualified        Purchaser  at  the  time  of  such  assignment  or  participation  and  that  such  assignment  or        participation  will  not  cause  the  Borrower  or  the  pool  of  Collateral  to  be  required  to        register as an investment company under the Investment Company Act.         10.07 Treatment  of  Certain  Information;  Confidentiality.  Each  of  the  Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information  (as  defined  below),  except  that  Information  may  be  disclosed (a) to  its  Affiliates  and  to  its  Related Parties (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 and  the  applicable  Lender  or  Administrative  Agent  shall  be  responsible  for  any  breach by any such Affiliate or Related Party of the confidentiality provisions contained herein),  (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction  over  such  Person  or  its  Related  Parties  (including  any  self-regulatory  authority,  such  as  the  National Association of Insurance Commissioners), (c) to the extent required by applicable laws  or  regulations  or  by  any  subpoena  or  similar  legal  process with  prior  written  notice  to  the  Borrower, (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  and  obligations  under  this  Agreement  or  any  Eligible  Assignee  invited  to  be  a  Lender  pursuant to Section 10.01 or (ii) any actual or prospective party (or its Related Parties) to any  swap, derivative or other transaction under which payments are to be made by reference to any  of the  Borrower  and their obligations,  this  Agreement  or  payments  hereunder, (g) on  a  confidential basis to (i) any rating agency in connection with rating the Company or the credit  facilities  provided  hereunder  or (ii) the  CUSIP  Service  Bureau  or  any  similar  agency  in  connection with the issuance and monitoring of CUSIP numbers or other market identifiers with  respect to the credit facilities provided hereunder, (h) with the consent of the Company or (i) to  the extent such Information (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 or any of their  respective  Affiliates  on  a  nonconfidential  basis  from  a  source  other  than the  Company,  the  Borrower Parent, BDC Parent or any of their respective representatives or agents.  In addition,                                        80                                           





 






    the  Administrative  Agent  and  the Lenders  may  disclose  the  existence  of  this  Agreement  and  information  about  this  Agreement  to  market  data  collectors,  similar  service  providers  to  the  lending  industry  and  service  providers  to  the  Agents  and  the  Lenders  in  connection  with  the  administration  of  this  Agreement,  the  other  Loan  Documents,  and  the  Commitments.   “Information” means all information received from the Company relating to the Company, other  than  any  such  information  that  is  available  to  the  Administrative  Agent or any  Lender  on  a  nonconfidential  basis  prior  to  disclosure  by the  Company,  provided  that,  in  the  case  of  information  received  from  the  Company  after  the  date  hereof,  such  information  is  clearly  identified  at  the  time  of  delivery  as  confidential.  Any  Person  required  to  maintain  the  confidentiality of Information as provided in this Section 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.         Each of the Administrative Agent and the Lenders acknowledges that (a) the Information  may  include  material  non-public  information  concerning  the  Company, (b) it  has  developed  compliance  procedures  regarding  the  use  of  material  non-public  information  and (c) it  will  handle  such  material  non-public  information  in  accordance  with  applicable  Law,  including  United States Federal and state securities Laws.         10.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing,  each Lender and each of their respective Affiliates is hereby authorized at any time and from  time to time, to the fullest extent permitted by applicable 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 (in whatever currency) at any time owing by such Lender or any  such  Affiliate  to  or  for  the  credit  or  the  account  of the  Company against  any  and  all  of  the  obligations of the Company now or hereafter existing under this Agreement or any other Loan  Document to such Lender or its Affiliates, irrespective of whether or not such Lender or Affiliate  shall have made any demand under this Agreement or any other Loan Document and although  such obligations of the Company may be contingent or unmatured or are owed to a branch, office  or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or  obligated  on  such  indebtedness; provided that  in  the  event  that  any  Defaulting  Lender  shall  exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section 2.12  and, pending such payment, shall be segregated by such Defaulting Lender from its other funds  and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the  Defaulting Lender shall 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.  The rights of each Lender and their respective Affiliates under this Section are in  addition  to  other rights  and remedies (including other rights  of setoff) that such  Lender or its  Affiliates may have.  Each Lender agrees to notify the Company and the Administrative Agent  promptly after any such setoff and application, provided that the failure to give such notice shall  not affect the validity of such setoff and application.           10.09 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 of non-usurious interest permitted by applicable Law (the “Maximum                                        81                                           





 






    Rate”).   If  the  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  the  Company.   In  determining  whether  the  interest contracted for, charged, or received by the Administrative Agent or 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  Obligations hereunder.         10.10 Counterparts; Integration; Effectiveness.  This Agreement may be executed in  counterparts  (and  by  different  parties  hereto  in  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 final  and entire  contract  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 and may not be contradicted  by evidence of prior, contemporaneous or subsequent oral agreements of the parties.  There are  no  unwritten  oral  agreements  among  the  parties.   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  that,  when  taken  together,  bear  the  signatures  of  each  of  the  other  parties  hereto.   Delivery  of  an  executed  counterpart of a signature page of this Agreement by facsimile or other electronic imaging means  (e.g. “pdf” or “tiff”)  shall  be  effective  as  delivery  of  a  manually  executed  counterpart  of  this  Agreement.         10.11 Survival  of  Representations  and  Warranties.  All  representations  and  warranties  made  hereunder  and  in  any  other  Loan  Document  or  other  document  delivered  pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and  delivery  hereof  and  thereof.   Such  representations  and  warranties  have  been  or  will  be  relied  upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative  Agent  or  any  Lender  or  on  their  behalf  and  notwithstanding  that  the  Administrative Agent or any Lender may have had notice or knowledge of any Default at the  time of any Credit Extension, and shall continue in full force and effect as long as any Loan or  any other Obligation hereunder shall remain unpaid.         10.12 Severability.  If any provision of this Agreement or the other Loan Documents is  held  to  be  illegal, invalid  or  unenforceable, (a) the  legality,  validity  and  enforceability  of  the  remaining provisions of this Agreement and the other Loan Documents shall not be affected or  impaired  thereby  and (b) the  parties  shall  endeavor  in  good  faith  negotiations  to  replace  the  illegal, invalid or unenforceable provisions with valid provisions the economic effect of which  comes  as  close  as  possible  to  that  of  the  illegal,  invalid  or  unenforceable  provisions.   The  invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable  such  provision  in  any  other  jurisdiction.   Without  limiting  the  foregoing  provisions  of  this  Section 10.12, if and to  the extent that the  enforceability  of  any provisions  in  this  Agreement  relating to  Defaulting  Lenders shall be limited by Debtor Relief  Laws,  as  determined in  good                                         82                                           





 






    faith by the Administrative Agent,  then such provisions shall be deemed to be in effect only to  the extent not so limited.         10.13 Replacement  of  Lenders.  If the  Company is  entitled  to  replace  a  Lender  pursuant  to  the  provisions  of Section 3.06,  if  any  Lender  is  a  Defaulting  Lender  or  a  Non- Consenting Lender, then the Company 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, and consents required  by, Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant  to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents  to  an  Eligible  Assignee  that  shall  assume  such obligations  (which  assignee  may  be  another  Lender, if a Lender accepts such assignment), provided that:         (a)   the Company shall have paid to the Administrative Agent the assignment fee (if  any) to the extent required by the Administrative Agent pursuant to Section 10.06(b);         (b)   such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it  hereunder  and  under  the  other  Loan  Documents  (including  any  amounts  under Section 3.05)  from the assignee (to the extent of such outstanding principal and accrued interest and fees) or  the Company (in the case of all other amounts);         (c)   in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or  payments  required  to  be  made  pursuant  to Section 3.01,  such  assignment  will  result in a reduction in such compensation or payments thereafter;         (d)   such assignment does not conflict with applicable Laws; and         (e)   in the case of an assignment resulting from a Lender becoming a Non-Consenting  Lender,  the  applicable  assignee  shall  have  consented  to  the  applicable  amendment,  waiver  or  consent.         A  Lender  shall  not  be  required  to  make  any  such  assignment  or  delegation  if,  prior  thereto,  as  a  result  of  a  waiver  by  such  Lender  or  otherwise,  the  circumstances  entitling  the  Company to require such assignment and delegation cease to apply.         10.14 Governing Law; Jurisdiction; Etc.           (a)   GOVERNING  LAW.   THIS  AGREEMENT  AND  THE  OTHER  LOAN  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT  OF OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  (EXCEPT,  AS  TO  ANY  OTHER  LOAN  DOCUMENT,  AS  EXPRESSLY  SET  FORTH  THEREIN)  AND  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  AND  THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.                                          83                                           





 






          (b)   SUBMISSION    TO    JURISDICTION.       EACH    PARTY     HERETO  IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE  ANY  ACTION,  LITIGATION  OR  PROCEEDING  OF  ANY  KIND  OR  DESCRIPTION,  WHETHER  IN  LAW  OR  EQUITY,  WHETHER  IN  CONTRACT  OR  IN  TORT  OR  OTHERWISE, AGAINST ANY OTHER PARTY HERETO OR ANY RELATED PARTY OF  THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER  LOAN DOCUMENT  OR THE TRANSACTIONS  RELATING HERETO OR  THERETO,  IN  ANY FORUM OTHER THAN THE COURTS 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,  AND  EACH  OF  THE  PARTIES  HERETO  IRREVOCABLY  AND  UNCONDITIONALLY  SUBMITS  TO  THE  JURISDICTION  OF  SUCH  COURTS   AND  AGREES  THAT ALL  CLAIMS  IN RESPECT  OF ANY SUCH ACTION,  LITIGATION OR  PROCEEDING  MAY  BE  HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE  COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH  FEDERAL  COURT.   EACH  OF  THE  PARTIES  HERETO  AGREES  THAT  A  FINAL  JUDGMENT  IN  ANY  SUCH  ACTION,  LITIGATION  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  OR  IN  ANY  OTHER  LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  ADMINISTRATIVE  AGENT,  ANY  LENDER  MAY  OTHERWISE  HAVE  TO  BRING  ANY  ACTION  OR  PROCEEDING  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  AGAINST  THE     COMPANY    OR  ITS  PROPERTIES  IN  THE  COURTS OF ANY JURISDICTION.         (c)   WAIVER  OF  VENUE.  EACH  PARTY  HERETO       IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO  THE  LAYING  OF  VENUE  OF  ANY  ACTION  OR  PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  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 APPLICABLE 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  HERETO  IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY  APPLICABLE LAW.         10.15 Waiver  of  Jury  Trial.  EACH PARTY HERETO HEREBY  IRREVOCABLY  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  ANY  OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR  THEREBY  (WHETHER  BASED  ON  CONTRACT,  TORT  OR  ANY  OTHER  THEORY).                                         84                                           





 






    EACH  PARTY  HERETO    (A) CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER  PERSON  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 AND THE OTHER LOAN DOCUMENTS  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS  AND  CERTIFICATIONS  IN  THIS SECTION.         10.16 No  Advisory  or  Fiduciary  Responsibility.  In  connection  with  all  aspects  of  each transaction contemplated hereby (including in connection with any amendment, waiver or  other  modification  hereof  or  of  any  other  Loan  Document), the  Company acknowledges  and  agrees,  and  acknowledges  its  Affiliates’ understanding, that: (i)  (A) the  arranging  and  other  services regarding this Agreement provided by the Administrative Agent the Arranger, and the  Lenders are arm’s-length commercial transactions between the Company and its Affiliates, on  the one hand, and the Administrative Agent, the Arranger and the Lenders, on the other hand,  (B)  the  Company has  consulted  its  own  legal,  accounting,  regulatory  and  tax  advisors  to  the  extent it has deemed appropriate, and (C) the Company is capable of evaluating, and understands  and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the  other Loan Documents; (ii) (A) the Administrative Agent, the Arranger and each Lender is and  has been acting solely as a principal and, except as expressly agreed in writing by the relevant  parties,  has  not  been,  is  not,  and  will not  be  acting  as  an  advisor,  agent  or  fiduciary  for the  Company or any of its Affiliates, or any other Person and (B) neither the Administrative Agent,  the Arranger  nor any Lender has any obligation to the Company or any of its Affiliates with  respect  to the  transactions  contemplated  hereby  except  those  obligations  expressly  set  forth  herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arranger and the  Lenders and  their  respective  Affiliates  may  be  engaged  in  a  broad  range  of  transactions  that  involve  interests  that  differ  from  those  of the  Company and its Affiliates,  and  neither  the  Administrative Agent, the Arranger nor any Lender has any obligation to disclose any of such  interests to the Company or any of its Affiliates.  To the fullest extent permitted by law, each of  the Company hereby waives and releases any claims that it may have against the Administrative  Agent, the Arranger or any  Lender with respect to any breach or alleged breach of agency or  fiduciary duty in connection with any aspect of any transaction contemplated hereby.         10.17 Electronic  Execution  of  Assignments  and  Certain  Other  Documents.  The  words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to  any document to be signed in connection with this Agreement and the transactions contemplated  hereby  (including  without  limitation  Assignment  and  Assumptions,  amendments  or  other  modifications,  Committee  Loan  Notices,  waivers  and  consents)  shall  be  deemed  to  include  electronic  signatures,  the  electronic  matching  of  assignment  terms  and  contract  formations  on  electronic  platforms  approved  by  the  Administrative  Agent,  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;  provided that  notwithstanding  anything  contained  herein  to  the  contrary  the  Administrative                                        85                                           





 






    Agent is under no obligation to agree to accept electronic signatures in any form or in any format  unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.         10.18 USA  PATRIOT  Act.  Each  Lender  that  is  subject  to  the  Act  (as  hereinafter  defined)  and  the  Administrative  Agent  (for  itself  and  not  on  behalf  of  any  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)) (the “Act”), it is required to obtain, verify  and record information that identifies the Borrower, which information includes the name and  address of the Borrower and other information that will allow such Lender or the Administrative  Agent, as applicable, to identify the Borrower in accordance with the Act.  The Borrower shall,  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 without limitation, the Act and the Beneficial  Ownership Regulation.         10.19 Compliance with Laws.         Borrower  acknowledges  that  Bank  of  America’s and  the Class  A Lender’s obligations  hereunder  shall  be  subject  to  all  Laws  and,  without  limitation,  the Loan  Documents shall  not  limit the ability of Bank of America to take any actions that it determines, in the exercise of its  sole  discretion,  to  be  necessary  or  advisable  to  comply  fully  and  prudently  with  any  Law,  including without limitation any regulatory margin requirement.         10.20 Non-Recourse Obligations;  No Petition.  Each Lender and the Administrative  Agent  covenants  and  agrees  that  the  obligations  of  the  Borrower  under  this  Agreement are  limited recourse obligations of the Borrower, payable solely from the Collateral in accordance  with the terms of the Loan Documents, and, following realization of the Collateral, any claims of  the  Lenders  and  the  Administrative  Agent  and  all  obligations  of  the  Borrower  shall  be  extinguished and shall not thereafter revive.  It is understood that the foregoing provisions of this  Section 10.20(a) shall not (i) prevent recourse to the Collateral for the sums due or to become  due under any security, instrument or agreement which is part of the Collateral or (ii) constitute a  waiver, release or discharge of any indebtedness or obligation evidenced by this Agreement until  the Collateral has been realized, whereupon any outstanding indebtedness or obligation shall be  extinguished and shall not thereafter revive.  For the avoidance of doubt, this Section 10.20(a)  shall not limit or prejudice the rights of the Lenders in respect of any obligation of any Affiliate  of the Borrower under any Loan Document or otherwise or the rights of the Lenders in respect of  any fraud, willful misconduct, bad faith or misrepresentation of any Person, including where a  certification of the Borrower Parent or BDC Parent in the Compliance Certificate proves to have  been untrue in a material respect when made.         (b)   Each of the parties  hereto (other than the Borrower) covenants  and agrees  that,  prior to the date that is one year and one day (or, if longer, any applicable preference period and  one day) after the payment in full of all Obligations, no party hereto shall institute against, or  join  any  other  Person  in  instituting  against,  the  Borrower  any  bankruptcy,  reorganization,  arrangement,  insolvency  or  liquidation  proceedings  or  other  similar  proceedings  under  any  federal, state or foreign bankruptcy or similar law.                                        86                                           





 






          The provisions of this Section 10.20 shall survive the termination of this Agreement.         10.21 Time of the Essence.  Time is of the essence of the Loan Documents.         10.22 Acknowledgement  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 Lender that is an 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 Lender 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 undertaking, 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.                                 [Remainder of page intentionally left blank.]                                         87                                           





 






          IN  WITNESS  WHEREOF, the  parties  hereto  have  caused  this  Agreement  to  be  duly  executed as of the date first above written.                                       BARINGS BDC SENIOR FUNDING I, LLC as                                      Borrower                                      By: Barings LLC as Investment Adviser                                       By:  /s/ Jonathan Bock                                                          Name:  Jonathan Bock                                                            Title:  Managing Director                                                                                                                                      S - 1    





 






                 BANK OF AMERICA, N.A., as   Administrative Agent   By:  /s/ Liliana Claar                      Name:  Liliana Claar                        Title:  Vice President                           S - 2                 





 






                 BANK OF AMERICA, N.A., as   Class A-1 Lender   By:  /s/ Allen D. Shifflet                  Name:  Allen D. Shifflet                    Title:  Managing Director                        S - 3                 





 






                 SOCIÉTÉ GÉNÉRALE, as  Class A Lender   By:  /s/ Julien Thinat                      Name:  Julien Thinat                        Title:  Authorized Signatory                                                               S - 4