EX-10.1 2 exhibit101loanandservi.htm EX-10.1 Document
EXECUTION VERSION



Up to U.S. $200,000,000
LOAN AND SERVICING AGREEMENT
Dated as of August 4, 2020
among
TCPC FUNDING II, LLC,
as the Borrower
Special Value
Continuation Partners LLC,
as the Transferor and the Servicer
MORGAN STANLEY ASSET FUNDING INC.,
as the Administrative Agent
EACH OF THE LENDERS FROM TIME TO TIME PARTY HERETO,
as the Lenders
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Collateral Agent, the Account Bank and the Collateral Custodian
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LIST OF SCHEDULES, EXHIBITS and Annexes
SCHEDULES
SCHEDULE I - Conditions Precedent Documents
SCHEDULE II - Eligibility Criteria
SCHEDULE III - Agreed-Upon Procedures for Independent Public Accountants
SCHEDULE IV - Loan Asset Schedule
SCHEDULE V - Industry Classification
SCHEDULE VI - Diversity Score Calculation
SCHEDULE VII - List of Pre-Approved Replacement Servicers

ANNEXES
ANNEX A   - Commitments

EXHIBITS
EXHIBIT A    - Form of Approval Notice
EXHIBIT B   - Form of Borrowing Base Certificate
EXHIBIT C  - Form of Disbursement Request
EXHIBIT D   - Form of Notice of Borrowing
EXHIBIT E   - Form of Notice of Reduction (Reduction of Advances Outstanding)
EXHIBIT F   - Form of Notice of Termination/Permanent Reduction
EXHIBIT G   - Form of Certificate of Closing Attorneys
EXHIBIT H-1  - Form of Servicing Report
EXHIBIT H-2  - Form of Collateral Agent Report
EXHIBIT I   - Form of Servicer's Certificate (Servicing Report)
EXHIBIT J   - Form of Release of Required Loan Documents
EXHIBIT K   - Form of Assignment and Acceptance
EXHIBIT L   - Form of Power of Attorney for Servicer
EXHIBIT M   - Form of Power of Attorney for Borrower
EXHIBIT N    - Forms of U.S. Tax Compliance Certificates
EXHIBIT O   - Form of Joinder Supplement



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This LOAN AND SERVICING AGREEMENT is made as of August 4, 2020, by and among:
(1)TCPC FUNDING II, LLC, a Delaware limited liability company, as the Borrower (as defined below);
(2)Special Value Continuation Partners LLC, a Delaware limited liability company, as the Servicer (as defined below) and as the Transferor (as defined below);
(3)EACH OF THE LENDERS FROM TIME TO TIME PARTY HERETO, as a Lender (as defined below);
(4)MORGAN STANLEY ASSET FUNDING INC., as the Administrative Agent (as defined below); and
(5)WELLS FARGO BANK, NATIONAL ASSOCIATION, ("Wells Fargo"), as the Collateral Agent (as defined below), the Account Bank (as defined below) and the Collateral Custodian (as defined below).
RECITALS
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a revolving loan facility in the maximum principal amount of up to the Facility Amount (as defined below), the proceeds of which shall be used by the Borrower to fund the purchase of certain Eligible Loan Assets (as defined below);
WHEREAS, the Borrower is willing to grant to the Collateral Agent, for the benefit of the Secured Parties (as defined below), a lien on and security interest in the Collateral (as defined below) to secure the payment in full of the Obligations (as defined below);
WHEREAS, the Lenders are willing to extend financing to the Borrower on the terms and conditions set forth herein;
WHEREAS, the Borrower also desires to retain the Servicer to perform certain servicing functions related to the Collateral on the terms and conditions set forth herein; and
WHEREAS, the Servicer desires to perform certain servicing functions related to the Collateral on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:




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ARTICLE I.
DEFINITIONS
Section 1.01 Certain Defined Terms.
(a) Certain capitalized terms used throughout this Agreement are defined above or in this Section 1.01.
(b) As used in this Agreement and the exhibits and schedules hereto (each of which is hereby incorporated herein and made a part hereof), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"1940 Act" means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
"Account Agreement" means that certain Securities Account Control Agreement, dated as of the Closing Date, among the Borrower, the Account Bank and the Collateral Agent, which agreement relates to the Controlled Accounts, as such agreement may from time to time be amended, supplemented or otherwise modified in accordance with the terms thereof.
"Account Bank" means Wells Fargo, in its capacity as the "Account Bank" pursuant to the Account Agreement.
"Action" has the meaning assigned to that term in Section 8.04.
"Additional Amount" has the meaning assigned to that term in Section 2.11(a).
"Adjusted Borrowing Value" means, on any date of determination, for any Eligible Loan Asset, an amount equal to the lower of (a) the Outstanding Balance of such Eligible Loan Asset at such time and (b) the Assigned Value of such Eligible Loan Asset at such time, multiplied by the Outstanding Balance of such Eligible Loan Asset at such time. Notwithstanding the foregoing, (i) the Adjusted Borrowing Value of any Loan Asset that is no longer an Eligible Loan Asset at such time shall be zero and (ii) the Adjusted Borrowing Value of any portion of any Eligible Loan Asset that constitutes Excess Concentration Amount shall be zero.
"Administrative Agent" means Morgan Stanley Asset Funding Inc., in its capacity as administrative agent for the Lenders, together with its successors and assigns, including any successor appointed pursuant to Article IX.
"Administrative Agent Fee Letter" means that certain fee letter agreement that shall be entered into between the Borrower and the Administrative Agent in connection with the transactions contemplated by this Agreement, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Administrative Expense Cap" means, for any Payment Date, an amount that will equal to $150,000 per annum.
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"Administrative Expenses" means the following fees and expenses (including indemnity amounts payable by the Borrower) due or accrued with respect to any Payment Date, payable first on a pro rata basis to: (a) the Collateral Agent, for payment of accrued Collateral Agent Fees and Collateral Agent Expenses, (b) the Collateral Custodian, for payment of accrued Collateral Custodian Fees and Collateral Custodian Expenses, and (c) the Account Bank, for any fees or other amounts owing to it under the Transaction Documents and then second to (d) any other service providers (including, without limitation, legal, accounting, tax, audit and other service providers) of the Borrower or any Tax Subsidiary for any fees or expenses in connection with services performed for the Borrower or such Tax Subsidiary; provided that if at any time Wells Fargo is no longer the Collateral Agent, the Collateral Custodian or the Account Bank, the fees and expenses in clauses (a) through (d) above shall be payable on a pro rata basis.
"Advance" means each loan advanced by the Lenders to the Borrower on an Advance Date pursuant to Article II.
"Advance Date" means, with respect to any Advance, the date on which funds are made available to the Borrower in accordance with Section 2.02.
"Advance Rate" means, with respect to an Eligible Loan Asset, as determined on the applicable Cut-Off Date of such Eligible Loan Asset, the percentage determined by the Administrative Agent in its sole discretion, subject to a maximum advance rate as set forth in the Advance Rate Matrix based on the applicable loan type of such Eligible Loan Asset, as set forth in the Approval Notice for an Eligible Loan Asset.
"Advance Rate Matrix" means the following matrix:
Loan TypeMaximum Advance Rate
First Lien Loans70%
Recurring Revenue Loans65%
Unitranche Loans60%
Second Lien Loans35%
FLLO Loans55%
Asset Based LoansCase-by-case as determined by the Administrative Agent in its sole discretion
"Advances Outstanding" means, on any date of determination, the sum of the aggregate principal amount of all Advances outstanding on such date, after giving effect to all repayments of Advances and the making of new Advances on such date; provided that the principal amounts of Advances Outstanding shall not be reduced by any Available Collections or other amounts if at any time such Available Collections or other amounts are rescinded or must be returned for any reason.
"Affected Party" has the meaning assigned to that term in Section 2.10(a).
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"Affiliate" means, when used with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to vote more than 50% of the voting securities of such Person or to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing; provided that solely for purposes of determining (x) whether any Loan Asset is an Eligible Loan Asset, (y) whether such Loan Asset may be acquired by the Borrower and (z) compliance with Section 5.01(b)(xviii), the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common Financial Sponsor.
"Aggregate Adjusted Borrowing Value" means, as of any date of determination, an amount equal to the sum of the Adjusted Borrowing Values of all Eligible Loan Assets included as part of the Collateral on such date, after giving effect to all Eligible Loan Assets added to and removed from the Collateral on such date.
"Agreement" means this Loan and Servicing Agreement, as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms hereof.
"Amortization Period" means the period commencing on the Commitment Termination Date and ending on the Collection Date.
"Anti-Money Laundering Laws" has the meaning assigned to that term in Section 4.01(hh)(iii).
"Applicable Index" means (i) initially, LIBOR, and (ii) on and after an Index Transition Date, the Replacement Index in effect on such Index Transition Date.
"Applicable Law" means for any Person, all existing and future laws, rules, regulations, to the extent applicable to such Person or its property or assets, all statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and interpretations by any Governmental Authority applicable to such Person and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.
"Applicable Margin" means (x) during the Revolving Period, 2.00% per annum, (y) during the first year of the Amortization Period, 2.50% per annum and (z) thereafter, 3.00% per annum; provided that, at any time during the existence of an Event of Default or after the automatic occurrence or declaration of the Facility Maturity Date, the Applicable Margin shall be increased by an additional 2.00% per annum.
"Approval Notice" means, with respect to any Eligible Loan Asset, the written notice, which may be distributed via email, in substantially the form attached hereto as Exhibit A, evidencing, among other things the approval by the Administrative Agent, in its sole and
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absolute discretion, of the acquisition or origination, as applicable, of such Eligible Loan Asset by the Borrower, the Industry Classification and the Advance Rate in respect of such Eligible Loan Asset.
"Approved Broker/Dealer" means any of Bank of America/Merrill Lynch; Barclays Bank plc; BNP Paribas; Citibank, N.A.; Citizens Bank, N.A.; Credit Suisse; Deutsche Bank AG; Goldman Sachs & Co.; Jefferies; JPMorgan Chase Bank, N.A.; Morgan Stanley & Co. LLC; Raymond James Financial; Royal Bank of Canada; PNC Bank; Sun Trust Bank; UBS AG; and Wells Fargo Bank, National Association.
"Approved Valuation Firm" means each of (a) Lincoln Partners Advisors LLC, (b) Valuation Research Corporation, (c) Duff & Phelps Corp., (d) Houlihan Lokey Financial Advisors, Inc., (e) Murray Devine Valuation Advisors and (f) any other nationally recognized accounting firm or valuation firm, in each case, approved by the Borrower and the Administrative Agent; provided that, prior to the Closing Date, the Borrower and the Administrative Agent shall designate Lincoln Partners Advisors LLC and Houlihan Lokey Financial Advisors, Inc. as initial Approved Valuation Firms.
"Asset Based Loan" means any Loan Asset where (i) the underwriting of such Loan Asset was based primarily on the appraised value of the assets securing such Loan Asset and (ii) advances in respect of such Loan Asset are governed by a borrowing base relating to the assets securing such Loan Asset.
"Assigned Documents" has the meaning assigned to that term in Section 2.12(b).
        "Assigned Value" means, as of any date of determination and expressed as a percentage of the Outstanding Balance of such Eligible Loan Asset, (a) with respect to each Eligible Loan Asset funded and/or originated by the Borrower, or funded and/or originated by the Transferor or its Affiliates (other than the Borrower), within six (6) months of its sale or contribution to the Borrower, (i) if the funding or origination price was greater than or equal to 97% of par, the par amount thereof and (ii) otherwise, the funding or origination price, as applicable, (b) for any other Eligible Loan Asset, the Assigned Value shall be the lowest of (i) the Purchase Price of such Eligible Loan Asset, (ii) the Assigned Value assigned as of the applicable Cut-Off Date by the Administrative Agent in its sole discretion, (iii) the fair market value assigned on the Borrower’s books and records or (iv) the par amount of such Eligible Loan Asset and (c) following a Value Adjustment Event, the value resulting from the application of the following terms:

(i) If a Value Adjustment Event of the type described in clause (b), clause (c), clause (d), clause (f) (solely with respect to a Material Modification described in clause (a), clause (c), clause (d) or clause (e) of the definition thereof) and clause (g) of the definition thereof with respect to such Loan Asset occurs, the Assigned Value of such Loan Asset will, automatically and without further action by the Administrative Agent, be zero. The Assigned Value of (x) any Loan Asset that no longer satisfies the Eligibility Criteria (after giving effect to the first proviso set forth in the lead-in paragraph to Schedule II) shall be zero and (y) any
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Transferor Participation Interest not subject to an Elevation (A) with respect to 50% of such Transferor Participation Interests, within 60 calendar days of the Closing Date and (B) with respect to the remaining 50% of the Transferor Participation Interests, within 90 calendar days of the Closing Date, shall be zero; provided that with respect to clause (i)(y)(A), the Transferor Participation Interests subject to an Assigned Value of zero as a result of less than 50% Elevation shall be determined by the Administrative Agent in its sole discretion.
(ii) Upon the occurrence of a Value Adjustment Event with respect to such Loan Asset, the then current Assigned Value thereof may be reset by the Administrative Agent in its sole discretion one time after each Value Adjustment Event while such Value Adjustment Event is continuing; provided that, if such Value Adjustment Event is either (x) of the type described in clause (a) of the definition thereof and the condition that triggered such Value Adjustment Event has deteriorated from the levels set forth therein that triggered such Value Adjustment Event or (y) not of the type described in clause (a) of the definition thereof, then in each case the Administrative Agent may, in its sole discretion, further amend the Assigned Value of such Loan Asset while such Value Adjustment Event is continuing on any subsequent date if either (x) the Obligor has experienced a material change in management or business operations or (y) there has been a material change in the creditworthiness of the Obligor since the immediately preceding Assigned Value was determined, in each case as determined by the Administrative Agent in its sole discretion (any Assigned Value set pursuant to this clause (ii), an “Agent Revalued Assigned Value”).
(1) If the Borrower disagrees with the Agent Revalued Assigned Value, the Borrower may, no later than one (1) Business Day after the Agent Revalued Assigned Value is assigned, either (A) obtain two or more actionable bids (such bids determined no earlier than three (3) Business Days prior to the date the Agent Revalued Assigned Value is assigned) from any Approved Broker Dealers for the full principal amount of the Eligible Loan Asset (each, a "Third Party Bid") or (B) obtain same day bid side pricing from Loan Pricing Corp. or IHS Markit Ltd (or such other pricing service approved by the Administrative Agent in its sole discretion) with a minimum quote depth of three (3), in each case at its own expense. If the Borrower obtains two or more Third Party Bids pursuant to sub-clause (A) above, then the average of such Third Party Bids shall be treated as the amended Assigned Value, or if the Borrower obtains pricing pursuant to sub-clause (B) above, then such pricing shall be treated as the amended Assigned Value. Any Assigned Value set pursuant to this clause (1) shall be a “Market-Based Valuation”. If the Borrower is unable to obtain bids or pricing that satisfy the requirements set forth in sub-clause (A) or sub-clause (B), then the Agent Revalued Assigned Value shall remain the Assigned Value.
(2) If the Administrative Agent disagrees with the Market-Based Valuation, the Administrative Agent shall assign a new Assigned Value (the “Agent Re-Valuation”) to such Eligible Loan Asset in its sole discretion once at any time.
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(3) If the Borrower disagrees with the Agent Revalued Assigned Value or the Agent Re-Valuation, then the Borrower may at its own expense obtain a valuation (the “AVF Valuation”) from an Approved Valuation Firm (such process, a "Valuation Agent Dispute"). If an AVF Valuation is obtained, then the AVF Valuation shall be treated as the amended Assigned Value. Until an AVF Valuation is obtained, (x) for ten (10) Business Days after the date on which the Administrative Agent assigned the Agent Revalued Assigned Value or the Agent Re-Valuation, as the case may be, the Assigned Value shall be the most recent Assigned Value in place prior to the occurrence of the Value Adjustment Event, and (y) thereafter, the Agent Revalued Assigned Value or the Agent Re-Valuation, as the case may be, shall be treated as the amended Assigned Value.
(4) The Administrative Agent may, in its sole discretion, further amend the Agent Re-Valuation on any subsequent date on which any event set forth in the proviso of clause (ii) above shall have occurred. Any such further amended Agent Re-Valuation shall also be subject to the dispute procedures set forth above.
(5) With respect to any Loan Asset the Assigned Value of which has been adjusted pursuant to clause (ii) above, the Borrower may obtain an AVF Valuation for such Loan Asset from time to time, but no more frequently than once per fiscal quarter, and any such AVF Valuation shall be treated as the amended Assigned Value.
Without limiting clause (ii)(5) above, the Borrower may request that the Assigned Value be re-evaluated by the Administrative Agent for any Eligible Loan Asset whose Assigned Value was decreased due to the occurrence of (x) a Value Adjustment Event described in clause (a) of the definition thereof once the Cash Interest Coverage Ratio or Total Leverage Ratio, as applicable, that gave rise to the decrease in the Assigned Value has improved to a level that would not trigger a Value Adjustment Event or (y) any other Value Adjustment Event once the circumstance or event that gave rise to the decrease in the Assigned Value has improved or ceased to exist such that a Value Adjustment Event would no longer be triggered; provided that such Assigned Value may not increase above 100% of the Purchase Price of such Loan Asset.

The Administrative Agent shall promptly notify the Servicer of any change effected by the Administrative Agent of the Assigned Value of any Loan Asset.
If the Borrower disagrees with the Assigned Value assigned pursuant to clause (i) above, the Borrower may submit a new Approval Notice for such Loan Asset in accordance with Section 3.04 and, if the Administrative Agent approves such Approval Notice for such Loan Asset, in its sole and absolute discretion, then the Assigned Value shall be the Assigned Value set forth in such Approval Notice; provided that if the Administrative Agent does not approve such Approval Notice for such Loan Asset (a “Zero Value Asset”), such Zero Value Asset may, at the Borrower’s option, be distributed to the Transferor, without any cash payment therefor by the Transferor, so long as, prior to and after giving effect to such distribution, no Event of Default has occurred and is continuing, and no Unmatured Event of Default or Borrowing Base Deficiency exists or would result therefrom.
"Assignment and Acceptance" has the meaning assigned to that term in Section 12.04(a).
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"Availability" means, as of any date of determination, an amount equal to the excess, if any, of (a) the Borrowing Base over (b) the Advances Outstanding on such day; provided that at all times on and after the earlier to occur of the Commitment Termination Date or the Facility Maturity Date, the Availability shall be zero.
"Available Collections" means the sum of all Interest Collections and all Principal Collections received with respect to the Collateral; provided that, for the avoidance of doubt, "Available Collections" shall not include amounts on deposit in the Unfunded Exposure Account that do not represent proceeds of Permitted Investments.
"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.
"Bankruptcy Code" means Title 11, United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to time.
"Bankruptcy Event" means an event that shall be deemed to have occurred with respect to a Person if either:
i.a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or substantially all of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
ii.such Person shall commence a voluntary case or other proceeding under any Bankruptcy Laws now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or all or substantially all of its assets, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors or members shall vote to implement any of the foregoing.
"Bankruptcy Laws" means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency,
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reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.
"Bankruptcy Proceeding" means any case, action or proceeding before any court or other Governmental Authority relating to any Bankruptcy Event.
"Basel III" means, with respect to any Affected Party, any rule, regulation or guideline applicable to such Affected Party and arising directly or indirectly from (a) any of the following documents prepared by the Basel Committee on Banking Supervision of the Bank of International Settlements: (i) Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring (December 2010), (ii) Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems (June 2011), (iii) Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring Tools (January 2013), or (iv) any document supplementing, clarifying or otherwise relating to any of the foregoing, or (b) any accord, treaty, statute, law, rule, regulation, guideline or pronouncement (whether or not having the force of law) of any governmental authority implementing, furthering or complementing any of the principles set forth in the foregoing documents of strengthening capital and liquidity, in each case as from time to time amended, restated, supplemented or otherwise modified. Without limiting the generality of the foregoing, "Basel III" shall include Part 6 of the European Union regulation 575/2013 on prudential requirements for credit institutions and investment firms (the "CRR") and any law, regulation, standard, guideline, directive or other publication supplementing or otherwise modifying the CRR.
"BDC Asset Coverage" means the “asset coverage” ratio for the Parent, as determined in accordance with Section 18 of the 1940 Act.
"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.
"Benefit Plan Investor" means a "benefit plan investor" as defined in Department of Labor regulation 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, and includes an employee benefit plan that is subject to the fiduciary responsibility provisions of Title I of ERISA, a plan that is subject to Section 4975 of the Code, and an entity the underlying assets of which are deemed to include plan assets.
"Borrower" means TCPC Funding II, LLC, a Delaware limited liability company, together with its permitted successors and assigns in such capacity.
"Borrower Certificate of Formation" means the Certificate of Formation of the Borrower, dated July 8, 2020, as amended, modified, supplemented, restated or replaced from time to time.
"Borrower Consent" means the written consent of the sole member of the Borrower, dated August 4, 2020, in each case, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
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"Borrower LLC Agreement" means the amended and restated limited liability company agreement of the Borrower, dated August 4, 2020, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Borrowing Base" means, as of any date of determination, an amount equal to the lowest of:
i.the sum of (a) the product of (x) the lower of (1) the Weighted Average Advance Rate for all Eligible Loan Assets as of such date and (2) the Maximum Portfolio Advance Rate as of such date, multiplied by (y) the Aggregate Adjusted Borrowing Value as of such date, plus (b) the amount on deposit in the Principal Collection Subaccount as of such date, plus (c) the amount on deposit in the Unfunded Exposure Account as of such date minus (d) the Unfunded Exposure Equity Amount as of such date;
ii.(a) the Aggregate Adjusted Borrowing Value as of such date, minus (b) the Minimum Equity Amount, plus (c) the amount on deposit in the Principal Collection Subaccount as of such date, plus (d) the amount on deposit in the Unfunded Exposure Account as of such date minus (e) the Unfunded Exposure Equity Amount as of such date; or
iii.(a) the Facility Amount, plus (b) the amount on deposit in the Unfunded Exposure Account as of such date minus (c) the aggregate Unfunded Exposure Amount as of such date.
"Borrowing Base Certificate" means a certificate prepared by the Servicer setting forth the calculation of the Borrowing Base as of the applicable date of determination, substantially in the form of Exhibit B hereto.
"Borrowing Base Deficiency" means, as of any date of determination, an amount equal to the positive difference, if any, of (a) the Advances Outstanding on such date over (b) the lesser of (i) the Facility Amount and (ii) the Borrowing Base.
"Breakage Fee" means, for Advances Outstanding which are repaid (in whole or in part) on any date other than a Payment Date, the breakage costs (other than lost profits), if any, related to such repayment, based upon the assumption that the applicable Lender funded its loan commitment in the applicable London interbank offered rate or the euro interbank offered rate market (or, on and after an Index Transition Date, the Replacement Index in effect on such Index Transition Date) and using any reasonable attribution or averaging methods which the Lender deems appropriate and practical, it hereby being understood that the amount of any loss, costs or expense payable by the Borrower to any Lender as Breakage Fee shall be determined in the respective Lender's reasonable discretion and shall be conclusive absent manifest error.
"Bridge Loan" means any loan that (a) is unsecured and incurred in connection with a merger, acquisition, consolidation or sale of all or substantially all of the assets of a Person or similar transaction and (b) by its terms, is required to be repaid within one year of the incurrence thereof with proceeds from additional borrowings or other refinancings.
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"Business Day" means a day of the year other than (a) Saturday or a Sunday or (b) any other day on which commercial banks in New York, New York are authorized or required by applicable law, regulation or executive order to close or on which banks are not open for dealings in deposits in the relevant currency in the London interbank market.
"Capital Lease Obligations" means, with respect to any entity, the obligations of such entity to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such entity under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
"Cash Interest Coverage Ratio" means, with respect to any Loan Asset for any period, the meaning of "Interest Coverage Ratio" or any comparable definition in the Underlying Instruments for such Loan Asset, and in the case that "Interest Coverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) EBITDA for the applicable test period, to (b) cash interest for the applicable test period, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments; provided that, in the case of newly originated Loan Assets, the Cash Interest Coverage Ratio for the trailing twelve months may be determined on a pro forma basis with respect to current indebtedness of the related obligor.
"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 Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives promulgated thereunder or issued in connection therewith and (y) all law, requests, rules, regulations, 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.
"Change of Control" means an event that shall be deemed to have occurred if any of the following occur:
(a) with respect to the Borrower, Transferor at any time for any reason ceases to own, directly or indirectly, 100% of the issued and outstanding membership interests of the Borrower (as the same may be adjusted for any combination, recapitalization or reclassification into a greater or smaller number of interests, shares or units), free and clear of all Liens, rights, options, warrants or other similar agreements or understandings;
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(b) with respect to the Transferor, Parent at any time for any reason ceases to own, directly or indirectly, 100% of the issued and outstanding common membership interests of the Transferor (as the same may be adjusted for any combination, recapitalization or reclassification into a greater or smaller number of interests, shares or units), free and clear of all Liens, rights, options, warrants or other similar agreements or understandings; and
(c) the dissolution, termination or liquidation, in whole or in part, transfer or other disposition, in each case, of all or substantially all of the assets of the Borrower, the Transferor or the Servicer, as applicable.
"Closing Date" means August 4, 2020.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Collateral" means all right, title, and interest (whether now owned or hereafter acquired or arising, and wherever located) of the Borrower in, to and under all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, or other property of the Borrower, including, all right, title and interest of the Borrower in the following (in each case excluding the Retained Interest and the Excluded Amounts):
(i) the Loan Assets, and all monies due or to become due in payment under such Loan Assets on and after the related Cut-Off Date (or, in the case of a Loan Asset acquired from the SPV Transferor, the Transferor or an Affiliate thereof, the Purchase Date), including, but not limited to, all Available Collections;
(ii) the Related Asset with respect to the Loan Assets referred to in clause (i) above;
(iii) the Controlled Accounts and all Permitted Investments purchased with funds on deposit in the Controlled Accounts;
(iv) the Assigned Documents;
(v) the Purchase and Sale Agreements and the Master Participation Agreements;
(vi) all equity interests of the Borrower in any Tax Subsidiary; and
(vii) all income and Proceeds of the foregoing.
"Collateral Agent" means Wells Fargo, not in its individual capacity, but solely as collateral agent pursuant to the terms of this Agreement, together with its successor and assigns in such capacity.
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"Collateral Agent and Collateral Custodian Fee Letter" means the Collateral Agent and Collateral Custodian Fee Letter, dated on or around the Closing Date, between the Collateral Agent, the Collateral Custodian, the Account Bank and the Borrower, as such letter may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Collateral Agent Expenses" means the expenses set forth in the Collateral Agent and Collateral Custodian Fee Letter and any other accrued and unpaid expenses (including attorneys' fees, costs and expenses) and indemnity amounts payable by the Borrower to the Collateral Agent under the Transaction Documents.
"Collateral Agent Fees" means the fees due to the Collateral Agent pursuant to the Collateral Agent and Collateral Custodian Fee Letter.
"Collateral Agent Termination Notice" has the meaning assigned to that term in Section 10.05.
"Collateral Custodian" means Wells Fargo, not in its individual capacity, but solely as collateral custodian pursuant to the terms of this Agreement, together with its successors and assigns in such capacity.
"Collateral Custodian Expenses" means the expenses set forth in the Collateral Agent and Collateral Custodian Fee Letter and any other reasonable and documented out-of-pocket accrued and unpaid expenses (including attorneys' fees, costs and expenses) and indemnity amounts payable by the Borrower to the Collateral Custodian under the Transaction Documents.
"Collateral Custodian Fees" means the fees due to the Collateral Custodian pursuant to the Collateral Agent and Collateral Custodian Fee Letter.
"Collateral Custodian Termination Notice" has the meaning assigned to that term in Section 11.05.
"Collateral Quality Tests" means (a) the Weighted Average Spread Test, (b) the Weighted Average Life Test and (c) the Diversity Test.
"Collection Account" means a trust account (account number 92074000 at the Account Bank) entitled "Collection Account," in the name of the Borrower subject to the lien and control of the Collateral Agent for the benefit of the Secured Parties, and each subaccount that may be established from time to time, including the Interest Collection Subaccount and the Principal Collection Subaccount; provided that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower, and the Borrower shall be solely liable for any Taxes payable with respect to the Collection Account.
"Collection Date" means the date on which the aggregate outstanding principal amount of the Advances Outstanding have been repaid in full and all Yield and Fees and all other
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Obligations (other than unmatured contingent obligations) have been paid in full, and the Borrower shall have no further right to request any additional Advances.
"Commitment" means with respect to each Lender, (i) during the Revolving Period, the amount set forth opposite such Lender's name on Annex A hereto (as such amount may be revised from time to time) or the amount set forth as such Lender's "Commitment" on the Assignment and Acceptance or Schedule I to the Joinder Supplement relating to such Lender, as applicable, and (ii) during the Amortization Period, such Lender's Pro Rata Share of the aggregate Advances Outstanding, in each case, as such amount may be increased or reduced pursuant to Section 2.16.
"Commitment Termination Date" means the earliest to occur of (a) August 4, 2023 (b) an Event of Default and (c) the Business Day designated by the Borrower to the Lender pursuant to Section 2.16(b) to terminate this Agreement.
"Competitor" means any investment platform (other than a national or regional banking institution) that is primarily engaged in the business of originating, acquiring, managing or investing in middle market loans as of such date which, for the avoidance of doubt, would include the individual business units of such investment platform that specialize in the business of originating, acquiring, managing or investing in middle market loans as of such date.
"Compounded SOFR" means the compounded average of SOFR, as calculated and published by, or at the direction of, a Relevant Governmental Body.
"Concentration Denominator" means (a) during the Ramp-Up Period only, the Target Portfolio Amount, and (b) thereafter, the sum of the Adjusted Borrowing Values of all Eligible Loan Assets (other than solely with respect to clauses (g), (h) and (k) set forth in the definition of "Concentration Limitations", Asset Based Loans and Recurring Revenue Loans) included as part of the Collateral on such date, plus amounts on deposit in the Principal Collection Subaccount.
"Concentration Limitations" means, for the purposes of determining the Excess Concentration Amount:
(a) not more than 50.0% of the Concentration Denominator may consist of Eligible Loan Assets that are FLLO Loans, Second Lien Loans, Asset Based Loans or Recurring Revenue Loans in the aggregate;
(b) not more than 3.5% of the Concentration Denominator may consist of Eligible Loan Assets that are issued by a single Obligor and its Affiliates, except that:
(i) up to 7.5% of the Concentration Denominator may consist of Eligible Loan Assets issued by each of the two (2) largest Obligors and their respective Affiliates (provided that such Eligible Loan Assets are First Lien Loans or Unitranche Loans); and
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(ii) in addition to clause (i) above, up to 5.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by each of the next five (5) largest Obligors and their respective Affiliates; and
(iii) in addition to clauses (i) and (ii) above, up to 4.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by each of the next five (5) largest Obligors and their respective Affiliates;
(c) not more than 12.0% of the Concentration Denominator may consist of Eligible Loan Assets that are issued by Obligors that belong to any single Industry Classification, except that:
(i) (x) if the largest Industry Classification is “Software”, up to 30.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to the largest Industry Classification and (y) if the largest Industry Classification is any Industry Classification other than “Software”, up to 20.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to the largest Industry Classification;
(ii) up to 17.5% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to the second largest Industry Classification; and
(iii) up to 15.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to the third largest Industry Classification; provided that, notwithstanding anything to the contrary in clauses (i), (ii) and (iii):
(1) not more than 5.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to any single Specified Industry; and
(2) not more than 10.0% of the Concentration Denominator may consist of Eligible Loan Assets issued by Obligors that belong to Specified Industries in the aggregate;
(d) not more than 10.0% of the Concentration Denominator may consist of Eligible Loan Assets that are unfunded commitments related to Delayed Draw Loan Assets, or funded or unfunded commitments related to Revolving Loans, in the aggregate;
(e) not more than 15.0% of the Concentration Denominator may consist of Eligible Loan Assets that are FLLO Loans or Second Lien Loans in the aggregate;
(f) not more than 10.0% of the Concentration Denominator may consist of Eligible Loan Assets that are fixed rate Loan Assets;
(g) not more than 15.0% of the Concentration Denominator may consist of Eligible Loan Assets that are CovLite Loan Assets that are issued by an Obligor that has a most recently reported EBITDA as of the Cut-Off Date of greater than the lesser of (a) $40,000,000 and (b) an amount to be determined by the Administrative Agent in its sole discretion and reflected in the related Approval Notice on an asset-by-asset basis (provided that such percentage limitation shall not include Asset Based Loans or Recurring Revenue Loans);
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(h) not more than 20.0% of the Concentration Denominator may consist of Eligible Loan Assets with a Total Leverage Ratio of greater than 6.50:1.00 as of the Cut-Off date for each respective Loan Asset (provided that such percentage limitation shall not include Asset Based Loans or Recurring Revenue Loans);
(i) not more than 5.0% of the Concentration Denominator may consist of Eligible Loan Assets that are PIK Loan Assets;
(j) not more than 10.0% of the Concentration Denominator may consist of Eligible Loan Assets with an Obligor domiciled, organized or incorporated in an Eligible Country other than the United States;
(k) not more than 10.0% of the Concentration Denominator may consist of Eligible Loan Assets that are Second Lien Loans;
(l) not more than 30.0% of the Concentration Denominator may consist of Eligible Loan Assets that are Recurring Revenue Loans; and
(m) not more than 15.0% of the Concentration Denominator may consist of Eligible Loan Assets that are Asset Based Loans.
"Constituent Documents" means in respect of any Person, the certificate or articles of formation, incorporation or organization, the limited liability company agreement, operating agreement, partnership agreement, joint venture agreement or other applicable agreement of formation or organization (or equivalent or comparable constituent documents), articles of association, and other organizational documents and by-laws and any certificate of incorporation, certificate of formation, certificate of limited partnership and other agreement, similar instrument filed or made in connection with its formation or organization, in each case, as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof. For the avoidance of doubt, the "Constituent Documents" of the Borrower include, the Borrower Consent, the Borrower Certificate of Formation and the Borrower LLC Agreement.
"Controlled Accounts" means the Collection Account and the Unfunded Exposure Account.
"Cov-Lite Loan Asset" means a Loan Asset that is not subject to any Maintenance Covenants; provided that a Loan Asset shall not constitute a Cov-Lite Loan Asset if the Underlying Instruments contain either a cross-default or cross-acceleration provision to, or such Loan Asset is pari passu with another loan of the Obligor that requires the Obligor to comply with one or more Maintenance Covenants.
"Credit Risk Loan" means a Loan Asset that is not a Defaulted Loan but which has, in the Borrower's or the Servicer's reasonable judgment (exercised in accordance with the Servicing Standard), a significant risk of declining in credit quality and, with lapse of time, becoming a Defaulted Loan.
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"Cut-Off Date" means, with respect to each Loan Asset (or any portion thereof), the date such Loan Asset (or such portion) is committed to be acquired by the Borrower and, in the case of any Delayed Draw Loan Asset or Revolving Loan, irrespective of the dates or numbers of draws thereunder subsequent to the date such Loan Asset is committed to be acquired by the Borrower.
"Debt-to-Recurring-Revenue Ratio" means, with respect to any Loan Asset for any period, the meaning of "Debt-to-Recurring Revenue Ratio" or any comparable definition in the Underlying Instruments for each Loan Asset, and in any case that "Debt-to-Recurring Revenue Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) Indebtedness of the related Obligor, to (b) Recurring Revenue, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments; provided that, in the event of a lack of any such information necessary to calculate the Debt-to-Recurring Revenue Ratio, the Debt-to-Recurring Revenue Ratio shall be a ratio calculated by the Administrative Agent in its sole discretion after consultation with the Servicer.
"Defaulted Loan" means any Loan Asset as to which any one of the following events has occurred:
(a) (i) an Obligor payment default occurs under such Loan Asset that continues and has not been cured after giving effect to any grace period applicable thereto or (ii) a default has occurred under the Underlying Instruments and any applicable grace period has expired and the holders of such Loan Asset have accelerated the repayment of the Loan Asset (but only until such acceleration has been rescinded) in the manner provided in the Underlying Instruments, after the applicable due date under the related Underlying Instruments;
(b) a Bankruptcy Event with respect to the related Obligor;
(c) any payment default occurs under any other senior or pari passu obligation for borrowed money of the related Obligor that continues and has not been cured after giving effect to any grace period applicable thereto after the applicable due date under the related agreement (including in respect of the acceleration of the debt under the applicable agreement);
(d) such Loan Asset has (x) a rating by S&P of "CC" or below or "SD" or (y) a Moody's probability of default rating (as published by Moody's) of "D" or "LD" or, in each case, had such ratings before they were withdrawn by S&P or Moody's, as applicable;
(e) a Responsible Officer of the Servicer or the Borrower has actual knowledge that such Loan Asset is pari passu or junior in right of payment as to the payment of principal and/or interest to another debt obligation of the same Obligor which has (i) a rating by S&P of "CC" or below or "SD" or (ii) a Moody's probability of default rating (as published by Moody's) of "D" or "LD," and in each case such other debt obligation remains outstanding (provided that both the Loan Asset and such other debt obligation are full recourse obligations of the applicable Obligor);
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(f) a Responsible Officer of the Servicer or the Borrower has received written notice or has actual knowledge that a default has occurred under the Underlying Instruments, any applicable grace period has expired (but only until such default is cured or waived) in the manner provided in the Underlying Instruments;
(g) the Servicer determines that all or a material portion of such Loan Asset is uncollectible or otherwise places it on non-accrual status in accordance with the policies and procedures of the Servicer and the Servicing Standard; or
(h) a Value Adjustment Event of the type described in clause (f) (solely with respect to a Material Modification described in clause (a) or clause (e) of the definition thereof).
"Defaulting Lender" means any Lender that: (i) has failed to fund any of its obligations to make Advances within two (2) Business Days following the applicable Advance Date, (ii) has notified the Administrative Agent or the Borrower that it does not intend to comply with such funding obligations or has made a public statement to that effect with respect to such funding obligations hereunder or under other agreements in which it commits to extend credit, (iii) has, for two (2) or more Business Days, failed, in good faith, to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, (iv) has, or has a direct or indirect parent company that has, become subject to a Bankruptcy Event or (v) has become the subject of a Bail-In Action. Any determination that a Lender is a Defaulting Lender under clauses (i) through (v) above will be made by the Administrative Agent in its reasonable discretion, and notice of such determination shall be given to the Borrower, the Servicer and the Collateral Agent.
"Delayed Draw Loan Asset" means a Loan Asset that is fully committed on the initial funding date of such Loan Asset and may be funded in one or more installments on draw dates, but which does not permit the re-borrowing of any amounts previously repaid by the Obligor; provided that any such Loan Asset will no longer be a Delayed Draw Loan Asset once all commitments by the Borrower to make advances to the related Obligor expire or are terminated or reduced to zero.
"Determination Date" means, with respect to each Payment Date during which the Applicable Index is (i) LIBOR, the fifteenth (15th) calendar day of each calendar month, commencing in September 2020 and (ii) a Replacement Index, a date the Administrative Agent determines with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), on or prior to the applicable Index Transition Date, is consistent with Market Practice in implementing the applicable Index Transition.
"DIP Loan" means any Loan Asset (a) with respect to which the related Obligor is a debtor-in-possession as defined under the Bankruptcy Code, (b) which has the priority allowed pursuant to Section 364 of the Bankruptcy Code and (c) the terms of which have been approved by a court of competent jurisdiction.
"Disbursement Request" means a disbursement request from the Borrower to the Administrative Agent and the Collateral Agent in the form attached hereto as Exhibit C in
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connection with a disbursement request from the Unfunded Exposure Account in accordance with Section 2.04(d) or a disbursement request from the Principal Collection Subaccount in accordance with Section 2.18, as applicable.
"Discretionary Sale" has the meaning assigned to that term in Section 2.07(a).
"Diversity Score" means, as of any day, a single number that indicates collateral concentration in terms of both issuer and industry concentration, calculated as set forth in Schedule VI hereto, as such Schedule VI may be updated at the option of the Administrative Agent, with the consent of the Borrower, to reflect any revisions to criteria published by the Global Industry Classification Standard.
"Diversity Test" means a test that will be satisfied on any date of determination following the Ramp-Up Period if the Diversity Score is greater than or equal to 15.
"Dollars" means, and the conventional "$" signifies, the lawful currency of the United States of America.
"Drawn Fee Rate" means a rate equal to 0.35% per annum.
"EBITDA" means, with respect to any period and any Loan Asset, the meaning of "EBITDA," "Adjusted EBITDA" or any comparable definition in the Underlying Instruments for such Loan Asset (together will all add-backs and exclusions as designated in such Underlying Instruments), and in any case that "EBITDA," "Adjusted EBITDA" or such comparable definition is not defined in such Underlying Instruments, an amount, for the principal Obligor on such Loan Asset and any of its parents or Subsidiaries that are obligated pursuant to the Underlying Instruments for such Loan Asset (determined on a consolidated basis without duplication in accordance with GAAP) equal to net income from continuing operations for such period plus (a) cash interest expense, (b) income taxes, (c) depreciation and amortization for such period (to the extent deducted in determining earnings from continuing operations for such period), (d) amortization of intangibles (including, but not limited to, goodwill, financing fees and other capitalized costs), to the extent not otherwise included in clause (c) above, other non-cash charges and organization costs, (e) extraordinary losses in accordance with GAAP, and (f) any other item the Borrower and the Administrative Agent mutually deem to be appropriate.
"EEA Financial Institution" means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
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"EEA Resolution Authority" means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
"Effective Spread" means, with respect to any floating rate Eligible Loan Asset as of any date of determination, the current per annum rate at which it pays interest minus LIBOR applicable during the Remittance Period in which such date of determination occurs; provided, that (a) with respect to any unfunded commitment of any Delayed Draw Loan Asset or Revolving Loan, as applicable, the Effective Spread means the commitment fee payable with respect to such unfunded commitment and (b) with respect to the funded portion of any commitment under any Delayed Draw Loan Asset or Revolving Loan, as applicable, the Effective Spread means the current per annum rate at which it pays interest minus LIBOR applicable during the Remittance Period in which such date of determination occurs.
"Elevation" has the meaning specified in the applicable Purchase and Sale Agreement.
"Elevation Date" means the date on which an Elevation occurs with respect to a Transferor Participation Interest pursuant to the applicable Purchase and Sale Agreement.
"Eligibility Criteria" means the criteria set forth in Schedule II hereto.
Eligible Country” means any of the United States, Netherlands Antilles, Bermuda, Canada, the Cayman Islands, the Grand Duchy of Luxembourg, Sweden, the Bahamas, Guernsey, Great Britain, Jersey, Ireland, the Isle of Man, Israel or the British Virgin Islands or any other country that has at least one of a Moody’s foreign currency rating of at least “Aa3” and/or an S&P foreign issuer credit rating of at least “AA-” (or both such ratings if rated by both of Moody’s and S&P).
"Eligible Loan Asset" means, as of any date of determination, a Loan Asset in respect of which each of the representations and warranties contained in Section 4.02 and Schedule II hereto (after giving effect to the first proviso set forth in the lead in paragraph to Schedule II) is true and correct as of such date.
"Environmental Laws" means any and all laws, rules, orders, regulations, statutes, ordinances, guidelines, codes, decrees, or other legally binding requirements (including, without limitation, principles of common law) of any Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning pollution, the preservation or protection of the environment, natural resources or human health (including employee health and safety), or the generation, manufacture, use, labeling, treatment, storage, handling, transportation or release of, or exposure to, Materials of Environmental Concern, as has been, is now, or may at any time hereafter be, in effect.
"Equity Cure Notice" has the meaning assigned to such term in Section 2.06(c).
"Equity Interests" means, with respect to any Person, its equity ownership interests, its common stock and any other capital stock or other equity ownership units of such Person
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authorized from time to time, and any other shares, options, interests, participations or other equivalents (however designated) of or in such Person, whether voting or nonvoting, including common stock, options, warrants, preferred stock, phantom stock, membership units (common or preferred), stock appreciation rights, membership unit appreciation rights, convertible notes or debentures, stock purchase rights, membership unit purchase rights and all securities convertible, exercisable or exchangeable, in whole or in part, into any one or more of the foregoing.
"Equity Security" means (a) any equity security or any other security that is not eligible for purchase by the Borrower as an Eligible Loan Asset, (b) any security purchased as part of a "unit" with an Eligible Loan Asset and that itself is not eligible for purchase by the Borrower as an Eligible Loan Asset, and (c) any obligation that, at the time of commitment to acquire such obligation, was eligible for purchase by the Borrower as an Eligible Loan Asset but that, as of any subsequent date of determination, no longer is eligible for purchase by the Borrower as an Eligible Loan Asset, for so long as such obligation fails to satisfy such requirements.
"ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the relevant Person, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with that Person, or (c) solely for purposes of Section 302 of ERISA and Section 412 of the Code, a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as, or that otherwise is aggregated under Code Section 414(o) with, that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above.
"ERISA Event" means (a) with respect to a Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived; (b) a withdrawal by the Borrower or any of its ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as a termination under Section 4062(e) of ERISA; (c) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to a Pension Plan; (d) the failure of the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to a complete or partial withdrawal by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan, written notification of the Borrower or any of its ERISA Affiliates concerning the imposition of any withdrawal liability, as such term is defined in Part I of Subtitle E of Title IV of ERISA, as a result of a complete or partial withdrawal from a Multiemployer Plan or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in "endangered" or "critical" status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
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appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, or the receipt by the Borrower or any of its ERISA Affiliates from the PBGC of any notice relating to the intention to terminate a Pension Plan or Multiemployer Plan; (h) the imposition of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any of its ERISA Affiliates; or (i) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) which is reasonably likely to result in liability to the Borrower.
"Escrow Agent" has the meaning assigned to that term in Section 3.02(a)(i) and Section 3.04(a), respectively, as the context requires.
"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.
"Event of Default" has the meaning assigned to that term in Section 7.01.
"Excepted Persons" has the meaning assigned to that term in Section 12.12(a).
"Excess Concentration Amount" means, as of any date of determination, with respect to any Eligible Loan Asset included in the Collateral, the amount by which the Adjusted Borrowing Value of such Eligible Loan Asset exceeds any applicable Concentration Limitations, to be calculated by the Servicer without duplication, after giving effect to any sales, purchases or substitutions of Loan Assets as of such date; provided that with respect to any Eligible Loan Asset or portion thereof, if more than one Concentration Limitation would be exceeded, the Concentration Limitation that would result in the highest Excess Concentration Amount shall be used to determine the Excess Concentration Amount.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Excluded Amounts" means (a) any amount received in the Collection Account with respect to any Loan Asset included as part of the Collateral, which amount is attributable to the payment of any Tax, fee or other charge imposed by any Governmental Authority on such Loan Asset or on any Related Collateral and (b) any amount received in the Collection Account or other Controlled Account representing (i) a reimbursement of insurance premiums, (ii) any escrows relating to Taxes, insurance and other amounts in connection with Loan Assets which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under the Underlying Instruments, (iii) amounts received in the Collection Account with respect to any Loan Asset retransferred or substituted for upon the occurrence of a Warranty Breach Event or that is otherwise replaced by a Substitute Eligible Loan Asset, or that is otherwise sold or transferred by the Borrower pursuant to Section 2.07, to the extent such amount is attributable to a time after the effective date of such replacement or sale, (iv) any
USActive 55125247.5    22


interest accruing on a Loan Asset prior to the related Cut-Off Date (or, in the case of a Loan Asset acquired from the SPV Transferor, the Transferor or an Affiliate thereof, the Purchase Date) that was not purchased by the Borrower and is for the account of the Person from whom the Borrower purchased such Loan Asset, and (v) amounts deposited into the Collection Account manifestly in error.
"Excluded Taxes" means (a) Taxes imposed on or measured by the Recipient's net income (however denominated), franchise Taxes imposed on the Recipient, and branch profits Taxes imposed on the Recipient, in each case, (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) as the result of any other 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 Transaction Document, or sold or assigned an interest in any Transaction Document), (b) in the case of any Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.11, 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 2.11(g), and (d) any withholding Taxes imposed under FATCA.
"Exercise Notice" has the meaning assigned to that term in Section 7.02(j).
"Exercise Notice Purchase Price" has the meaning assigned to that term in Section 7.02(j).
"Facility Amount" means the aggregate Commitments as then in effect, which on the Closing Date shall be $200,000,000, as such amount may be reduced pursuant to Section 2.16(b) or increased pursuant to Section 2.19; provided that, at all times (a) when an Event of Default exists and is continuing and (b) during the Amortization Period, the Facility Amount shall mean the aggregate Advances Outstanding at such time.
"Facility Maturity Date" means the earliest of (a) the Business Day designated by the Borrower to the Lenders pursuant to Section 2.16(b) to terminate this Agreement, (b) the Stated Maturity or (c) the date on which the Facility Maturity Date is declared (or is deemed to have occurred automatically) pursuant to Section 7.01.
"FATCA" means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor versions of Sections 1471 through 1474 of the Code that are substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental
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agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
"Fees" means (a) the Unused Fee and (b) the fees payable to each Lender pursuant to the terms of any Lender Fee Letter.
"Financial Asset" has the meaning specified in Section 8-102(a)(9) of the UCC.
"Financial Covenant Test" means a test that will be tested on each date that the Servicer delivers the financial statements of the Parent to the Administrative Agent in accordance with Section 6.08(d) and will be determined as of the last day of the related fiscal quarter of the Parent so long as Advances Outstanding are greater than zero on such date and will be satisfied on any such date if:
(a) the Parent and its direct and indirect Subsidiaries collectively have Liquidity in an aggregate amount in excess of $35,000,000 as of the last day of the related fiscal quarter of the Parent;
(b) the Parent and its direct and indirect Subsidiaries collectively have cash and cash equivalents in an aggregate amount in excess of $5,000,000 as of the last day of the related fiscal quarter of the Parent;
(c) the Parent Stockholders’ Equity equals or exceeds the Facility Amount as of the last day of the related fiscal quarter of the Parent; and
(d) the BDC Asset Coverage is greater than 1.50:1.00 as of the last day of the related fiscal quarter of the Parent.
"Financial Sponsor" means any Person, including any Subsidiary of such Person, whose principal business activity is acquiring, holding, and selling investments (including controlling interests) in otherwise unrelated companies that each are distinct legal entities with separate management, books and records and bank accounts, whose operations are not integrated with one another and whose financial condition and creditworthiness are independent of the other companies so owned by such Person.
"First Lien Loan" means any Loan Asset (a) that is secured by a valid and perfected first priority Lien on substantially all of the Obligor's assets constituting Related Collateral, subject to any Permitted Working Capital Liens and any expressly permitted Liens under the Underlying Instrument for such Loan Asset or such comparable definition if "permitted liens" is not defined therein, (b) that provides that the payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, and is not (and cannot by its terms become) subordinate in right of payment to all other Indebtedness of such Obligor, (c) for which Liens on the Related Collateral securing any other outstanding Indebtedness of the Obligor (excluding Permitted Working Capital Liens and expressly permitted Liens described in clause (a) above but including Liens securing Second Lien Loans) is expressly subject to and contractually or structurally subordinate to the priority Liens securing such First Lien Loan, (d) that the Servicer determines in
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accordance with the Servicing Standard that the value (or the enterprise value) of the Related Collateral securing the Loan Asset on or about the time of origination equals or exceeds the Outstanding Balance of the Loan Asset plus the aggregate outstanding balances of all other Indebtedness of equal seniority secured by the same Related Collateral, (e) for which the Senior Leverage Ratio as of the Cut-Off Date is less than 4.50:1.00 and (f) that is not a Second Lien Loan, Unitranche Loan or FLLO Loan.
"FLLO Loan" means any Loan Asset that satisfies all of the requirements set forth in the definition of "First Lien Loan" except that, at any time prior to and/or after an event of default under the Underlying Instrument, such Loan Asset will be paid after one or more tranches of First Lien Loans issued by the Obligor have been paid in full in accordance with a specified waterfall or other priority of payments as specified in the Underlying Instrument, an agreement among lenders or other applicable agreement.
"Foreign Plan" means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to or by, or entered into with, the Borrower with respect to employees outside the United States.
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States.
"Governmental Authority" means, with respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person.
"Governmental Plan" has the meaning assigned to that term in Section 4.01(x).
"Grant" or "Granted" means to grant, bargain, sell, convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right of setoff against, deposit, set over and confirm. A Grant of the Collateral, or of any other instrument, shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including, the immediate continuing right to claim for, collect, receive and receipt for principal and interest payments in respect of the Collateral, and all other monies payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
"Hague Convention" has the meaning assigned to that term in Section 6.04(e).
"Increased Amount Date" has the meaning assigned to that term in Section 2.19(a).
"Increased Costs" means any amounts required to be paid by the Borrower to an Affected Party pursuant to Section 2.10.
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"Increasing Lender" has the meaning assigned to that term in Section 2.19(a).
"Indebtedness" means:
(a) with respect to any Obligor under any Loan Asset, without duplication, (i) all obligations of such entity for borrowed money or with respect to deposits or advances of any kind, (ii) all obligations of such entity evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such entity under conditional sale or other title retention agreements relating to property acquired by such entity, (iv) all obligations of such entity in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (v) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such entity, whether or not the indebtedness secured thereby has been assumed, (vi) all guarantees by such entity of indebtedness of others, (vii) all Capital Lease Obligations of such entity, (viii) all obligations, contingent or otherwise, of such entity as an account party in respect of letters of credit and letters of guaranty and (ix) all obligations, contingent or otherwise, of such entity in respect of bankers' acceptances; and
(b) for all other purposes, with respect to any Person at any date, (i) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (iv) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (v) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the indebtedness secured thereby has been assumed, (vi) all guarantees by such Person of indebtedness of others, (vii) all Capital Lease Obligations of such Person, (viii) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (ix) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances, but expressly excluding any obligation of such Person to fund any Loan Asset constituting a Delayed Draw Loan Asset or a Revolving Loan, as applicable.
"Indemnified Amounts" has the meaning assigned to that term in Section 8.01.
"Indemnified Party" has the meaning assigned to that term in Section 8.01.
"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 Borrower under any Transaction Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Indemnifying Party" has the meaning assigned to that term in Section 8.04.
"Independent Manager" means a natural person who, (a) for the five (5)-year period prior to his or her appointment as Independent Manager, has not been, and during the continuation of his or her service as Independent Manager is not: (i) an employee, director, stockholder, member, manager, partner or officer of the Borrower or any of its respective Affiliates (other than his or
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her service as an Independent Manager of the Borrower or other Affiliates of the Borrower that are structured to be "bankruptcy remote"); (ii) a customer or supplier of the Borrower or any of its Affiliates (other than his or her service as an Independent Manager of the Borrower or other Affiliates of the Borrower that are structured to be "bankruptcy remote"); or (iii) any member of the immediate family of a person described in (i) or (ii), and (b) has (i) prior experience as an Independent Manager for a corporation or limited liability company whose charter documents required the unanimous consent of all Independent Managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least five (5) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of secured or securitized structured finance instruments, agreements or securities.
"Index" means LIBOR, Term SOFR, Compounded SOFR, the ISDA Fallback Rate and any other interest rate benchmark published for use in, among others, secured transactions involving middle market commercial loans.
"Index Rate" means, with respect to an applicable Remittance Period and Determination Date, the per annum rate of interest of the Applicable Index.
"Index Transition" means a transition or replacement of an Index with a Replacement Index.
"Index Transition Date" means the next subsequent Determination Date following an Index Transition Notice.
"Index Transition Event" means the occurrence of a determination by the Administrative Agent that one of the following events has occurred with respect to the then-current Applicable Index: (a) a public statement or publication of information by or on behalf of the administrator of such Applicable Index announcing that the administrator has ceased or will cease to provide such Applicable Index permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Applicable Index; (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Applicable Index, a Relevant Governmental Body, an insolvency official with jurisdiction over the administrator for such Applicable Index, a resolution authority with jurisdiction over the administrator for such Applicable Index or a court or an entity with similar insolvency or resolution authority over the administrator for such Applicable Index, which states that the administrator of such Applicable Index has ceased or will cease to provide such Applicable Index permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Applicable Index; (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Applicable Index announcing that such Applicable Index is no longer representative; (d) a majority of secured transactions involving middle market commercial loans entered into in the previous calendar quarter reference a single Index other than such Applicable Index; (e) 50% or more of the aggregate par value of floating rate Loan Assets have a single
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Index other than such Applicable Index; or (f) a Change in Law prohibiting, restricting or limiting the use of such Applicable Index.
"Index Transition Notice" means notice given by the Administrative Agent which (a) sets forth in reasonable detail the circumstances of the Index Transition; (b) designates an Index Transition Date; and (c) if feasible and if applicable, identifies other Interest Determinations and, with respect to LIBOR, any LIBOR Successor Rate Conforming Changes to implement such Index Transition.
"Indorsement" has the meaning specified in Section 8-102(a)(11) of the UCC, and "Indorsed" has a corresponding meaning.
"Industry Classification" means any of the industry categories set forth in Schedule V hereto, including any modifications that may be made thereto or additional categories that may be subsequently established by reference to the Global Industry Classification Standard codes; provided that the Administrative Agent and the Borrower has provided its prior written consent (which consent of the Borrower shall not be unreasonably withheld, delayed or conditioned) to any such modification or additional category.
"Instrument" has the meaning specified in Section 9-102(a)(47) of the UCC.
"Insurance Policy" means, with respect to any Loan Asset, an insurance policy covering liability and physical damage to, or loss of, the Related Collateral.
"Interest Collection Subaccount" means a sub-account (account number 92074002 at the Account Bank) of the Collection Account entitled "Interest Collection Subaccount," into which Interest Collections shall be segregated.
"Interest Collections" means, with respect to any date of determination, without duplication, the sum of:
(a) all payments of interest and delayed compensation (representing compensation for delayed settlement) received in cash by the Borrower during the related Remittance Period on the Loan Assets, including the accrued interest received in connection with a sale thereof during the related Remittance Period;
(b) all principal and interest payments received by the Borrower during the related Remittance Period on Permitted Investments purchased with Interest Collections;
(c) all upfront fees, anniversary fees, redemption fees, collateral monitoring fees, success fees, termination fees, amendment and waiver fees, late payment fees, ticking fees and all other fees received by the Borrower during the related Remittance Period, except for those fees in connection with the reduction of the Outstanding Balance of the related Loan Asset, as determined by the Servicer with notice to the Administrative Agent and the Collateral Agent; and
(d) commitment fees and other similar fees received by the Borrower during such Remittance Period in respect of Delayed Draw Loan Assets or Revolving Loans;
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provided that (x) any amounts received in respect of any Defaulted Loan will constitute Principal Collections (and not Interest Collections) until the aggregate of all collections in respect of such Defaulted Loan since it became a Defaulted Loan equals the Outstanding Balance of such Loan Asset at the time it became a Defaulted Loan and (y) Excluded Amounts shall not constitute Interest Collections.
"Interest Determination" means any determination related to an Index or an Index Transition.
"ISDA" means the International Swaps and Derivatives Association, Inc.
"ISDA Definitions" means the 2006 ISDA Definitions published by ISDA or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
"ISDA Fallback Adjustment" means the adjustment (which may be zero or a positive or negative value) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an Index Transition.
"ISDA Fallback Rate" means, with respect to any Index Transition, the Index identified by ISDA as a fallback for derivatives transactions referencing a London interbank offered rate.
"Investment Criteria" means with respect to each Loan Asset acquired by the Borrower, compliance with each of the requirements set forth below:
(a) no Event of Default or Unmatured Event of Default is continuing;
(b) such Loan Asset is an Eligible Loan Asset;
(c) there is no Borrowing Base Deficiency (unless such Loan Asset is being acquired in connection with the cure of any Borrowing Base Deficiency);
(d) solely during the Amortization Period, the Unfunded Exposure Test is satisfied; and
(e) the Collateral Quality Tests are satisfied or, if not satisfied, would be maintained or improved.
"Joinder Supplement" means an agreement among the Borrower, a Lender and the Administrative Agent in the form of Exhibit O (appropriately completed) delivered in connection with a Person becoming a Lender hereunder after the Closing Date.
"Lender" means (a) Morgan Stanley and (b) any Lender, and/or any other Person to whom a Lender assigns any part of its rights and obligations under this Agreement and the other Transaction Documents in accordance with the terms of Section 12.04.
"Lender Fee Letter" means each fee letter agreement that shall be entered into by and among the Borrower, the applicable Lender and/or the Administrative Agent in connection with
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the transactions contemplated by this Agreement, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"LIBOR" means, for any day during a Remittance Period, with respect to any Advance (or portion thereof), the rate per annum (represented as a percentage and carried out to the fifth decimal place) equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Reuters Screen (or any applicable successor page) at approximately 11:00 a.m., London time on the LIBOR Determination Date for such Remittance Period that displays an average ICE Benchmark Administration Interest Settlement Rate (such page currently being LIBOR01) for deposits in Dollars with a term equivalent to one month; provided that if such rate is not available at any such time for any reason, then "LIBOR" with respect to any Advance shall be the rate at which Dollar deposits of $5,000,000 and for a one (1)month maturity are offered by the principal London office of the Administrative Agent or the principal London office of any bank reasonably selected by the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, on the applicable day (or, if such day is not a Business Day, on the immediately preceding Business Day); provided further that, in the event that the rate as so determined above shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. LIBOR shall always be determined by the Administrative Agent, and such determination shall be conclusive absent demonstrable error.
"LIBOR Determination Date" means, with respect to each Remittance Period, the day that is two (2) Business Days prior to the first day of such Remittance Period.
"LIBOR Successor Rate Conforming Changes" means any technical, administrative or operational changes that the Administrative Agent determines are both (a) appropriate to implement the Index Transition; and (b) consistent with Market Practice.
"Lien" means any mortgage or deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, claim, preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale, lease or other title retention agreement, sale subject to a repurchase obligation, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) or the filing of or agreement to give any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction.
"Liquidation Sale" has the meaning assigned to that term in Section 7.02(j).
"Liquidity" means, as of any date of determination, the sum of (i) all cash and cash equivalents of the Parent and its direct and indirect Subsidiaries, plus (ii) the aggregate undrawn availability under all credit facilities, indentures and notes of Parent and its direct and indirect Subsidiaries, minus (iii) the aggregate amount payable by the Parent and its direct and indirect Subsidiaries in connection with unsettled trades to acquire assets plus (iv) the aggregate amount payable to the Parent and its direct and indirect Subsidiaries in connection with unsettled trades to sell assets.
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"Loan Asset" means (a) any commercial loan acquired by the Borrower, but excluding, as applicable, the Retained Interest and Excluded Amounts and (b) any Transferor Participation Interests; provided, however, that to the extent the Borrower acquires more than one position of a commercial loan on separate dates, each such position shall be treated as a separate Loan Asset for all purposes hereunder and under each other Transaction Document, unless the Administrative Agent, in its sole discretion, elects to treat such positions as a single Loan Asset; provided, further, that to the extent the Borrower’s undrawn commitments under any Delayed Draw Loan Asset has been increased after the acquisition of such Delayed Draw Loan Asset by the Borrower (whether through an assignment or an amendment of the Underlying Instrument), such increased commitment shall be treated as a separate Delayed Draw Loan Asset for all purposes hereunder and under each other Transaction Document, unless the Administrative Agent, in its sole discretion, elects to treat such increased commitment as part of the original Delayed Draw Loan Asset.
"Loan Asset Liquidity" means, with respect to any Loan Asset for any period, the meaning of "Liquidity" or any comparable definition in the Underlying Instruments for such Loan Asset, and in any case that "Liquidity" or such comparable definition is not defined in such Underlying Instruments, the sum of (a) the aggregate revolving commitments made to the related Obligor with respect to such Loan Asset as of such date less the amount of any revolving portion of such Loan Asset actually borrowed and outstanding as of such date plus (b) the amount of Unrestricted Cash as of such date.
"Loan Asset Checklist" means an electronic or hard copy, as applicable, of a checklist delivered by or on behalf of the Borrower to the Collateral Custodian, for each Loan Asset, of all applicable Required Loan Documents to be included within the respective Loan File.
"Loan Asset Schedule" means the Loan Asset Schedule identifying the Loan Assets delivered by the Borrower or Servicer to the Collateral Custodian and the Administrative Agent. Each such schedule shall set forth the applicable information specified on Schedule IV, which shall also be provided to the Collateral Custodian in electronic format acceptable to the Collateral Custodian.
"Loan Assignment" has the meaning set forth in the respective Purchase and Sale Agreement.
"Loan File" means, with respect to each Loan Asset, a file containing (a) each of the documents and items as set forth on the Loan Asset Checklist with respect to such Loan Asset and (b) duly executed originals (to the extent reasonably available or as otherwise may be required by the Servicing Standard) and copies of any other Records relating to such Loan Assets and Related Asset pertaining thereto.
"LTV" means, with respect to any Eligible Loan Asset as of its origination date, the meaning of "LTV" or any comparable definition in the Underlying Instruments for such Eligible Loan Asset. In case that "LTV" or such comparable definition is not defined in such Underlying Instruments, a ratio of (i) the total indebtedness of the related Obligor that ranks senior to or pari passu with such Eligible Loan Asset divided by (ii) the enterprise value of the related Obligor.
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"Maintenance Covenant" means, as of any date of determination, a covenant by the Obligor of a Loan Asset to comply with one or more financial covenants during each reporting period applicable to such Loan Asset, whether or not any action by, or event relating to, the Obligor occurs after such date of determination; provided that a covenant that otherwise satisfies the definition hereof and only applies when amounts are outstanding under the related Loan Asset shall be a Maintenance Covenant.
"Mandatory Recall Date" has the meaning assigned to that term in Section 3.04(a).
"Mandatory Return Date" has the meaning assigned to that term in Section 3.02(a)(i).
"Margin Stock" means "margin stock" as such term is defined in Regulation T, U or X of the Federal Reserve Board.
"Market Practice" means the practice and course of dealing, including the manner of implementing Index Transitions, within secured transactions involving middle market commercial loans.
"Master Participation Agreement" means, together, the SVCP Master Participation Agreement and the TCPC Funding I Master Participation Agreement.
"Material Adverse Effect" means, with respect to any event or circumstance, a material adverse effect on (a) the business, financial condition, operations, performance or properties of the Transferor, the Servicer or the Borrower, (b) the validity, enforceability or collectability of this Agreement or any other Transaction Document or the validity, enforceability or collectability of the Loan Assets generally or any material portion of the Loan Assets, (c) the rights and remedies of the Collateral Agent, the Collateral Custodian, the Account Bank, the Administrative Agent, any Lender and the Secured Parties with respect to matters arising under this Agreement or any other Transaction Document, (d) the ability of each of the Borrower, the Transferor and the Servicer to perform their respective obligations under this Agreement or any other Transaction Document, (e) the status, existence, perfection, priority or enforceability of the Collateral Agent's lien on the Collateral, or (f) the business, financial condition, operations, performance or properties of the Parent that results in a material adverse effect on the Transferor, the Servicer or the Borrower.
"Materials of Environmental Concern" means any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant (or words of similar regulatory intent or meaning) under applicable Environmental Law, or which could give rise to liability under any Environmental Law.
"Material Modification" means any amendment or waiver of, or modification or supplement with respect to, an Underlying Instrument governing an Eligible Loan Asset executed or effected on or after the Cut-Off Date for such Eligible Loan Asset (or, in the case of clause (d) below, a change to any other Indebtedness of the Obligor, as applicable) which:
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(a) reduces or forgives any or all of the principal amount due under such Eligible Loan Asset;
(b) extends or delays the stated maturity date or any scheduled amortization payment for such Eligible Loan Asset, including a Maturity Amendment; provided that such amendment, waiver, modification or supplement shall not be a Material Modification if (i) immediately after giving effect thereto the weighted average life of such Collateral Asset is not more than 0.50 years higher than the weighted average life of such Collateral Asset immediately prior to such amendment, waiver, modification or supplement and such amendment, waiver, modification or supplement is not made for credit-related reasons and (ii) the Servicer shall have certified to the Administrative Agent in writing (including by email) that it reasonably believes that such extension or delay was not undertaken for the purpose of avoiding, delaying, or waiving the occurrence or continuance of, a payment default with respect to such Loan Asset;
(c) waives one or more interest payments, permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Eligible Loan Asset (other than any deferral or capitalization already allowed by the terms of the Underlying Instruments of any Eligible Loan Asset that is a PIK Loan Asset as of the Cut-Off Date) or reduces the amount of interest due (provided that no such reduction shall constitute a Material Modification if the Servicer certifies that such reduction results from an increase in the credit quality of the related Obligor);
(d) (i) in the case of a First Lien Loan or Unitranche Loan, contractually or structurally subordinates such Eligible Loan Asset by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than "permitted liens" or any comparable definitions or provisions in the Underlying Instruments related to "permitted liens" for such Eligible Loan Asset) on any of the Related Collateral securing such Loan Asset, (ii) in the case of a Second Lien Loan or FLLO Loan, (x) contractually or structurally subordinates such Eligible Loan Asset to any obligation (other than any loan which existed on the Cut-Off Date for such Eligible Loan Asset which is senior to such Eligible Loan Asset) by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than "permitted liens" or any comparable definitions or provisions in the Underlying Instruments related to "permitted liens" for such Eligible Loan Asset) on any of the Related Collateral securing such Loan Asset or (y) increases the commitment amount of any loan senior or pari passu with such Loan Asset (except as permitted under the applicable Underlying Instruments existing as of the Cut-Off Date for such Second Lien Loan or FLLO Loan) or (iii) in the case of any Eligible Loan Asset, the Obligor thereof incurs any additional Indebtedness which was not in place as of the Cut-Off Date which is senior to or pari passu with such Eligible Loan Asset (except as permitted under the applicable Underlying Instruments existing on the Cut-Off Date for such Eligible Loan Asset);
(e) substitutes, alters or releases the Related Collateral securing such Eligible Loan Asset and any such substitution, alteration or release, as determined in the reasonable discretion of the Administrative Agent, materially and adversely affects the value of such Eligible Loan Asset; provided, that the foregoing shall not apply to any release in conjunction with a relatively contemporaneous disposition by the Obligor accompanied by a mandatory reinvestment of net proceeds or mandatory
USActive 55125247.5    33


repayment of the loan facility (including the Eligible Loan Asset) with the net proceeds of such Related Collateral; or
(f) amends, waives, forbears, supplements or otherwise modifies (i) the meaning of "Senior Leverage Ratio," "Cash Interest Coverage Ratio," "Total Leverage Ratio," "EBITDA," "Permitted Liens," "Recurring Revenue," "Debt-to-Recurring Revenue Ratio," "LTV," "Loan Asset Liquidity" or any respective comparable definitions in the Underlying Instruments for such Eligible Loan Asset (to the extent such financial covenants or definitions are included in the Underlying Instruments) or (ii) any term or provision of such Underlying Instruments referenced in or utilized in the calculation of the "Senior Leverage Ratio," "Cash Interest Coverage Ratio," "Total Leverage Ratio," "EBITDA," "Permitted Liens," "Recurring Revenue," "Debt-to-Recurring Revenue Ratio," "LTV," "Loan Asset Liquidity" or any respective comparable definitions for such Eligible Loan Asset, or (iii) any term or provision referenced in or utilized in the calculation of any financial covenant or modifies any of the required maintenance levels of any financial covenant in the Underlying Instrument for such Eligible Loan Asset, in the case of any of clause (i), (ii) or (iii) above, in a manner that, in the reasonable discretion of the Administrative Agent, is materially adverse to the Lenders or the value of such Eligible Loan Asset.
"Maturity Amendment" means, any amendment to the Underlying Instruments of any Loan Asset which delays or extends the maturity date or any principal payment date for such Loan Asset.
"Maximum Portfolio Advance Rate" means, as of any date of determination, the advance rate corresponding to the applicable Diversity Score of the Eligible Loan Assets included in the Collateral as of such date, as set forth below:
Diversity Score (x)Maximum Portfolio Advance Rate
x < 5.00%
5.0 < x < 7.5
35%
7.5 < x < 10.0
40%
10.0 < x < 15.0
50%
x > 15.0
Weighted Average Advance Rate as of such date, but in no case greater than 60%
"Measurement Date" means each of the following dates: (a) the Closing Date; (b) each Reporting Date; (c) the date as of which an Advance or reduction of the Advances Outstanding is requested; (d) the date as of which a release of Principal Collections is requested pursuant to Section 2.18; (e) the date of any Discretionary Sale described in Section 2.07(a); (f) the date as of which the Servicer obtains actual knowledge of any Value Adjustment Event; (g) the date as of which a Borrowing Base Deficiency occurs and (h) the last day of the Revolving Period.
"Minimum Equity Amount" means the greater of (a) the sum of the Outstanding Balances of all Eligible Loan Assets that are the obligations of the five largest Obligors and (b) 20.0% of the Facility Amount.
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Minimum Utilization” means (a) on any day following February 4, 2021 and prior to the end of the Revolving Period, 50.0% of the Facility Amount, and (b) at all other times, zero.
"Moody's" means Moody's Investors Service, Inc. (or its successors in interest).
"Morgan Stanley" means Morgan Stanley Bank, N.A., and its successors and assigns.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA to which the applicable Person or any ERISA Affiliate of that Person contributed or had any obligation to contribute.
"New Advance" has the meaning assigned to that term in Section 2.19(b).
"New Commitments" has the meaning assigned to that term in Section 2.19(a).
"Non-Approval Event" means an event that (a) will be deemed to have occurred if, during any one-hundred and eighty (180) day period (measured on a rolling basis), the quotient of (i) the number of Eligible Loan Assets (other than with respect to clause 1 of Schedule II) submitted by the Borrower to the Administrative Agent for inclusion as an Eligible Loan Asset which the Administrative Agent has rejected (provided at least twelve Eligible Loan Assets (other than with respect to clause 1 of Schedule II) were reviewed) divided by (ii) the total number Eligible Loan Assets (other than with respect to clause 1 of Schedule II) submitted by the Borrower to the Administrative Agent for inclusion, is 50% or greater and (b) will be continuing until the conditions set forth in clause (a) of this definition are no longer true.
Non-Consensual Competitor Lender” means any Competitor that becomes a Lender hereunder without the Borrower’s prior written consent in accordance herewith, unless at the time of such assignment to such Competitor an Unmatured Event of Default or an Event of Default had occurred and was continuing at such time.
"Non-Consenting Lender" has the meaning assigned to that term in Section 2.20(d).
"Noteless Loan" means a Loan Asset with respect to which the Underlying Instruments (a) do not require the Obligor to execute and deliver a promissory note to evidence the Indebtedness created under such Loan Asset or (b) require any holder of the Indebtedness created under such Loan Asset to affirmatively request a promissory note from the related Obligor (and none has been requested with respect to such Loan Asset held by the Borrower).
"Notice of Borrowing" means a written notice of borrowing from the Borrower to the Administrative Agent in the form attached hereto as Exhibit D.
"Notice of Exclusive Control" has the meaning given to such term in the Account Agreement.
"Notice of Reduction" means a notice of a reduction of the Advances Outstanding pursuant to Section 2.16, in the form attached hereto as Exhibit E.
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"Obligations" means all present and future indebtedness and other liabilities and payment obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to the Lenders, the Administrative Agent, the Account Bank, the Secured Parties, the Collateral Agent or the Collateral Custodian arising under this Agreement and/or any other Transaction Document and shall include, all liability for Yield and principal of the Advances Outstanding, Breakage Fees, indemnifications and other amounts due or to become due by the Borrower to the Lenders, the Administrative Agent, the Collateral Agent, the Collateral Custodian, the Secured Parties and the Account Bank under this Agreement and/or any other Transaction Document, including, the Administrative Agent Fee Letter, any Lender Fee Letter, any Prepayment Premium and documented costs and expenses payable by the Borrower to the Lenders, the Administrative Agent, the Account Bank, the Collateral Agent or the Collateral Custodian, including attorneys' fees, documented costs and expenses, in accordance with the terms hereof, including interest, fees and other obligations that accrue after the commencement of an insolvency proceeding (in each case whether or not allowed as a claim in such insolvency proceeding).
"Obligor" means, with respect to a Loan Asset, the Person who is obligated to repay such Loan Asset (including, if applicable, a guarantor thereof), and whose assets are primarily relied upon by the Borrower at the time such Loan Asset was originated or purchased by the Borrower as the source of repayment of such Loan Asset.
"Obligor Information" means, with respect to any Obligor, (a) the legal name and tax identification number of such Obligor, (b) the jurisdiction in which such Obligor is domiciled, organized or incorporated, (c) the audited financial statements for such Obligor for the three prior fiscal years (or such shorter period of time for which such audited financial statements have been prepared and are available), unless the Servicer has notified the Administrative Agent that such audited financial statements are unavailable and the Administrative Agent has waived in writing the requirement to deliver such audited financial statements, (d) the Servicer's internal credit memo with respect to the Obligor and the related Loan Asset, including explanation of any EBITDA adjustments and detailed projections of free cash flow through maturity, (e) any lender presentations and confidential information memorandum received by the Servicer, (f) the annual report for the most recent fiscal year of such Obligor, (g) a company forecast for such Obligor including plans related to capital expenditures, (h) the financials for the most recent fiscal quarter, (i) the business model, company strategy and names of known peers of such Obligor, (j) the shareholding pattern and details of the management team of such Obligor, (k) details of any banking facilities and the debt maturity schedule of such Obligor and (l) Underlying Instruments, unless in each case the Administrative Agent has agreed in writing in its sole discretion to exclude any such information or documentation as Obligor Information for such Obligor (such agreement to so exclude may be included in the related Approval Notice).
"OFAC" means the U.S. Department of the Treasury's Office of Foreign Asset Control.
"Officer's Certificate" means a certificate signed by a Responsible Officer, as an authorized officer, of any Person.
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"Opinion of Counsel" means a customary written opinion of counsel, which opinion and counsel are acceptable to the Administrative Agent in its sole discretion; provided that Milbank LLP shall be considered acceptable counsel for purposes of this definition.
"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 Transaction Document, except any such Taxes imposed with respect to an assignment that are the result of any other present or former connection between a 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 Transaction Document, or sold or assigned an interest in any Transaction Document).
"Outstanding Balance" means, as of any date of determination, the outstanding principal balance of a Loan Asset as of such date, exclusive of any PIK Interest or accrued interest on such Loan Asset as of such date; provided that, for purposes of calculating the "Outstanding Balance" of any PIK Loan Asset, principal payments received on such Loan Asset shall first be applied to reducing or eliminating any outstanding PIK Interest or accrued interest; provided further that, unfunded commitments shall be excluded for purposes of calculating the "Outstanding Balance" of any Delayed Draw Loan Asset or Revolving Loan.
"Parent" means BlackRock TCP Capital Corp., a Delaware corporation.
"Parent Stockholders’ Equity" means, at any date, the amount determined on a consolidated basis, without duplication, in accordance with GAAP, of equity holders’ equity for the Parent and its direct and indirect Subsidiaries at such date.
"Participant Register" has the meaning assigned to that term in Section 12.04(e).
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as amended (signed into law October 26, 2001).
"Payment Date" means the date ten (10) Business Days following the related Determination Date in each calendar month, commencing in September 2020; provided that the final Payment Date shall occur on the Collection Date.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Pension Plan" means an "employee pension benefit plan" as such term is defined in Section 3(2) of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by the Borrower or any ERISA Affiliate of the Borrower or to which the Borrower or any ERISA Affiliate of the Borrower contributes or has an obligation to contribute.
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"Permitted Investments" means, as of any date of determination:
(a) direct interest bearing obligations of, and interest bearing obligations guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality of the United States, the obligations of which are backed by the full faith and credit of the United States;
(b) demand or time deposits in, bank deposit products of or certificates of deposit of, demand notes of, or bankers' acceptances issued by any depository institution or trust company organized under the laws of the United States or any State thereof (including any federal or state branch or agency of a foreign depository institution or trust company) and subject to supervision and examination by federal and/or state banking authorities (including, if applicable, the Collateral Agent, the Collateral Custodian or the Administrative Agent or any agent thereof acting in its commercial capacity); provided that the short-term unsecured debt obligations of such depository institution or trust company at the time of such investment are rated at least "A-1" by S&P and "P-1" by Moody's;
(c) commercial paper that (i) is payable in Dollars and (ii) is rated at least "A-1" by S&P and "P-1" by Moody's; and
(d) units of money market funds rated in the highest credit rating category by any nationally recognized statistical rating organization, including S&P and Moody's.
No Permitted Investment shall have an "f," "r," "p," "pi," "q," "sf" or "t" subscript affixed to its S&P rating. Any such investment may be made or acquired from or through the Collateral Agent or the Administrative Agent or any of their respective Affiliates, or any entity for whom the Collateral Agent, the Administrative Agent, the Account Bank, the Collateral Custodian or any of their respective Affiliates acts as offeror or provides services and receives compensation (so long as such investment otherwise meets the applicable requirements of the foregoing definition of Permitted Investment at the time of acquisition); provided that, notwithstanding the foregoing clauses (a) through (d) above, Permitted Investments may only include obligations or securities that constitute cash equivalents for purposes of the rights and assets in paragraph (c)(8)(i)(B) of the exclusions from the definition of "covered fund" for purposes of the Volcker Rule. The Collateral Agent and Collateral Custodian shall have no obligation to determine or oversee compliance with the foregoing.
"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 Taxes, assessments or other governmental charges or levies if such Taxes, assessments or other governmental charges or levies shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person, (b) Liens imposed by law, such as materialmen's, warehousemen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith and (c) Liens granted pursuant to or by the Transaction Documents.
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"Permitted Working Capital Lien" means, with respect to any Loan Asset, a Lien on the applicable Related Collateral (a) that is first priority under Applicable Law, (b) on specified accounts, documents, instruments, chattel paper, letter-of-credit rights, supporting obligations, deposit and investment accounts and (c) that is set forth on the related Approval Notice or otherwise approved by the Administrative Agent in writing in its sole discretion.
"Person" means an individual, partnership, corporation (including a statutory or business trust), limited liability company, joint stock company, trust, unincorporated association, sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or other entity.
"PIK Interest" means interest accrued on a Loan Asset that is added to the principal amount of such Loan Asset instead of being paid as cash interest as it accrues.
"PIK Loan Asset" means a Loan Asset which provides for a portion of the interest that accrues thereon to be added to the principal amount of such Loan Asset for some period of time prior to such Loan Asset requiring the current cash payment of such previously capitalized interest, which cash payment shall be treated as an Interest Collection at the time it is received.
"Pre-Approved Replacement Servicer" means (i) an established bank or insurance company with a capital amount of at least U.S. $50,000,000 or (ii) a Person listed on Schedule VII, as such schedule may be updated from time to time by the Borrower with the prior consent of the Facility Agent.
"Prepayment Premium" has the meaning assigned to that term in the Lender Fee Letter.
"Principal Collection Subaccount" means a sub-account (account number 92074001 at the Account Bank) of the Collection Account entitled "Principal Collection Subaccount," into which Principal Collections shall be segregated.
"Principal Collections" means with respect to any date of determination, all amounts received by the Borrower during the related Remittance Period that do not constitute Interest Collections and any other amounts that have been designated as Principal Collections pursuant to the terms of this Agreement; provided that Excluded Amounts shall not constitute Principal Collections.
"Pro Rata Share" means, with respect to each Lender, the percentage obtained by dividing the Commitment of such Lender (or, following the termination thereof, the outstanding principal amount of all Advances of such Lender), by the aggregate Commitments of all the Lenders (or, following the termination thereof, the aggregate Advances Outstanding).
"Proceeds" means, with respect to any property included in the Collateral, all property that is receivable or received when such property is collected, sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all rights to payment with respect to such Collateral including any insurance relating thereto.
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"Purchase and Sale Agreements" means, together, the SVCP Purchase and Sale Agreement and the TCPC Funding I Purchase and Sale Agreement.
"Purchase Date" means, with respect to each Loan Asset (or any portion thereof), the settlement date of the acquisition of such Loan Asset (or such portion) by the Borrower.
"Purchase Price" means, with respect to any Loan Asset, an amount (expressed as a percentage of par) equal to the greater of (a) zero and (b) the actual price paid by the Borrower for such Loan Asset; provided that (1) if the actual price paid by the Borrower for such Loan Asset exceeds 100% of par, the Purchase Price shall be deemed to be 100% and (2) any Loan Asset acquired with an original issue discount of 3% of par or less shall be deemed to have been acquired at par.
"Qualified Blackrock Affiliate" means any Affiliate (which shall include without limitation the investment manager of the Servicer, any affiliate of such investment manager and any fund or account managed by the investment manager or its affiliate) of the Servicer (a) that has the ability and experience to professionally and competently perform duties similar to those imposed upon the Servicer under this Agreement, (b) that is legally qualified and has the capacity and applicable licenses or other regulatory qualifications to act as Servicer under this Agreement, (c) that would satisfy the Financial Covenant Test (if such test applied to the Servicer), (d) for which the principal personnel who would perform its duties hereunder as the Servicer are substantially the same individuals who perform such duties immediately prior to such assignment, (e) for which the Administrative Agent has received all "know your customer" documentation and information reasonably and timely requested and (f) that shall assume the obligations of the Servicer.
"Qualified Lender" means a Person that was not formed for the specific purpose of becoming a Lender or beneficial owner of an Advance and that is “qualified purchaser” within the meaning of Section 3(c)(7) of the 1940 Act.
"Ramp-Up Period" means the period beginning on the Closing Date and ending on the six-month anniversary thereof.
Rate Adjustment” means an adjustment which may be zero or a positive or negative value, and:
(a) if the Applicable Index is LIBOR, then equal to zero;
(b) if the Index Transition is a transition from LIBOR to:
(i) Term SOFR, then the adjustment that has been selected, endorsed or recommended by the Relevant Governmental Body for such Index Transition;
(ii) Compounded SOFR, then the adjustment that has been selected, endorsed or recommended by the Relevant Governmental Body for such Index Transition;
(iii) the ISDA Fallback Rate, then the ISDA Fallback Adjustment; or
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(iv) a Replacement Index other than Term SOFR, Compounded SOFR, or the ISDA Fallback Rate, then an adjustment consistent with Market Practice for handling such Index Transition selected by the Administrative Agent with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned); or

(c) if the Index Transition is a transition from an Index other than LIBOR to another Index, then an adjustment consistent with Market Practice for handling such Index Transition selected by the Administrative Agent with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned).
"Recipient" means the Administrative Agent and any Lender, as applicable.
"Records" means all documents relating to the Loan Assets, including books, records and other information executed in connection with the origination or acquisition of the Loan Assets or maintained with respect to the Loan Assets and the related Obligors that the Borrower, the Transferor or the Servicer have generated, in which the Borrower has acquired an interest pursuant to a Purchase and Sale Agreement or in which the Borrower otherwise has obtained an interest.
"Recoveries" means, with respect to any Defaulted Loan, the proceeds from the sale of the Related Collateral, the proceeds of any related Insurance Policy, any other recoveries with respect to such Loan Asset (without duplication) or the Related Collateral, and amounts representing late fees and penalties, net of any amounts received that are required under such Loan Asset, as applicable, to be refunded to the related Obligor.
"Recurring Revenue" means, with respect to any Eligible Loan Assets that are Recurring Revenue Loans, the definition of annualized recurring revenue used in the Underlying Instruments for each such Eligible Loan Asset, or any comparable term for "Revenue", "Recurring Revenue" or "Adjusted Revenue" in the Underlying Instruments for each such Eligible Loan Asset or if there is no such term in the Underlying Instruments, all recurring maintenance, service, support, hosting, subscription and other revenues identified by the Servicer (including, without limitation, software as a service subscription revenue), of the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Eligible Loan Asset pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance with GAAP).
"Recurring Revenue Loan" means any Loan Asset that satisfies all of the requirements set forth in the definition of "First Lien Loan" except that it is underwritten based on the Recurring Revenue of the Obligor, as determined by the Administrative Agent in its sole discretion after consultation with the Servicer and designated as such in the related Approval Notice.
"Redemption Purchaser" has the meaning assigned to that term in Section 7.02(j).
"Register" has the meaning assigned to that term in Section 2.13.
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"Registered" means a debt obligation that is in registered form for U.S. federal income tax purposes within the meaning of Section 881(c)(2)(B)(i) of the Code and the Treasury regulations promulgated thereunder.
"Related Asset" means, with respect to each Loan Asset, all right, title and interest of the Borrower in and to:
(a) any amounts on deposit in any deposit accounts, cash reserve, collection, custody or lockbox accounts securing the Loan Assets;
(b) all rights with respect to the Loan Assets to which the Borrower is entitled as lender under the applicable Underlying Instruments;
(c) the controlled accounts with respect to such Related Collateral, together with all cash and investments in each of the foregoing other than amounts earned on investments therein;
(d) any Related Collateral securing a Loan Asset and all Recoveries related thereto, all payments paid in respect thereof and all monies due or to become due and paid in respect thereof after the applicable Cut-Off Date (or, in the case of a Loan Asset acquired from the SPV Transferor, the Transferor or an Affiliate thereof, the Purchase Date) and all liquidation proceeds;
(e) all Required Loan Documents, the Loan Files related to any Loan Asset, any Records, and the documents, agreements, and instruments included in the Loan Files or Records;
(f) all Insurance Policies with respect to any Loan Asset;
(g) all Liens, guaranties, indemnities, warranties, letters of credit, accounts, bank accounts and property subject thereto from time to time purporting to secure or support payment of any Loan Asset, together with all UCC financing statements, mortgages or similar filings signed or authorized by an Obligor relating thereto;
(h) all records (including computer records) with respect to the foregoing; and
(i) all collections, income, payments, proceeds and other benefits of each of the foregoing.
"Related Collateral" means, with respect to a Loan Asset, any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Loan Asset, as applicable, including, mortgaged property and/or a pledge of the stock, membership or other ownership interests in the related Obligor and all Proceeds from any sale or other disposition of such property or other assets.
"Release Date" has the meaning set forth in Section 2.07(b).
"Relevant Governmental Body" means (a) the Federal Reserve Board or the Federal Reserve Bank of New York or (b) a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
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"Remittance Period" means, with respect to a Payment Date during which the Applicable Index is (i) LIBOR, (a) as to the initial Payment Date, the period beginning on, and including, the Closing Date and ending on, and including, the Determination Date immediately preceding such Payment Date and (b) as to any subsequent Payment Date, the period beginning on and including the first day after the most recently ended Remittance Period and ending on, and including, the Determination Date immediately preceding such Payment Date, or, with respect to the final Remittance Period, the Collection Date and (ii) a Replacement Index, a period the Administrative Agent determines with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) is consistent with Market Practice in implementing the applicable Index Transition.
"Removed Loan Asset" means any Loan Asset that is no longer an Eligible Loan Asset or that has an Assigned Value of zero, if such Loan Asset is removed and replaced with an Eligible Loan Asset Granted by the Borrower to the Collateral Agent, on behalf of the Secured Parties, that has a par value equal to at least 50% of the par value of such Loan Asset being replaced, and the Administrative Agent in its sole and absolute discretion approves the related Approval Notice for the Eligible Loan Asset delivered in accordance with Section 3.04.
"Replacement Index" means, as of the relevant Index Transition Date and thereafter until a subsequent Index Transition Date or the Facility Maturity Date, the first alternative Index set forth in the order below that the Administrative Agent determines is available, appropriate for the transaction and consistent with Market Practice:
(a) Term SOFR;
(b) Compounded SOFR:
(c) an Index selected or recommended by the Relevant Government Body as the replacement for the then-current Applicable Index;
(d) the ISDA Fallback Rate; or
(e) an Index selected by the Administrative Agent; provided that if the Index selected by the Administrative Agent pursuant to this clause (e) differs from the Index used on more than 50% of the floating rate Loan Assets, such selection shall be made with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned).
"Replacement Servicer" has the meaning assigned to that term in Section 6.01(c).
"Reporting Date" means the date that is three (3) Business Days prior to the Payment Date, commencing in September, 2020.
"Required Lenders" means (a) Morgan Stanley (as a Lender hereunder) and its successors and assigns and (b) the other Lenders, if any, representing, together with Morgan Stanley, an aggregate of at least 51% of the aggregate Commitments of the Lenders then in effect; provided
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that if at any time there is more than one Lender (counting affiliated Lenders as a single Lender), at least two unaffiliated Lenders shall be required to constitute "Required Lenders".
"Required Loan Documents" means, for each Loan Asset, the following documents or instruments, all as specified on the related Loan Asset Checklist:
(a) (i) the original executed promissory note or, in the case of a lost note, a copy of the executed underlying promissory note accompanied by an original executed affidavit and indemnity endorsed by the Borrower in blank (and an unbroken chain of endorsements from each prior holder of such promissory note to the Borrower), or (ii) if such promissory note is not issued in the name of the Borrower or is a Noteless Loan, an executed copy of each assignment and assumption agreement, transfer document, credit agreement or such other instrument (if and as applicable) relating to such Loan Asset evidencing the (x) assignment of such Loan Asset from any prior third party owner thereof to the Borrower and from the Borrower in blank or (y) the ownership of the Loan Asset by the Borrower;
(b) copies of the executed (i) guaranty (if any), (ii) Underlying Instrument and (iii) if applicable, acquisition agreement (or similar agreement), in each case as set forth on the Loan Asset Checklist;
(c) with respect to any Loan Asset originated by the Transferor or the SPV Transferor, as applicable, and with respect to which the Transferor or the SPV Transferor, as applicable, acts as administrative agent (or in a comparable capacity), either (i) copies of the UCC-1 financing statements, if any, and any related continuation statements, each showing the Obligor, as debtor, and the Transferor or the SPV Transferor, as applicable, or other applicable agent, as secured party, and each with evidence of filing thereon, or (ii) copies of any such financing statements certified by the Servicer to be true and complete copies thereof in instances where the original financing statements have been sent to the appropriate public filing office for filing, in each case, as set forth in the Loan Asset Checklist; and
(d) with respect to any Transferor Participation Interest, a fully executed assignment agreement that (x) shall be delivered as soon as practicable, but in no event later than the Elevation Date applicable to such Transferor Participation Interest or (y) if no assignment agreement is delivered, then other written evidence satisfactory to the Administrative Agent evidencing the Elevation of such Transferor Participation Interest and the recognition of the Borrower as the owner of record by the applicable administrative agent in respect of each applicable Loan Asset related to such Transferor Participation Interest.
unless, in each case, the Administrative Agent has agreed in writing in its sole discretion to exclude any such documents or instruments as a Required Loan Document for such Loan Asset (such agreement to so exclude may be included in the related Approval Notice). The Servicer shall deliver notice of such exclusion to the Collateral Custodian.
"Required Sale Assets" means all assets owned by the Borrower that would disqualify the Borrower from using the "loan securitization exclusion" under the Volcker Rule (as determined by the Administrative Agent in its reasonable discretion).
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"Responsible Officer" means, with respect to any Person, any duly authorized officer of such Person with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other director or duly authorized officer of such Person to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject or any individual previously designated thereby in writing to the Administrative Agent that has been duly authorized to act on behalf of such Person.
"Restricted Junior Payment" means (a) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Borrower now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Borrower; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Borrower now or hereafter outstanding and (c) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Borrower now or hereafter outstanding. For the avoidance of doubt, (x) payments and reimbursements due to the Servicer in accordance with this Agreement or any other Transaction Document do not constitute Restricted Junior Payments, (y) distributions by the Borrower to holders of its membership interests of Loan Assets or of cash or other proceeds relating thereto which have been substituted by the Borrower in accordance with this Agreement shall not constitute Restricted Junior Payments, and (z) payment of the purchase price for any Loan Asset transferred by the Transferor or the SPV Transferor, as applicable, to the Borrower shall not constitute Restricted Junior Payments.
"Retained Interest" means, with respect to any Loan Asset that is transferred to the Borrower, (a) all of the obligations, if any, of the agent(s) under the documentation evidencing such Loan Asset and (b) the applicable portion of the interests, rights and obligations under the documentation evidencing such Loan Asset that relate to such portion(s) of the indebtedness and interest in other obligations that are owned by another lender.
"Revenue" means, with respect to any Eligible Loan Assets that are Recurring Revenue Loans, the definition of annualized recurring revenue used in the Underlying Instruments for each such Eligible Loan Asset, or any comparable term for "Revenue" or "Adjusted Revenue" in the Underlying Instruments for each such Eligible Loan Asset; provided that if there is no such term in the Underlying Instruments, revenue for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Eligible Loan Asset pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance with GAAP) for the most recent four fiscal quarter period for which financial statements have been delivered.
"Review Criteria" has the meaning assigned to that term in Section 11.02(b)(i).
"Revolving Loan" means a loan that is a line of credit or contains an unfunded commitment arising from an extension of credit to an Obligor, pursuant to the terms of which amounts borrowed may be repaid and subsequently reborrowed; provided that any such Loan
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Asset will no longer be a Revolving Loan once all commitments by the Borrower to make advances to the related Obligor expire or are terminated or reduced to zero.
"Revolving Period" means the period commencing on the Closing Date and ending on the day preceding the earlier to occur of (a) the Commitment Termination Date and (b) the Facility Maturity Date.
"RIC" means any Person qualifying for treatment as a “regulated investment company” under Subchapter M of the Code.
"S&P" means S&P Global Ratings, an S&P global business (and any successor or successors thereto).
"Sanctions" means economic and trade sanctions administered or enforced by any of the following authorities: OFAC, the U.S. Department of State, the European Union, Her Majesty's Treasury (United Kingdom) or the United Nations Security Council.
"Scheduled Payment" means each scheduled payment of principal and/or interest required to be made by an Obligor on the related Loan Asset, as adjusted pursuant to the terms of the related Underlying Instruments.
"Second Lien Loan" means any Loan Asset (a) that is secured by a valid and perfected Lien on substantially all of the Obligor's assets constituting Related Collateral for such Loan Asset, subject only to the prior Lien provided to secure the obligations under a "first lien" loan pursuant to typical commercial terms, any Permitted Working Capital Lien and any other expressly permitted Liens under the Underlying Instrument for such Loan Asset, including any "permitted liens" as defined in such Underlying Instrument, or such comparable definition if "permitted liens" is not defined therein, (b) that provides that except for the express lien priority provisions under the documentation of the "first lien" lenders, is either senior to, or pari passu with, all other Indebtedness of such Obligor, and (c) that the Servicer determines in accordance with the Servicing Standard that the value (or the enterprise value) of the Related Collateral securing the Loan Asset on or about the time of origination equals or exceeds the Outstanding Balance of the Loan Asset plus the aggregate outstanding balances of all other Indebtedness of equal or greater seniority secured by the same Related Collateral (including, without limitation, the outstanding principal balance of the "first lien" loan).
"Secured Obligations" has the meaning assigned to that term in Section 2.12(a).
"Secured Party" means each of the Administrative Agent, each Lender, each Affected Party, each Indemnified Party, the Collateral Custodian, the Collateral Agent, the Account Bank and, solely with respect to receiving all amounts owed to it under this Agreement and the other Transaction Documents, the Servicer; provided that amounts owed to the Servicer are subordinated and junior to the amounts owed to the other Secured Parties to the extent set forth in the priorities of payment set forth in Section 2.04(a), (b) and (c).
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"Senior Leverage Ratio" means, with respect to any Loan Asset or any portion of any Loan Asset, as applicable, for any period, the meaning of "Senior Leverage Ratio" or any comparable definition relating to first lien senior secured (or such applicable lien or applicable level within the capital structure) indebtedness in the Underlying Instruments for each such Loan Asset, and in any case that "Senior Leverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) first lien senior secured (or such applicable lien or applicable level within the capital structure) Indebtedness (including FLLO Loans) less Unrestricted Cash, in each case, as of the applicable test date, to (b) EBITDA, for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date, or if the Obligor of such Loan Asset was organized or formed within the previous year, another applicable test period as determined by the Administrative Agent in its reasonable discretion, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments.
"Servicer" means, as of any date of determination, the Person then authorized, pursuant to Section 6.01 to service, administer, and collect on the Loan Assets and exercise rights and remedies in respect of the same.
"Servicer Certificate" has the meaning assigned to that term in Section 6.08(c).
"Servicer Default" means the occurrence of any one or more of the following events:
(a) any failure by the Servicer to make any payment, transfer or deposit into the Collection Account (including with respect to bifurcation and remittance of Interest Collections and Principal Collections) or the Unfunded Exposure Account, as required by any Transaction Documents, which continues unremedied for a period of two (2) Business Days (or three (3) Business Days if such failure is due to an administrative or technical issue that is beyond the Servicer's reasonable control);
(b) the Servicer shall fail to pay any principal of, or premium or interest on, any Indebtedness (other than the Obligations) in an aggregate principal amount in excess of $25,000,000 when the same becomes due and payable (after giving effect to any applicable grace period related thereto); (ii) any other default by the Servicer under any agreement, contract, document or instrument relating to any such Indebtedness or any other event shall occur and shall continue after the applicable grace period, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or (iii) any such Indebtedness is in fact declared to be due and payable or required to be prepaid, redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;
(c) any failure by the Servicer to deliver any required Servicing Report on or before the date occurring three (3) Business Days after such report is required to be made or given under the terms of this Agreement; provided that the grace period shall not be applicable if such delivery after the due date shall prevent the Collateral Agent from making payments in accordance with Section 2.04;
(d) any Change of Control with respect to the Servicer or any merger of the Servicer into another Person (where the Servicer is not a surviving entity) without the prior written consent of the
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Required Lenders, which consent may be withheld by the Required Lenders in their sole and absolute discretion;
(e) except for an assignment to a Qualified Blackrock Affiliate, any assignment of the rights or obligations as "Servicer" hereunder to any Person without the prior written consent of the Required Lenders, which consent may be withheld by the Required Lenders in their sole and absolute discretion;
(d) any representation, warranty or certification made by the Servicer (in each case, solely in its capacity as Servicer) in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made which incorrect representation, warranty or certification has a material and adverse effect on the validity, enforceability or collectability of this Agreement or any other Transaction Document or any of the Administrative Agent or Lenders' rights hereunder or under any Transaction Documents, and, in each case, the same continues unremedied for a period of 30 days after the earlier to occur of (x) the date on which written notice thereof is given to the Servicer or (y) the date on which a Responsible Officer of the Servicer acquires knowledge thereof; it being agreed that the sale of any Loan Asset that is not an Eligible Loan Asset in accordance with the terms of Section 2.07 shall remedy the failure of any representation, warranty or certification related to such Loan Asset;
(f) except as otherwise provided in this definition of "Servicer Default," any failure on the part of the Servicer (in each case, solely in its capacity as Servicer) duly to (i) observe or perform any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including any delegation of the Servicer's duties that is not permitted by Section 6.01 of this Agreement) or (ii) comply with the Servicing Standard in all material respects regarding the servicing of the Collateral, and, in each case, the same continues unremedied for a period of 30 days after the earlier to occur of (x) the date on which written notice thereof is given to the Servicer or (y) the date on which a Responsible Officer of the Servicer acquires knowledge thereof; it being agreed that the sale of any Loan Asset that is not an Eligible Loan Asset in accordance with the terms of Section 2.07 shall remedy the failure of any covenant related to such Loan Asset being an Eligible Loan Asset;
(h) a Bankruptcy Event shall occur with respect to the Servicer;
(i) (i) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $25,000,000 against the Servicer, and the Servicer shall not have, within thirty (30) days, either (A) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms, (B) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (C) provided to the Administrative Agent evidence satisfactory to it that an insurance provider has agreed to satisfy such judgment, decree or order in full (excluding any applicable deductibles); or (ii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Servicer to enforce any such judgment; or
(j) an Event of Default shall occur and be continuing.
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"Servicer Removal Notice" has the meaning assigned to that term in Section 6.01(b).
"Servicing Fee" means the fee payable to the Servicer on each Payment Date in arrears in respect of each Remittance Period, which fee shall be equal to the product of (a) 0.25% per annum, (b) the arithmetic mean of the aggregate Outstanding Balance of all Eligible Loan Assets on the first day and on the last day of the related Remittance Period and (c) the actual number of days in such Remittance Period, divided by 360; provided that, in the sole discretion of the Servicer, the Servicer may, from time to time, waive all or any portion of the Servicing Fee payable on any Payment Date.
"Servicing Report" has the meaning assigned to that term in Section 6.08(b).
"Servicing Standard" means, with respect to any Loan Assets included in the Collateral, to service and administer such Loan Assets in accordance with Applicable Law, the terms of this Agreement, the Underlying Instruments, and, to the extent consistent with the foregoing, (i) if the Servicer is the originator or an Affiliate thereof, the same care, skill, prudence and diligence with which the Servicer exercises with respect to comparable assets that it manages for itself and its Affiliates having similar investment objectives and restrictions, and (ii) if the Servicer is not the originator or an Affiliate thereof, the same care, skill, prudence and diligence with which the Servicer services and administers loans for its own account or for the account of others.
"Similar Law" has the meaning assigned to that term in Section 4.01(x).
"SOFR" means the secured overnight financing rate published by the Relevant Governmental Body.
"Solvent" means, as to any Person as of any date of determination, having a state of affairs such that all of the following conditions are met: (a) the fair value of the property of such Person is greater than the amount of such Person's liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and other liabilities as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in a business or a transaction, and does not propose to engage in a business or a transaction, for which such Person's property assets would constitute unreasonably small capital.
"Specified Industries" means (i) the “Oil, Gas & Consumable Fuels” Industry Classification and (ii) the “Publishing” sub-industry of the “Media” Industry Classification.
"SPV Transferor" means TCPC Funding I, LLC, a Delaware limited liability company, in its capacity as the seller under the TCPC Funding I Purchase and Sale Agreement and as the
USActive 55125247.5    49


transferor under the TCPC Funding I Master Participation Agreement, together with its successors and assigns in such capacity.
"SPV Transferor Debt Facility" means that certain Loan Financing and Servicing Agreement, dated as of May 15, 2013, among the SPV Transferor, as borrower, the lenders from time to time parties thereto, Deutsche Bank AG, New York Branch, as facility agent, the other agents parties thereto and Wells Fargo Bank, National Association, as collateral agent and collateral custodian (as amended from time to time).
"Standby Investment" means WF Plus Money Market Account.
"State" means one of the fifty states of the United States or the District of Columbia.
"Stated Maturity" means August 4, 2025.
"Structured Finance Obligation" means any obligation of a special purpose vehicle secured directly by, referenced to, or representing ownership of, a pool of receivables or other assets, including collateralized debt obligations and single asset repackages.
"Subsidiary" means with respect to a Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person; provided that notwithstanding the forgoing, an Obligor with respect to which the Borrower has received equity interests in connection with the exercise of any remedies with respect to a Loan Asset, the exercise of any warrant with respect to a Loan Asset or any exchange offer, work-out or restructuring of a Loan Asset shall not be considered a Subsidiary.
"Substitute Eligible Loan Asset" means each Eligible Loan Asset Granted by the Borrower to the Collateral Agent, on behalf of the Secured Parties, pursuant to Section 2.07(b)(ii).
"SVCP Master Participation Agreement" means that certain master participation agreement, dated the Closing Date, between the Transferor, as the seller, and the Borrower, as the purchaser, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"SVCP Purchase and Sale Agreement" means that certain Purchase and Sale Agreement, dated as of the Closing Date, between the Transferor, as the seller, and the Borrower, as the purchaser, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
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"Synthetic Security" means a security or swap transaction that has payments associated with either payments of interest and/or principal on a reference obligation or the credit performance of a reference obligation.
"Target Portfolio Amount" means $450,000,000.
"Tax Expense Cap" means, for any Payment Date, a per annum amount equal to $50,000.
"Tax Subsidiary" means an entity treated as a corporation for U.S. federal income tax purposes, 100% of the equity interests in which are directly owned by the Borrower.
"Taxes" means any present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), charges, assessments or fees of any nature (including interest, penalties, and additions thereto) that are imposed by any Governmental Authority.
"TCPC Funding I Master Participation Agreement" means that certain master participation agreement, dated as of the Closing Date, between the SPV Transferor, as the seller, and the Borrower, as the purchaser, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"TCPC Funding I Purchase and Sale Agreement" means that certain Purchase and Sale Agreement, dated as of the Closing Date, between the SPV Transferor, as the seller, and the Borrower, as the purchaser, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Term SOFR" means an Index which the Administrative Agent determines meets each of the following criteria:
(a) is a forward-looking term rate;
(b) is based on SOFR;
(c) has a tenor of one (1) month (disregarding business day adjustment); and
(d) has been selected, recommended or endorsed by the Relevant Governmental Body.
"Termination/Reduction Notice" means each notice required to be delivered by the Borrower in respect of any termination of this Agreement or any permanent reduction of the Facility Amount, in the form of Exhibit F.
"Third Party Bid" has the meaning set forth in the definition of “Assigned Value.”
"Total Borrower Capitalization" means, on any date of determination, the sum of (a) the Outstanding Balances of all Loan Assets plus (b) the aggregate amount on deposit in the Principal Collection Subaccount plus (c) the aggregate amount on deposit in the Unfunded Exposure Account.
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"Total Leverage Ratio" means, with respect to any Loan Asset for any period, the meaning of "Total Leverage Ratio" or any comparable definition in the Underlying Instruments for each Loan Asset, and in any case that "Total Leverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) Indebtedness less Unrestricted Cash, in each case, as of the applicable test date, to (b) EBITDA, for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date, or if the Obligor of such Loan Asset was organized or formed within the previous year, another applicable test period as determined by the Administrative Agent in its reasonable discretion, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments.
"Transaction Documents" means this Agreement, any Assignment and Acceptance, any Joinder Supplement, each Purchase and Sale Agreement, each Master Participation Agreement, the Account Agreement, the Administrative Agent Fee Letter, the Collateral Agent and Collateral Custodian Fee Letter, each Lender Fee Letter and each document, instrument or agreement arising out of any of the foregoing.
"Transfer" has the meaning assigned to that term in Section 12.04(f).
"Transferee" has the meaning assigned to that term in Section 12.04(f).
"Transferor" means Special Value Continuation Partners LLC, a Delaware limited liability company, in its capacity as the Transferor hereunder, as the seller under the SVCP Purchase and Sale Agreement and as the transferor under the SVCP Master Participation Agreement, together with its successors and assigns in such capacity.
"Transferor Participation Interest" means a participation interest in a loan that satisfies each of the following criteria: (a) such participation is included as of the Closing Date, (b) such participation would constitute a Loan Asset were it acquired directly, (c) the seller of such participation is a lender on the underlying loan, (d) the aggregate participation in the loan granted by such participation seller to all participants (including the Borrower) does not exceed the principal amount or commitment with respect to which such participation seller is a lender under such loan, (e) such participation does not grant, in the aggregate, to the participant in such participation a greater interest than the selling participation seller holds in the loan or commitment that is the subject of the participation, (f) the entire purchase price for such participation is paid in full (without the benefit of financing from the participation seller, other than any capital contribution deemed made in connection therewith) at the time of the participant’s acquisition, (g) the participation provides the participant with all of the economic benefit and risk of the whole or part of the loan or commitment that is the subject of the loan participation, (h) such participation is documented under a Loan Syndications and Trading Association or similar market agreement standard for loan participation transactions among institutional market participants (including each Purchase and Sale Agreement or each Master Participation Agreement), (i) such participation is not a sub-participation interest in any loan and (j) such participation interest shall require Elevation (i) with respect to 50% of such Transferor Participation Interests, within 60 calendar days of the Closing Date and (ii) with respect to the
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remaining 50% of the Transferor Participation Interests, within 90 calendar days of the Closing Date.
"U.S. Tax Compliance Certificate" has the meaning assigned to that term in Section 2.11(g)(i)(c).
"UCC" means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
"Underlying Instruments" means the loan agreement, credit agreement or other agreement pursuant to which a Loan Asset has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Loan Asset or of which the holders of such Loan Asset are the beneficiaries.
"Unfunded Exposure Account" means a trust account (account number 92074003 at the Account Bank) entitled "Unfunded Exposure Account", in the name of the Borrower subject to the lien and control of the Collateral Agent for the benefit of the Secured Parties; provided that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower and the Borrower shall be solely liable for any Taxes payable with respect to the Unfunded Exposure Account.
"Unfunded Exposure Amount" means, as of any date of determination, with respect to a Delayed Draw Loan Asset or a Revolving Loan, as applicable, an amount equal to the aggregate amount of all unfunded commitments associated with such Loan Asset as of such date.
Unfunded Exposure Amount Shortfall” has the meaning assigned to that term in Section 2.02(f).
Unfunded Exposure Equity Amount” means, as of any date of determination, with respect to a Delayed Draw Loan Asset or a Revolving Loan, as applicable, an amount equal to the sum of the products of (a) the Unfunded Exposure Amount thereof multiplied by (b) the difference of (x) 100% minus (y) the product of (A) Assigned Value with respect to such Loan Asset multiplied by (B) the Advance Rate applicable to such Loan Asset.
Unfunded Exposure Test” means a test that will be satisfied as of any date of determination during the Amortization Period if the amounts on deposit in the Unfunded Exposure Account as of such date equals or exceeds the aggregate Unfunded Exposure Amount as of such date; provided that the Unfunded Exposure Test shall be calculated on a pro forma basis to give effect to the acquisition or disposition of any Delayed Draw Loan Asset or Revolving Loan and concurrent funding of or withdrawal from the Unfunded Exposure Account, in each case, on the relevant date of determination.
"United States" means the United States of America.
"United States Tax Person" means a "United States person" as defined in Section 7701(a)(30) of the Code.
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"Unitranche Loan" means any Loan Asset (a) that is secured by a valid and perfected first priority Lien on substantially all of the Obligor's assets constituting Related Collateral for such Loan Asset, subject to any Permitted Working Capital Lien and expressly permitted Liens, including any "permitted liens" as defined in the Underlying Instrument for such Loan Asset or such comparable definition if "permitted liens" is not defined therein, (b) that provides that the payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, all other Indebtedness of such Obligor, and (c) for which no other Indebtedness of the Obligor secured by a Lien on the Related Collateral exists or is outstanding other than any Permitted Working Capital Lien; provided that any Loan Asset that would otherwise constitute a First Lien Loan but for clause (e) of the definition thereof shall constitute a Unitranche Loan.
"Unmatured Event of Default" means any event that, if it continues uncured, will, with lapse of time, notice or lapse of time and notice, constitute an Event of Default.
"Unrestricted Cash" means, (a) with respect to any Loan Asset, the meaning of "Unrestricted Cash" or any comparable definition in the Underlying Instruments for the applicable Loan Asset and (b) in any case that "Unrestricted Cash" or such comparable definition is not defined in such Underlying Instruments or otherwise as applicable in this Agreement, cash and cash equivalents of the applicable Person available for use for general corporate purposes and not held in any reserve account or legally or contractually restricted for any particular purposes or uses.
"Unused Fee" has the meaning assigned to that term in Section 2.09.
"Unused Fee Rate" means a rate equal to 0.35% per annum.
"Value Adjustment Event" means, with respect to any Loan Asset, the occurrence of any one or more of the following events after the related Cut-Off Date:
(a) (I) in the case of any Loan Asset other than an Asset Based Loan or a Recurring Revenue Loan, (i) the Cash Interest Coverage Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument is less than 1.15:1.00, or (ii) either (A) the Total Leverage Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument, minus the Total Leverage Ratio calculated on the Cut-Off Date equals or exceeds 1.00:1.00 or (B) both (x) the Total Leverage Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument, minus the Total Leverage Ratio calculated on the Cut-Off Date equals or exceeds 0.60:1.00 and (y) the Total Leverage Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument increases by more than 20% from the same Total Leverage Ratio as calculated on the applicable Cut-Off Date or the date on which the last Value Adjustment Event occurred pursuant to this clause (ii); (II) in the case of any Recurring Revenue Loan, the Debt-to-Recurring-Revenue Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument increases by more than 20.0% from the Debt-to-Recurring-Revenue Ratio calculated on the applicable Cut-Off Date; and (III) in the case of any Asset Based Loan, the LTV with respect to such Loan Asset on any date reported under the Underlying Instrument increases by more than 25.0% from the LTV calculated on the applicable Cut-Off Date;
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(b) an Obligor payment default with respect to principal or interest occurs under such Loan Asset that continues and has not been cured after giving effect to the any grace period applicable thereto under the related Underlying Instruments;
(c) any payment default as to the payment of principal and/or interest under any other senior or pari passu obligation for borrowed money of the related Obligor occurs and has not been cured after giving effect to any grace period applicable thereto;
(d) a Bankruptcy Event with respect to the related Obligor (after giving effect to any applicable grace or cure period thereunder);
(e) the related Obligor fails to deliver to the Borrower or the Servicer any financial reporting information (i) as required by the Underlying Instruments of such Loan Asset (after giving effect to any applicable grace or cure period thereunder) and (ii) with a frequency of at least quarterly, but which shall in no case exceed seventy five (75) days after the end of each quarter and one hundred and fifty (150) days after the end of each fiscal year unless otherwise agreed to by the Administrative Agent in its sole discretion;
(f) the occurrence of a Material Modification with respect to such Loan Asset that is not previously waived by the Administrative Agent;
(g) the Servicer determines that all or a material portion of such Loan Asset is uncollectible or otherwise places it on non-accrual status in accordance with the policies and procedures of the Servicer and the Servicing Standard; or
(h) with respect to any Recurring Revenue Loan, the related Obligor's last quarter annualized Revenue or Loan Asset Liquidity is less than the minimum covenant, if any, specified in the Underlying Instrument.
"Volcker Rule" means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
"Warranty Breach Event" means, as to any Loan Asset, (a)(1) the discovery that, as of the related Cut-Off Date, such Loan Asset did not satisfy the definition of "Eligible Loan Asset" or there otherwise existed a breach of any representation or warranty relating to such Loan Asset or (2) the Borrower fails to satisfy Section 3.02(a)(ii) or Section 3.04(b), as applicable, with respect to such Loan Asset and (b) such breach under clause (a)(1) occurs or was continuing on the date of the conveyance of such Loan Asset and such breach under clause (a)(2) occurs or was continuing on the date such documents were required to be provided under this Agreement.
"Warranty Breach Loan Asset" means any Loan Asset with respect to which a Warranty Breach Event has occurred.
"Weighted Average Advance Rate" means, as of any date of determination with respect to all Eligible Loan Assets included in the Aggregate Adjusted Borrowing Value, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each
USActive 55125247.5    55


Eligible Loan Asset by (ii) the Adjusted Borrowing Value of such Eligible Loan Asset and dividing (b) such sum by the Aggregate Adjusted Borrowing Value.
"Weighted Average Life" means, as of any date of determination, the number obtained by (a) for each Eligible Loan Asset (other than a Defaulted Loan), multiplying the amount of each scheduled distribution of principal to be paid after such determination date by the number of years (rounded to the nearest hundredth) from such determination date until such scheduled distribution of principal is due; (b) summing all of the products calculated pursuant to clause (a) above; and (c) dividing the sum calculated pursuant to clause (b) above by the sum of all scheduled distributions of principal due on all the Eligible Loan Assets (other than Defaulted Loans) as of such determination date.
"Weighted Average Life Test" means a test that will be satisfied on any date of determination if the Weighted Average Life of all Eligible Loan Assets as of such date is less than or equal to 6.0 years.
"Weighted Average Spread" means, as of any date of determination, a fraction (expressed as a percentage) obtained by (a) multiplying the Outstanding Balance of each floating rate Eligible Loan Asset (excluding, in the case of any Delayed Draw Loan Asset or Revolving Loan, as applicable, the unfunded portion of the commitment thereunder) (other than a Defaulted Loan) included in the Collateral as of such date by its Effective Spread, (b) summing the amounts determined pursuant to clause (a), and (c) dividing the sum determined pursuant to clause (b) above by the aggregate Outstanding Balance of all floating rate Eligible Loan Assets (excluding the unfunded portions of all Delayed Draw Loan Assets and Revolving Loans, as applicable) (other than a Defaulted Loan) included in the Collateral as of such date.
"Weighted Average Spread Test" means a test that will be satisfied on any date of determination if the Weighted Average Spread is greater than or equal to 6.0%.
"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.
"Yield" means the sum of the following, payable on each Payment Date:
(a) with respect to any previously ended Remittance Period, the sum for each day in such Remittance Period of amounts determined in accordance with the following formula (but only to the extent that such amounts were not previously paid to the Lenders):
YR x L
D
where: YR = the Yield Rate applicable to such Advance on such day during such Remittance Period;
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        L = the outstanding principal amount of such Advance on such day; and
        D = 360;
plus

1.with respect to any previously ended Remittance Period, the sum for each day in such Remittance Period of amounts determined in accordance with the following formula (but only to the extent that such amounts were not previously paid to the Lenders):
YR x L
D
where: YR = the Yield Rate applicable on such day;
        L = the greater of (a) the Minimum Utilization minus the Advances Outstanding on such day, and (b) 0; and
        D = 360;

provided that (i) no provision of this Agreement shall require the payment or permit the collection of Yield in excess of the maximum permitted by Applicable Law and (ii) Yield shall not be considered paid by any distribution if at any time such distribution is later required to be rescinded (and is so rescinded) by the Lender to the Borrower or any other Person for any reason including, such distribution becoming void or otherwise avoidable under any statutory provision or common law or equitable action, including, any provision of the Bankruptcy Code.
"Yield Rate" means, for any Advance, as of any date of determination during any Remittance Period applicable to such Advance, an interest rate per annum equal to the Index Rate for such date plus the Rate Adjustment plus the Applicable Margin plus the Drawn Fee Rate.
"Zero-Coupon Obligation" means any loan that, at the time of purchase, does not by its terms provide for the payment of cash interest.
Section 1.02 Other Terms.
(a) All capitalized terms used which are not specifically defined shall have the meanings provided in Article 9 of the UCC in effect on the date hereof to the extent the same are used or defined therein.
(b) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision and the Administrative Agent consents thereto
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(such consent not to be unreasonably withheld, delayed or conditioned) (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose and the Borrower consents thereto (such consent not to be unreasonably withheld, delayed or conditioned)), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
Section 1.03 Computation of Time Periods
. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding."
Section 1.04 Interpretation.
In each Transaction Document, unless a contrary intention appears:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
(b) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
(c) The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
(d) The word "will" shall be construed to have the same meaning and effect as the word "shall."
(e) The word "law" shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities.
(f) Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof (subject to any restrictions on such amendments, modifications, supplements, restatements or replacements set forth herein), (ii) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (iv) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to
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refer to this Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits, Annexes and Schedules shall be construed to refer to Articles and Sections of, and Exhibits, Annexes and Schedules to, this Agreement 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.
(g) Unless expressly stated otherwise, any decision to be made at the discretion of the Administrative Agent (or any Lender) shall be in its sole discretion.
(h) All calculations required to be made hereunder with respect to the Loan Assets and the Borrowing Base shall be made on a trade date basis.
(i) Reference to any time means New York, New York time (unless expressly specified otherwise).
(j) Any reference to "close of business" means 5:00 p.m., New York, New York time.
(k) Any use of the term "knowledge" or "actual knowledge" in this Agreement shall mean actual knowledge of a Responsible Officer of such Person after reasonable inquiry.
(l) Any use of "material" or "materially" or words of similar meaning in this Agreement shall mean material, as determined by the Administrative Agent in its reasonable discretion; provided that, when making any representations or warranties herein or in any other Transaction Document, or in any document delivered in connection herewith or therewith by the Borrower or the Servicer, the Borrower or the Servicer, as applicable, shall determine materiality in its reasonable discretion with respect to its use of "material" or "materially" or words of similar meaning.
(m) For purposes of this Agreement, an Event of Default or Servicer Default shall be deemed to be continuing until it is waived in accordance with Section 12.01(a).
ARTICLE II.
THE FACILITY
Section 2.01 Advances.
(a) Advances. On the terms and conditions hereinafter set forth, from time to time from the Closing Date until the end of the Revolving Period, the Borrower (or the Servicer on behalf of the Borrower) may request that the Lenders make Advances secured by the Collateral, in an aggregate amount up to the Availability as of such date, to the Borrower for the purpose of (x) purchasing Eligible Loan Assets, (y) depositing funds in the Unfunded Exposure Account in an amount up to the Unfunded Exposure Amount of the related Delayed Draw Loan Asset or Revolving Loan, as applicable or (z) making distributions thereof to the Transferor; provided that, other than pursuant to Section 2.02(f), no Lender shall be obligated to make any Advance on or after the date that is two (2) Business Days prior to the earlier to occur of the Commitment Termination Date or the Facility Maturity Date. Under no circumstances shall any Lender be required to make any Advance if after giving effect
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to such Advance and the addition to the Collateral of the Eligible Loan Assets being acquired by the Borrower using the proceeds of such Advance, (i) an Event of Default exists or would result therefrom or an Unmatured Event of Default would result therefrom or (ii) a Borrowing Base Deficiency exists or would result therefrom. Notwithstanding anything to the contrary herein, no Lender shall be obligated to provide the Borrower with aggregate funds in connection with an Advance that would exceed such Lender's unused Commitment then in effect.
(b) Promissory Note. Upon the request of any Lender, the Borrower shall promptly execute and deliver to such Lender a promissory note of the Borrower (in form and substance satisfactory to the Administrative Agent in its sole discretion) evidencing the Advances of such Lender with appropriate insertions as to the date and principal amount.
Section 2.02 Procedure for Advances.
(a) During the Revolving Period, the Lenders will make Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Section 2.01 and this Section 2.02 and subject to the provisions of Article III hereof.
(b) For each Advance, the Borrower shall deliver a written notice in the form of a Notice of Borrowing to the Administrative Agent and each Lender, with a copy to the Collateral Agent and the Collateral Custodian, no later than 2:00 p.m. at least one (1) Business Day before the Business Day on which the Advance is to be made; provided that, if such Notice of Borrowing is delivered later than the time set forth above, such Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof) and an updated Loan Asset Schedule, and shall specify:
(i) the proposed aggregate amount of such Advance; provided that, except with an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied;
iv.the amount of cash, if any, that will be funded by the Transferor or the Borrower into the Unfunded Exposure Account in connection with any Delayed Draw Loan Asset or Revolving Loan, as applicable, funded by such Advance, if applicable; and
v.whether such Advance should be remitted to the Principal Collection Subaccount or the Unfunded Exposure Account.
        On the date of each Advance, upon satisfaction of the applicable conditions set forth in Article III, each Lender shall, in accordance with the Notice of Borrowing, either make available
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to the Borrower, in same day funds, (x) an amount equal to such Lender's Pro Rata Share of such Advance, for deposit by the Collateral Agent into the Principal Collection Subaccount or (y) an amount equal to such Lender's Pro Rata Share of such Advance, for deposit by the Collateral Agent into the Unfunded Exposure Account, as applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender's Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds to the Unfunded Exposure Account. For the avoidance of doubt, each Advance and related increase in the Advances Outstanding shall be allocated ratably to each Lender in accordance with their respective Lender's Pro Rata Share as in effect before such increase. Any Lender which fails to remit its Pro Rata Share in connection with any Advance in accordance with this Section 2.02 shall constitute a Defaulting Lender, and the Borrower shall have all rights available to the Borrower pursuant to Section 2.20 of this Agreement.

(c) Each Advance shall bear interest at the applicable Yield Rate.
(d) Subject to Section 2.16 and the other terms, conditions, provisions and limitations set forth herein (including, the payment of the Prepayment Premium, as applicable), the Borrower may borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Closing Date and prior to the end of the Revolving Period.
(e) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder.
(f) If, on the last day of the Revolving Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate Unfunded Exposure Amount, the Borrower shall request an Advance in the amount of such shortfall (the "Unfunded Exposure Amount Shortfall"). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02) other than an Event of Default related to a Bankruptcy Event with respect to the Borrower.
Section 2.03 Determination of Yield. The Administrative Agent shall determine the Yield in respect of all Advances (including unpaid Yield related thereto, if any, due and payable on a prior Payment Date) to be paid by the Borrower on each Payment Date for the related Remittance Period and shall advise the Servicer thereof on or prior to the third (3rd) Business Day prior to such Payment Date. The Borrower shall only be liable for payment of Yield in the amount calculated by the Administrative Agent, and no Lender shall have any claim against the Borrower for any miscalculation of Yield by the Administrative Agent or any deficiency in Yield resulting from a miscalculation of Yield by the Administrative Agent and any failure of the Borrower to pay any Yield that would have been due absent a miscalculation of Yield by the Administrative Agent shall not result in an Unmatured Event of Default or Event of Default; provided that the Borrower shall be liable for any amount of Yield it fails to pay
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after the Administrative Agent has submitted any written correction of such miscalculation to the Borrower.
Section 2.04 Remittance Procedures. The Servicer shall instruct the Collateral Agent by delivery of the Servicing Report and, if the Servicer fails to do so, the Administrative Agent may instruct the Collateral Agent to apply funds on deposit in the Controlled Accounts as described in this Section 2.04; provided that, at any time after delivery of a Notice of Exclusive Control (and prior to the rescission (if any) of such Notice of Exclusive Control), the Administrative Agent shall instruct the Collateral Agent to apply funds on deposit in the Controlled Accounts as described in this Section 2.04.
(a) Interest Payments prior to an Event of Default. In the absence of an Optional Sale or a continuing Event of Default or prior to the occurrence of the Facility Maturity Date, on each Payment Date, the Collateral Agent shall (as directed pursuant to the first paragraph of this Section 2.04) transfer Interest Collections held by the Account Bank in the Collection Account to the following Persons in the following amounts, calculated as of the most recent Determination Date, and priority:
(i) to the payment of Taxes, registration and filing fees then due and owing by the Borrower and any Tax Subsidiaries that are attributable solely to the operations of the Borrower or such Tax Subsidiaries; provided that the aggregate amounts payable under this clause (i) shall not exceed the Tax Expense Cap;
(ii) to the payment of accrued and unpaid Administrative Expenses; provided that the aggregate amounts payable under this clause (ii) shall not exceed the Administrative Expense Cap;
(iii) to the Servicer, in payment in full of all accrued and unpaid Servicing Fees;
(iv) pro rata, in accordance with the amounts due under this clause (iv), to each Lender and the Administrative Agent, as applicable, all Yield, the Unused Fee and any Breakage Fees that are accrued and unpaid as of the last day of the related Remittance Period;
(v) pro rata, to each Lender and the Administrative Agent, as applicable, all accrued and unpaid fees, expenses (including attorneys' fees, costs and expenses), Increased Costs and indemnity amounts payable by the Borrower to the Administrative Agent or any Lender under the Transaction Documents;
vi.to pay the Advances Outstanding to the extent necessary to eliminate any outstanding Borrowing Base Deficiency, on a pro forma basis after giving effect to all payments through this clause (vi);
vii.to pay the Advances Outstanding, together with any applicable Prepayment Premium not paid pursuant to Section 2.04(b)(ii), in connection with any complete refinancing or termination of this Agreement in accordance with Section 2.16(b), until paid in full;
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viii.to the payment of any Taxes, registration and filing fees then due and owing by the Borrower or any Tax Subsidiary that are attributable solely to the operations of the Borrower or any Tax Subsidiary, to the extent not paid pursuant to clause (i);
ix.to the payment of any Administrative Expenses, to the extent not paid pursuant to clause (ii) above due to the limitation contained therein;
x.to pay to the Servicer, all reasonable expenses incurred in connection with the performance of its duties under the Transaction Documents;
xi.to each Approved Valuation Firm, all accrued and unpaid fees and expenses; and
xii.(a) during an Unmatured Event of Default, to remain in the Interest Collection Account as Interest Collections and (b) otherwise, to the Borrower for distribution to the Transferor, any remaining amounts constituting Interest Collections.
(b) Principal Payments prior to an Event of Default. In the absence of a continuing Event of Default or prior to the occurrence of the Facility Maturity Date, on each Payment Date the Collateral Agent shall (as directed pursuant to the first paragraph of this Section 2.04) transfer Principal Collections held by the Account Bank in the Collection Account to the following Persons in the following amounts, calculated as of the most recent Determination Date, and priority:
(i) to pay amounts due under Section 2.04(a)(i) through 2.04(a)(v), to the extent not paid thereunder;
(ii) (A) during the Revolving Period, to pay amounts due under Section 2.04(a)(vi) but only to the extent not paid in full thereunder and to the extent necessary to eliminate any outstanding Borrowing Base Deficiency, on a pro forma basis after giving effect to all payments through this clause (ii); or (B) during the Amortization Period, (1) to the Unfunded Exposure Account in an amount necessary to cause the Unfunded Exposure Test to be satisfied and then (2) to repay the Advances Outstanding, and any accrued and unpaid Prepayment Premium to the extent applicable, until paid in full;
(iii) to the payment of any Taxes, registration and filing fees then due and owing by the Borrower or any Tax Subsidiary that are attributable solely to the operations of the Borrower or any Tax Subsidiary, to the extent not paid pursuant to clause (i);
(iv) to the payment of any Administrative Expenses, to the extent not paid pursuant to clause (i);
(v) to pay amounts due under Section 2.04(a)(x) to the extent not paid thereunder;
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(vi) to pay amounts due to each Approved Valuation Firm under Section 2.04(a)(xi) to the extent not paid thereunder; and
(vii) (a) during an Unmatured Event of Default, to remain in the Principal Collection Account as Principal Collections and (b) otherwise, to the Borrower for distribution to the Transferor, any remaining amounts constituting Principal Collections.
(c) Payment on and after the occurrence of an Optional Sale or an Event of Default. If an Optional Sale occurs or Event of Default exists and, in any case, after the declaration, or automatic occurrence, of the Facility Maturity Date, on each Business Day thereafter the Collateral Agent shall (as directed pursuant to the first paragraph of this Section 2.04) transfer collected funds held by the Account Bank in the Collection Account to the following Persons in the following amounts, calculated as of the prior Business Day, and priority:
(i) to the payment of Taxes, registration and filing fees then due and owing by the Borrower and any Tax Subsidiaries that are attributable solely to the operations of the Borrower or such Tax Subsidiaries; provided that the aggregate amounts payable under this clause (c)(i) shall not exceed the Tax Expense Cap;
(ii) to the payment of accrued and unpaid Administrative Expenses without regard to the Administrative Expense Cap;
(iii) to the Servicer, in payment in full of all accrued and unpaid Servicing Fees;
(iv) pro rata, in accordance with the amounts due under this clause (iv), to each Lender and the Administrative Agent, as applicable, all Yield, the Unused Fee and any Breakage Fees that are accrued and unpaid as of the last day of the related Remittance Period;
(v) pro rata, to each Lender and the Administrative Agent, as applicable, all accrued and unpaid fees, expenses (including attorneys' fees, costs and expenses), Increased Costs and indemnity amounts payable by the Borrower to the Administrative Agent or any Lender under the Transaction Documents;
(vi) to pay the Advances Outstanding, and any applicable Prepayment Premium, until paid in full;
(vii) to the payment of any Taxes, registration and filing fees then due and owing by the Borrower or any Tax Subsidiary that are attributable solely to the operations of the Borrower or any Tax Subsidiary, to the extent not paid pursuant to clause (i);
(viii) to the Servicer, all reasonable expenses incurred in connection with the performance of its duties under the Transaction Documents;
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(ix) to each Approved Valuation Firm, all accrued and unpaid fees and expenses; and
(x) to the Borrower, any remaining amounts.
(d) Unfunded Exposure Account; Delayed Draw Loan Assets; Revolving Loans. Funds on deposit in the Unfunded Exposure Account as of any date of determination may be withdrawn to fund draw requests of the relevant Obligors under any Delayed Draw Loan Asset or any Revolving Loan; provided that no Borrowing Base Deficiency shall exist or result therefrom; provided, further, that, during the Amortization Period, all such draw requests shall be funded only from amounts on deposit in the Unfunded Exposure Account or from capital contributions made by the Transferor to the Borrower. Any such draw request made by an Obligor, along with wiring instructions for the applicable Obligor, shall be forwarded by the Borrower or the Servicer to the Collateral Agent (with a copy to the Administrative Agent) in the form of a Disbursement Request, and the Collateral Agent shall instruct the Account Bank to fund such draw request in accordance with the Disbursement Request. Notwithstanding anything to the contrary herein, during the Amortization Period, any Principal Collections paid to the Borrower shall be deposited promptly into the Unfunded Exposure Account to the extent required to cause the Unfunded Exposure Test to be satisfied. In the event that any Delayed Draw Loan Asset or any Revolving Loan is sold by the Borrower or the Unfunded Exposure Amount is irrevocably reduced, the Servicer (or, after delivery of a Notice of Exclusive Control (and prior to the rescission (if any) of such Notice of Exclusive Control), the Administrative Agent) may cause amounts on deposit in the Unfunded Exposure Account in an amount equal to the reduction of such Unfunded Exposure Amount to be deposited into the Principal Collection Subaccount as Principal Collections. In addition, the Servicer (or, after delivery of a Notice of Exclusive Control (and prior to the rescission (if any) of such Notice of Exclusive Control), the Administrative Agent) may at any time cause amounts on deposit in the Unfunded Exposure Account to be withdrawn and deposited into the Principal Collection Subaccount as Principal Collections to the extent that the Unfunded Exposure Test is satisfied after giving effect to such withdrawal.
(e) Insufficiency of Funds. The parties hereby agree that if the funds on deposit in the Collection Account are insufficient to pay any amounts due and payable on a Payment Date or otherwise, the Borrower shall nevertheless remain responsible for, and shall pay when due, all amounts payable under this Agreement and the other Transaction Documents in accordance with the terms of this Agreement and the other Transaction Documents. The parties further agree that amounts that may be distributed to the Borrower or the holders of any Equity Interest in the Borrower are fully subordinated and junior to the Obligations of the Borrower to the Secured Parties, pursuant to the priorities of payment set forth in this Section 2.04; provided that amounts distributed to the Servicer are subordinated and junior to the Obligations of the Borrower to the other Secured Parties to the extent set forth in the priorities of payment set forth in Section 2.04(a), (b) and (c). In the event the Borrower is subject to a Bankruptcy Event, any claim that the Borrower or the holders of any Equity Interest in the Borrower may have with respect to the such distributions shall, notwithstanding anything to the contrary herein and notwithstanding any objection to, or rescission of, such filing, be fully subordinate in right of payment to the Obligations of the Borrower to the Secured Parties. The foregoing sentence and the provisions of Section 2.04 shall constitute a "subordination agreement" within the meaning of Section 510(a) of the Bankruptcy Code. The Borrower hereby agrees that it may only receive distributions from
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amounts available pursuant to Sections 2.04(a)(xii), 2.04(b)(vii) and 2.04(c)(x). The Transferor hereby agrees that it may only receive distributions from (i) amounts available pursuant to Sections 2.04(a)(xii), 2.04(b)(vii) and 2.04(c)(x) or (ii) the proceeds of the Advances; provided that the foregoing shall not restrict the Transferor from receiving the purchase price for any Loan Asset transferred by the Transferor to the Borrower.
(f) Repayment of Obligations. Notwithstanding anything to the contrary contained herein, (i) the Borrower shall repay the Advances Outstanding, all accrued and unpaid Yield, any Breakage Fees, Increased Costs, all accrued and unpaid costs and expenses of the Administrative Agent and Lenders in accordance with the Transaction Documents and all other Obligations (other than unmatured contingent obligations) in full on the Facility Maturity Date and (ii) so long as no Event of Default has occurred and is continuing, on any Business Day, the Borrower may, with the consent of the Administrative Agent in its reasonable discretion, direct the Collateral Agent to apply amounts on deposit in the Collection Account to pay Taxes and governmental fees, administrative expenses, Breakage Fees, Increased Costs and Indemnified Amounts, so long as an amount at least sufficient to make the payments required by each item with priority higher than such amounts, on the next Payment Date remains in the applicable Collection Account after such application.
Section 2.05 Instructions to the Collateral Agent and the Account Bank. All instructions and directions given to the Collateral Agent or the Account Bank by the Servicer, the Borrower or the Administrative Agent pursuant to Section 2.04 shall be in writing (including instructions and directions transmitted to the Collateral Agent or the Account Bank by email), and such written instructions and directions shall be delivered with a written certification that such instructions and directions are in compliance with the provisions of Section 2.04 and the Collateral Agent may conclusively rely on such instruction and directions. The Servicer and the Borrower shall immediately transmit to the Administrative Agent by email a copy of all instructions and directions given to the Collateral Agent or the Account Bank by such party pursuant to Section 2.04. The Administrative Agent shall promptly transmit to the Servicer and the Borrower by email a copy of all instructions and directions given to the Collateral Agent or the Account Bank by the Administrative Agent pursuant to Section 2.04. If either the Administrative Agent or the Collateral Agent disagrees with the computation of any amounts to be paid or deposited by the Borrower or the Servicer under Section 2.04 or otherwise pursuant to this Agreement, or upon their respective instructions, it shall so notify the Borrower, the Servicer and the Collateral Agent or the Administrative Agent, as applicable, in writing and in reasonable detail to identify the specific disagreement. If such disagreement cannot be resolved within two (2) Business Days, the determination of the Administrative Agent as to such amounts shall be conclusive and binding on the parties hereto absent manifest error. In the event the Collateral Agent or the Account Bank receives instructions from the Servicer or the Borrower which conflict with any instructions received from the Administrative Agent, the Collateral Agent or the Account Bank, as applicable, shall rely on and follow the instructions given by the Administrative Agent; provided that the Collateral Agent or Account Bank, as applicable, shall promptly provide notification to the Servicer or the Borrower of such conflicting instructions; provided, further, that any such failure on the part of the Collateral Agent or Account Bank to deliver such notice shall not render such action by the Collateral Agent or Account Bank invalid.
Section 2.06 Borrowing Base Deficiency Payments.
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(a) If, on any day prior to the Collection Date, any Borrowing Base Deficiency exists at such time, then the Borrower shall eliminate such Borrowing Base Deficiency in its entirety within two (2) Business Days after the Borrower has actual knowledge or has received notice thereof by effecting one or more (or any combination thereof) of the following actions in order to eliminate such Borrowing Base Deficiency as of such date of determination: (i) deposit cash in Dollars into the Principal Collection Subaccount, (ii) repay Advances Outstanding (together with any Breakage Fees in respect of the amount so prepaid), (iii) Grant additional Eligible Loan Assets (including Interest Collections with respect thereto), which Eligible Loan Assets must be satisfactory to the Administrative Agent in its sole discretion, (iv) enter into commitments to sell certain Eligible Loan Assets in accordance with Section 2.07; provided that (A) such Eligible Loan Assets shall not be sold for less than the Assigned Value therefor unless otherwise approved by the Administrative Agent in its sole discretion and (B) such sale shall settle no later than twelve (12) Business Days after the occurrence of such Borrowing Base Deficiency and/or (v) deliver an Equity Cure Notice pursuant to Section 2.06(c) (and after delivery of such Equity Cure Notice, the Borrower shall eliminate such Borrowing Base Deficiency in accordance with such Section 2.06(c)).
(b) No later than 3:00 p.m. on the Business Day prior to the proposed repayment of Advances Outstanding or Grant of additional Eligible Loan Assets pursuant to Section 2.06(a), the Borrower (or the Servicer on its behalf) shall deliver (i) to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Custodian) notice of such repayment or Grant and a duly completed Borrowing Base Certificate, updated to the date such repayment or Grant is being made and giving pro forma effect to such repayment or Grant, and (ii) to the Administrative Agent, if applicable, a description of any Eligible Loan Asset and each Obligor of such Eligible Loan Asset to be Granted and an updated Loan Asset Schedule. Any notice pertaining to any repayment or any Grant pursuant to this Section 2.06 shall be revocable by the Borrower (x) not later than 3:00 p.m. two (2) Business Days before such prepayment was scheduled to take place, and (y) only to the extent that such prepayment notice states that such prepayment was conditioned upon the effectiveness of some other event not subject to the control of the Borrower, in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition to prepayment is not or will not be satisfied.
(c) The Borrower may cure a Borrowing Base Deficiency pursuant to Section 2.06(a)(v) or failure to satisfy the Financial Covenant Test by delivering a notice to the Administrative Agent within two (2) Business Days after such Borrowing Base Deficiency or failure to satisfy the Financial Covenant Test (such notice, an "Equity Cure Notice") and subject to the following requirements:
(i) such Equity Cure Notice sets forth evidence reasonably satisfactory to the Administrative Agent that (A) the Transferor has rights pursuant to its Constituent Documents to request capital from its equityholder in an aggregate amount sufficient to cure such Borrowing Base Deficiency (in combination with the other cures thereof permitted under Section 2.06(a)) or failure to satisfy the Financial Covenant Test (after taking into account any other cure options available to the Borrower), (B) the Transferor has made a capital request to its equityholder, and its equityholder has irrevocably agreed to contribute such capital, in an aggregate amount sufficient to cure such Borrowing
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Base Deficiency (in combination with the other cures thereof permitted under Section 2.06(a)) or failure to satisfy the Financial Covenant Test and (C) in the case of a Borrowing Base Deficiency, the Transferor intends to contribute such funds to the Borrower in the form of an additional capital contribution;
(ii) in the case of a Borrowing Base Deficiency, the amount necessary to cure such Borrowing Base Deficiency (in combination with the other cures thereof permitted under Section 2.06(a)) is contributed from the Transferor to the Borrower in immediately available funds, and such amount shall be applied by the Borrower to cure such Borrowing Base Deficiency (in combination with the other cures thereof permitted under Section 2.06(a)) within ten (10) Business Days of the date such Equity Cure Notice is delivered to the Administrative Agent; provided that, if a Borrowing Base Deficiency results from the assignment of a revised Assigned Value determined after a Valuation Agent Dispute, then the amount necessary to cure such Borrowing Base Deficiency shall be applied by the Borrower to cure such Borrowing Base Deficiency within a number of Business Days from the date such Equity Cure Notice is delivered to the Administrative Agent equal to the sum of (a) two (2) and (b) if an AVF Valuation is obtained in fewer than ten (10) Business Days, the number of Business Days by which ten (10) Business Days exceeds the number of Business Days between the date on which the Administrative Agent assigned the Agent Re-Valuation or the Agent Revalued Assigned Value (as applicable) and the date on which the AVF Valuation was obtained; and
(iii) no other Equity Cure Notice has been delivered within the previous two (2) calendar months.
Section 2.07 Sale of Loan Assets; Affiliate Transactions.
(a) Discretionary Sales. The Borrower shall be permitted to sell Loan Assets to Persons, including the Transferor and Affiliates of the Transferor, from time to time prior to the declaration or automatic occurrence of the Facility Maturity Date (such sale, a "Discretionary Sale"); provided that (i) the proceeds of such sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, (ii) any sale to an Affiliate of the Transferor meets the requirements set forth in Section 2.07(d) below, (iii) after giving effect to any such sale, no Borrowing Base Deficiency shall exist, (iv) except for any sale permitted by the first sentence of Section 2.07(d), no Event of Default has occurred and is continuing or would result from such sale, and no Unmatured Event of Default has occurred and is continuing or would result from such sale (other than, in each case, with respect to any sale of a Loan Asset necessary to cure a Borrowing Base Deficiency in accordance with Section 2.06, an Event of Default or an Unmatured Event of Default arising solely pursuant to such Borrowing Base Deficiency) and (v) after giving effect to any such sale, the Collateral Quality Tests are satisfied or, if not satisfied, would be maintained or improved. The limitations set forth in this Section 2.07(a) shall not apply to a sale of assets pursuant to Section 2.07(b), (f) or (g).
(b) Repurchase or Substitution of Warranty Breach Loan Assets. If on any day a Loan Asset is (or becomes) a Warranty Breach Loan Asset, no later than five (5) Business Days following the earlier of knowledge by the Borrower of such Loan Asset becoming a Warranty Breach
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Loan Asset or receipt by the Borrower from the Administrative Agent or the Servicer of written notice thereof, the Borrower shall either:
(i) make a deposit to the Collection Account (for allocation pursuant to Section 2.04) in immediately available funds in an amount equal to the sum of (x) (i) the Purchase Price (calculated without giving effect to the proviso in the definition thereof) of such Loan Asset, multiplied by (ii) the Outstanding Balance, plus (y) reasonable and documented expenses or fees, if any, with respect to such Loan Asset and costs and damages incurred by the Administrative Agent or by any Lender in connection with any violation by such Loan Asset of any Applicable Law (an itemized, written notification regarding the amount of such expenses or fees to be provided by the Administrative Agent to the Borrower) (such amount, the "Repurchase Amount"); provided that (A) the Administrative Agent shall have the right to determine (in a commercially reasonable manner) whether the amount so deposited is sufficient to satisfy the foregoing requirements and (B) the deposit of such funds into the Collection Account may result from the sale of such Warranty Breach Loan Asset pursuant to Section 2.07(a);
(ii) with the prior written consent of the Administrative Agent (with a copy to the Collateral Agent), in its sole discretion, substitute for such Warranty Breach Loan Asset a Substitute Eligible Loan Asset; or
(iii) transfer any such Warranty Breach Loan Asset to the Transferor or the SPV Transferor, as applicable, for a purchase price at least equal to the Repurchase Amount;
Upon confirmation of the deposit of the amounts set forth in Section 2.07(b)(i) or (iii) into the Collection Account or the delivery by the Borrower of a Substitute Eligible Loan Asset for each Warranty Breach Loan Asset pursuant to Section 2.07(b)(ii) (the date of such confirmation or delivery, the "Release Date"), such Warranty Breach Loan Asset and Related Asset shall be removed from the Collateral and, as applicable, the Substitute Eligible Loan Asset and Related Asset shall be included in the Collateral. On the Release Date of each Warranty Breach Loan Asset, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower, without recourse, representation or warranty, all the right, title and interest in, to and under the Warranty Breach Loan Asset and any Related Asset and all future monies due or to become due with respect thereto and any Lien of the Collateral Agent, for the benefit of the Secured Parties, therein shall be deemed to be released.
(c) Conditions to Sales, Substitutions and Repurchases. Any sales, substitutions or repurchases effected pursuant to Sections 2.07(a), or 2.07(b) shall be subject to the satisfaction of the following conditions (as certified in writing to the Administrative Agent and Collateral Agent by the Borrower):
(i) the Borrower shall deliver a Borrowing Base Certificate and an updated Loan Asset Schedule to the Administrative Agent in connection with such sale, substitution or repurchase;
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(ii) the Borrower shall deliver a list of all Loan Assets to be sold, substituted or repurchased;
(iii) no selection procedures were utilized by the Servicer on behalf of the Borrower in the selection of the Loan Assets to be sold, repurchased or substituted that did not comply with the Servicing Standard;
(iv) the Borrower shall (A) with respect to sales and repurchases, give one Business Day's prior notice of such sale, or repurchase to the Administrative Agent and Collateral Agent and (B) with respect to substitutions, have received an Approval Notice (for each Loan Asset added to the Collateral on the related Cut-Off Date);
(v) the Borrower shall notify the Administrative Agent of any amount to be deposited into the Collection Account in connection with any sale, substitution or repurchase;
(vi) the representations and warranties contained in Sections 4.01, 4.02 and 4.03 hereof shall continue to be correct in all material respects (or, in the case of any representation and warranty that is already qualified by materiality, subject to the materiality standard set forth therein), except to the extent relating to an earlier date;
(vii) any repayment of Advances Outstanding in connection with any sale, substitution or repurchase of Loan Assets hereunder shall comply with the requirements set forth in Section 2.16; and
(viii) the Borrower and the Servicer (on behalf of the Borrower) shall agree to pay the reasonable and documented outside legal fees and expenses of the Administrative Agent, each Lender, the Collateral Agent and the Collateral Custodian in connection with any such sale, substitution or repurchase (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent on behalf of the Secured Parties in the Loan Asset in connection with such sale, substitution or repurchase).
(d) Affiliate Transactions. Except for an acquisition by the Redemption Purchaser in accordance with Section 7.02(j), upon the occurrence and during the continuation of an Event of Default, the Transferor (or an Affiliate thereof) shall not reacquire from the Borrower and the Borrower shall not transfer to the Transferor or to Affiliates of the Transferor, and none of the Transferor nor any Affiliates thereof will have a right or ability to purchase, the Loan Assets of the Borrower without the prior written consent of the Administrative Agent; provided that any such reacquisition and transfer prior to the occurrence of an Event of Default shall in all cases be subject to clause (e) below. Except for any transfer of a Zero Value Asset or a Removed Loan Asset by the Borrower to the Transferor or an Affiliate of the Transferor, any such transfer of a Loan Asset by the Borrower to the Transferor or an Affiliate of the Transferor shall be at arm's-length and subject to the further conditions that (i) all such sales must be at a price for each Loan Asset at least equal to the Outstanding Balance of such Loan Asset multiplied by the respective Assigned Value or, in the event a Value Adjustment Event has occurred with respect to such Loan Asset, the "fair market value" of such
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Loan Asset and (ii) before and after giving effect to such sale (and any simultaneous sales or purchases of Loan Assets and/or prepayments in accordance with the terms hereof), no Borrowing Base Deficiency shall exist; provided that the Borrower (or the Servicer on behalf of the Borrower) shall be permitted to sell any Loan Asset pursuant to Section 2.06 in order to cure any Borrowing Base Deficiency so long as no Event of Default would otherwise occur or be continuing after giving effect thereto and to any simultaneous or non-simultaneous sales and/or prepayments effected for the purpose of curing such Borrowing Base Deficiency. Each determination of "fair market value" pursuant to this Section 2.07(d) shall be made by the Servicer in accordance with the Servicing Standard. In addition, each such determination shall be either (x) at least equal to the value of the average of three bid-side quotes obtained by the Servicer and received with respect to the applicable Loan Asset from Approved Brokers/Dealers active in the trading of such assets or (y), if no such bid-side quotes are available, a "fair market value" determined by the Servicer which is acceptable to the Administrative Agent in its sole discretion; provided that if the Administrative Agent and the Servicer cannot agree to an acceptable "fair market value" in accordance with clause (y), the Servicer may retain an Approved Valuation Firm to value such Loan Asset, and such Approved Valuation Firm's valuation shall become the fair market value of such Loan Asset.
(e) Limitations on Sales and Substitutions. The Outstanding Balance of all Loan Assets (other than (w) Warranty Breach Loan Assets, (x) Zero Value Assets, (y) Removed Loan Assets and (z) any Discretionary Sales to Persons other than the Transferor or Affiliates of the Transferor of Loan Assets within 30 days of the applicable Cut-Off Date with respect to the applicable Loan Asset, but only if prior written notice has been given by the Borrower to the Administrative Agent that the Borrower intends to originate and syndicate such Loan Asset that is subject to such Discretionary Sale) sold pursuant to Section 2.07(a) during the preceding period of twelve (12) calendar months (or for the first twelve (12) calendar months after the Closing Date, during the period commencing on the Closing Date), after giving effect to such substitution or sale, is not greater than 25% of the average of the Total Borrower Capitalization during such period; provided that the Outstanding Balance of all Loan Assets (other than Warranty Breach Loan Assets, Zero Value Assets and Removed Loan Assets) sold to Affiliates of the Transferor pursuant to Section 2.07(a) that are not Defaulted Loans or whose Assigned Value was not reduced by the Administrative Agent after the applicable Cut-Off Date during the preceding period of twelve (12) calendar months (or for the first twelve (12) calendar months after the Closing Date, during the period commencing on the Closing Date), after giving effect to such substitution, release or sale, is not greater than 20% of the average of the Total Borrower Capitalization during such period. The Outstanding Balance of all Defaulted Loans and/or Loan Assets whose Assigned Value was reduced by the Administrative Agent after the applicable Cut-Off Date (in each case other than Warranty Breach Loan Assets, Zero Value Assets and Removed Loan Assets) sold pursuant to Section 2.07(a) to the Transferor or an Affiliate during the preceding period of twelve (12) calendar months (or for the first twelve (12) calendar months after the Closing Date, during the period commencing on the Closing Date), after giving effect to such substitution or sale, is not greater than 10% of the average Total Borrower Capitalization during such period. Notwithstanding the foregoing, the Borrower shall be permitted to sell any Defaulted Loan to Persons other than Affiliates of the Transferor pursuant to Section 2.07(a) at any time; provided that, during the continuance of an Event of Default, the prior written consent of the Administrative Agent shall be required for any such sale.
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(f) Optional Sales of all Loans. Notwithstanding anything to the contrary in clauses (a), (b), (c), (d), (e) and (g) of this Section 2.07, so long as no Event of Default has occurred and is continuing, the Borrower shall have the right to sell all of the Loan Assets in whole but not in part included in the Collateral (an "Optional Sale") on any Business Day and use the proceeds thereof to pay all Obligations in full, terminate this Agreement and cause the Collection Date to occur pursuant to Section 2.16(b); provided that during the continuance of any such Event of Default, the Borrower shall have the option to solicit interest in or otherwise recommend the purchase of the Collateral by any Person and present any such Optional Sale to the Administrative Agent for consideration in its sole discretion. Any sale of any such Loan Assets to the Transferor or any of its Affiliates shall be conducted on an arm's length basis and at a price no less than its fair market value as determined by the Servicer in accordance with the Servicing Standard. The proceeds of any Optional Sale shall be distributed on the related sale date in accordance with Section 2.04(c).
(g) Sales of specific assets. Notwithstanding anything to the contrary in this Section 2.07, the Borrower shall be permitted to sell any asset (including a Loan Asset) if (1) the Required Lenders have consented to such sale in their sole discretion or (2) such asset is Margin Stock, a Zero Value Asset (provided the conditions set forth in the last paragraph of the definition of “Assigned Value” are satisfied with respect to such sale of such Zero Value Asset), a Removed Loan Asset or an Equity Security; provided that (x) the proceeds of such sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (y) any such sale to an Affiliate of the Borrower shall be subject to the requirements set forth in Section 2.07(d) to the extent applicable thereto. The Transferor shall not be required to make any cash payment for any Zero Value Asset transferred by the Borrower to the Transferor, and such transfer shall be deemed to be an equity distribution to the Transferor permitted hereunder.
Section 2.08 Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Borrower or the Servicer hereunder shall be paid or deposited in accordance with the terms hereof no later than 1:00 p.m. on the day when due in Dollars in immediately available funds to the Collection Account or such other account as is designated by the Administrative Agent. Any Obligation hereunder shall not be reduced by any distribution of any portion of Available Collections if at any time such distribution is rescinded or required to be returned by any Lender to the Borrower or any other Person for any reason. Each Advance shall accrue interest at the applicable Yield Rate for each day during each applicable Remittance Period. All computations of interest and all computations with respect to the Yield and the Yield Rate shall be computed on the basis of a year of three hundred and sixty (360) days and the actual number of days elapsed. Each Advance shall accrue interest at the Yield Rate for each day beginning on, and including, the Advance Date with respect to such Advance and ending on, but excluding, the date such Advance is repaid in full.
(b) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of Yield or any fee payable hereunder, as the case may be. To the extent that Available Collections are insufficient on any Payment Date to satisfy the full amount of any Increased Costs pursuant to Section 2.04(a)(v) and Section
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2.04(b)(i), such unpaid amounts shall remain due and owing and shall be payable on the next succeeding Payment Date until repaid in full.
(c) If any Advance requested by the Borrower pursuant to Section 2.02 is not for any reason whatsoever, except as a result of the gross negligence, bad faith or willful misconduct of, or failure to fund such Advance on the part of, the Lenders, made or effectuated, as the case may be, on the date specified therefor, the Borrower shall indemnify such Lender against any loss, cost or expense incurred by such Lender related thereto, to the extent reasonable and documented, (other than any such loss, cost or expenses due to the gross negligence, bad faith, willful misconduct or failure to fund such Advance on the part of the Lenders) including, any loss (including cost of funds and reasonable out-of-pocket expenses), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund Advances or maintain the Advances. Any such Lender shall provide to the Borrower documentation setting forth the amounts of any loss, cost or expense referred to in the previous sentence, such documentation to be conclusive absent manifest error.
Section 2.09 Unused Fee. The Borrower shall pay, during the Revolving Period in accordance with Section 2.04, pro rata to each Lender, an unused fee calculated by the Administrative Agent (the "Unused Fee") payable in arrears for each Remittance Period, equal to the sum of the products for each day during such Remittance Period of (a) one divided by three hundred and sixty (360), (b) the applicable Unused Fee Rate and (c) the positive difference, if any, of the Facility Amount less the greater of (i) the Advances Outstanding on such date and (ii) the Minimum Utilization.
Section 2.10 Increased Costs; Capital Adequacy.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, Tax (other than Indemnified Taxes and Excluded Taxes), insurance charge, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or any Affiliate, participant, successor or assign thereof (each of which shall be an "Affected Party");
(ii) impose on any Affected Party or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Advances or participation therein or the obligation or right of any Lender to make Advances hereunder; or
(iii) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party;
and the result of any of the foregoing shall be to increase the cost to or impose a cost upon such Affected Party of funding or making or maintaining any Advance or of maintaining its obligation to make any such Advance or to increase the cost to such Affected Party or to reduce the amount of any sum received or receivable by such Affected Party, whether of principal, interest or otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then the Borrower will pay to such Affected Party such
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additional amount or amounts as will compensate such Affected Party for such additional costs incurred or reduction suffered.
(b) If any Affected Party determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Affected Party's capital or on the capital of Affected Party's holding company, if any, as a consequence of this Agreement or the Advances made by such Affected Party to a level below that which such Affected Party or Affected Party's holding company could have achieved but for such Change in Law (taking into consideration such Affected Party's policies and the policies of such Affected Party's holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Affected Party such additional amount or amounts as will compensate such Affected Party or Affected Party's holding company for any such reduction suffered.
(c) A certificate of an Affected Party providing an explanation of the applicable Change in Law and setting forth the amount or amounts necessary to compensate such Affected Party or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error. In determining any amount provided for in this Section 2.10, the Affected Party will act reasonably and in good faith and will use any reasonable averaging and attribution methods. The Borrower shall pay such Affected Party the amount shown as due on any such certificate on the Payment Date following receipt thereof.
(d) Failure or delay on the part of any Affected Party to demand compensation pursuant to this Section 2.10 shall not constitute a waiver of any Affected Party's right to demand such compensation; provided that the Borrower shall not be required to compensate any Affected Party pursuant to this Section 2.10 for any increased costs or reductions incurred more than one hundred and eighty (180) days prior to the date that such Affected Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Affected Party's intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Any participant with respect to a participation interest in an Advance shall be entitled to the benefit of this Section 2.10 (subject to the requirements and limitations herein) to the same extent as if it was a Lender and had acquired its interest in the Advance by assignment; provided that such participant shall not be entitled to receive any greater payment under Section 2.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
Section 2.11 Taxes.
(a) Any and all payments made by the Borrower or made by the Servicer on behalf of the Borrower under this Agreement will be made free and clear of and without deduction or withholding for or on account of any Taxes, except as may be required by Applicable Law. If any Taxes are required by Applicable Law to be withheld from any amounts payable to any Recipient, then the
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applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the amount payable by the Borrower to such Person will be increased as necessary (the amount of such increase, the "Additional Amount") such that every net payment made under this Agreement after withholding or deduction for or on account of any Taxes (including, any Taxes on such Additional Amount) is not less than the amount that would have been paid had no such deduction or withholding been made.
(b) The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent or a Lender timely reimburse it for the payment of, any Other Taxes.
(c) Reserved.
(d) The Borrower will indemnify, from funds available to it pursuant to Section 2.04 each Recipient for the full amount of Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.11) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable and documented expenses arising therefrom or with respect thereto, except and solely to the extent that any such Indemnified Taxes are determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Recipient. All payments in respect of this indemnification shall be made within ten (10) days from the date a written demand therefor is delivered to the Borrower. A certificate as to the amount of such payment or liability delivered to the Borrower 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.
(e) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Transaction 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 under any Transaction Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.11(e).
(f) Within thirty (30) days after the date of any payment by the Borrower or by the Servicer on behalf of the Borrower of any Taxes, the Borrower or the Servicer, as applicable, will furnish to the Administrative Agent at the applicable address set forth on this Agreement, appropriate evidence of payment thereof.
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(g) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Transaction Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.11(g)(i), (ii) and (iii)) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing:
(i) If any Lender is not a United States Tax Person, such Lender shall deliver to the Borrower, to the extent legally entitled to do so, with a copy to the Administrative Agent and the Collateral Agent, (x) on or prior to the date such Lender becomes a party to this Agreement (and from time to time thereafter upon reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
a. in the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Transaction Document, copies of executed IRS Form W-8BEN or W-8BEN-E 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 Transaction Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income" article of such tax treaty;
b. copies of executed IRS Form W-8ECI;
c. in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit N-1 to the effect that such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code (a "U.S. Tax Compliance Certificate") and (y) copies of executed IRS Form W-8BEN or W-8BEN-E; or
d. to the extent a Lender is not the beneficial owner, copies of executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit N-2 or Exhibit N-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Lender is a partnership and one or
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more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit N-4 on behalf of each such direct and indirect partner;
(ii) If a Lender is a United States Tax Person, such Lender shall deliver to the Borrower, with a copy to the Administrative Agent and the Collateral Agent, on or prior to the date such Lender becomes a party to this Agreement (and from time to time thereafter upon reasonable request of the Borrower or the Administrative Agent), two (or such other number as may from time to time be prescribed by Applicable Law) copies of duly executed IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
(iii) Each Lender shall deliver to the Borrower and the Administrative Agent (with a copy to the Collateral Agent) at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower 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 Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iii), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
(iv) If any Lender is not a United States Tax Person, such Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (with a copy of the Collateral Agent) (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
(v) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 2.11(g) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes as to which it has been indemnified or paid Additional Amounts pursuant to this Section 2.11, it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made or Additional Amounts paid under this Section 2.11 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid
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by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.11(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.11(h), in no event will the indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 2.11(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or Additional Amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Each party's obligations under this Section 2.11 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 obligations under any Transaction Document.
(j) If at any time the Borrower shall be liable for the payment of any Additional Amounts in accordance with this Section 2.11, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.16(b)); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.11 in accordance with the terms hereof; provided, further, that in no event shall the Borrower incur any prepayment premium or penalty in connection with any termination of this Agreement pursuant to this clause (j).
(k) Without duplication with Section 2.10(e), the Borrower agrees that each participant of an interest in any Advance shall be entitled to the benefits of Sections 2.10 and 2.11 (subject to the requirements and limitations therein, including the requirements under Section 2.11(g) (it being understood that the documentation required under Section 2.11(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.04(a); provided that such participant shall not be entitled to receive any greater payment under Sections 2.10 or 2.11, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
Section 2.12 Grant of a Security Interest; Collateral Assignment of Agreements.
(a) To secure the prompt, complete and indefeasible payment in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations and the performance by the Borrower of all of the covenants and obligations to be performed by it pursuant to this Agreement and each other Transaction Document, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent (collectively, the "Secured Obligations"), the Borrower hereby (i) collaterally assigns and pledges to the Collateral Agent, on behalf of the Secured Parties and (ii) Grants a security interest to the Collateral Agent, on behalf of the Secured Parties, in all of the Borrower's right, title and interest in, to and under (but none of the obligations under) all of the Collateral, whether now
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existing or hereafter arising or acquired by the Borrower, and wherever the same may be located. For the avoidance of doubt, the Collateral shall not include any Excluded Amounts or Retained Interest, and the Borrower does not hereby assign, pledge or Grant a security interest in any such amounts. Anything herein to the contrary notwithstanding, (x) the Borrower shall remain liable under the Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (y) the exercise by the Collateral Agent, for the benefit of the Secured Parties, of any of its rights in the Collateral shall not release the Borrower from any of its duties or obligations under the Collateral, and (z) none of the Administrative Agent, the Collateral Agent, any Lender nor any Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall the Administrative Agent, the Collateral Agent, any Lender nor any Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
The foregoing Grant shall, for the purpose of determining the property subject to the Lien of this Agreement, be deemed to include any securities and any investments Granted to the Collateral Agent by or on behalf of the Borrower, whether or not such securities or investments satisfy the criteria set forth in the definitions of "Eligible Loan Asset" or "Permitted Investments," as the case may be.
(b) As security for the Secured Obligations, the Borrower hereby collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, all of the Borrower's right and title to and interest in, to and under (but not any obligations under) each Purchase and Sale Agreement (and any UCC financing statements filed under or in connection therewith), the Underlying Instruments related to each Loan Asset, all other agreements, documents and instruments evidencing, securing or guarantying any Loan Asset and all other agreements, documents and instruments related to any of the foregoing but excluding any Excluded Amounts or Retained Interest (the "Assigned Documents"). In furtherance and not in limitation of the foregoing, the Borrower hereby collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, its right to indemnification under each Purchase and Sale Agreement. The Borrower confirms that until the Collection Date the Collateral Agent (at the direction of the Administrative Agent) on behalf of the Secured Parties shall have the sole right (other than, prior to an Event of Default, the Borrower) to enforce the Borrower's rights and remedies under each Purchase and Sale Agreement and any UCC financing statements filed under or in connection therewith for the benefit of the Secured Parties.
The parties hereto agree that such collateral assignment to the Collateral Agent, for the benefit of the Secured Parties, shall terminate upon the Collection Date.
Section 2.13 Evidence of Debt. The Administrative Agent shall maintain, solely for this purpose as a non-fiduciary agent of the Borrower, at its address referred to in Section 12.02 a copy of each Assignment and Acceptance and participation agreement delivered to and accepted by it and a register for the recordation of the names and addresses and interests of the Lenders (including principal amounts and stated interest on the Advances) (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each Person whose name is recorded in the Register as a Lender (or participant, as applicable) under this Agreement for all purposes of this Agreement. The Register shall
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be available for inspection by the Borrower or any Lender at any reasonable time during business hours and from time to time upon reasonable prior notice; provided, that no part of the Register relating to any participants shall be required to be provided to the Borrower except to extent necessary to establish that the Advances and/or such participant are Registered and such Lender and/or Participant is not a Competitor. No Advance hereunder shall be assigned or sold, in whole or in part without registering such assignment or sale on the Register.
Section 2.14 Release of Loan Assets. The Lien granted created pursuant to this Agreement shall be automatically released with the respect to the following: (a) any Loan Asset (and the Related Asset) sold or substituted in accordance with the applicable provisions of Section 2.07, (b) any Loan Asset (and the Related Asset) with respect to which all amounts have been paid in full by the related Obligor and deposited in the Collection Account and (c) the entire Collateral following the Collection Date in accordance with the applicable provisions of Section 12.18. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Servicer and the Borrower and at the direction of the Administrative Agent, execute such documents and instruments of release as may