Form 8-K
8-K — Blue Owl Technology Finance Corp.
Accession: 0001193125-26-245299
Filed: 2026-05-28
Period: 2026-05-21
CIK: 0001747777
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — d154722d8k.htm (Primary)
EX-10.1 (d154722dex101.htm)
EX-10.2 (d154722dex102.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: d154722d8k.htm · Sequence: 1
8-K
false 0001747777 0001747777 2026-05-21 2026-05-21
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 21, 2026
BLUE OWL TECHNOLOGY FINANCE CORP.
(Exact name of Registrant as Specified in Its Charter)
Maryland
000-55977
83-1273258
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
399 Park Avenue
New York, NY
10022
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s Telephone Number, Including Area Code: (212) 419-3000
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, par value $0.01 per share
OTF
The New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934. Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 – Entry into a Material Definitive Agreement
On May 21, 2026 (the “Closing Date”), Athena Funding III LLC (“Athena Funding III”), a Delaware limited liability company and a subsidiary of Blue Owl Technology Finance Corp., a Maryland corporation (the “Company” or “us”) entered into a Loan Financing and Servicing Agreement (the “LFSA”), with Athena Funding III, as borrower, Deutsche Bank AG, New York Branch, as facility agent, State Street Bank and Trust Company, as collateral agent and as collateral custodian, the Company, as equityholder and as services provider, and the lenders party thereto.
From time to time, the Company expects to sell and contribute certain investments to Athena Funding III pursuant to a Sale and Contribution Agreement by and between the Company and Athena Funding III. No gain or loss will be recognized as a result of the contribution. Proceeds from the LFSA will be used to finance the origination and acquisition of eligible assets by Athena Funding III, including the purchase of such assets from the Company. The Company retains a residual interest in assets contributed to or acquired by Athena Funding III through its ownership of Athena Funding III. The initial maximum principal amount which may be borrowed under the Credit Facility is $150 million, subject to increase up to $250 million; the availability of this amount is subject to a borrowing base test, which is based on the value of Athena Funding III’s assets from time to time, and satisfaction of certain conditions, including interest spread and weighted average coupon tests, certain concentration limits, collateral quality tests and a minimum equity condition.
The LFSA provides for the ability to draw and redraw revolving loans under the LFSA for a period of up to three years after the Closing Date (the “Revolving Period”). Unless otherwise terminated, the LFSA will mature on May 21, 2031 (the “Facility Termination Date”). Prior to the Facility Termination Date, proceeds received by Athena Funding III from principal and interest, dividends, or fees on assets must be used to pay fees, expenses and interest on outstanding borrowings, and the excess may be returned to the Company or reinvested to purchase new assets, subject to certain conditions. On the Facility Termination Date, Athena Funding III must pay in full all outstanding fees and expenses and all principal and interest on outstanding borrowings, and the excess may be returned to the Company. The credit facility may be permanently reduced, in whole or in part, at the option of Athena Funding III subject to payment of a premium for a period of time.
Amounts drawn bear interest at a reference rate (initially SOFR) plus a spread of 2.10% per annum during the Revolving Period (with an additional 0.15% per annum after the end of the Revolving Period). The undrawn amount of the revolving commitment not subject to such spread payment is subject to an undrawn fee of 0.25% per annum. In addition, a make-whole fee is payable during the Revolving Period based on the excess of a specified percentage of the aggregate commitments over the daily average advances outstanding. Certain additional fees are payable to Deutsche Bank AG, New York Branch as facility agent.
The LFSA contains customary covenants, including certain maintenance covenants, and events of default. The LFSA is secured by a perfected first priority security interest in the assets of Athena Funding III and on any payments received by Athena Funding III in respect of those assets. Assets pledged to the lenders will not be available to pay the debts of the Company.
Borrowings of Athena Funding III are considered the Company’s borrowings for purposes of complying with the asset coverage requirements under the 1940 Act.
The description above is only a summary of the material provisions of the LFSA and is qualified in its entirety by reference to the agreements which are filed as Exhibits 10.1 and 10.2 to this current report on Form 8-K and are incorporated herein by reference.
Item 2.03 – Creation of a Direct Financial Obligation
The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit Number
Description
10.1
Loan Financing and Servicing Agreement, dated as of May 21, 2026, among Athena Funding III LLC, as Borrower, Blue Owl Technology Finance Corp., as Equityholder and Services Provider, the Lenders from time to time parties thereto, Deutsche Bank, AG, New York Branch, as Facility Agent, the other Agents parties thereto and State Street Bank and Trust Company, as Collateral Agent and Custodian.
10.2
Sale and Contribution Agreement, dated as of May 21, 2026, between Blue Owl Technology Finance Corp., as Seller and Athena Funding III, LLC, as Purchaser.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Blue Owl Technology Finance Corp.
Date: May 28, 2026
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: Chief Financial Officer and Chief Operating Officer
EX-10.1
EX-10.1
Filename: d154722dex101.htm · Sequence: 2
EX-10.1
Exhibit 10.1
EXECUTION VERSION
LOAN
FINANCING AND SERVICING AGREEMENT
dated as of May 21, 2026
ATHENA FUNDING III LLC,
as
Borrower,
BLUE OWL TECHNOLOGY FINANCE CORP.,
as Equityholder,
BLUE OWL
TECHNOLOGY FINANCE CORP.,
as Services Provider,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Facility Agent,
THE OTHER
AGENTS PARTIES HERETO,
and
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent and as Collateral Custodian
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
Section 1.1
Defined Terms
1
Section 1.2
Other Definitional Provisions
65
ARTICLE II THE FACILITY, ADVANCE PROCEDURES AND NOTES
67
Section 2.1
Advances
67
Section 2.2
Funding of Advances
67
Section 2.3
Notes
69
Section 2.4
Repayment and Prepayments
70
Section 2.5
Permanent Reduction of Facility Amount
70
Section 2.6
Extension of Revolving Period
71
Section 2.7
Calculation of Discount Factor
71
Section 2.8
Increase in Facility Amount
73
Section 2.9
Defaulting Lenders
73
Section 2.10
Borrowing Base Deficiency Payments
74
ARTICLE III YIELD, UNDRAWN FEE, ETC.
75
Section 3.1
Yield and Undrawn Fee
75
Section 3.2
Yield and Undrawn Fee Distribution Dates
75
Section 3.3
Yield Calculation
75
Section 3.4
Computation of Yield, Fees, Etc.
76
ARTICLE IV PAYMENTS; TAXES
76
Section 4.1
Making of Payments
76
Section 4.2
Due Date Extension
76
Section 4.3
Taxes
76
-i-
ARTICLE V INCREASED COSTS, ETC.
80
Section 5.1
Increased Costs, Capital Adequacy
80
ARTICLE VI EFFECTIVENESS; CONDITIONS TO ADVANCES
82
Section 6.1
Effectiveness
82
Section 6.2
Advances and Reinvestments
83
Section 6.3
Transfer of Collateral Obligations and Permitted Investments
86
ARTICLE VII ADMINISTRATION AND MANAGEMENT OF COLLATERAL OBLIGATIONS; THE
EQUITYHOLDER
87
Section 7.1
Retention and Termination of the Services Provider
87
Section 7.2
Resignation and Removal of the Services Provider; Appointment of Successor Services Provider
88
Section 7.3
Duties of the Services Provider
89
Section 7.4
Representations and Warranties of the Services Provider
90
Section 7.5
Covenants of the Services Provider
93
Section 7.6
Reserved
96
Section 7.7
Covenants of the Equityholder
96
Section 7.8
Collateral Reporting
96
Section 7.9
Notices
96
Section 7.10
Procedural Review of Collateral Obligations; Access to Services Provider and Services Provider’s Records
97
Section 7.11
Optional Sales
98
Section 7.12
Repurchase or Substitution of Warranty Collateral Obligations
100
Section 7.13
Servicing of REO Assets
101
-ii-
ARTICLE VIII PLEDGED ACCOUNTS; PAYMENTS
103
Section 8.1
Pledged Accounts
103
Section 8.2
Excluded Amounts
105
Section 8.3
Distributions, Reinvestment and Dividends
105
Section 8.4
Fees
109
Section 8.5
Monthly Report
109
ARTICLE IX REPRESENTATIONS AND WARRANTIES OF THE BORROWER
110
Section 9.1
Organization and Good Standing
110
Section 9.2
Due Qualification
111
Section 9.3
Power and Authority
111
Section 9.4
Binding Obligations
111
Section 9.5
Security Interest
111
Section 9.6
No Violation
112
Section 9.7
No Proceedings
112
Section 9.8
No Consents
113
Section 9.9
Solvency
113
Section 9.10
Compliance with Laws
113
Section 9.11
Taxes
113
Section 9.12
Monthly Report
113
Section 9.13
No Liens, Etc.
113
Section 9.14
Information True and Correct
114
Section 9.15
Bulk Sales
114
Section 9.16
Collateral
114
Section 9.17
Selection Procedures
114
Section 9.18
Indebtedness
114
Section 9.19
No Injunctions
115
Section 9.20
No Subsidiaries
115
-iii-
Section 9.21
ERISA Matters
115
Section 9.22
Investment Company Status
115
Section 9.23
Set-Off, Etc.
115
Section 9.24
Collections
115
Section 9.25
Value Given
115
Section 9.26
Use of Proceeds
116
Section 9.27
Separate Existence
116
Section 9.28
Transaction Documents
116
Section 9.29
EEA/UK Financial Institution
116
Section 9.30
Sanctions, Anti-Money Laundering
116
Section 9.31
Anti-Bribery and Corruption
117
Section 9.32
Volcker Rule
117
Section 9.33
AIFMD and UK AIFM Regulation
118
ARTICLE X COVENANTS
118
Section 10.1
Protection of Security Interest of the Secured Parties
118
Section 10.2
Other Liens or Interests
119
Section 10.3
Costs and Expenses
119
Section 10.4
Reporting Requirements
119
Section 10.5
Separate Existence
120
Section 10.6
Hedging Agreements
123
Section 10.7
Tangible Net Worth
125
Section 10.8
Taxes
125
Section 10.9
Merger, Consolidation, Etc.
125
Section 10.10
Deposit of Collections
125
Section 10.11
Indebtedness; Guarantees
125
-iv-
Section 10.12
Limitation on Purchases from Affiliates
125
Section 10.13
Documents
126
Section 10.14
Preservation of Existence
126
Section 10.15
Limitation on Investments
126
Section 10.16
Distributions
126
Section 10.17
Performance of Borrower Assigned Agreements
126
Section 10.18
Material Modifications
127
Section 10.19
Further Assurances; Financing Statements
127
Section 10.20
Obligor Payment Instructions
128
Section 10.21
Delivery of Collateral Obligation Files
128
Section 10.22
Reserved
129
Section 10.23
ERISA
129
Section 10.24
Proceedings
129
Section 10.25
Officer’s Certificate
129
Section 10.26
Policies and Procedures for Sanctions
129
Section 10.27
Compliance with Sanctions
129
Section 10.28
Compliance with Anti-Money Laundering
130
Section 10.29
Ineligible Collateral
130
Section 10.30
AIF/AIFM Covenant
130
ARTICLE XI THE COLLATERAL AGENT
131
Section 11.1
Appointment of Collateral Agent
131
Section 11.2
Monthly Reports
131
Section 11.3
Collateral Administration
131
Section 11.4
Removal or Resignation of Collateral Agent
134
Section 11.5
Representations and Warranties
135
-v-
Section 11.6
No Adverse Interest of Collateral Agent
135
Section 11.7
Reliance of Collateral Agent
136
Section 11.8
Limitation of Liability and Collateral Agent Rights
136
Section 11.9
Tax Reports
138
Section 11.10
Merger or Consolidation
138
Section 11.11
Collateral Agent Compensation
138
Section 11.12
Compliance with Applicable Anti-Bribery and Corruption, Anti-Terrorism and Anti-Money Laundering Regulations
139
ARTICLE XII GRANT OF SECURITY INTEREST
139
Section 12.1
Borrower’s Grant of Security Interest
139
Section 12.2
Borrower Remains Liable
140
Section 12.3
Release of Collateral
141
ARTICLE XIII FACILITY TERMINATION EVENTS
141
Section 13.1
Facility Termination Events
141
Section 13.2
Effect of Facility Termination Event
144
Section 13.3
Rights upon Facility Termination Event
145
Section 13.4
Collateral Agent May Enforce Claims Without Possession of Notes
146
Section 13.5
Collective Proceedings
146
Section 13.6
Insolvency Proceedings
146
Section 13.7
Delay or Omission Not Waiver
147
Section 13.8
Waiver of Stay or Extension Laws
147
Section 13.9
Limitation on Duty of Collateral Agent in Respect of Collateral
148
Section 13.10
Power of Attorney
148
Section 13.11
Purchase Right
149
-vi-
ARTICLE XIV THE FACILITY AGENT
149
Section 14.1
Appointment
149
Section 14.2
Delegation of Duties
149
Section 14.3
Exculpatory Provisions
150
Section 14.4
Reliance by Note Agents
150
Section 14.5
Notices
150
Section 14.6
Non-Reliance on Note Agents
151
Section 14.7
Indemnification
151
Section 14.8
Successor Note Agent
152
Section 14.9
Note Agents in their Individual Capacity
152
Section 14.10
Borrower Procedural Review
152
Section 14.11
Compliance with Applicable Anti-Bribery and Corruption, Anti-Terrorism and Anti-Money Laundering Regulations
153
ARTICLE XV ASSIGNMENTS
153
Section 15.1
Restrictions on Assignments by the Borrower and the Services Provider
153
Section 15.2
Documentation
153
Section 15.3
Rights of Assignee
153
Section 15.4
Assignment by Lenders
153
Section 15.5
Registration; Registration of Transfer and Exchange
154
Section 15.6
Mutilated, Destroyed, Lost and Stolen Notes
155
Section 15.7
Persons Deemed Owners
156
Section 15.8
Cancellation
156
Section 15.9
Participations; Pledge
156
Section 15.10
Reallocation of Advances
157
-vii-
ARTICLE XVI INDEMNIFICATION
157
Section 16.1
Borrower Indemnity
157
Section 16.2
Services Provider Indemnity
158
Section 16.3
Contribution
158
ARTICLE XVII MISCELLANEOUS
159
Section 17.1
No Waiver; Remedies
159
Section 17.2
Amendments, Waivers
159
Section 17.3
Notices, Etc.
159
Section 17.4
Costs and Expenses
159
Section 17.5
Binding Effect; Survival
162
Section 17.6
Captions and Cross References
162
Section 17.7
Severability
162
Section 17.8
GOVERNING LAW
163
Section 17.9
Counterparts; Electronic Execution
163
Section 17.10
WAIVER OF JURY TRIAL
163
Section 17.11
No Proceedings
163
Section 17.12
Limited Recourse
164
Section 17.13
ENTIRE AGREEMENT
165
Section 17.14
Confidentiality
165
Section 17.15
Non-Confidentiality of Tax Treatment
166
Section 17.16
Replacement of Lenders
167
Section 17.17
Consent to Jurisdiction
167
Section 17.18
Option to Acquire Rating
168
Section 17.19
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
168
Section 17.20
Acknowledgement Regarding Any Supported QFCs
169
-viii-
ARTICLE XVIII COLLATERAL CUSTODIAN
169
Section 18.1
Designation of Collateral Custodian
169
Section 18.2
Duties of the Collateral Custodian
170
Section 18.3
Delivery of Collateral Obligation Files
172
Section 18.4
Collateral Obligation File Certification
172
Section 18.5
Release of Collateral Obligation Files
173
Section 18.6
Examination of Collateral Obligation Files
175
Section 18.7
Lost Note Affidavit
175
Section 18.8
Transmission of Collateral Obligation Files
176
Section 18.9
Merger or Consolidation
176
Section 18.10
Collateral Custodian Compensation
176
Section 18.11
Removal or Resignation of Collateral Custodian
176
Section 18.12
Limitations on Liability
177
Section 18.13
Collateral Custodian as Agent of Collateral Agent
179
-ix-
EXHIBIT A
Form of Note
EXHIBIT B
Audit Standards
EXHIBIT C-1
Form of Advance Request
EXHIBIT C-2
Form of Reinvestment Request
EXHIBIT C-3
Form of Electronic Asset Approval Request
EXHIBIT C-4
Form of Prepayment Notice
EXHIBIT C-5
Form of Electronic Asset Approval Notice
EXHIBIT C-6
Form of FX Reallocation Notice
EXHIBIT D
Form of Monthly Report
EXHIBIT E
Form of Joinder Agreement
EXHIBIT F-1
Authorized Representatives of Services Provider
EXHIBIT F-2
Request for Release and Receipt
EXHIBIT F-3
Request for Release of Request for Release and Receipt
EXHIBIT G-1
U.S. Tax Compliance Certificate (Foreign Lender - non-Partnerships)
EXHIBIT G-2
U.S. Tax Compliance Certificate (Foreign Participant - non-Partnerships)
EXHIBIT G-3
U.S. Tax Compliance Certificate (Foreign Participants - Partnerships)
EXHIBIT G-4
U.S. Tax Compliance Certificate (Foreign Lenders - Partnerships)
EXHIBIT H
Schedule of Collateral Obligations Certification
SCHEDULE 1
Diversity Score Calculation
SCHEDULE 2
Moody’s Industry Classification Group List
SCHEDULE 3
Collateral Obligations
SCHEDULE 4
Approved Valuation Firms
ANNEX A
Notice Information
ANNEX B
Commitments
-x-
LOAN FINANCING AND SERVICING AGREEMENT
THIS LOAN FINANCING AND SERVICING AGREEMENT is made and entered into as of May 21, 2026, among ATHENA FUNDING III LLC, a Delaware limited
liability company (the “Borrower”), the Equityholder (as hereinafter defined), the Services Provider (as hereinafter defined), each Lender (as hereinafter defined) from time to time party hereto, the Agents for each Lender Group
(as hereinafter defined) from time to time parties hereto (each such party, in such capacity, together with their respective successors and permitted assigns in such capacity, an “Agent”), STATE STREET BANK AND TRUST COMPANY, as
Collateral Agent and as Collateral Custodian (each as hereinafter defined), and DEUTSCHE BANK AG, NEW YORK BRANCH, as Facility Agent (in such capacity, together with its successors and permitted assigns in such capacity, the “Facility
Agent”).
RECITALS
WHEREAS, the Borrower desires that each Lender extend financing on the terms and conditions set forth herein and also desires to retain the
Services Provider to perform certain servicing functions related to the Collateral Obligations (as defined herein) on the terms and conditions set forth herein; and
WHEREAS, each Lender desires to extend financing on the terms and conditions set forth herein and the Services Provider desires to perform
certain servicing functions related to the Collateral Obligations on the terms and conditions set forth herein.
NOW, THEREFORE, based
upon the foregoing Recitals, the premises and the mutual agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:
“1940 Act” means the Investment Company Act of 1940, as amended
“Account Collateral” has the meaning set forth in Section 12.1(d).
“Account Control Agreement” means the Account Control Agreement, dated as of the Effective Date, by and among the Borrower,
as pledgor, the Collateral Agent on behalf of the Secured Parties, as secured party, and State Street Bank and Trust Company, as Securities Intermediary and depository bank.
“Accrual Period” means, with respect to the first Distribution Date, the period from and including the Effective Date to
and including the Determination Date preceding the first Distribution Date; and thereafter, the period from but excluding the Determination Date preceding the previous Distribution Date to and including the Determination Date preceding the current
Distribution Date.
“Adjusted Aggregate Eligible Collateral Obligation Balance” means, as of
any date, the Aggregate Eligible Collateral Obligation Amount minus the Excess Concentration Amount on such date.
“Advance” has the meaning set forth in Section 2.1(a).
“Advance Date” has the meaning set forth in Section 2.1(a).
“Advance Rate” means, with respect to any Eligible Collateral Obligation on any date of determination, the corresponding
percentage for the type of Eligible Collateral Obligation (such type, other than in the case of a Specified Broadly Syndicated Loan or a Specified First Lien Loan, to be determined by the Facility Agent in its sole discretion as of the related
Cut-Off Date):
(a) that is a First Lien Loan, 75%;
(b) that is a FILO Loan and the attaching Leverage Multiple (x) exceeds 2.0x and is equal to or less than 2.5x, 50%, (y) exceeds
1.5x and is equal to or less than 2.0x, 55% and (z) is equal to or less than 1.5x, 60%;
(c) that is a Second Lien Loan, 40%; or
(d) that is a Multiple of Recurring Revenue Loan, 60%;
provided that, with respect to (i) any Specified Deferrable Collateral Obligation (Level I), the corresponding Advance Rate shall be decreased by
ten (10) percentage points and (ii) any Specified Deferrable Collateral Obligation (Level II), the corresponding Advance Rate shall be decreased by fifteen (15) percentage points.
“Advance Request” has the meaning set forth in Section 2.2(a).
“Adverse Claim” means any claim of ownership or any Lien, title retention, trust or other charge or encumbrance, or other
type of preferential arrangement having the effect or purpose of creating a Lien, other than Permitted Liens.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Person” has the meaning set forth in Section 5.1.
“Affiliate” of any Person means any other Person that directly or indirectly Controls, is Controlled by or is under common
Control with such Person (excluding any trustee under, or any committee with responsibility for administering, any employee benefit plan). For the purposes of this definition, “Control” shall mean the possession, directly or
indirectly (including through affiliated entities), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms
“Controlling” and “Controlled” shall have meanings correlative thereto.
-2-
“Agent” has the meaning set forth in the Preamble.
“Aggregate Eligible Collateral Obligation Amount” means, as of any date, the sum of the Collateral Obligation Amounts for
all Eligible Collateral Obligations.
“Aggregate Funded Spread” means, as of any date of determination, the sum of:
(a) in the case of each Collateral Obligation (including, for any Deferrable Collateral Obligation, only the current cash pay interest thereon required by its underlying instruments and excluding, for any Delayed Drawdown Loans and any
Revolving Loans, the Unfunded Amounts thereon) that bears interest at a spread over an index rate, (A) the excess (which excess may be expressed as a negative percentage) for each such Collateral Obligation of (x) the sum of (I) the
sum of such spread (inclusive of any relevant credit adjustment spread) for each such Collateral Obligation and such index for each such Collateral Obligation plus (II) for each such Collateral Obligation that provides for a minimum index
amount, the excess, if any, of such minimum index amount over such index on such date of determination, over (y) the Base Rate in effect for the Accrual Period that includes such date of determination multiplied by (B) the Principal
Balance of each such Collateral Obligation, plus (b) in the case of each Eligible Collateral Obligation (including, for any Deferrable Collateral Obligation, only the current cash pay interest thereon required by its underlying
instruments and excluding, for any Delayed Drawdown Loans and any Revolving Loans, the Unfunded Amounts thereon) that is a Fixed Rate Collateral Obligation, (i) the excess (which excess may be expressed as a negative percentage) for each such
Collateral Obligation of (x) the interest rate for such Collateral Obligation over (y) the Base Rate in effect for the Accrual Period that includes such date of determination multiplied by (ii) the Principal Balance of each
such Collateral Obligation.
“Aggregate Notional Amount” shall mean, with respect to any date of determination, an
amount equal to the sum of the notional amounts or equivalent amounts of all outstanding Hedging Agreements, Replacement Hedging Agreements and Qualified Substitute Arrangements, each as of such date of determination.
“Aggregate Unfunded Amount” means, as of any date of determination, the equivalent in Dollars, as determined by the
Services Provider using the Applicable Conversion Rate, of the sum of the unfunded commitments and all other standby or contingent commitments associated with each Revolving Loan and Delayed Drawdown Loan included in the Collateral as of such date.
The Aggregate Unfunded Amount shall not include any commitments under any Revolving Loan or Delayed Drawdown Loan that have expired, terminated or been reduced to zero, and shall be reduced concurrently (and upon notice thereof to the Facility
Agent) with each documented reduction in commitments of the Borrower under such Revolving Loan or Delayed Drawdown Loan.
“Aggregate Unfunded Equity Amount” means, as of any date of determination, the sum of the Unfunded Exposure Equity Amounts
of each Revolving Loan and Delayed Drawdown Loan included in the Collateral as of such date.
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“Agreement” means this Loan Financing and Servicing Agreement (including
each annex, exhibit and schedule hereto), as it may be amended, restated, supplemented or otherwise modified from time to time.
“AIF” has the meaning given to the term under the AIFMD and/or UK AIFM Regulations as relevant.
“AIFM” has the meaning given to the term under the AIFMD and/or UK AIFM Regulations as relevant.
“AIFMD” means (a) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on
Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No. 1060/2009 and (EU) No. 1095/2010, as the same may be amended, supplemented, superseded or re-adopted from time to time (whether
with or without qualification) and (b) any applicable law of a member state of the European Union implementing the AIFMD.
“Alternate Base Rate” means a fluctuating rate per annum as shall be in effect from time to time, which rate shall
be at all times equal to the highest of:
(a) the rate of interest announced publicly by DBNY in New York, New York, from time to time as
DBNY’s base commercial lending rate;
(b) 1⁄2
of one percent above the Federal Funds Rate; and
(c) 0.
“Amount Available” means, with respect to any Distribution Date, the sum of (a) the amount of Collections with respect
to the related Accrual Period and any amounts paid into the Collection Account during the related Accrual Period under any Hedging Agreement with respect to the Accrual Period ending on the day preceding such Distribution Date (excluding any
Collections necessary to settle the acquisition of Eligible Collateral Obligations), plus (b) any investment income earned on amounts on deposit in the Collection Account since the immediately prior Distribution Date (or since the
Effective Date in the case of the first Distribution Date), plus (c) any Repurchase Amounts deposited in the Collection Account and any Equityholder capital contributions with respect to the related Accrual Period.
“Anti-Bribery and Corruption Laws” has the meaning set forth in Section 9.31(a).
“Anti-Money Laundering Laws” has the meaning set forth in Section 9.30(b).
“Applicable Banking Law” means, for any Person, all existing and future laws, rules, regulations and executive orders in
effect from time to time applicable to banking institutions, including, without limitation, those relating to anti-bribery and corruption, the funding of terrorist activities and money laundering, including the Anti-Money Laundering Laws, the U.S.
Foreign Corrupt Practices Act, the U.K. Bribery Act, other applicable anti-bribery and corruption legislation, and Section 326 of the USA Patriot Act.
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“Applicable Conversion Rate” means with respect to Euros, GBPs or CADs
(x) for an actual currency exchange, the applicable currency-Dollar spot rate obtained by the Services Provider through customary banking channels, including the Collateral Agent’s own banking
facilities or (y) for all other purposes, the applicable currency-Dollar spot rate that appeared on the Bloomberg screen for such currency (i) if such date is a Determination Date, at the end of such
day or (ii) otherwise, at the end of the immediately preceding Business Day.
“Applicable Exchange Rate” means
with respect to any Collateral Obligation denominated and payable in Euros, GBPs or CADs on any day, the lesser of (a) the applicable currency-Dollar spot rate used by the Borrower (as determined by the Services Provider) to acquire such
currency on the related Cut-Off Date and (b) the Applicable Conversion Rate for such currency.
“Applicable Interest
Rate” means (a) with respect to any Collateral Obligation or any Advance denominated in Euros, the EURIBOR Rate, (b) with respect to any Collateral Obligation or any Advance denominated in CAD, Term CORRA, (c) with respect
to any Collateral Obligation or any Advance denominated in GBP, the sum of (i) Daily Simple SONIA and (ii) the SONIA Adjustment and (d) with respect to any other Collateral Obligation or any other Advance, Term SOFR.
“Applicable Law” means, for any Person, all existing and future laws, rules, regulations (including temporary and final
income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and interpretations by any Official Body 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 (i) during the Revolving Period and prior to the occurrence of any Facility Termination
Event, 2.10% per annum, (ii) on and after the end of the Revolving Period and prior to the occurrence of any Facility Termination Event, the Applicable Margin shall be increased by 0.15% per annum and (iii) after
the occurrence of any Facility Termination Event, the Applicable Margin shall be increased by 2.00% per annum.
“Appraised Value” means, with respect to any Asset Based Loan, the most recently calculated appraised value of the pro
rata portion of the underlying collateral securing such Collateral Obligation as determined by an Approved Valuation Firm.
“Approved Valuation Firm” means, with respect to (i) any Collateral Obligation, any valuation firm either
(a) specified on the related Asset Approval Request or Reinvestment Request and approved by the Facility Agent and the Borrower or (b) otherwise approved in writing by the Facility Agent in its reasonable discretion or (ii) any
calculation of the Discount Factor, each valuation firm listed on Schedule 4 attached hereto, as such schedule may be updated from time to time with the prior consent of the Facility Agent; provided that no valuation firm may be used
as an Approved Valuation Firm for purposes of calculating the Discount Factor if it is utilized by the Services Provider or any of its Affiliates on a regular basis to determine valuations with respect to the Equityholder or any other entity that is
managed by the Equityholder, the Services Provider or any of their respective Affiliates.
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“Asset Approval Notice” means an electronic notice containing the
information from Exhibit C-5 and that provides the approval of the Facility Agent, in its sole discretion, to the acquisition (or incremental pledge) of one or more Collateral Obligations.
“Asset Approval Request” means an electronic notice to the Facility Agent in the form of an email that (a) is in the
form of Exhibit C-3 and (b) requests the approval of the Facility Agent, in its sole discretion, of one or more Collateral Obligations.
“Asset Based Loan” means any Loan which the Services Provider identifies on the related Asset Approval Request that
(i) was underwritten primarily on the appraised value of the assets securing such Loan and (ii) is governed by a borrowing base.
“Assigned Participation Interest” means a Participation Interest in a loan acquired under any Sale Agreement.
“Available Funds” has the meaning set forth in Section 17.12.
“Average Life” means, as of any day and with respect to any Collateral Obligation, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years (rounded up to the nearest one hundredth thereof) from such day to the respective dates of each successive Scheduled Collateral Obligation Payment of principal on such Collateral
Obligation multiplied by (b) the respective amounts of principal of such Scheduled Collateral Obligation Payments by (ii) the sum of all successive Scheduled Collateral Obligation Payments of principal on such Collateral Obligation.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in
respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is
described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended.
“Base Rate” for any Advance means a rate per annum equal to the Applicable Interest Rate for such Advance or portion
thereof; provided, that in the case of
(a) any day on or after the first day on which a Committed Lender shall have notified the
Facility Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other Official Body asserts that it is unlawful, for such Committed Lender to fund such Advance at
the Base Rate set forth above (and such Committed Lender shall not have subsequently notified the Facility Agent that such circumstances no longer exist), or
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(b) any period in the event the Applicable Interest Rate is not reasonably available to any
Lender for such period,
the “Base Rate” shall be a floating rate per annum equal to the Alternate Base Rate in effect on each
day of such period.
“Basel III Regulation” shall mean, with respect to any Affected Person, any rule, regulation or
guideline applicable to such Affected Person 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 Regulation” 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.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial
Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading
Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31
C.F.R. §1010.230.
“Benefit Plan Investor” means (a) any “employee benefit plan” (as defined in
Section 3(3) of Title I of ERISA) that is subject to the fiduciary responsibility provisions of Title I of ERISA, (b) any “plan” as defined in Section 4975(e) of the Code that is subject to Section 4975 of the Code,
or (c) any governmental or other plan or arrangement that is not subject to ERISA or to Section 4975 of the Code but is subject to any law or restriction substantially similar to Section 406 of ERISA or Section 4975 of the Code
or (d) any entity whose underlying assets include “plan assets” of the foregoing employee benefit plans or plans (within the meaning of the DOL Regulations or otherwise).
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in
accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” has the meaning set forth in the Preamble.
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“Borrower Assigned Agreements” has the meaning set forth in
Section 12.1(c).
“Borrowing Base” means, as of any date of determination, (i) the product of
(a) the lower of (I) the Weighted Average Advance Rate and (II) the Maximum Portfolio Advance Rate multiplied by (b) the Adjusted Aggregate Eligible Collateral Obligation Balance plus (ii) the equivalent in Dollars
of the amount of Principal Collections on deposit in the Principal Collection Account minus (iii) the Aggregate Unfunded Equity Amount, if any, plus (iv) the equivalent in Dollars of the amount on deposit in the Unfunded
Exposure Account.
“Borrowing Base Deficiency” means, as of any date of determination, an amount equal to the greater
of (i) zero and (ii) the aggregate Advances outstanding on such date minus the Borrowing Base.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or the city in which the offices of the Collateral Agent or Collateral Custodian are located are authorized or obligated by
law, executive order or government decree to remain closed; provided that, when used in connection with the Applicable Interest Rate, the term “Business Day” shall also exclude any day on which dealings in deposits in the related
Eligible Currency are not carried out in the relevant Eligible Jurisdiction. All references to any “day” or any particular day of any “calendar month” shall mean a calendar day unless otherwise specified.
“CAD” means the lawful money of Canada.
“CAD Advance” means each Advance made in CAD.
“CAD Lender” means the Persons executing this Agreement (or an assignment hereof or a Joinder Agreement in accordance with
Article XV) in the capacity of a “CAD Lender”.
“Capped Fees/Expenses” means, at any time, the
Collateral Agent Fees and Expenses and the Collateral Custodian Fees and Expenses, in an aggregate amount not to exceed $150,000 in any calendar year.
“Cause” means, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager that
constitute willful disregard of such Independent Manager’s duties as set forth in the Borrower’s organizational documents, (ii) that such Independent Manager has engaged in or has been charged with, or has been convicted of, fraud
or other acts constituting a crime under any law applicable to such Independent Manager, (iii) that such Independent Manager is unable to perform his or her duties as Independent Manager due to death, disability or incapacity, or (iv) that
such Independent Manager no longer meets the definition of Independent Manager.
“Change of Control” means the
occurrence and continuation of (a) other than pursuant to an Equityholder Credit Event Cure, the failure of the Equityholder (including for the avoidance of doubt any Successor Equityholder) to be the sole equityholder of the Borrower (free and
clear of any liens), (b) the investment management agreement between the Equityholder and the Services Provider Advisor is terminated (including as a result of any “assignment” (as defined for purposes of Section 15(a)(4) of
the 1940 Act) by the Services Provider Advisor) unless immediately upon such termination, an investment management agreement comes into effect between the
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Equityholder (including for the avoidance of doubt any Successor Equityholder) and the Services Provider Advisor (including for the avoidance of doubt any Successor Services Provider Advisor) or
(c) the Services Provider Advisor (including for the avoidance of doubt any Successor Services Provider Advisor) is no longer the investment advisor to the Equityholder (including for the avoidance of doubt any Successor Equityholder).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning set forth in Section 12.1.
“Collateral Agent” means State Street Bank and Trust Company, solely in its capacity as collateral agent hereunder,
together with its successors and permitted assigns in such capacity.
“Collateral Agent and Collateral Custodian Fee
Letter” means that certain letter agreement dated on or prior to the date hereof among the Collateral Agent, the Collateral Custodian and the Borrower, as the same may be amended, supplemented or otherwise modified by the parties thereto
with the consent of the Facility Agent.
“Collateral Agent Fees and Expenses” has the meaning set forth in
Section 11.11.
“Collateral Custodian” means State Street Bank and Trust Company, solely in its capacity as
collateral custodian hereunder, together with its successors and permitted assigns in such capacity.
“Collateral Custodian Fees
and Expenses” has the meaning set forth in Section 18.10.
“Collateral Database” has the meaning
set forth in Section 11.3(a)(i).
“Collateral Obligation” means a Loan or a Participation Interest owned by
the Borrower, excluding the Retained Interest thereon.
“Collateral Obligation Amount” means for any Collateral
Obligation, as of any date of determination, an amount equal to the product of (i) the Discount Factor of such Collateral Obligation at such time multiplied by (ii) the Principal Balance of such Collateral Obligation at such time;
provided, that if the Effective LTV of any Asset Based Loan exceeds (as of such date of determination) the limit for the applicable Loan type set forth below, then the Principal Balance component of the “Collateral Obligation
Amount” of such Collateral Obligation will be automatically (and without any action by the Facility Agent) reduced by the amount necessary to cause such Collateral Obligation to comply with the applicable limit set forth below:
Asset Based Loan Type (by collateral
source)
Effective LTV Limit
working capital
90%
fixed assets
75%
intellectual property
60%
The Collateral Obligation Amount of any Collateral Obligation that ceases to be (or otherwise is not) an
Eligible Collateral Obligation shall be zero.
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“Collateral Obligation File” means, with respect to each Collateral
Obligation as identified on the related Document Checklist, in each case, in English, (i) if the Collateral Obligation includes a promissory note, (x) an original, executed copy of such promissory note, or (y) in the case of a lost
promissory note, a copy of such executed promissory note accompanied by an original executed affidavit and indemnity endorsed by the Borrower in blank, in each case with respect to clause (x) or clause (y) with an unbroken
chain of endorsements from each prior holder of such promissory note to the Borrower or in blank (unless such note is in bearer form, in which case delivery alone shall suffice), or (z) in the case of a noteless Collateral Obligation, a copy of
each executed document or instrument evidencing the assignment of such Collateral Obligation to the Borrower, (ii) copies (as indicated on the Schedule of Collateral Obligations and the related Document Checklist) of any related loan agreement,
security agreement, mortgage, moveable or immoveable hypothec, deed of hypothec, guarantees, note purchase agreement, intercreditor and/or subordination agreement, each to the extent in the possession of the Borrower, (iii) copies of the file-stamped (or the electronic equivalent of) UCC financing statements and continuation statements (including amendments or modifications thereof) authorized by the Obligor thereof or by another Person on the
Obligor’s behalf in respect of such Collateral Obligation, and (iv) any other document included by the Services Provider on the related Document Checklist.
“Collateral Obligation Schedule” means the list of Collateral Obligations set forth on Schedule 3, as the same
may be updated by the Borrower (or the Services Provider on behalf of the Borrower) from time to time.
“Collateral Quality
Tests” means, collectively or individually as the case may be, the Minimum Diversity Test, the Minimum Weighted Average Spread Test, the Minimum Weighted Average Coupon Test and the Maximum Weighted Average Life Test.
“Collection Account” means, collectively, the Principal Collection Account and the Interest Collection Account.
“Collections” means the sum of all Interest Collections and all Principal Collections received with respect to the
Collateral.
“Commercial Paper Rate” for Advances means, to the extent a Lender funds such Advances by issuing
commercial paper, the sum of (i) the weighted average of the rates at which commercial paper notes of such Lender issued to fund such Advances (which shall include commissions of placement agents and dealers, incremental carrying costs incurred
with respect to its commercial paper maturing on dates other than those on which corresponding funds are received by the Lender and costs or other borrowings by the Lender (other than under any related support facility)) may be sold by any placement
agent or commercial paper dealer selected by such Lender, as agreed in good faith between each such agent or dealer and such Lender; provided, that if the rate (or rates) as agreed between any such agent or dealer and such Lender for any
Advance is a discount rate (or rates), then such rate shall be the rate (or if more than one rate, the weighted average of the rates) resulting from converting such discount rate (or rates) to an
interest-bearing equivalent rate per annum plus, without duplication (ii) any and all reasonable costs and expenses of any issuing and paying agent or other Person responsible for the
administration of such Lender’s commercial paper program in connection with the preparation, completion, issuance, delivery or payment of commercial paper issued to fund the making or maintenance of any Advance. Each Lender shall notify the
Facility Agent of its Commercial Paper Rate applicable to any Advance promptly after the determination thereof.
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“Commitment” means, for each Committed Lender, (a) prior to the
Facility Termination Date, the commitment of such Committed Lender to make Advances to the Borrower in an amount not to exceed, in the aggregate, the amount set forth opposite such Committed Lender’s name on Annex B or on Schedule I to
the Joinder Agreement related to such Committed Lender as delivered pursuant to Article XV (as such Commitment may be reduced as set forth in Section 2.5 or increased as set forth in Section 2.8), and (b) on
and after the earlier to occur of (i) the Facility Termination Date and (ii) the end of the Revolving Period, such Committed Lender’s pro rata share of all Advances outstanding.
“Committed Lenders” means, for any Lender Group, the Persons executing this Agreement in the capacity of a “Committed
Lender” for such Lender Group and each financial institution which may from time to time become a Committed Lender hereunder by executing and delivering a Joinder Agreement to the Facility Agent, the Collateral Agent, the Services Provider and
the Borrower as contemplated by the terms of this Agreement.
“Competitor” means (a) any Person primarily engaged
in the business of private investment management as a business development company, mezzanine fund, private debt fund, hedge fund or private equity fund, which is in direct or indirect competition with the Borrower or the Services Provider,
(b) any Person controlled by, or controlling, or under common control with, a Person referred to in clause (a) above, or (c) any Person for which a Person referred to in clause (a) above serves as an investment
advisor with discretionary investment authority.
“Conduit Advance Termination Date” means, with respect to a Conduit
Lender, the date of the delivery by such Conduit Lender to the Borrower of written notice that such Conduit Lender elects, in its sole discretion, to permanently cease funding Advances hereunder.
“Conduit Lender” means any Person that shall become a party to this Agreement in the capacity as a “Conduit
Lender” and any assignee of any of the foregoing.
“Connection Income Taxes” means Other Connection Taxes that
are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Constituent
Documents” means, for any Person, its constituent or organizational documents, including: (a) in the case of any limited partnership, joint venture, trust or other form of business entity, the limited partnership agreement, joint
venture agreement, articles of association or other applicable certificate or agreement of registration or formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of
state or other department in the state or jurisdiction of its formation; (b) in the case of any limited liability company, the certificate or articles of formation and operating agreement for such Person; (c) in the case of a corporation
or exempted company, the certificate or articles of incorporation or association and the bylaws for such Person or its memorandum and articles of association; and (d) in the case of any trust, the trust deed, declaration of trust or equivalent
establishing such trust, in each such case as it may be restated, modified, amended or supplemented from time to time.
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“CORRA” means the Canadian Overnight Repo Rate Average administered and
published by the Bank of Canada (or any successor administrator).
“Corporate Trust Office” means the applicable
designated corporate trust office of the Collateral Agent on Annex A, or such other address within the United States as it may designate from time to time by notice to the Facility Agent.
“Cost of Funds Rate” means, for any Accrual Period and any Lender, the lesser of:
(a) such Lender’s Commercial Paper Rate for such day; provided, that if and to the extent that, and only for so long as, a Lender
at any time determines in good faith that it is unable to raise or is precluded or prohibited from raising, or that it is not advisable to raise, funds through the issuance of commercial paper notes in the commercial paper market of the United
States to finance its making or maintenance of its portion of any Advance or any portion thereof (which determination may be based on any allocation method employed in good faith by such Lender), upon notice from such Lender to the Agent for its
Lender Group and the Facility Agent, such Lender’s portion of such Advance shall bear interest at a rate per annum equal to the Alternate Base Rate; and
(b) the Base Rate.
“Covered Entity” means any of the following:
(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning set forth in Section 17.20.
“Critical Component” means, in respect of a weapons system referred to in the definition of Prohibited Defense Asset, a
component used specifically in the production of the weapons system or plays a direct role in the lethality of the weapons system.
“Cut-Off Date” means, with respect to each Collateral Obligation, the date such
Collateral Obligation becomes a part of the Collateral.
“Daily Simple SONIA” means, for any day, SONIA, with the
conventions for this rate (which on any day shall be the daily rate that includes a five Business Day lookback period prior to such day) being established by the Facility Agent in its reasonable discretion in accordance with the conventions for this
rate selected or recommended by the Relevant Governmental Body for
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determining “Daily Simple SONIA” for business loans or conventions that are otherwise used in the United States syndicated lending market for syndicated loans denominated in GBP;
provided that, if the Facility Agent decides that any such convention is not administratively feasible for the Facility Agent, then the Facility Agent may establish another convention in its reasonable discretion.
“DBNY” means Deutsche Bank AG, New York Branch, and its successors.
“Debt-to-Recurring-Revenue Ratio” means, with respect to any Multiple of Recurring Revenue Loan for any period, the meaning
of “Debt-to-Recurring-Revenue Ratio” or any comparable definition in the Underlying Instruments for each Loan, 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 less Unrestricted Cash, to (b) recurring revenue, as calculated by the Services Provider 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 with respect to any Multiple of Recurring Revenue Loan, a Revaluation Event shall occur as set forth in clause (t) of the definition thereof.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.
§§ 252.81, 47.2 or 382.1, as applicable.
“Defaulted Collateral Obligation” means any Collateral Obligation
as to which any one of the following events has occurred:
(a) any Scheduled Collateral Obligation Payment or part thereof is unpaid more
than 2 Business Days beyond the grace period (if any) permitted by the related Underlying Instrument;
(b) an Insolvency Event occurs with
respect to the Obligor thereof;
(c) the Services Provider or the Borrower has actual knowledge (after reasonable inquiry) of a default as
to the payment of principal, interest and/or, solely in the case of a Revolving Loan or a Delayed Drawdown Loan, unutilized/commitment fees (as applicable) that has occurred and continues for more than two Business Days on another loan or other debt
obligation of the same Obligor that is (a) senior or pari passu in right of payment to such Collateral Obligation, (b) either a full recourse obligation of the Obligor or secured by the same collateral securing such Collateral Obligation
and (c) in an amount (whether separately or in the aggregate) in excess of $250,000;
(d) such Collateral Obligation has (x) a
public rating by Standard & Poor’s of “D” or below, or “SD” or (y) a Moody’s probability of default rating (as published by Moody’s) of “C” or, in each case, had such ratings before
they were withdrawn by Standard & Poor’s or Moody’s, as applicable, unless the related Loan is a DIP Loan;
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(e) the Services Provider or the Borrower has actual knowledge (after reasonable inquiry)
that such Collateral Obligation 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 issuer which has (i) a public rating by Standard & Poor’s of
“D” or below, or “SD” or (ii) a Moody’s probability of default rating (as published by Moody’s) of “C”, and in each case such other debt obligation remains outstanding (provided that both
the Collateral Obligation and such other debt obligation are full recourse obligations of the applicable Obligor);
(f) a Responsible
Officer of the Services Provider or the Borrower has received written notice or has actual knowledge (after reasonable inquiry) that a default has occurred under the Underlying Instruments, any applicable grace period has expired and the holders of
such Collateral Obligation have accelerated the repayment of such Collateral Obligation (but only until such default is cured or waived) in the manner provided in the Underlying Instruments; or
(g) the Services Provider determines, in its sole discretion, in accordance with the Servicing Standard, that all or a material portion of such
Collateral Obligation is not collectible or otherwise places such Collateral Obligation on non-accrual status.
“Defaulting
Lender” means any Lender that (i) has failed to fund any portion of the Advances required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (ii) has otherwise failed to pay
over to the Facility Agent, the Collateral Custodian or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless such amount is the subject of a good faith dispute, (iii) has
notified the Borrower, the Services Provider, the Facility Agent, the Collateral Custodian or any Agent that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it
does not intend to comply or has failed to comply with its funding obligations under this Agreement or generally under other agreements in which it commits or is obligated to extend credit, (iv) has failed, within one Business Day after request
by the Facility Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund Advances under this Agreement or (v) has (or has a parent company that has) become or is insolvent or has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding
or appointment.
“Deferrable Collateral Obligation” means a Collateral Obligation that by its terms permits the
deferral or capitalization of payment of accrued and unpaid interest; provided that if, as of any date, such Collateral Obligation no longer permits (under the terms of the related Underlying Instruments) the deferral or capitalization of
payment of accrued, unpaid interest, such Collateral Obligation will cease to be a Deferrable Collateral Obligation as of such date and the Borrower shall promptly provide notice thereof to the Facility Agent.
“Delayed Drawdown Loan” means a Collateral Obligation that (a) permits the related Obligor to request one or more
future advances thereunder, (b) specifies a maximum amount that can be borrowed on one or more fixed borrowing dates, and (c) does not permit the re-borrowing of any amount previously repaid by the Obligor thereunder; provided, that
any such Collateral Obligation will be a Delayed Drawdown Loan only until all commitments by the Borrower to make advances to such Obligor expire, are terminated or are otherwise irrevocably reduced to zero.
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“Determination Date” means the last calendar day of each month, or if
such day is not a Business Day, the next succeeding Business Day.
“DIP Loan” means any Loan made to a
debtor-in-possession pursuant to Section 364 of the Bankruptcy Code having the priority allowed by either Section 364(c) or 364(d) of the Bankruptcy Code and fully secured by senior Liens.
“Discount Factor” means, with respect to each Collateral Obligation and as of any date of determination pursuant to
Section 2.7, the value (expressed as a percentage of par) of such Collateral Obligation as determined by the Facility Agent in its sole discretion in accordance with Section 2.7.
“Distribution Date” means the 26th calendar day of March, June,
September and December of each year or, if such date is not a Business Day, the next succeeding Business Day, commencing in September, 2026.
“Diversity Score” means, as of any day, a single number that indicates collateral concentration in terms of both issuer
concentration and Moody’s Industry Classification group concentration, calculated as set forth in Schedule 1 hereto, as such diversity scores shall be updated by written notice to the Borrower at the option of the Facility Agent in
its sole discretion if Moody’s publishes revised criteria and the application of such revised criteria to this facility is necessary to avoid an increased regulatory capital charge for the Facility Agent or its Affiliates that are Lenders
hereunder.
“Document Checklist” means an electronic or hard copy list delivered by the Borrower (or by the Services
Provider on behalf of the Borrower) to the Collateral Custodian that identifies each of the documents that have been included in or may be requested by any Agent to be included in each Collateral Obligation File and whether such document is an
original or a copy and whether a hard copy or electronic copy will be delivered to the Collateral Custodian related to a Collateral Obligation and includes the name of the Obligor with respect to such Collateral Obligation, in each case as of the
related Funding Date.
“DOL Regulations” means regulations promulgated by the U.S. Department of Labor at 29 C.F.R.
§ 2510.3 101, as modified by Section 3(42) of ERISA, and at 29 C.F.R. § 2550.401c-1.
“Dollar(s)” and
the sign “$” mean the lawful money of the United States of America.
“Dollar Advance” means each
Advance made in Dollars.
“Dollar Lender” means the Persons executing this Agreement (or an assignment or participation
hereof or a Joinder Agreement in accordance with Article XV) in the capacity of a “Dollar Lender”.
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“EBITDA” means, with respect to any period and any Collateral Obligation,
the meaning of “EBITDA,” “Adjusted EBITDA” or any comparable definition in the Underlying Instruments for each such Collateral Obligation. In any case that “EBITDA,” “Adjusted EBITDA” or such
comparable definition is not defined in such Underlying Instruments, an amount, for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Collateral Obligation pursuant to its Underlying Instruments
(determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus interest expense, income taxes, depreciation, amortization and, to the extent approved by the Facility
Agent on a Collateral Obligation by Collateral Obligation basis, any other non-cash charges and organization costs deducted in determining earnings from continuing operations for such period, and, to the extent approved by the Facility Agent on a
Collateral Obligation by Collateral Obligation basis, costs and expenses reducing earnings and other extraordinary non-recurring costs and expenses for such period.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country
which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial
institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative
authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Advance Rate” means, as of any date of determination, (a) the Advances outstanding on such date divided
by (b) the sum of (i) the Adjusted Aggregate Eligible Collateral Obligation Balance on such date plus (ii) the amount of Principal Collections on deposit in the Principal Collection Account on such date.
“Effective Date” has the meaning set forth in Section 6.1.
“Effective Equity” means, as of any day, the greater of (x) the sum of the Principal Balance of each Eligible
Collateral Obligation plus the amount of Principal Collections on deposit in the Principal Collection Account minus the equivalent in Dollars of the outstanding principal amount of all Advances and (y) $0.
“Effective Loan Level LTV” means, with respect to any Enterprise Value Loan or Multiple-of-Recurring-Revenue Loans as of
the related Cut-Off Date, the result of the calculation, made in good faith by the Services Provider in a manner consistent with its underwriting of such Collateral Obligation, at the time the Borrower acquires such Collateral Obligation (calculated
using the most recent financial information of such Obligor received by the Borrower or the Services Provider prior to the Cut-Off Date).
“Effective LTV” means, with respect to any Asset Based Loan as of any date of determination, the product (expressed as a
percentage) of (i) the Principal Balance of such Collateral Obligation divided by (ii) the Appraised Value of such Collateral Obligation as of such date of determination.
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“Eligible Account” means (i) a segregated trust account or
(ii) a segregated direct deposit account, in each case, maintained with a securities intermediary or trust company organized under the laws of the United States of America, or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short term deposit or commercial paper rating of at least A-1 by Standard & Poor’s and P-1 by Moody’s. In either case, such
depository institution or trust company shall have been approved by the Facility Agent, acting in its reasonable discretion, by written notice to the Services Provider. DBNY and State Street Bank and Trust Company are deemed to be acceptable
securities intermediaries to the Facility Agent.
“Eligible Collateral Obligation” means, on any Measurement Date, each
Collateral Obligation that satisfies the following conditions (unless otherwise added (with the consent of the Borrower in its sole discretion) by the Facility Agent or waived by the Facility Agent in its sole discretion in its acknowledgment to the
related Asset Approval Notice):
(a) unless such Collateral Obligation is a Specified First Lien Loan or Specified Broadly Syndicated Loan,
the Facility Agent has delivered an Asset Approval Notice with respect to such Collateral Obligation, which has been acknowledged and agreed by the Borrower;
(b) such Collateral Obligation is a First Lien Loan, a FILO Loan or a Second Lien Loan;
(c) as of the related Cut-Off Date, such Collateral Obligation is not a Defaulted Collateral Obligation;
(d) such Collateral Obligation is not an Equity Security and is not convertible into an Equity Security at the option of the applicable
Obligor or any other Person other than the Borrower;
(e) such Collateral Obligation is not a Structured Finance Obligation or a
participation interest (unless it is a Participation Interest);
(f) such Collateral Obligation is denominated in an Eligible Currency and
is not convertible by the Obligor thereof into any obligation denominated in a currency other than an Eligible Currency;
(g) such
Collateral Obligation is not a single-purpose real estate based loan (unless the related real estate is a hotel, casino or other operating company), a construction loan or a project finance loan;
(h) such Collateral Obligation is not a lease (including a financing lease);
(i) as of the related Cut-Off Date, if such Collateral Obligation is a Deferrable Collateral Obligation, it provides for periodic payments of
interest thereon in cash no less frequently than semi-annually and the portion of interest required to be paid in cash under the terms of the related Underlying Instruments results in the outstanding principal amount of such Collateral Obligation
having an effective rate of current interest paid in cash on such day of not less than (i) if such Deferrable Collateral Obligation is a Fixed Rate Collateral Obligation, 2.50% per annum or (ii) otherwise, 2.50% per annum over
the applicable index;
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(j) as of the related Cut-Off Date, if such Collateral Obligation is a Related Collateral
Obligation, the applicable Affiliate of the Borrower, Services Provider or Equityholder has provided evidence satisfactory to the Facility Agent in its sole discretion that at the time of delivery of the Asset Approval Request with respect to such
Collateral Obligation, such Person has sufficient liquidity to meet the funding obligations of the related Revolving Loan or Delayed Drawdown Loan;
(k) as of the related Cut-Off Date, such Collateral Obligation is not incurred or issued in connection with a merger, acquisition,
consolidation, sale of all or substantially all of the assets of a Person, restructuring or similar transaction, which obligation or security by its terms is required to be repaid within one year of the incurrence thereof with proceeds from
additional borrowings or other refinancings (other than any additional borrowing or refinancing if one or more financial institutions has provided the issuer of such obligation or security with a binding written commitment to provide the same, so
long as (i) such commitment is equal to the outstanding principal amount of such Collateral Obligation and (ii) such committed replacement facility has a maturity of at least one year and cannot be extended beyond such one year maturity
pursuant to the terms thereof);
(l) such Collateral Obligation is not a trade claim, a bond or a Floating Rate Note and the value of such
Collateral Obligation is not primarily derived from an insurance policy;
(m) as of the related Cut-Off Date, such Collateral Obligation
does not have either (x) a public rating by Standard & Poor’s of “D” or below (or such “D” rating was previously withdrawn) or (y) a Moody’s probability of default rating (as published by
Moody’s) of “C” or below (or such “C” rating was previously withdrawn);
(n) as of the related Cut-Off Date,
the Obligor with respect to such Collateral Obligation is an Eligible Obligor;
(o) such Collateral Obligation is not Margin Stock;
(p) such Collateral Obligation is not a security or swap transaction that has payments associated with either payments of interest on and/or
principal of a reference obligation or the credit performance of a reference obligation;
(q) such Collateral Obligation provides for the
periodic payment of cash interest;
(r) such Collateral Obligation has a term to stated maturity that does not exceed 8.1 years;
(s) as of the related Cut-Off Date, such Collateral Obligation is not subject to substantial non-credit related risk, as determined by the
Services Provider in accordance with the Servicing Standard, other than non-credit related risks that have previously been disclosed to the Facility Agent during the process of obtaining the approval of the Facility Agent in the related Asset
Approval Request with respect to such Collateral Obligation;
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(t) the acquisition of such Collateral Obligation will not cause the Borrower to be deemed
to own 5.0% or more of any class of vested voting securities of any Obligor or 25.0% or more of the total equity of any Obligor or any securities that are immediately convertible into or immediately exercisable or exchangeable for 5.0% or more of
any class of vested voting securities of any Obligor or 25.0% or more of the total equity of any Obligor, in each case as determined by the Services Provider;
(u) the Underlying Instrument for which does not contain confidentiality provisions that restrict the ability of the Facility Agent to
exercise its rights under the Transaction Documents, including, without limitation, its rights to review such debt obligation or Participation Interest, the Underlying Instrument and related documents and credit approval file;
(v) the acquisition of which is not in violation of Regulations T, U or X of the FRS Board;
(w) such Collateral Obligation is capable of being transferred to and owned by the Borrower (whether directly or by means of a security
entitlement) and of being pledged, assigned or novated by the owner thereof or of an interest therein (a) subject to customary qualifications for instruments similar to such Collateral Obligation, to the Facility Agent, (b) subject to
customary qualifications for instruments similar to such Collateral Obligation, to any assignee of the Facility Agent permitted or contemplated under this Agreement, (c) subject to customary qualifications for instruments similar to such
Collateral Obligation, to any Person at any foreclosure or strict sale or other disposition initiated by a secured creditor in furtherance of its security interest, and (d) subject to customary qualifications for instruments similar to such
Collateral Obligation, to commercial banks, financial institutions, offshore and other funds (in each case, including transfer permitted by operation of the Uniform Commercial Code);
(x) the proceeds of such Collateral Obligation will not be used to finance activities of the type engaged in by businesses classified under
NAICS Codes 2361 (Residential Building Construction), 2362 (Nonresidential Building Construction), 2371 (Utility System Construction), or 2372 (Land Subdivision); and
(y) the Related Security for such Collateral Obligation is primarily located in one or more Eligible Jurisdictions;
(z) as of the related Cut-Off Date, such Collateral Obligation is not the subject of an offer, exchange or tender by the related Obligor;
(aa) as of the related Cut-Off Date, if such Collateral Obligation is a Participation Interest (other than an Assigned Participation
Interest), the seller thereof has (x) long-term unsecured ratings of at least “Baa1” by Moody’s and “BBB+” by S&P and (y) short-term unsecured ratings of at least “A-1” by S&P and
“P-1” by Moody’s;
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(bb) as of the related Cut-off Date, unless such Collateral Obligation is a Multiple of
Recurring Revenue Loan, such Collateral Obligation had EBITDA greater than or equal to $10,000,000 for the latest fiscal year;
(cc) if
such Collateral Obligation is an Asset Based Loan, the related Underlying Instruments require delivery of a calculation of each related borrowing base in reasonable detail to each lender not less frequently than monthly;
(dd) to the knowledge of the Services Provider (after reasonable inquiry) the proceeds of such Collateral Obligation will not be used
primarily to finance activities within the marijuana industry or the opioid industry, the sale of lethal firearms or Prohibited Defense Assets, the development of adult entertainment, any form of betting and gambling (other than a Permitted Gaming
Industry) or the making or collection of pay day loans, nor will they be used to provide financing to any other industry which is illegal under Applicable Law at the time of acquisition of such Collateral Obligation;
(ee) such Collateral Obligation was originated or acquired in the ordinary course of the Equityholder’s business not primarily for
personal, family or household use;
(ff) such Collateral Obligation is an “instrument” or a “payment intangible”
(each as defined under Article 9 of the UCC);
(gg) such Collateral Obligation and the relevant Underlying Instruments are in full force
and effect, free and clear of any liens (other than Permitted Liens);
(hh) if such Collateral Obligation is an Assigned Participation
Interest, such Assigned Participation Interest has been elevated to a full assignment within the earlier to occur of (x) sixty (60) days of the related Cut-Off Date (or such later date as the Facility Agent in its sole discretion may agree
in writing with the Borrower) and (y) two (2) Business Days following the occurrence of an Unmatured Facility Termination Event or a Facility Termination Event;
(ii) if such Collateral Obligation is a Multiple of Recurring Revenue Loan, (i) as of the related Cut-Off Date (1) it is a First
Lien Loan, (2) the related Obligor has annualized Revenue of at least $25,000,000 (calculated using the most recent financial information of such Obligor received by the Borrower or the Services Provider prior to the Cut-Off Date), (3) it
has a Debt-to-Recurring-Revenue Ratio of less than (x) if such Collateral Obligation has an EBITDA greater than $10,000,000, 3.50x or (y) otherwise, 3.25x and (4) has an Effective Loan Level LTV of less than 50% and (ii) the
EBITDA for the prior twelve calendar months of the related Obligor is not less than $0; and
(jj) such Collateral Obligation is purchased
at a Purchase Price of at least 80% (expressed as a percentage of par).
For purposes of determining compliance with clause (a) of the
definition of “Eligible Collateral Obligation,” the Borrower shall be deemed to have delivered a properly completed Asset Approval Request and the Facility Agent shall be deemed to have delivered an acknowledgment to each such Asset
Approval Request with respect to each Collateral Obligation included in the Collateral Obligation Schedule set forth on Schedule 3 hereto as of the Effective Date.
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“Eligible Currency” means CADs, Dollars, Euros and GBPs.
“Eligible Jurisdiction” means any of (x) the United States or any State thereof, (y) Canada and (z) in each
case as long as it maintains ratings of at least “A3” by Moody’s and “A” by S&P, Australia, Cayman Islands, Germany, Ireland, Luxembourg, New Zealand, Sweden, Switzerland, The Netherlands, the United Kingdom and
each other jurisdiction approved by the Facility Agent in its sole discretion.
“Eligible Obligor” means, on any day,
any Obligor that (i) is a business organization (and not a natural person) that is duly organized and validly existing under the laws of, the United States or any State thereof (or any other Eligible Jurisdiction), (ii) is a legal
operating entity or holding company, (iii) is not an Official Body, (iv) is not insolvent, (v) is required to pay all maintenance, repair, insurance and taxes related to the applicable Collateral Obligation, (vi) is not an
Affiliate of, or controlled by, the Borrower, the Services Provider or the Equityholder, (vii) to the knowledge of the Borrower (after reasonable inquiry), is not a Non-Sustainable Obligor and (viii) to the knowledge of the Borrower (after
reasonable inquiry), is not in a Prohibited Industry; provided that any breach or default of a representation or warranty, or any failure of a representation or warranty to be correct in all material respects, in each case, resulting from a
good faith error with respect to clause (vii) and clause (viii) hereof, shall not constitute an Unmatured Facility Termination Event or a Facility Termination Event so long as, no later than three Business Days from the date
on which written notice of such default, breach or failure shall have been given to the Services Provider or the Services Provider obtains actual knowledge of such default, breach or failure, the Borrower sells the related Collateral Obligation in
accordance with Section 7.11 to the extent permitted thereunder.
“Enterprise Value Loan” means any Loan
that is not an Asset Based Loan or a Multiple of Recurring Revenue Loan; provided that, with respect to any Loan that was a Multiple of Recurring Revenue Loan (for which the covenants set forth in the related Underlying Instrument relate to a
“Debt-to-Recurring-Revenue Ratio” or comparable term) as of the Cut-Off Date but subsequently became an Enterprise Value Loan (for which the covenants set forth in the related Underlying Instrument relate to a “Leverage
Multiple” or comparable term), the Borrower shall provide notice of such transition to the Facility Agent and the Facility Agent may, in its sole discretion, upon written notice to the Borrower, deem such Loan to be an Enterprise Value Loan
hereunder (it being understood that any such Loan shall remain a Multiple of Recurring Revenue Loan pending such approval by the Facility Agent as an Enterprise Value Loan and such approval shall be subject to such terms as the Facility Agent may
require in its sole discretion as a condition of such approval).
“Environmental Laws” means any and all foreign,
federal, state and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations and orders of courts or any other Official Body, relating to the protection of human health or the environment, including
requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials. Environmental Laws include the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. § 331 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601
et
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seq.), the Safe Drinking Water Act (42 U.S.C. § 300, et seq.), the Environmental Protection Agency’s regulations relating to underground storage tanks (40 C.F.R. Parts
280 and 281), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), and the rules and regulations thereunder, each as amended or supplemented from time to time.
“Equity Cure Notice” means a notice from the Equityholder to the Facility Agent which satisfies each of the following
conditions:
(a) such notice is delivered to the Facility Agent not later than two (2) Business Days after the occurrence of an event
specified in Section 13.1(e) or Section 13.1(p);
(b) such notice sets forth evidence reasonably satisfactory to
the Facility Agent that the Equityholder has received capital subscriptions from investors during the current calendar month in an aggregate amount sufficient to cure such event, and the proceeds of such capital subscriptions will be contributed by
the Equityholder to the Borrower; and
(c) no more than two (2) other Equity Cure Notices have been delivered within the previous
twelve (12) calendar months;
provided that on and after the date on which the Equityholder is no longer raising funds from
investors, the Equityholder shall not be permitted to provide any Equity Cure Notice pursuant to this Agreement.
“Equityholder” means (i) initially, Blue Owl Technology Finance Corp., a Maryland corporation and (ii) following
an Equityholder Credit Event Cure, the Successor Equityholder.
“Equityholder Credit Event” means an event that occurs
if no Equityholder Credit Event Cure has occurred within fifteen (15) Business Days following an Unmatured Equityholder Credit Event.
“Equityholder Credit Event Cure” means an event that occurs if, within fifteen (15) Business Days following an
Unmatured Equityholder Credit Event, the Equityholder transfers the equity ownership of the Borrower to a Successor Equityholder.
“Equity Security” means any asset that is not a First Lien Loan, a FILO Loan, a Multiple of Recurring Revenue Loan, an Asset
Based Loan, a Specified Broadly Syndicated Loan, a Second Lien Loan or Permitted Investment.
“ERISA” means the U.S.
Employee Retirement Income Security Act of 1974, as amended from time to time, including all regulations promulgated thereunder.
“ERISA Affiliate” means any Person that, for purposes of Title IV of ERISA, is a member of the Borrower’s
“controlled group” or is under “common control” with the Borrower, within the meaning of Section 414 of the Code.
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“ERISA Event” means (a) the occurrence with respect to a Plan of a
reportable event, within the meaning of Section 4043 of ERISA, unless the thirty (30)-day notice requirement with respect thereto has been waived by the PBGC; (b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent to terminate such a Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a Plan during a
plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions set forth in Section 430(k) of the Code or Section 303(k)(1)(A) and (B) of ERISA to the creation of a lien upon
property or assets or rights to property or assets of the Borrower or any ERISA Affiliate for failure to make a required payment to a Plan are satisfied; (g) the termination of a Plan by the PBGC pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan; (h) any failure by any Plan to satisfy the minimum funding
standards of Sections 412 or 430 of the Code or Section 302 of ERISA, whether or not waived; (i) the determination that any Plan is or is expected to be in “at-risk” status, within the meaning of Section 430 of the Code or
Section 303 of ERISA, (j) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of liability with
respect to the withdrawal or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), in “endangered”
or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A or Section 4042 of ERISA); (k) the failure of the Borrower or any
ERISA Affiliate to pay when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal liability under Section 4201 of ERISA; (l) the Borrower or any ERISA Affiliate incurs any liability under
Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); or (m) the Borrower or any ERISA Affiliate commits any act (or omission) which could give rise to the imposition of fines,
penalties, taxes, or related charges under ERISA or the Code.
“EU Bail-In Legislation Schedule” means the EU Bail-In
Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR Rate” means, with respect to any Accrual Period, the greater of (a) 0.00% and (b) the rate per
annum shown by the Reuters Screen (or any applicable successor page) that displays an average European Money Markets Institute Settlement Rate for deposits in Euros for a period equal to three (3) months as of 11:00 a.m., Brussels time, two
(2) Business Days prior to the first day of such Accrual Period; provided, that in the event no such rate is shown, the EURIBOR Rate shall be the rate per annum based on the rates at which Euro deposits for a period equal to three
(3) months are displayed on page “EURIBOR” of the Reuters Screen (or any applicable successor page) for the purpose of displaying Euro interbank offered rates of major banks as of 11:00 a.m., Brussels time, two (2) Business
Days prior to the first day of such Accrual Period (it being understood that if at least two such rates appear on such page, the rate will be the arithmetic mean of such displayed rates); provided, further, that in the event fewer than
two such rates are displayed, or if no such rate is relevant, the EURIBOR Rate shall be a rate per annum at which deposits in Euros are offered by the principal office of the Facility Agent in Brussels, Belgium to prime banks in the euro
interbank market at 11:00 a.m. (Brussels time) two (2) Business Days before the first day of such Accrual Period for delivery on such first day and for a period equal to three (3) months.
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“Euro”, “Euros”, “euro” and
“€” mean the lawful currency of the Member States of the European Union that have adopted and retain the single currency in accordance with the treaty establishing the European Community, as amended from time to time;
provided, that if any member state or states ceases to have such single currency as its lawful currency (such member state(s) being the “Exiting State(s)”), such term shall mean the single currency adopted and retained as
the lawful currency of the remaining member states and shall not include any successor currency introduced by the Exiting State(s).
“Euro Advance” means each Advance made in Euros.
“Euro Lender” means the Persons executing this Agreement (or an assignment hereof or a Joinder Agreement in accordance with
Article XV) in the capacity of a “Euro Lender”.
“Exceptions” has the meaning set forth in
Section 18.4(b).
“Excess Concentration Amount” means, during the Revolving Period, as of the most recent
Measurement Date (and after giving effect to all Eligible Collateral Obligations to be purchased or sold by the Borrower on such date), the sum, without duplication, of the following amounts, in each case multiplied by the Discount Factor
applicable to each such individual Collateral Obligation:
(a) the excess, if any and without duplication, of the sum of the Principal
Balances of all Collateral Obligations that are not First Lien Loans over 20.0% of the Excess Concentration Measure; provided, that no more than 5.0% of the Excess Concentration Measure can consist of Second Lien Loans (excluding for the
purpose of this proviso all First Lien Loans and FILO Loans that are deemed to be Second Lien Loans but including for the purpose of this proviso FILO Loans with an attaching Leverage Multiple equal to or greater than 2.5x);
(b) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are obligations of any single Obligor (other
than an Obligor described in the following proviso) over 5.0% of the Excess Concentration Measure; provided, that with respect to any three Obligors that represent Principal Balances of all Collateral Obligations in excess of all other single
Obligors, the sum of the Principal Balances of all Collateral Obligations that are obligations of each of such Obligors may be up to 7.5% of the Excess Concentration Measure;
(c) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations in any single Moody’s Industry Classification
(other than (x) a Moody’s Industry Classification described in the following proviso, (y) the “Corp-Energy: Oil & Gas”, “Corp-Metals & Mining” and “Corp-Utilities: Oil &
Gas” Moody’s Industry Classifications, which may not have Collateral Obligations with Principal Balances in excess of 10.0% of the Excess Concentration Measure in the aggregate and (z) the “Corp: Retail” Moody’s
Industry Classification, which may not have Collateral Obligations with Principal Balances in excess of 10.0% of the Excess Concentration Measure in the aggregate) over 12.0% of the Excess Concentration Measure; provided, that (i) the
sum of the Principal Balances of all Collateral Obligations with an Obligor in any Moody’s Industry Classification in excess of all other
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Moody’s Industry Classifications may be up to 35.0% of the Excess Concentration Measure, (ii) the sum of the Principal Balances of all Collateral Obligations with an Obligor (other
than an Obligor specified in clause (i)) in any Moody’s Industry Classification in excess of all other Moody’s Industry Classifications may be up to 25.0% of the Excess Concentration Measure, (iii) the sum of the Principal
Balances of all Collateral Obligations with an Obligor (other than an Obligor specified in clauses (i) and (ii)) in any Moody’s Industry Classification in excess of all other Moody’s Industry Classifications may be up
to 20.0% of the Excess Concentration Measure and (iv) the sum of the Principal Balances of all Collateral Obligations with an Obligor (other than an Obligor specified in clauses (i), (ii) and (iii)) in any
Moody’s Industry Classification in excess of all other Moody’s Industry Classifications may be up to 15.0% of the Excess Concentration Measure;
(d) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are Fixed Rate Collateral Obligations that are
not subject to a qualifying Hedging Agreement pursuant to Section 10.6 over 10.0% of the Excess Concentration Measure;
(e)
the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are Deferrable Collateral Obligations over 17.5% of the Excess Concentration Measure (excluding, however, any Collateral Obligation that provides for
periodic payments of interest thereon in cash no less frequently than semi-annually and the portion of interest required to be paid in cash under the terms of the related Underlying Instruments results in the outstanding principal amount of such
Collateral Obligation (including any previously deferred and capitalized interest) having a minimum required rate of current interest paid in cash on such day of not less than (i) if such Deferrable Collateral Obligation is a Fixed Rate
Collateral Obligation, 3.75% per annum or (ii) otherwise, 3.75% per annum over the applicable index rate); provided that the sum of the Principal Balances of all Collateral Obligations that are Deferrable
Collateral Obligations with an effective rate of current interest paid in cash of less than (i) if such Deferrable Collateral Obligation is a Fixed Rate Collateral Obligation, 2.50% per annum or (ii) otherwise,
2.50% per annum over the applicable index rate, in the aggregate, shall not exceed 5.0% of the Excess Concentration Measure;
(f) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are Revolving Loans or Delayed Drawdown Loans
over 15.0% of the Excess Concentration Measure;
(g) the excess, if any, of the sum of the Principal Balances of all Collateral
Obligations that are DIP Loans over 5.0% of the Excess Concentration Measure;
(h) the excess, if any, of the sum of the Principal
Balances of all Collateral Obligations for which the Obligor is organized in an Eligible Jurisdiction other than the United States over 10.0% of the Excess Concentration Measure (excluding for this purpose Collateral Obligations of any Obligor that
is organized in an Eligible Jurisdiction other than the United States that has its principal place of business or headquarters in the United States or derives at least 66% (or such other amount agreed to by the Facility Agent in its sole discretion)
of its revenue from within the United States);
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(i) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations
denominated in an Eligible Currency other than Dollars over 10.0% of the Excess Concentration Measure;
(j) the excess, if any, of the sum
of the Principal Balances of all Collateral Obligations that are Enterprise Value Loans but not Multiple of Recurring Revenue Loans with respect to which the EBITDA for the prior twelve calendar months of the related Obligor is less than $15,000,000
but greater than or equal to $10,000,000 over 10.0% of the Excess Concentration Measure; provided, that no more than 5.0% of the Excess Concentration Measure may consist of Second Lien Loans with respect to which the EBITDA for the prior
twelve calendar months of the related Obligor is less than $15,000,000 but greater than or equal to $10,000,000;
(k) the excess, if any,
of the sum of the Principal Balances of all Collateral Obligations that have a remaining term to stated maturity in excess of seven years over 15.0% of the Excess Concentration Measure;
(l) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are Assigned Participation Interests (other
than Assigned Participation Interests owned by the Borrower as of the date of the initial Advance hereunder) over 20.0% of the Excess Concentration Measure; provided that no more than 5.0% of the Excess Concentration Measure may consist of
Participation Interests and Assigned Participation Interests (including without limitation Assigned Participation Interests owned by the Borrower as of the date of the initial Advance hereunder) that have not been elevated within forty-five
(45) days of the related Cut-Off Date;
(m) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations
that are in the defense industry (other than a Prohibited Defense Asset) over 7.5% of the Excess Concentration Measure;
(n) the excess,
if any, of the sum of the Principal Balances of all Collateral Obligations that are in a Permitted Gaming Industry over 7.5% of the Excess Concentration Measure; and
(o) the excess, if any, of the sum of the Principal Balances of all Collateral Obligations that are Multiple of Recurring Revenue Loans over
7.5% of the Excess Concentration Measure.
The Excess Concentration Amount shall be allocated pro rata to each Collateral Obligation
constituting excess. After the end of the Revolving Period, (i) the Excess Concentration Amount shall be such Excess Concentration Amount determined as of the first Business Day after the Revolving Period, and (ii) any Principal
Collections received with respect to any Collateral Obligation included in such Excess Concentration Amount shall reduce the Excess Concentration Amount by the pro rata portion applied to such Collateral Obligation pursuant to the preceding sentence
until the Excess Concentration Amount is zero.
“Excess Concentration Measure” means (i) during the applicable
Ramp-up Period, the Target Portfolio Amount and (ii) after the applicable Ramp-up Period, the sum of (x) the Principal Balances for all Eligible Collateral Obligations, (y) all Principal Collections on deposit in the Principal
Collection Account and (z) all amounts on deposit in the Unfunded Exposure Account.
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“Excess Funds” means, as of any date of determination and with respect to
any Conduit Lender, funds of such Conduit Lender not required, after giving effect to all amounts on deposit in its commercial paper account, to pay or provide for the payment of (i) all of its matured and maturing commercial paper notes on
such date of such determination and (ii) the principal of and interest on all of its loans outstanding on such date of such determination.
“Excluded Amounts” means (i) any amount received in the Collection Account with respect to any Collateral Obligation,
which amount is attributable to the reimbursement of payment by the Borrower of any Tax, fee or other charge imposed by any Official Body on such Collateral Obligation or on any Related Security, (ii) any interest or fees (including
origination, agency, structuring, management or other up-front fees) that are for the account of the applicable Person from whom the Borrower purchased such Collateral Obligation, (iii) any reimbursement of insurance premiums, (iv) any
escrows relating to Taxes, insurance and other amounts in connection with Collateral Obligations which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under Underlying Instruments,
(v) any amount deposited into the Collection Account in error (including any amounts relating to any portion of an asset sold by the Borrower and occurring after the date of such sale) or (vi) payments by the Obligors of indemnification
obligations and reimbursements for actually incurred out-of-pocket expenses, in each case that are not received in lieu of principal, interest or fees owed under the related Underlying Instruments.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or
deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws
of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case
of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Obligations pursuant to a law in effect on the date on which (i) such Lender acquires such
interest in the Obligations (other than pursuant to Section 17.16(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.3, 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 4.3(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Executive Officer”
means, with respect to the Borrower, the Services Provider or the Equityholder, the Chief Executive Officer, the Chief Operating Officer, the Executive Vice President of such Person or any other Person included on the incumbency of the Borrower,
Services Provider or Equityholder, as applicable, delivered pursuant to Section 6.1(g) and, with respect to any other Person, the President, Chief Financial Officer, Executive Vice President or any Vice President.
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“Extension Request” has the meaning set forth in Section 2.6.
“Facility” means the loan facility to be provided to the Borrower pursuant to, and in accordance with, this Agreement.
“Facility Agent” has the meaning set forth in the Preamble.
“Facility Amount” means (a) prior to the end of the Revolving Period, $150,000,000, unless this amount is permanently
reduced pursuant to Section 2.5 or increased pursuant to Section 2.8, in which event it means such lower or higher amount and (b) from and after the end of the Revolving Period, the Advances outstanding.
“Facility Termination Date” means the earliest of (i) the date that is two (2) years after the last day of the
Revolving Period, (ii) the date on which the term of the Equityholder’s existence ends and (iii) the effective date on which the facility hereunder is terminated pursuant to Section 13.2.
“Facility Termination Event” means any of the events set forth in Section 13.1.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any
intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation or practice enacted or promulgated pursuant to such intergovernmental agreement.
“Federal Funds Rate” means, for any period, the greater of (a) 0.0% and (b) a fluctuating rate per annum
equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Facility Agent from three federal funds
brokers of recognized standing selected by it.
“Fee Letter” has the meaning set forth in Section 8.4.
“Fees” has the meaning set forth in Section 8.4.
“FILO Loan” means any Loan that (i) becomes, by its terms, subordinate in right of payment to one or more other
obligations of the related Obligor, in each case issued under the same Underlying Instruments as such Loan, in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, (ii) is secured by a pledge of
collateral, which security interest is validly perfected and first priority under Applicable Law (subject to liens permitted under the applicable credit agreement that are reasonable for similar loans, and liens accorded priority by law in favor of
any Official Body), and (iii) the Services Provider determines in good faith that the value of the collateral or the enterprise value securing the loan on or about the time of acquisition equals or exceeds the outstanding principal balance of
the loan plus the aggregate outstanding balances of all other loans of equal or higher seniority secured by the same
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collateral; provided that, FILO Loans with an attaching Leverage Multiple of less than 1.25x (unless specified in the loan approval notice by the Facility Agent (in its sole discretion))
will be treated as a First Lien Loan; provided, further, that FILO Loans with an attaching Leverage Multiple greater than 2.5x will be treated as Second Lien Loans.
“First Lien Loan” means any Loan that (i) is not (and is not expressly permitted by its terms to become) subordinate
in right of payment to any obligation of the Obligor in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, (ii) is secured by a pledge of collateral, which security interest is validly perfected and
first priority under Applicable Law (subject to liens permitted under the applicable credit agreement that are reasonable for similar loans, and liens accorded priority by law in favor of any Official Body), and (iii) the Services Provider
determines in good faith that the value of the collateral for such loan or the enterprise value securing the loan on or about the time of acquisition equals or exceeds the outstanding principal balance of the loan plus the aggregate outstanding
balances of all other loans of equal or higher seniority secured by a first priority Lien over the same collateral; provided, that any Loan that is deemed to be a First Lien Loan as provided in the definition of “FILO Loan” shall
be deemed to be a First Lien Loan for all purposes hereunder; provided, further, that with respect to any First Lien Loans with Leverage Multiples greater than or equal to 4.5x as of the Cut-Off Date, the portion of such Loan with a
Leverage Multiple greater than 4.5x as of the Cut-Off Date (or, with respect to Loans in “high leverage” industries, such higher Leverage Multiple as approved by the Facility Agent in its sole discretion after consultation with the
Services Provider) will be treated as a Second Lien Loan. DIP Loans shall constitute First Lien Loans.
“Fitch” means
Fitch Ratings, Inc., Fitch Ratings Ltd. and their subsidiaries, including Derivative Fitch Inc. and Derivative Fitch Ltd. and any successor thereto.
“Fixed Rate Collateral Obligation” means any Collateral Obligation that bears a fixed rate of interest.
“Foreign Currency Advance Amount” means, on any Measurement Date, the sum of (a) the equivalent in Dollars of the
aggregate principal amount of all Advances denominated in Euros outstanding on such date, as determined by the Services Provider using the Applicable Conversion Rate plus (b) the equivalent in Dollars of the aggregate principal amount of
all Advances denominated in GBP outstanding on such date, as determined by the Services Provider using the Applicable Conversion Rate, plus (c) the equivalent in Dollars of the aggregate principal amount of all Advances denominated in
CAD outstanding on such date, as determined by the Services Provider using the Applicable Conversion Rate, in each case after giving effect to all repayments of Advances and the making of new Advances on such date.
“Foreign Currency Sublimit” means, on any Measurement Date and with respect to any Eligible Currency (other than Dollars),
a Dollar amount equal to the product of 25% and the Facility Amount on such date.
“Floating Rate Note” means a
floating rate note issued pursuant to an indenture or equivalent document by a corporation, partnership, limited liability company, trust or other person that is secured by a first or second priority perfected security interest or lien in or on
specified collateral securing the issuer’s obligations under such note.
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“Foreign Lender” means a Lender that is not a U.S. Person.
“FRS Board” means the Board of Governors of the Federal Reserve System and, as applicable, the staff thereof.
“Fundamental Amendment” means any amendment, modification, waiver or supplement of or to this Agreement that would have a
material adverse effect on any Lender and (a) increase or extend the term of the Commitments (other than an increase in the Commitment of another Lender or the addition of a new Lender) or change the Facility Termination Date, (b) extend
the date fixed for the payment of principal of or interest on any Advance or any fee hereunder, in each case owing to such Lender, (c) reduce the amount of any such payment of principal or interest owing to such Lender, (d) reduce the rate
at which interest is payable to such Lender or any fee is payable hereunder to such Lender, excluding in each case, any such reduction as a result of a full or partial waiver of interest or fees accruing at a default rate imposed during a Facility
Termination Event or a result of a waiver of a Facility Termination Event, (e) release any material portion of the Collateral, except in connection with dispositions permitted hereunder, (f) alter the terms of Section 2.4(a),
Section 8.3, or Section 17.2 or any related definitions or provisions in a manner that would alter the effect of such Sections, (g) modify the definition of the “Required Lenders” or modify in any other
manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof, (h) modify the definition of the terms “Advance Rate”, “Borrowing Base”,
“Eligible Collateral Obligation”, “Eligible Jurisdiction”, “Excess Concentration Amount”, “Facility Termination Date”, “First Lien Loan”, “Fundamental Amendment”, “Maximum
Portfolio Advance Rate”, or “Minimum Equity Condition”, or any defined term used therein, in each case in a manner which would have the effect of making more credit available to the Borrower, or make such provision less restrictive
on the Borrower in any other material fashion or (i) extend the Revolving Period.
“Funding Date” means any
Advance Date or any Reinvestment Date, as applicable.
“FX Evaluation Date” means (a) each Funding Date,
(b) each Determination Date, (c) the date on which any Event of Default occurs and (d) each other date requested by the Facility Agent in its reasonable discretion.
“FX Reallocation Notice” has the meaning set forth in Section 2.2(d)(ii).
“GAAP” means generally accepted accounting principles in the United States, which are applicable to the circumstances as of
any day.
“GBP” means the lawful currency for the time being of the United Kingdom.
“GBP Advance” means each Advance made in GBP.
“GBP Lender” means the Persons executing this Agreement (or an assignment hereof or a Joinder Agreement in accordance with
Article XV) in the capacity of a “GBP Lender”.
“GBSA” means the German Act on the Ring-fencing of
Risks and for the Recovery and Resolution Planning for Credit Institutions and Financial Groups (Gesetz zur Abschirmung von Risiken und zur Planung der Sanierung und Abwicklung von Kreditinstituten und Finanzgruppen) of 7 August 2013
(commonly referred to as the German Bank Separation Act) (Trennbankengesetz), as amended.
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“Hazardous Materials” means all materials subject to any Environmental
Law, including materials listed in 49 C.F.R. § 172.101, materials defined as hazardous pursuant to § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, flammable, explosive or
radioactive materials, hazardous or toxic wastes or substances, lead-based materials, petroleum or petroleum distillates or asbestos or material containing asbestos, polychlorinated biphenyls, radon gas, urea
formaldehyde and any substances classified as being “in inventory”, “usable work in process” or similar classification that would, if classified as unusable, be included in the foregoing definition.
“Hedge Breakage Costs” means, with respect to each Hedge Counterparty upon the early termination of any Hedge Transaction
with such Hedge Counterparty, the net amount, if any, payable by the Borrower to such Hedge Counterparty for the early termination of that Hedge Transaction or any portion thereof.
“Hedge Counterparty” means (a) DBNY and its Affiliates and (b) any other entity that (i) on the date of
entering into any Hedge Transaction (x) is an interest rate swap dealer that has been approved in writing by the Facility Agent, and (y) has a long-term unsecured debt rating of not less than
“A” by S&P, not less than “A2” by Moody’s and not less than “A” by Fitch (if such entity is rated by Fitch) (the “Long-term Rating Requirement”)
and a short-term unsecured debt rating of not less than “A-1” by S&P, not less than “P-1” by
Moody’s and not less than “Fl” by Fitch (if such entity is rated by Fitch) (the “Short-term Rating Requirement”), and (ii) in a Hedging Agreement (x) consents to
the assignment hereunder of the Borrower’s rights under the Hedging Agreement to the Facility Agent on behalf of the Secured Parties and (y) agrees that in the event that Moody’s, S&P or Fitch reduces its long-term unsecured debt rating below the Long-term Rating Requirement or reduces it short-term debt rating below the Short-term Rating Requirement, it shall either collateralize its obligations in a manner reasonably satisfactory to the Facility Agent, or transfer its rights and obligations under each Hedging Agreement (excluding,
however, any right to net payments or Hedge Breakage Costs under any Hedge Transaction, to the extent accrued to such date or to accrue thereafter and owing to the transferring Hedge Counterparty as of the date of such transfer) to another entity
that meets the requirements of clauses (b)(i) and (b)(ii) hereof and has entered into a Hedging Agreement with the Borrower on or prior to the date of such transfer.
“Hedge Transaction” means each interest rate swap, index rate swap or interest rate cap transaction or comparable
derivative arrangement between the Borrower and a Hedge Counterparty that is entered into pursuant to Section 10.6 and is governed by a Hedging Agreement.
“Hedging Agreement” means the agreement between the Borrower and a Hedge Counterparty that governs one or more Hedge
Transactions entered into by the Borrower and such Hedge Counterparty pursuant to Section 10.6 which agreement shall consist of a “Master Agreement” in a form published by the International Swaps and Derivatives
Association, Inc., together with a “Schedule” thereto, and each “Confirmation” thereunder confirming the specific terms of each such Hedge Transaction or a “Confirmation” that incorporates the terms of such a
“Master Agreement” and “Schedule.”
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“Increased Costs” means collectively, any increased cost, loss or
liability owing to the Facility Agent and/or any other Affected Person under Article V of this Agreement.
“Indebtedness” means, with respect to any Person, at any day, without duplication: (i) all obligations of such Person
for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes, deferrable securities or other similar instruments; (iii) all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of business; (iv) all obligations of such Person as lessee under capital leases; (v) all non-contingent obligations of such Person to reimburse or prepay any bank or
other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument; (vi) all debt of others secured by a Lien on any asset of such Person, whether or not such debt is assumed by such Person; and
(vii) all debt of others guaranteed by such Person and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person or otherwise to assure a creditor against loss other than any unfunded
commitments of the Borrower with respect to Revolving Loans and Delayed Drawdown Loans.
“Indemnified Amounts” has the
meaning set forth in Section 16.1.
“Indemnified Party” has the meaning set forth in
Section 16.1.
“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.
“Independent Accountants” means a firm of nationally recognized independent certified public accountants.
“Independent Manager” means an individual who has prior experience as an independent director, independent manager or
independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, Puglisi & Associates, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management
Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Managers, another nationally-recognized company reasonably approved by the Facility Agent, in each case that is not an Affiliate of the
Borrower and that provides professional Independent Managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while
serving as Independent Manager be, any of the following:
(a) a member, partner, equityholder, manager, director, officer or employee of
the Borrower, the Equityholder, or any of their respective equityholders or Affiliates (other than as an Independent Manager of the Borrower or an Affiliate of the Borrower that is not in the direct chain of ownership of the Borrower and that is
required by a creditor to be a single purpose bankruptcy remote entity; provided that such Independent Manager is employed by a company that routinely provides professional Independent Managers or managers in the ordinary course of its
business);
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(b) a creditor, supplier or service provider (including provider of professional services)
to the Borrower, the Equityholder, or any of their respective equityholders or Affiliates (other than a nationally-recognized company that routinely provides professional Independent Managers and other corporate services to the Borrower, the
Equityholder or any of their respective Affiliates in the ordinary course of its business);
(c) a family member of any such member,
partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or
(d) a Person that controls
(whether directly, indirectly or otherwise) any of (a), (b) or (c) above.
“Information” has the meaning set
forth in Section 17.14(b).
“Insolvency Event” means, with respect to any Person, (a) the entry of a
decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable federal or state bankruptcy, winding-up, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person’s affairs, or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or
state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days; (b) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or such Person shall admit in writing its
inability to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing or (c) any analogous procedure or step is taken in any jurisdiction to which such Person is subject.
“Instrument” has the meaning given such term in the UCC.
“Interest Collection Account” means the collective reference to the segregated, non-interest bearing securities accounts
(within the meaning of Section 8-501 of the UCC), which are created and maintained on the books and records of the Securities Intermediary identified as interest collection accounts in the name of the Borrower and subject to the prior Lien of
the Collateral Agent for the benefit of the Secured Parties, which is established and maintained pursuant to Section 8.1(a).
“Interest Collections” means, with respect to the Collateral following the applicable Cut-Off Date, (i) all payments
and collections owing to or received by the Borrower in its capacity as lender and attributable to interest on any Collateral Obligation or other Collateral, including scheduled payments of interest and payments of interest relating to principal
prepayments, all guaranty payments attributable to interest and proceeds of any liquidations, sales, dispositions or
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securitizations attributable to interest on such Collateral Obligation or other Collateral, (ii) any commitment, ticking, upfront, underwriting, origination or amendment fees received in
respect of any Collateral Obligation (including any proceeds received by the Borrower as a result of exercising any Warrant Asset at any time), (iii) all payments received by the Borrower pursuant to any Hedging Agreement that is an interest
rate cap transaction and (iv) the earnings on Interest Collections in the Collection Account that are invested in Permitted Investments, in each case other than Retained Interests; provided that, any amounts received in respect of any
Defaulted Collateral Obligation will constitute Principal Collections (and not Interest Collections) until the aggregate of all collections in respect of such Defaulted Collateral Obligation since it became a Defaulted Collateral Obligation equals
the outstanding principal balance of such Collateral Obligation at the time it became a Defaulted Collateral Obligation.
“Interest Coverage Ratio” means, with respect to any Loan for any period of time, the meaning of “Interest Coverage
Ratio” or any comparable definition in the Underlying Instruments for such Loan, and in any case that “Interest Coverage Ratio” or such comparable definition is not defined in such Underlying Instruments, the ratio of
(a) EBITDA to (b) total interest expense, as calculated by the Services Provider in good faith 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 Underlying Instruments.
“Interest
Rate” means, for any Accrual Period and any Lender, a rate per annum equal to the sum of (a) the Applicable Margin and (b) the Cost of Funds Rate for such Accrual Period and such Lender.
“IRS” means the United States Internal Revenue Service.
“Joinder Agreement” means an agreement among the Borrower, a Committed Lender and the Facility Agent in the form of
Exhibit E to this Agreement (appropriately completed) delivered in connection with a Person becoming a Committed Lender hereunder after the Effective Date, as contemplated by the terms of this Agreement, a copy of which shall be delivered to
the Collateral Agent and the Services Provider.
“Lender” means each Conduit Lender, each Committed Lender and each
Uncommitted Lender, and each Dollar Lender, each Euro Lender, each GBP Lender and each CAD Lender, in each case as the context may require.
“Lender Group” means each Lender and related Agent from time to time party hereto.
“Leverage Multiple” means, with respect to any Collateral Obligation for the most recent relevant period of time for which
the Borrower has received the financial statements of the relevant Obligor, the ratio of (i) Indebtedness of the relevant Obligor (other than Indebtedness of such Obligor that is junior in terms of payment or lien subordination (including
unsecured Indebtedness) to Indebtedness of such Obligor held by the Borrower) less unrestricted cash of the relevant Obligor to (ii) EBITDA of such Obligor (as such calculation may be updated in connection with a modification of such Collateral
Obligation described in clause (j) of the definition of “Material Modification”).
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“Lien” means any security interest, lien, charge, pledge, preference,
equity or encumbrance of any kind, including Tax liens, mechanics’ liens and any liens that attach by operation of law.
“Loan” means any commercial loan.
“Loan Register” has the meaning set forth in Section 15.5(a).
“Loan Registrar” has the meaning set forth in Section 15.5(a).
“Make-Whole Effective Date” means (1)(a) the Effective Date and (b) thereafter, upon any increase of the Facility
Amount (in an amount not less than an aggregate of $50,000,000) pursuant to Section 2.8, the effective date of such increase and (2) a Permitted Securitization Closing Date.
“Make-Whole Fee” means a fee in an amount accruing during the Revolving Period, for each day during the related Accrual
Period, equal to (1) the Applicable Margin in effect on such day divided by 360 multiplied by (2) the excess, if any, of (x) the product of the Make-Whole Fee Percentage applicable on such day and the aggregate average
daily Commitment of the applicable Lender Group during the related Accrual Period over (y) the daily average Advances funded by the applicable Lender Group during such Accrual Period minus (3) the Undrawn Fee accrued on such
day with respect to the amount of the unutilized Commitment for which a Make-Whole Fee is owing.
“Make-Whole Fee
Percentage” means, with respect to any day (a) prior to the four-month anniversary of the Make-Whole Effective Date, 25%, (b) on and after the four-month anniversary of the Make-Whole Effective Date and prior to the nine-month
anniversary of the Make-Whole Effective Date, 50% and (c) on and after the nine-month anniversary of the Make-Whole Effective Date and prior to the end of the Revolving Period, 60%.
“Margin Stock” means “Margin Stock” as defined under Regulation U.
“Market Value” means, with respect to any Specified Broadly Syndicated Loan (expressed as a percentage of par), the lowest
of (i) 100%, (ii) the Purchase Price of such Specified Broadly Syndicated Loan and (iii) the amount determined by the Services Provider equal to (x) the bid-side quote determined with respect to such Loan by IHS Markit Ltd.,
LoanX Mark-It-Partners, Thomson Reuters LPC, Loan Pricing Corporation or any other available nationally recognized pricing service selected by the Services Provider or (y) if the quote described in clause (i) is not available,
(A) if three (3) or more bid-side quotes are available from broker dealers that are independent of one another and of the Borrower and the Services Provider and active in the trading of such assets, the average of such quotes will be used
or (B) if only two (2) such quotes are available, the lower of such two quotes will be used.
“Material
Action” means an action to institute proceedings to have the Borrower be adjudicated bankrupt or insolvent, to file any insolvency case or proceeding, to institute proceedings under any applicable insolvency law, to seek relief under any
law relating to relief from debts or the protection of debtors, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower or file a petition seeking, or consent to, reorganization or relief with respect to the
Borrower under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or a substantial part of its property, or
make any assignment for the benefit of creditors of the Borrower, or admit in writing the Borrower’s inability to pay its debts generally as they become due, or take action in furtherance of any such action.
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“Material Adverse Effect” means a material adverse effect on:
(a) the assets, operations, properties, financial condition, or business of the Borrower or the Services Provider; (b) the ability of the Borrower or the Services Provider to perform its obligations under this Agreement or any of the other
Transaction Documents; (c) the validity or enforceability of this Agreement, any of the other Transaction Documents, or the rights and remedies of the Secured Parties hereunder or thereunder taken as a whole; or (d) the aggregate value of
the Collateral or on the assignments and security interests granted by the Borrower in this Agreement.
“Material
Modification” means any amendment or waiver of, or modification or supplement to, any Underlying Instrument governing a Collateral Obligation executed or effected on or after the related Cut-Off Date which:
(a) reduces or forgives any or all of the principal amount due under such Collateral Obligation;
(b) (i) waives one or more interest payments (other than any incremental interest accrued due to a default or event of default with respect to
such Collateral Obligation), (ii) permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Collateral Obligation (other than any deferral or capitalization already allowed by the terms of any
Deferrable Collateral Obligation as of the related Cut-Off Date) or (iii) reduces the spread or coupon payable on such Collateral Obligation unless (x) the Services Provider certifies that such reduction is not as a result of financial
distress of the related Obligor in its reasonable determination and (y) such reduction (when taken together with all other reductions with respect to such Collateral Obligation) is by less than or equal to 10% of the spread or coupon payable as
of the related Cut-Off Date;
(c) contractually or structurally subordinates such Collateral Obligation by operation of (i) any
priority of payment provisions, (ii) turnover provisions, (iii) the transfer of assets in order to limit recourse to the related Obligor or (iv) the granting of Liens (other than by the granting of Permitted Liens) on any of the
collateral securing such Collateral Obligation, each that requires the consent of the Borrower or any lenders thereunder;
(d) either
(i) extends or delays the maturity date of such Collateral Obligation by more than 0.25 years past the maturity date as of the related Cut-Off Date (provided that the first two amendments that extend the maturity date by no more than 0.25 years
shall not be Material Modifications) or (ii) extends the amortization schedule with respect thereto by more than 0.25 years (provided that the first two amendments that extend such amortization schedule by no more than 0.25 years shall not be
Material Modifications);
(e) substitutes, alters or releases (other than by the granting of Permitted Liens) the Related Security
securing such Collateral Obligation and such substitution, alteration or release, individually or in the aggregate and as determined in the Facility Agent’s reasonable discretion, materially and adversely affects the value of such Collateral
Obligation;
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(f) results in any less financial information in respect of reporting frequency, scope or
otherwise being provided with respect to the related Obligor or reduces the frequency or total number of any appraisals required thereunder that, in each case, has an effect on the ability of the Services Provider or the Facility Agent (as
determined by the Facility Agent in its reasonable discretion) to make any determinations or calculations required or permitted hereunder; provided, however, that it shall not be a Material Modification if (i) any such amendment,
waiver, modification or supplement grants an extension (or extensions) of not more than 30 days of the time for delivery of quarterly or annual financial statements or grants an extension (or extensions) of the time for delivery of, or waives
delivery of, financial statements other than quarterly and annual financial statements or (ii) any such amendment, waiver, modification or supplement grants a one-time extension of not more than 30 additional days due to delay by an auditor in
delivering information required for financial reporting; provided, further that any failure to provide timely quarterly or annual financial statements or, in the case of an Asset Based Loan, any reduction of the frequency or total number of any
appraisals required thereunder, in each case will be deemed to be material;
(g) amends, waives, forbears, supplements or otherwise
modifies in any way the definition of “permitted lien” or “leverage” (or, in each case, any similar term) in a manner that is materially adverse to any Lender;
(h) results in any change in the currency or composition of any payment of interest or principal to any currency other than that in which such
Collateral Obligation was originally denominated unless the related currency risk is mitigated by a Hedging Agreement acceptable to the Facility Agent in its reasonable discretion;
(i) with respect to an Asset Based Loan, results in a material (as determined by the Facility Agent in its reasonable discretion) change to or
grants material (as determined by the Facility Agent in its reasonable discretion) relief from the borrowing base or any related definition;
(j) with respect to an Asset Based Loan, any of (i) if the Borrower has the authority to change the appraiser with respect to such Asset
Based Loan as set forth on the related Asset Approval Request, the appraiser is changed to a Person other than an Approved Valuation Firm without the prior written consent of the Facility Agent, (ii) the frequency of the appraisals is reduced
from the frequency set forth on the related Asset Approval Request or (iii) the related appraiser changes the metric for valuing the collateral of such Loan other than in accordance with its ordinary practices, and such change results in an
increase in the value of the collateral for such Asset Based Loan;
(k) with respect to an Enterprise Value Loan, results in a
modification of the calculation of EBITDA for the related Obligor during any period hereunder, by including any other non-cash charges that were deducted in determining earnings of such Obligor from continuing operations for such period, unless
(i) such modification or non-cash charges were set forth on the related Asset Approval Request and (ii) such modification or non-cash charges were approved by the Facility Agent in its sole discretion in the related Asset Approval Request;
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(l) with respect to a Multiple of Recurring Revenue Loan, results in a modification to the
measurement of Revenue pursuant to the Underlying Instruments for such Collateral Obligation; or
(m) without duplication of any event
covered by clause (a) through (l) above, waives or forbears a default or an event of default under the Underlying Instruments governing such Collateral Obligation that is material to the Lenders (an “Unspecified
Default Waiver Material Modification”).
Notwithstanding the foregoing, Material Modification shall not include any change to
the base rate in respect of a Collateral Obligation from SOFR or a successor rate to an alternative rate, including any applicable spread or payment frequency adjustments thereto that in the Services Provider’s commercially reasonable
judgement are consistent with the successor to SOFR.
“Maximum Availability” means, as of any date of determination,
the difference of (i) the Facility Amount minus (ii) the balance of all unfunded Advances approved but not yet funded minus (iii) the Aggregate Unfunded Amount plus (iv) the equivalent in Dollars of all
amounts on deposit in the Unfunded Exposure Account, each as of such date of determination.
“Maximum Portfolio Advance
Rate” means, on any date of determination, the percentage corresponding to the applicable Diversity Score as set forth in the table below:
Diversity Score (on such date)
Maximum Portfolio Advance Rate
Until the earlier to occur of (x) 120 days from the Closing Date and (y) the Diversity Score is
at
least 6
50.0%
Greater than or equal to 6 but less than 10
55.0%
Greater than or equal to 10 but less than 15
60.0%
Greater than or equal to 15
65.0%
“Maximum Weighted Average Life Test” means a test that will be satisfied on any date of
determination if the Weighted Average Life of all Eligible Collateral Obligations included in the Collateral is less than or equal 6.50 years.
“Measurement Date” means each of the following, as applicable: (i) the Effective Date; (ii) each Determination
Date; (iii) each Funding Date; (iv) the date of any repayment or prepayment pursuant to Section 2.4; (v) the date that the Services Provider has actual knowledge (after reasonable inquiry) of the occurrence of any
Revaluation Event with respect to any Collateral Obligation; (vi) the date of any optional repurchase or substitution pursuant to Section 7.12; (vii) the last day of the Revolving Period; (viii) the date on which the
Borrower is notified of any change in the Discount Factor of any Collateral Obligation; and (ix) the date of any Optional Sale.
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“Minimum Diversity Diversion Test” means a test that will be satisfied on
any date of determination if the Diversity Score of all Eligible Collateral Obligations included in the Collateral is equal to or greater than (x) during the period from the Effective Date until the date that is 90 days after such date, 4,
(y) during the period from the date that is 90 days after the Effective Date until the date that is 180 days after the Effective Date, 6 and (z) thereafter, 8.
“Minimum Diversity Test” means a test that will be satisfied on any date of determination if the Diversity Score of all
Eligible Collateral Obligations included in the Collateral is equal to or greater than (a) during the period from the Effective Date until the date that is 120 days after such date, 6 and (b) thereafter, 10.
“Minimum Equity Condition” means a test that will be satisfied on any date of determination if the Effective Equity is not
less than the Required Equity.
“Minimum Weighted Average Coupon Test” means a test that will be satisfied on any date
of determination if the Weighted Average Coupon of all Eligible Collateral Obligations that are Fixed Rate Collateral Obligations included in the Collateral on such date is equal to or greater than 6.00%.
“Minimum Weighted Average Spread Test” means a test that will be satisfied on any date of determination if the Weighted
Average Spread of all Eligible Collateral Obligations included in the Collateral on such date is equal to or greater than 4.50%.
“Monthly Report” means a report prepared as of the close of business on each Reporting Date by the Collateral Agent, on
behalf of the Borrower, substantially in the form of Exhibit D.
“Moody’s” means Moody’s Investors
Service, Inc., or any successor thereto.
“Moody’s Industry Classification” means the industry classifications
set forth in Schedule 2 hereto, as such industry classifications shall be updated at the option of the Facility Agent in its sole discretion if Moody’s publishes revised industry classifications and the application of such revised
industry classifications to this facility is necessary to avoid an increased regulatory capital charge for the Facility Agent or its Affiliates that are Lenders hereunder. Any Loan that would otherwise have a Moody’s Industry Classification of
High Tech Industry and is to an obligor engaged primarily in a software business shall be assigned a Moody’s Industry Classification on the following basis: The Borrower shall provide in the related Asset Approval Request a Moody’s
Industry Classification based on the industry of the end users of such software and consistent with the Services Provider Advisor’s investment committee memo regarding such loan. The Borrower shall provide to the Facility Agent such other
information relating to such classification as the Facility Agent may reasonably request. If the Facility Agent agrees with such classification in its sole discretion, then such classification shall be the Moody’s Industry Classification with
respect to such Loan. If the Facility Agent disagrees with such classification the Borrower and the Facility Agent shall work in good faith to agree on a classification applicable to such Loan.
“Multiemployer Plan” means a multiemployer plan, as defined in Section 3(37) or Section 4001(a)(3) of ERISA, as
applicable, in respect of which the Borrower or any ERISA Affiliate has or could reasonably be expected to have any obligation or liability, contingent or otherwise.
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“Multiple of Recurring Revenue Loans” means any Loan that is structured
based on a multiple of the related Obligor’s Revenue.
“Non-Approval Event” means, as of any date of
determination, an event that (x) will be deemed to have occurred if the ratio (measured on a rolling six-month basis) of (i) the number of Asset Approval Requests resulting in Non-Approved Loans (other than Specified Non-Approved Loans)
over (ii) the total number of Asset Approval Requests is greater than 33% and (y) will be continuing until the conditions set forth in clause (x) of this definition are no longer true; provided that, until ten
(10) Eligible Collateral Obligations have been submitted to the Facility Agent by the Borrower, the ratio of clause (x)(i) over clause (x)(ii) shall be deemed to be zero.
“Non-Approved Loan” means each obligation that satisfies each of the criteria in the definition of “Eligible
Collateral Obligation” (other than clause (a) thereof) for which an Asset Approval Request is submitted by the Services Provider to the Facility Agent, and such Asset Approval Request is not approved by the Facility Agent;
provided that an obligation shall only constitute a Non-Approved Loan if the Services Provider or an Affiliate thereof has entered into the related Underlying Instruments with the related obligor on terms substantially similar to those
disclosed in the related Asset Approval Request.
“Non-Sustainable Obligor” means any Obligor (a) currently
engaged (i) in activities within or in close proximity to World Heritage Sites that might impact the outstanding universal values of the site as defined by UNESCO, (ii) in activities located in or involving the clearing of primary tropical
moist forests, illegal logging or uncontrolled and/or illegal use of fire (iii) as an upstream producer and / or processor of palm oil and palm fruit products that is not a member or certified in accordance with the Roundtable on Sustainable
Palm Oil (“RSPO”) or time-bound committed toward RSPO certification, (iv) in expanding an existing or developing a new coal-fired power plant irrespective of location, (v) in developing greenfield thermal coal mining, or
(vi) in using mountain top removal as an extraction method in mining or (b) in relation to which there is evidence of child or forced labor in accordance with international labor conventions or other human rights violations such as
slavery, forced or compulsory labor and human trafficking as defined by the Modern Slavery Act 2015.
“Note” means a
promissory grid note, in the form of Exhibit A, made payable to an Agent, on behalf of the related Lender Group.
“Note
Agent” has the meaning set forth in Section 14.1.
“Obligations” means all obligations (monetary
or otherwise) of the Borrower to the Lenders, the Agents, the Collateral Agent, the Collateral Custodian, the Facility Agent or any other Affected Person or Indemnified Party arising under or in connection with this Agreement, the Notes and each
other Transaction Document.
“Obligor” means any Person that owes payments under any Collateral Obligation and, solely
for purposes of calculating the Excess Concentration Amount pursuant to clause (b) or (c) of the definition thereof, any Obligor that is an Affiliate of another Obligor shall be treated as the same Obligor; provided
that for purposes of this definition, 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.
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“Obligor Information” means, with respect to any Obligor, (i) the
legal name, address, organizational chart and, if available to the Services Provider using commercially reasonable efforts, tax identification number of such Obligor, (ii) the jurisdiction in which such Obligor is domiciled, (iii) the
audited financial statements for the two prior fiscal years of such Obligor (or such shorter period of time for which such audited financial statements have been prepared and are available), unless the Services Provider has notified the Facility
Agent that such audited financial statements are unavailable and the Facility Agent has, in its sole discretion, waived the requirement to deliver such audited financial statements, (iv) the Services Provider’s internal credit memorandum
with respect to the Obligor and the related Collateral Obligation, (v) to the extent available, the annual report for the most recent fiscal year of such Obligor, (vi) to the extent available, a company forecast of such Obligor including
plans related to capital expenditures, (vii) to the extent available, the business model, company strategy and names of known peers of such Obligor, (viii) the shareholding pattern and details of the management team of such Obligor and
(ix) details of any banking facilities and the debt maturity schedule of such Obligor; provided that the foregoing shall not be required separately to the extent that any such items have been previously delivered in connection with the
Services Provider’s internal credit memorandum delivered pursuant to clause (iv) above; provided, further, that to the extent any of the above information other than clause (v), clause (vi) or clause
(vii) is unavailable, the Services Provider shall notify the Facility Agent of such missing information, and the Facility Agent may, in its reasonable discretion, provide a waiver with respect to such information.
“OFAC” has the meaning set forth in Section 9.30(a).
“Officer’s Certificate” means a certificate signed by an Executive Officer.
“Official Body” means any government or political subdivision or any agency, authority, regulatory body, bureau, central
bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
“Opinion of Counsel” means a written opinion of independent counsel reasonably acceptable in form and substance and from
counsel reasonably acceptable to the Facility Agent.
“Optional Sale” has the meaning set forth in
Section 7.11.
“Original Debt-to-Recurring-Revenue Ratio” means, with respect to any Multiple of Recurring
Revenue Loan, the Debt-to-Recurring-Revenue Ratio of such Multiple of Recurring Revenue Loan as calculated on the related Cut-Off Date by the Services Provider (and, to the extent set forth in the Asset Approval Request, approved by the Facility
Agent in the related Asset Approval Notice) in accordance with the definition of Debt-to-Recurring-Revenue Ratio and the definitions used therein and set forth in the related Asset Approval Request.
“Original Effective LTV” means, with respect to any Collateral Obligation, the Effective LTV of such Collateral Obligation
as calculated on the related Cut-Off Date by the Services Provider and approved by the Facility Agent (which may include a normalized revolving loan assumption on any unfunded revolving loan) in accordance with the definition of Effective LTV and
the definitions used therein and set forth in the related Asset Approval Request.
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“Original Leverage Multiple” means, with respect to any Collateral
Obligation, the Leverage Multiple applicable to such Collateral Obligation as calculated on the related Cut-Off Date by the Services Provider (and, to the extent set forth in the Asset Approval Request, approved by the Facility Agent in the related
Asset Approval Notice) in accordance with the definition of Leverage Multiple and the definitions used therein and set forth in the related Asset Approval Request.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection
between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in the Obligations or any Transaction Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, mortgage, 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 that are Other Connection Taxes imposed with respect to an assignment.
“Participant” has the meaning set
forth in Section 15.9(a).
“Participant Register” has the meaning set forth in Section 15.9(c).
“Participation Interest” means a participation interest in a loan that would, at the time of acquisition or the
Borrower’s commitment to acquire the same, satisfy each of the following criteria: (i) such participation would constitute an Eligible Collateral Obligation were it acquired directly, (ii) the seller of the participation is the
lender on the subject loan, (iii) the aggregate participation in the loan does not exceed the principal amount or commitment of such loan, (iv) such participation does not grant, in the aggregate, to the participant in such participation a
greater interest than the seller holds in the loan or commitment that is the subject of the participation, (v) the entire purchase price for such participation is paid in full at the time of its acquisition, and (vi) the participation
provides the participant 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.
“PBGC” means the Pension Benefit Guaranty Corporation and its successors and assigns.
“Permitted Gaming Industry” means an industry in respect of which the following conditions must be satisfied:
(a) to the knowledge of the Borrower (after reasonable inquiry), the Obligor or any of its Affiliates hold the required
licenses for the jurisdiction and are in compliance with the applicable local gaming, betting and gambling legislation and regulation; and
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(b) to the knowledge of the Borrower (after reasonable inquiry), the Obligor
or any of its Affiliates have satisfactory anti-financial crime policies (including anti-money laundering and anti-bribery and corruption) in place which satisfy the applicable policies of the Services Provider.
“Permitted Investment” means, at any time:
(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, 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 or Facility 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, or contractual commitment providing for such investment, are rated at least “A-1” by Standard & Poor’s and “P-1” by Moody’s;
(c) commercial paper that (i) is payable in Dollars and (ii) is rated at least
“A-1” by Standard & Poor’s and “P-1” by Moody’s; or
(d) shares or other securities of registered money market funds which funds have, at all times, credit ratings of
“Aaa-mf” by Moody’s and “AAAm” by Standard & Poor’s.
Permitted Investments may be purchased
by or through the Collateral Agent or any of its Affiliates. All Permitted Investments shall be held in the name of the Securities Intermediary. No Permitted Investment shall have an “f”, “r”, “p”,
“pi”, “q”, “sf” or “t” subscript affixed to its Standard & Poor’s rating. Any such investment may be made or acquired from or through the Collateral Agent or the Facility Agent or any of
their respective affiliates, or any entity for whom the Collateral Agent or the Facility Agent or any of their respective affiliates provides services and receives compensation (so long as such investment otherwise meets the applicable requirements
of the foregoing definition of Permitted Investment at the time of acquisition); provided, that notwithstanding the foregoing clauses (a) through (d), unless the Borrower and the Services Provider have received the written
advice of counsel of national reputation experienced in such matters to the contrary (together with an Officer’s Certificate of the Borrower or the Services Provider to the Facility Agent and the Collateral Agent that the advice specified in
this definition has been received by the Borrower and the Services Provider), 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.
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“Permitted Lien” means (i) the Lien in favor of the Collateral Agent
for the benefit of the Secured Parties, (ii) as to Related Security, Liens for Taxes and mechanics’ or suppliers’ liens for services or materials supplied, in either case, not yet due and payable and for which adequate reserves have
been established in accordance with GAAP, (iii) as to Related Security (1) the Lien in favor of the Borrower pursuant to the Sale Agreement and (2) any Liens on the Related Security permitted pursuant to the applicable Underlying
Instruments and (iv) as to agented Loans, Liens in favor of the agent on behalf of all the lenders of the related Obligor.
“Permitted RIC Distribution” means distributions to the Equityholder (from the Collection Account or otherwise in
accordance with the terms hereof) to the extent required to allow the Equityholder to make sufficient distributions to qualify as a regulated investment company, and to otherwise eliminate federal or state income or excise taxes payable by the
Equityholder in or with respect to any taxable year of the Equityholder (or any calendar year, as relevant); provided that the amount of any such payments made in or with respect to any such taxable year (or calendar year, as relevant) of the
Equityholder shall not exceed 115% of the amounts that the Borrower would have been required to distribute to the Equityholder to: (i) allow the Borrower to satisfy the minimum distribution requirements that would be imposed by
Section 852(a) of the Code (or any successor thereto) to maintain its eligibility to be taxed as a regulated investment company for any such taxable year, (ii) reduce to zero for any such taxable year the Borrower’s liability for
federal income taxes imposed on (x) its investment company taxable income pursuant to Section 852(b)(1) of the Code (or any successor thereto), or (y) its net capital gain pursuant to Section 852(b)(3) of the Code (or any
successor thereto), and (iii) reduce to zero the Borrower’s liability for federal excise taxes for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto), in the case of each of (i),
(ii) or (iii), calculated assuming that the Borrower had qualified to be taxed as a regulated investment company under the Code.
“Permitted Securitization” means any securitization in a capital market transaction or private placement offering in which
the Borrower sells Collateral pledged hereunder, directly or indirectly, to an Affiliate or an affiliated entity that issues or arranges for the issuance of asset-backed debt obligations (whether in the form of notes or revolving and/or term loans)
collateralized, in whole or in part, by such Collateral but only if, as requested at such time by the Equityholder or the Services Provider, an affiliate of the Facility Agent acts as lead structuring agent and underwriter or similar role.
“Permitted Securitization Closing Date” means the effective date of any Permitted Securitization.
“Person” means an individual, partnership, corporation (including a business trust), joint stock company, limited liability
company, trust, unincorporated association, joint venture, government or any agency or political subdivision thereof or any other entity.
“Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title IV
of ERISA, Section 412 and 430 of the Code, or Section 302 of ERISA and in respect of which the Borrower or any ERISA Affiliate (x) is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA, or (y) has or could reasonably be expected to have any obligation or liability, contingent or otherwise.
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“Pledged Account” means each of the Unfunded Exposure Account, the
Principal Collection Account and the Interest Collection Account, together with any sub-accounts deemed appropriate or necessary by the Securities Intermediary, for convenience in administering such accounts, including in each case a related Deposit
Account maintained by the Securities Intermediary as a depository bank.
“Prepayment Notice” has the meaning set forth
in Section 2.4(b)(i).
“Primary Servicing Fee” means the senior fee payable to the Services Provider or
successor services provider (as applicable) in accordance with the terms hereof on each Distribution Date in arrears in respect of each Accrual Period for services rendered during the related Accrual Period, which fee shall be equal to the product
of (a) 0.15% per annum, (b) the average of the values of (x) the aggregate Collateral Obligation Amount of the Eligible Collateral Obligations on the first day and the last day of the related Accrual Period and (y) the
cash representing Principal Collections on such days and (c) the actual number of days in such Accrual Period divided by 360. For the avoidance of doubt, so long as no Unmatured Equityholder Credit Event has occurred, the Services
Provider may waive or defer the payment of any Primary Servicing Fee in its sole discretion.
“Principal Balance” means
with respect to any Collateral Obligation as of any date, (i) if such Collateral Obligation is denominated and payable in Dollars, the lower of (A) the Purchase Price paid by the Borrower for such Collateral Obligation and (B) the
outstanding principal balance of such Collateral Obligation, and (ii) if such Collateral Obligation is denominated and payable in any Eligible Currency other than Dollars, the equivalent in Dollars (determined by the Services Provider using the
Applicable Exchange Rate) of the lower of (A) the Purchase Price paid by the Borrower for such Collateral Obligation and (B) the outstanding principal balance of such Collateral Obligation, in each case exclusive of (x) any deferred
or capitalized interest on any Deferrable Collateral Obligation and (y) any unfunded amounts with respect to any Revolving Loan or Delayed Drawdown Loan; provided, that for purposes of calculating the “Principal Balance” of
any Deferrable Collateral Obligation, principal payments received on such Collateral Obligation shall first be applied to reducing or eliminating any outstanding deferred or capitalized interest; provided, further, that for purposes of
the calculation set forth in clause (f) of the definition of Excess Concentration Amount, the Principal Balance of (A) each Revolving Loan shall include any funded commitment and unfunded commitment owed by the Borrower with respect
thereto and (B) each Delayed Drawdown Loan shall include any unfunded commitment owed by the Borrower with respect thereto. The “Principal Balance” of any Equity Security shall be zero.
“Principal Collections” means (x) any and all amounts of collections received with respect to the Collateral other
than Interest Collections and Excluded Amounts, including (but not limited to) (i) all collections attributable to principal on such Collateral, (ii) the earnings on Principal Collections in the Collection Account that are invested in
Permitted Investments, (iii) all payments received by the Borrower pursuant to any Hedging Agreement that is an interest rate swap or index rate swap transaction and (iv) all Repurchase Amounts, in each case other than Retained Interests
and (y) the proceeds of Advances which have not been used to settle pending acquisitions of the applicable Eligible Collateral Obligations within ten (10) Business Days of the related Funding Date.
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“Principal Collection Account” means the collective reference to the
segregated, non-interest bearing securities accounts (within the meaning of Section 8-501 of the UCC), which are created and maintained on the books and records of the Securities Intermediary identified as principal collection accounts in the
name of the Borrower and subject to the prior Lien of the Collateral Agent for the benefit of the Secured Parties, which is established and maintained pursuant to Section 8.1(a).
“Proceeding” means any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation,
dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of a Person.
“Prohibited Defense Asset” means a Collateral Obligation in respect of which the related Obligor’s primary direct
business is the production or distribution of antipersonnel landmines, cluster munitions, biological and chemical, radiological and nuclear weapons or their Critical Components.
“Prohibited Industry” means with respect to any Obligor, its primary business is (a) within an industry referred to in
the definition of Prohibited Defense Asset; (b) the manufacture of fully completed and operational assault weapons or firearms; (c) in pornography or adult entertainment; (d) in the gaming industry (other than (i) a Permitted
Gaming Industry or (ii) hospitality and/or resorts development or the management thereof); (e) in the marijuana industry; (f) in the opioid industry or (g) to finance any other industry which is illegal under Applicable Law at
the time of acquisition of such Loan.
“Pro Rata Percentage” means, with respect to any Lender on any date, such
Lender’s Commitment as of such date divided by the aggregate Commitments as of such date.
“Purchase
Price” means, with respect to any Collateral Obligation, the greater of (a) zero and (b) the actual price in Dollars (or, if such Collateral Obligation is denominated and payable in any Eligible Currency other than Dollars, the
equivalent in Dollars) paid by the Borrower for such Collateral Obligation minus all collections attributable to principal on such Collateral Obligation. Notwithstanding the foregoing, the purchase price of an Eligible Collateral Obligation
purchased at a price equal to or greater than 97% of par (including any purchase at a premium) shall be deemed to be par for all purposes of this definition.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in
accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning set forth in Section 17.20.
“Qualified Substitute Arrangement” has the meaning set forth in Section 10.6(c).
“Ramp-up Period” means the period from and including the Effective Date to the earlier of (i) the first date on which
the aggregate Principal Balance of all Eligible Collateral Obligations plus the amount of Principal Collections on deposit in the Principal Collection Account exceeds the Target Portfolio Amount and (ii) the 9-month anniversary of the
Effective Date; provided that, on and after (x) the closing date of any increase of the Facility Amount in an amount not less than
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an aggregate of $50,000,000 or (y) a Permitted Securitization Closing Date, the Ramp-up Period shall mean the period from and including the date of such increase or Permitted
Securitization Closing Date, as applicable, to the earlier of (i) the first date on which the aggregate Principal Balance of all Eligible Collateral Obligations plus the amount of Principal Collections on deposit in the Principal
Collection Account exceeds the Target Portfolio Amount and (ii) the 6-month anniversary of the date of such increase or Permitted Securitization Closing Date, as applicable.
“Rating Agencies” means Standard & Poor’s and Moody’s.
“Recipient” means (a) the Facility Agent, (b) any Agent, (c) any Lender and (d) any other recipient of
a payment hereunder.
“Records” means the Collateral Obligation File for any Collateral Obligation and all other
documents, books, records and other information prepared and maintained by or on behalf of the Borrower with respect to any Collateral Obligation and the Obligors thereunder, including all documents, books, records and other information prepared and
maintained by the Borrower or the Services Provider with respect to such Collateral Obligation or Obligors.
“Reduction
Fee” means a nonrefundable fee with respect to any permanent reduction of the Facility Amount pursuant to Section 2.5(a) equal to, if such reduction occurs:
(a) prior to the 12-month anniversary of the Effective Date, the product of (x) the amount of such reduction and
(y) 1.25%;
(b) on or after the 12-month anniversary of the Effective Date and prior to the date that is 12 months and
six weeks after the Effective Date, the product of (x) the amount of such reduction and (y) 0.50%; and
(c)
thereafter, zero.
“Regulation U” means Regulation U of the FRS Board, as in effect from time to time.
“Regulation X” means Regulation X of the FRS Board, as in effect from time to time.
“Regulatory Authority” has the meaning given in Section 17.14(c).
“Reinvestment” has the meaning given in Section 8.3(b).
“Reinvestment Date” has the meaning given in Section 8.3(b).
“Reinvestment Request” has the meaning given in Section 8.3(b).
“Related Collateral Obligation” means any Collateral Obligation where any Affiliate of the Borrower, Services Provider or
the Equityholder owns a Revolving Loan or Delayed Drawdown Loan pursuant to the same Underlying Instruments; provided that any such asset will cease to be a Related Collateral Obligation once all commitments by such Affiliate of the Borrower,
Services Provider or the Equityholder to make advances or fund such Revolving Loan or Delayed Drawdown Loan to the related Obligor expire or are irrevocably terminated or reduced to zero.
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“Related Committed Lender” means, with respect to any Uncommitted Lender,
each Committed Lender in its Lender Group.
“Related Property” means, with respect to a Collateral Obligation, any
property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Collateral Obligation, including, without limitation, any pledge of the stock, membership or other ownership interests in the related Obligor or
its subsidiaries, all Warrant Assets with respect to such Collateral Obligation and all proceeds from any sale or other disposition of such property or other assets.
“Related Security” means, with respect to each Collateral Obligation:
(a) any Related Property securing a Collateral Obligation, all payments paid in respect thereof and all monies due, to become
due and paid in respect thereof accruing after the applicable Advance Date and all liquidation proceeds thereof;
(b) all
guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time supporting or securing payment of any such indebtedness;
(c) all Collections with respect to such Collateral Obligation and any of the foregoing;
(d) any guarantees or similar credit enhancement for an Obligor’s obligations under any Collateral Obligation, all UCC
financing statements or other filings relating thereto, including all rights and remedies, if any, against any Related Security, including all amounts due and to become due to the Borrower thereunder and all rights, remedies, powers, privileges and
claims of the Borrower thereunder (whether arising pursuant to the terms of such agreement or otherwise available to the Borrower at law or in equity);
(e) all Records with respect to such Collateral Obligation and any of the foregoing; and
(f) all recoveries and proceeds of the foregoing.
“Relevant Governmental Body” means, (a) with respect to Advances denominated in Dollars, the Board of Governors of the
Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto, and
(b) with respect to Advances denominated in any Eligible Currency other than Dollars, the central bank for the currency in which such Advances are denominated or any working group or committee officially endorsed or convened by the central bank
for the currency in which such Advances are denominated, or any successor thereto.
“REO Asset” means, with respect to
any Collateral Obligation, any Related Property that has been foreclosed on or repossessed from the current Obligor by the Services Provider, and is being managed by the Services Provider on behalf of, and in the name of, any REO Asset Owner, for
the benefit of the Secured Parties and any other equity holder of such REO Asset Owner.
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“REO Asset Owner” has the meaning set forth in
Section 7.13(a).
“REO Servicing Standard” has the meaning set forth in Section 7.13(a).
“Replacement Hedging Agreement” means one or more Hedging Agreements, which in combination with all other Hedging
Agreements then in effect, after giving effect to any planned cancellations of any presently outstanding Hedging Agreements satisfy the Borrower’s covenant contained in Section 10.6 of this Agreement to maintain Hedging Agreements.
“Reporting Date” means, with respect to any (1) month in which a Distribution Date occurs, the Business Day prior
to such Distribution Date and (2) month in which a Distribution Date does not occur, the third Business Day prior to the 20th day of such month.
“Repurchase Amount” means, for any Warranty Collateral Obligation for which a payment or substitution is being made
pursuant to Section 7.12 as of any time of determination, the sum of (i) an amount equal to the purchase price paid by the Borrower for such Collateral Obligation (excluding purchased accrued interest and original issue discount)
less all payments of principal received in connection with such Collateral Obligation since the date it was added to the Collateral, (ii) any accrued and unpaid interest thereon since the last Distribution Date and (iii) all Hedge Breakage
Costs owed to any relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Agreement, incurred in connection with such payment or repurchase and the termination
of any Hedge Transactions in whole or in part in connection therewith.
“Repurchase Event” has the meaning set forth in
the Sale Agreement.
“Repurchased Collateral Obligation” means, with respect to any Accrual Period, any Collateral
Obligation purchased by the Equityholder pursuant to the Sale Agreement as to which the Repurchase Amount has been deposited in the Collection Account by or on behalf of the Equityholder.
“Request for Release and Receipt” means a form substantially in the form of Exhibit F-2 completed and signed by the
Services Provider.
“Required Equity” means the amount corresponding to the column for the applicable “Required
Equity Stage”:
Required Equity Stage Period
Required Equity
Required Equity Stage 1 Period
The greater of (x) the sum of the Principal Balances of the three Obligors with Collateral Obligations constituting the highest aggregate Principal Balances and (y) $30,000,000
Required Equity Stage 2 Period
The greater of (x) the sum of the Principal Balances of the four Obligors with Collateral Obligations constituting the highest aggregate Principal Balances and (y) $50,000,000
Required Equity Stage 3 Period
The greatest of (x)(i) if the Effective Advance Rate is above 50%, the sum of the Principal Balances of the four Obligors with Collateral Obligations constituting the highest aggregate Principal Balances or (ii) otherwise, the sum
of the Principal Balances of the three Obligors with Collateral Obligations constituting the highest aggregate Principal Balances, (y) $50,000,000 and (z) the sum of the Principal Balances of the Obligors with Collateral Obligations
constituting the largest Moody’s Industry Classification
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provided, that, for purposes of calculating the above, the Principal Balance with respect to any
Obligor shall be the sum of all Principal Balances with respect to which such Person is an Obligor.
“Required Equity Stage 1
Period” means the period from the Effective Date to but excluding the earlier to occur of (x) the date that is 180 days after the Effective Date and (y) the first date on which the Advances outstanding hereunder is equal to at
least $150,000,000.
“Required Equity Stage 2 Period” means the period from the last day of the Required Equity Stage 1
Period to but excluding the last day of the Revolving Period.
“Required Equity Stage 3” means the period from the last
day of the Required Equity Stage 2 Period to the Facility Termination Date.
“Required Lenders” means, at any time,
(a) Lenders holding Advances aggregating greater than 50% of all Advances outstanding or if there are no Advances outstanding, Lenders holding Commitments aggregating greater than 50% of all Commitments and (b) so long as DBNY holds
aggregate Advances equal to 25% of all Advances outstanding or if there are no Advances outstanding, aggregate Commitments equal to 25% of all Commitments, the Facility Agent; provided that, Advances outstanding owing to Defaulting Lenders
and the commitments of Defaulting Lenders shall be disregarded for purposes of this definition.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” means, with respect to (a) the Services Provider or the Borrower, its Chief Executive Officer, Chief Operating Officer, Executive Vice President or any other officer or employee of the Services Provider or the Borrower
directly responsible for the administration or collection of the Collateral Obligations, (b) the Collateral Agent, any officer within the Corporate Trust Office, including any director, vice president, assistant vice president or associate
having direct responsibility for the administration of this Agreement, who at the time shall be such
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officers, respectively, or to whom any matter is referred because of his or her knowledge of and familiarity with the particular subject, or (c) any other Person, the President, any Vice-President or Assistant Vice-President, Corporate Trust Officer or the Controller of such Person, or any other officer or employee having similar functions.
“Retained Interest” means, with respect to any Collateral Obligation included in the Collateral, (a) such obligations
to provide additional funding with respect to such Collateral Obligation that have been retained by the other lender(s) of such Collateral Obligation, (b) all of the rights and obligations, if any, of the agent(s) under the Underlying
Instruments, (c) any unused commitment fees associated with the additional funding obligations that are being retained in accordance with clause (a) above, and (d) any agency or similar fees associated with the rights and
obligations of the agent(s) that are being retained in accordance with clause (b) above.
“Revaluation
Event” means each occurrence of any of the following with respect to any Collateral Obligation during the time such Collateral Obligation is Collateral:
(a) such Collateral Obligation becomes a Defaulted Collateral Obligation;
(b) the Borrower, the Facility Agent or the Services Provider obtains actual knowledge (after reasonable inquiry) that a
default as to the payment of principal and/or interest has occurred and is continuing (after giving effect to any grace period applicable thereto) with respect to another debt obligation of the same Obligor that is (i) secured by the same
collateral, (ii) senior to or pari passu with in right of payment to such Collateral Obligation and (iii) in an amount in excess of $500,000;
(c) the occurrence of an Insolvency Event with respect to any related Obligor;
(d) the Services Provider determines, in its sole discretion, in accordance with the Servicing Standard, that all or a portion
of such Collateral Obligation is not collectible or otherwise places such Collateral Obligation on non-accrual status;
(e)
the occurrence (without the prior approval of the Facility Agent) of a Material Modification with respect to such Collateral Obligation;
(f) the Obligor thereunder fails to deliver to the Borrower or the Services Provider any financial reporting information as
required by the Underlying Instruments of such Collateral Obligation (including any grace periods thereunder) but in no event less frequently than quarterly, that in each case has an adverse effect on the ability of the Services Provider or the
Facility Agent (as determined by the Facility Agent in its reasonable discretion) to make any determinations or calculations required hereunder; provided, however, that (i) the Borrower (or the Services Provider on its behalf)
may, on a single occasion (or any other additional occasions approved by the Facility Agent in its sole discretion) with respect to any Obligor, grant an extension of up to 30 days for the delivery of such financial statements by such Obligor and
(ii) the Borrower (or the Services Provider on its behalf) may, due to delay by an auditor in delivering information required for financial reporting, grant a one-time extension of not more than 30 additional days for the delivery of such
financial statements by such Obligor;
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(g) with respect to any Enterprise Value Loan that is not a Multiple of
Recurring Revenue Loan, the Leverage Multiple with respect to such Collateral Obligation increases by 1.00x or more over the Original Leverage Multiple with respect to such Collateral Obligation; provided that each subsequent increase of an
additional 1.00x over the applicable Original Leverage Multiple shall be an additional Revaluation Event;
(h) with respect
to any Asset Based Loan, (A) the Borrower fails (or fails to cause the Obligor to) retain an Approved Valuation Firm to re-calculate the Appraised Value of (x) with respect to any such Asset Based Loan that has intellectual property,
equipment or real property, as the case may be, in its borrowing base, the collateral securing such Asset Based Loan at least once every twelve (12) months that such Loan is included in the Collateral (subject to a 30 day grace period with
respect to any such review) and (y) with respect to all other Asset Based Loans included in the Collateral, the collateral securing such Loan at least once every six (6) months that such Loan is included in the Collateral (subject to a 30
day grace period with respect to any such review) or (B) the Borrower (or the related Obligor, as applicable) changes the Approved Valuation Firm with respect to any Asset Based Loan that or the related Approved Valuation Firm changes the
metric for valuing the collateral of such Loan, each without the written approval of the Facility Agent;
(i) with respect
to any Asset Based Loan, the Effective LTV of such Collateral Obligation is greater than 1.0 or increases by more than an amount equal to 10% of the Original Effective LTV of such Collateral Obligation; provided that each subsequent increase
of an additional 10% over the applicable Original Effective LTV shall be an additional Revaluation Event;
(j) such
Collateral Obligation becomes the subject of an offer, exchange or tender by the related Obligor unless such offer, exchange or tender is for a price at least equal to the purchase price paid by the Borrower for such Collateral Obligation (excluding
purchased accrued interest and original issue discount) less all payments of principal received in connection with such Collateral Obligation since the date it was added to the Collateral plus any accrued and unpaid interest thereon;
(k) if such Collateral Obligation is a Participation Interest (other than an Assigned Participation Interest), the seller
thereof has (x) long-term unsecured ratings of lower than “Baa1” by Moody’s or “BBB+” by S&P and (y) short-term unsecured ratings of lower than “A-1” by S&P or “P-1” by
Moody’s;
(l) unless such Collateral Obligation is a Multiple of Recurring Revenue Loan, the Obligor with respect to
such Collateral Obligation has EBITDA less than $5,000,000 for the latest fiscal year;
(m) the Obligor with respect to
such Collateral Obligation is not an Eligible Obligor; provided that if such Obligor would be an Eligible Obligor but for clause (vi) of the definition thereof, such occurrence shall not be a Revaluation Event so long as none of
the Borrower, the Services Provider, the Equityholder or any Affiliate thereof (x) owns a majority of the equity interests of such Obligor or (y) controls such Obligor;
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(n) with respect to any Multiple of Recurring Revenue Loan, (1) the
Debt-to-Recurring-Revenue Ratio exceeds (x) if such Collateral Obligation had an EBITDA as of the applicable Cut-Off Date greater than $10,000,000, 3.50x or (y) otherwise, 3.25x, (2) the related Obligor’s last quarter annualized
Revenue is less than $25,000,000 calculated using the most recent financial information of such Obligor received by the Borrower (or otherwise available to the Borrower with respect to such Obligor) or (3) a failure to maintain minimum
liquidity as required by the Underlying Instruments for such Collateral Obligation;
(o) with respect to any Multiple of
Recurring Revenue Loan, the Debt-to-Recurring-Revenue Ratio with respect to such Collateral Obligation increases by either (x) 0.50x or more or (y) 20% over the Original Debt-to-Recurring-Revenue Ratio thereof; provided that each
subsequent increase of an additional 0.50x or 20%, as applicable, over the Original Debt-to-Recurring-Revenue Ratio shall be an additional Revaluation Event;
(p) with respect to any Specified Broadly Syndicated Loan and measured on a weekly basis, (1) the Market Value of such
Collateral Obligation is less than 80%, (2) the Market Value of such Collateral Obligation declines by more than 10% compared to the Purchase Price (expressed as percentage of par) of such Collateral Obligation as of the applicable Cut-Off
Date; or (3) such Collateral Obligation fails to have at least two (2) dealer bid-side quotes determined with respect to such Loan by LoanX, Inc.; provided that with respect to any Specified Broadly Syndicated Loan originated in the
primary market, such failure to have dealer bid-side quotes must occur more than 60 days after the applicable Cut-Off Date;
(q) the related Obligor undergoes a merger, acquisition, consolidation, sale of all or substantially all of the assets of such
Obligor, restructuring or similar transaction;
(r) the occurrence of any breach with respect to any financial covenant
under the Underlying Instrument that results in an event of default under the Underlying Instruments, regardless of any waiver, modification or amendment of such Underlying Instrument;
(s) such Collateral Obligation is sold or a portion thereof is sold at a price (expressed as a percentage of par) for less than
90% and there occurs, in the reasonable discretion of the Facility Agent, an adverse change in the financial condition of the related Obligor;
(t) with respect to any Multiple of Recurring Revenue Loan, a failure to provide the information necessary to calculate the
Debt-to-Recurring-Revenue Ratio thereof;
(u) such Collateral Obligation is an Assigned Participation Interest that has not
been elevated to a full assignment within forty-five (45) days; or
(v) with respect to any Collateral Obligation that
(i) as of the related Cut-Off Date permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Collateral Obligation or (ii) is currently deferring any portion of interest, the Interest Coverage
Ratio with respect to such Collateral Obligation becomes less than 1.2x;
provided that the Facility Agent may, with the consent of the Borrower,
include custom revaluation events other than those included in the definition of “Revaluation Event” as a condition of its approval of any Collateral Obligation, as noted in the related Asset Approval Notice.
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It being understood and agreed that if an event that results in a Revaluation Event under
clause (a), (f), (g), (h), (i) or (q) above is waived by an Unspecified Default Waiver Material Modification, such Unspecified Default Waiver Material Modification will not give rise to an
additional Revaluation Event under clause (e) above if the Facility Agent determines in its sole discretion that such Unspecified Default Waiver Material Modification waives the “same event” that resulted in such other
Revaluation Event.
“Revenue” means, with respect to Multiple of Recurring Revenue Loans, the definition of annualized
recurring revenue used in the Underlying Instruments for each such Collateral Obligation, or any comparable definition for “Revenue” or “Adjusted Revenue” in the Underlying Instruments for each such Collateral Obligation;
provided that if there is no such definition in the Underlying Instruments, revenue for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Collateral Obligation 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 and as approved by the Facility Agent in its sole
discretion.
“Revolving Loan” means a Collateral Obligation that specifies a maximum aggregate amount that can be
borrowed by the related Obligor and permits such Obligor to re-borrow any amount previously borrowed and subsequently repaid during the term of such Collateral Obligation.
“Revolving Period” means the period of time starting on the Effective Date and ending on the earliest to occur of
(i) the date that is three (3) years after the Effective Date or, if such date is extended pursuant to Section 2.6, the date mutually agreed by the Borrower and the Facility Agent, (ii) the date on which the Facility
Amount is terminated in full pursuant to Section 2.5, (iii) the occurrence of a Facility Termination Event, unless such Facility Termination Event is waived pursuant to Section 17.2 and the Facility Agent agrees in
writing in its sole discretion to reinstate the Revolving Period, (iv) the existence of the Equityholder terminates earlier than either (x) the date set forth in clause (i) of this definition or (y) the date set forth in
clause (ii) of the definition of Facility Termination Date or (v) an Unmatured Equityholder Credit Event.
“Risk
Retention Side Letter” shall mean the letter agreement, dated as of the Effective Date, by and between the Facility Agent and the Equityholder.
“Sale Agreement” means the Sale and Contribution Agreement, dated as of the date hereof, by and between the Equityholder,
as seller, and the Borrower, as purchaser.
“Sanctions Target” has the meaning set forth in
Section 9.30(a).
“Sanctioned Countries” means any country or territory with which dealings are broadly
restricted or prohibited by any Sanctions (as of the Effective Date, the Crimea region of Ukraine, Belarus, Russia, Venezuela (in relation to its government only), Cuba, the so-called Donetsk People’s Republic, Iran, the so-called Luhansk
People’s Republic, North Korea, Syria, and the non-government-controlled regions of the Kherson and Zaporizhzhia regions of Ukraine).
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“Sanctions” has the meaning set forth in Section 9.30(a).
“Schedule of Collateral Obligations” means the list or lists of Collateral Obligations attached to each Asset Approval
Request and each Reinvestment Request. Each such schedule shall identify the assets that will become Collateral Obligations, shall set forth such information with respect to each such Collateral Obligation as the Borrower or the Facility Agent may
reasonably require and shall supplement any such schedules attached to previously-delivered Asset Approval Requests and Reinvestment Requests.
“Scheduled Collateral Obligation Payment” means each periodic installment payable by an Obligor under a Collateral
Obligation for principal, interest and/or, solely in the case of a Revolving Loan or a Delayed Drawdown Loan, unutilized/commitment fees (as applicable) in accordance with the terms of the related Underlying Instrument.
“Second Lien Loan” means any Loan that (i) is not (and that by its terms is not permitted to become) subordinate in
right of payment to any other obligation of the related Obligor other than a First Lien Loan with respect to the liquidation of such Obligor or the collateral for such Loan and (ii) is secured by a valid second priority perfected Lien to or on
specified collateral securing the related Obligor’s obligations under the Loan, which Lien is not subordinate to the Lien securing any other debt for borrowed money other than a First Lien Loan on such specified collateral and any Permitted
Liens; provided, that any Loan that is deemed to be a Second Lien Loan as provided in the definition of “FILO Loan” or “First Lien Loan” shall, unless explicitly provided otherwise for a specified purpose, be deemed to
be a Second Lien Loan for all purposes hereunder.
“Secondary Servicing Fee” means the subordinated fee payable to the
Services Provider or successor services provider (as applicable) in accordance with the terms hereof on each Distribution Date in arrears in respect of each Accrual Period for services rendered during the related Accrual Period, which fee shall be
equal to the product of (a) 0.25% per annum, (b) the average of the values of (x) the aggregate Collateral Obligation Amount of the Eligible Collateral Obligations on the first day and the last day of the related Accrual
Period and (y) the cash representing Principal Collections on such days and (c) the actual number of days in such Accrual Period divided by 360. For the avoidance of doubt, the Services Provider may waive or defer the payment of any
Secondary Servicing Fee in its sole discretion.
“Secured Parties” means, collectively, the Collateral Agent, the
Collateral Custodian, the Securities Intermediary, each Lender, the Facility Agent, each Agent, each other Affected Person, Indemnified Party and Hedge Counterparty and their respective permitted successors and assigns.
“Securities Intermediary” means State Street Bank and Trust Company, or any subsequent institution acceptable to the
Facility Agent at which the Pledged Accounts are maintained.
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“Services Provider” means (i) initially, Blue Owl Technology Finance
Corp., a Maryland corporation and (ii) thereafter, any successor services provider appointed pursuant to this Agreement; provided that any successor to the initial Services Provider shall (x) execute and deliver to the Borrower and
the Facility Agent an agreement of assumption to perform every obligation of the Services Provider under this Agreement (y) be subject to confirmation from each of the Facility Agent, the Lenders and the Collateral Custodian that it has
received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations and that it has received all required approvals in connection
therewith.
“Services Provider Advisor” means (i) Blue Owl Technology Credit Advisors LLC or (ii) any
Successor Services Provider Advisor.
“Services Provider Event of Default” means the occurrence of one of the following
events:
(a) any failure by the Services Provider to comply with Section 7.3(b);
(b) failure on the part of the Services Provider duly to observe or to perform in any respect any other covenant or agreement
of the Services Provider set forth in this Agreement which failure continues unremedied for a period of 30 days (if such failure can be remedied) after the date on which written notice of such failure shall have been given to the Services Provider
by the Borrower, the Collateral Agent or the Facility Agent (with a copy to each Agent);
(c) the occurrence of an
Insolvency Event with respect to the Services Provider and, if the Equityholder is the Services Provider, an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such occurrence;
(d) any representation, warranty or statement of the Services Provider made in this Agreement or any certificate, report or
other writing delivered pursuant hereto shall prove to be incorrect as of the time when the same shall have been made (i) which incorrect representation, warranty or statement has a material and adverse effect on (1) the validity,
enforceability or collectability of this Agreement or any other Transaction Document or (2) the rights and remedies of any Secured Party with respect to matters arising under this Agreement or any other Transaction Document, and
(ii) within 30 days after written notice thereof shall have been given to the Services Provider by the Borrower, the Collateral Agent or the Facility Agent, the circumstance or condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or otherwise cured;
(e) a Facility Termination Event occurs;
(f) (i) the failure of the Services Provider to pay any principal of or premium or interest on any borrowed money having an
aggregate principal amount of $25,000,000 or greater, when the same becomes due and payable (whether by scheduled maturity, required prepayment, elected acceleration, demand or otherwise) and such failure continues after the applicable grace period,
if any, specified in the agreement or instrument relating to such borrowed money; or (ii) any other default under any agreement or instrument relating to any such borrowed money of the Services Provider, or any other event, occurs and such
default or event continues after the applicable grace period, if any, specified in such agreement or instrument if the result of such default or event is the acceleration of the maturity of such borrowed money;
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(g) (x) the rendering by any court of a final, non-appealable judgment
against the Services Provider (i) in an amount in excess of $5,000,000 which is not satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Facility Agent has not
received evidence satisfactory to it that an insurance provider for the Services Provider has agreed to satisfy such judgment in full subject to any deductibles not exceeding $5,000,000; or (y) the attachment of any material portion of the
property of the Services Provider which has not been released or provided for to the reasonable satisfaction of the Facility Agent within 30 days after the making thereof;
(h) a Change of Control occurs; or
(i) Blue Owl Technology Finance Corp. is terminated as or removed from being the Services Provider.
“Servicing Standard” means, with respect to any Collateral Obligations, to service and administer such Collateral
Obligations on behalf of the Secured Parties in accordance with Applicable Law, the terms of the Transaction Documents, all customary and usual servicing practices for loans like the Collateral Obligations and, to the extent consistent with the
foregoing, (i) with reasonable care, using a degree of skill and diligence not less than that with which the Borrower or Services Provider, as applicable, services and administers loans for its own account or for the account of its Affiliates
having similar lending objectives and restrictions, and (ii) to the extent not inconsistent with clause (i), in a manner consistent with the customary standards, policies and procedures followed by institutional managers of national
standing relating to assets of the nature and character of the Collateral Obligations, as though the Services Provider and its Affiliates did not have any relationship with any Obligor or its Affiliates.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight
financing rate).
“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight
Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website; provided that if the sum of Daily Simple SONIA and the SONIA Adjustment is less than 0.0%, SONIA shall be deemed to be 0.0%
for purposes of this Agreement.
“SONIA Adjustment” means, for a period equal to three (3) months,
0.1193% per annum.
“SONIA Administrator” means the Bank of England (or any successor administrator of the
Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website,
currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
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“Specified BB Collateral Obligation” means, as of any date of
determination, unless waived in writing by the Facility Agent in its sole discretion, any Collateral Obligation (or portion thereof) (a) for which the Borrower received the related Asset Approval Notice no more than nine months prior to such
date of determination, (b) with respect to which, as of such date of determination, no Material Modification or Revaluation Event has occurred and (c) that, as of such date of determination, satisfies all requirements of the definition of
“Eligible Collateral Obligation”.
“Specified Borrowing Base Breach” means a Specified Borrowing Base
Breach (Type 1) and/or a Specified Borrowing Base Breach (Type 2), as the context may require.
“Specified Borrowing Base Breach
(Type 1)” means an event that shall occur if each of the following conditions are satisfied: (a) the equivalent in Dollars of the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base by an amount
(calculated as a percentage) equal to or less than the Specified Borrowing Base Breach Percentage (Type 1), (b) the equivalent in Dollars of the aggregate principal amount of all Advances outstanding hereunder would not exceed the Borrowing
Base if changes to the Borrowing Base resulting from the following are disregarded: (i) any amendment to the Discount Factor of one or more Collateral Obligations by the Facility Agent pursuant to Section 2.7(b) (other than an
amendment to the Discount Factor as a result of a Collateral Obligation becoming a Defaulted Collateral Obligation), (ii) any increase in the Excess Concentration Amount not caused by the purchase of a Collateral Obligation or (iii) an
Eligible Collateral Obligation being excluded from the Borrowing Base following the occurrence of a default as to the payment of principal and/or interest with respect to such Eligible Collateral Obligation and (c) a default as to the payment
of principal and/or interest is not continuing with respect to more than two Eligible Collateral Obligations included in the Collateral on such date of determination.
“Specified Borrowing Base Breach (Type 2)” has the meaning set forth in the applicable Fee Letter.
“Specified Borrowing Base Breach Percentage (Type 1)” means 5.0%; provided, that if a Specified Borrowing Base
Breach (Type 1) has occurred and is continuing for ninety (90) consecutive days, the Specified Borrowing Base Breach Percentage (Type 1) shall be 2.50% from the end of such 90-day period until the earlier to occur of (x) 180 consecutive
days and (y) the second consecutive Distribution Date after the occurrence of such Specified Borrowing Base Breach (Type 1).
“Specified Borrowing Base Breach Percentage (Type 2)” has the meaning set forth in the applicable Fee Letter.
“Specified Broadly Syndicated Loan” means any Loan that (i) is acquired by the Borrower at a Purchase Price of at
least 97.0% (expressed as percentage of par) with an interest rate (calculated as of the applicable Cut-Off Date) that does not exceed (a) in the case of Loans that bears interest at a spread over an index, the applicable index plus
6.00% and (b) in the case of Fixed Rate Collateral Obligations, an interest rate that does not exceed 6.50%; (ii) as of the applicable Cut-Off Date, (a) is a broadly syndicated commercial loan, (b) is a First Lien Loan and
(c) has a tranche size of $250,000,000 or greater; (iii) has EBITDA of $50,000,000 or greater (after giving pro forma effect to any acquisition in connection therewith); (iv) such Loan has a rating from S&P or Moody’s
and such rating is at least “B-” from S&P or “B3” from Moody’s; and (v)
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at least two (2) dealer bid-side quotes have been determined with respect to such Loan by LoanX, Inc.; provided that if the Facility Agent approves a Specified Broadly Syndicated Loan
in accordance with the procedures set forth in Section 6.2(h), then such Specified Broadly Syndicated Loan shall no longer be considered a Specified Broadly Syndicated Loan.
“Specified Deferrable Collateral Obligation (Level I)” means a Deferrable Collateral Obligation with a minimum required
rate of current interest paid in cash of less than or equal to 3.50% per annum over the applicable index rate but greater than 2.50% per annum over the applicable index rate.
“Specified Deferrable Collateral Obligation (Level II)” means a Deferrable Collateral Obligation with a minimum required
rate of current interest paid in cash of less than or equal to 2.50% per annum over the applicable index rate.
“Specified First Lien Loan” means any First Lien Loan that is an Enterprise Value Loan in any Moody’s Industry
Classification other than “Corp-Energy: Oil & Gas”, “Corp-Metals & Mining,” “Corp-Utilities: Oil & Gas” or “Corp: Retail” and (i) where the related Obligor is not a
holding company; (ii) (a) that has either a Leverage Multiple of less than 3.75x or (b) both (I) a Leverage Multiple that is greater than or equal to 3.75x but less than 4.25x and (II) an Effective Loan Level LTV of less than
50%; and (iii) has an Obligor with a most recently reported EBITDA of at least $20,000,000.
“Specified Limited Borrowing
Base Deficiency” means an event that shall occur if the equivalent in Dollars of the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base or the Maximum Availability, calculated in accordance with
Section 1.2(g), by an amount (calculated as a percentage) equal to or less than 7.5%.
“Specified Non-Approved
Loans” means any obligation that satisfies the definition of Non-Approved Loan as a result of, in the sole discretion of the Facility Agent, the failure of the Services Provider to include material information regarding the Obligor in the
related Asset Approval Request.
“Standard & Poor’s” or “S&P” means
Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor or successors thereto.
“Structured Finance Obligation” means any obligation of a special purpose vehicle secured directly and primarily by,
referenced to, or representing ownership of, a pool of receivables or other financial assets of any Obligor, including collateralized debt obligations and mortgage-backed securities, collateral loan obligations, asset backed securities and
commercial mortgage backed securities or any resecuritization thereof.
“Subsidiary” means, with respect to any Person,
a corporation, partnership or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or interests as have more than 50% of the ordinary voting power for the election of
directors, managers or general partners, as applicable.
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“Substituted Collateral Obligation” means, with respect to any Accrual
Period, any Warranty Collateral Obligation with respect to which the Equityholder has substituted in a replacement Eligible Collateral Obligation pursuant to Section 7.12 and the Sale Agreement.
“Successor Equityholder” means an Affiliate of the current Equityholder or an assignee or successor by merger,
consolidation or restructuring to the existing Equityholder, which Affiliate or assignee or successor, (i) is approved by the Facility Agent in its commercially reasonable discretion following (x) completion of client onboarding, receipt
of all documents and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, and satisfactory credit and legal
diligence and review, and (y) receipt of confirmation from legal counsel to the Facility Agent that the transfer of equity ownership of the Borrower to the Successor Equityholder would not cause a Lender to be in breach of the EU Securitization
Regulation (as defined in the Risk Retention Side Letter); provided that such confirmation is not to be unreasonably withheld or delayed, (ii) as certified to the Facility Agent, is not subject to any Insolvency Event and would be in
compliance with all representations, warranties and covenants of the Equityholder under the Transaction Documents immediately following such transfer and (iii) succeeds to the obligations of the Equityholder under this Agreement and the other
Transaction Documents by a written assumption of such obligations in a form reasonably satisfactory to the Facility Agent.
“Successor Services Provider Advisor” means (x) any assignee or successor by merger, consolidation or restructuring of
Blue Owl Technology Credit Advisors LLC (or any previous Successor Services Provider Advisor) or (y) any entity to which all or substantially all of the assets, or at the time of such transfer, the collateral management business, of the current
Services Provider Advisor has been transferred; provided that, in the case of (x) and (y), such assignee, successor or transferee (A) is an Affiliate of Blue Owl Credit Inc., (B) has the legal right and capacity to act as
Services Provider under this Agreement, (C) shall not cause the Borrower or the pool of Collateral Obligations to become required to register under the provisions of the 1940 Act and (D) either (x) the Facility Agent has consented to
such assignee, successor or transferee or (y) such assignee, successor or transferee retains a substantial portion of the collateral management business of the existing Services Provider Advisor and of the investment advisory personnel actively
involved in such business, as determined by the Facility Agent in its reasonable discretion; provided that such determination is not to be unreasonably withheld or delayed.
“Supported QFC” has the meaning set forth in Section 17.20.
“Tangible Net Worth” means, with respect to any Person, the consolidated assets minus the consolidated liabilities of such
Person and its consolidated Subsidiaries calculated in accordance with GAAP after subtracting therefrom the aggregate amount of the intangible assets of such Person and its consolidated Subsidiaries, including, without limitation, goodwill,
franchises, licenses, patents, trademarks, tradenames, copyrights and service marks.
“Target Portfolio Amount” means
$230,000,000.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including
backup withholding), assessments, fees or other charges imposed by any Official Body, including any interest, additions to tax or penalties applicable thereto.
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“Term CORRA” means, for any calculation with respect to an Advance in CAD
(other than an Advance bearing interest at the Alternate Base Rate), the greater of (i) 0.0% and (ii) the Term CORRA Reference Rate for a tenor of three (3) months on the day (such day, the “Term CORRA Determination
Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of the relevant Accrual Period, as such rate is published by the Term CORRA Administrator.
“Term CORRA Administrator” means Candeal Benchmark Administration Services Inc., TSX Inc., or any successor administrator.
“Term CORRA Determination Day” has the meaning set forth in the definition of “Term CORRA” in
this Section 1.1.
“Term CORRA Reference Rate” means the forward-looking term rate based on CORRA as
published by the Term CORRA Administrator.
“Term SOFR” means, for any calculation with respect to an Advance in
Dollars (other than an Advance bearing interest at the Alternate Base Rate), the greater of (i) 0.0% and (ii) the Term SOFR Reference Rate for a tenor of three (3) months on the day (such day, the “Term SOFR Determination
Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of the relevant Accrual Period, as such rate is published by the Term SOFR Administrator.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term
SOFR Reference Rate selected by the Facility Agent in its reasonable discretion).
“Term SOFR Determination Day” has
the meaning set forth in the definition of “Term SOFR” in this Section 1.1.
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR as published by the Term SOFR Administrator.
“Transaction
Documents” means this Agreement, the Notes, the Sale Agreement, the Collateral Agent and Collateral Custodian Fee Letter, each Fee Letter, the Account Control Agreement, any Joinder Agreement, the Risk Retention Side Letter and the other
documents to be executed and delivered in connection with this Agreement, specifically excluding from the foregoing, however, Underlying Instruments delivered by the Borrower or the Services Provider in connection with this Agreement.
“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.
“UK AIFM Regulations” means the UK Alternative Investment Fund Managers Regulations 2013.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time
to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes
certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Uncommitted
Lender” means any Conduit Lender designated as an “Uncommitted Lender” for any Lender Group and any of its assignees.
“Underlying Instrument” means the loan agreement, credit agreement or other customary agreement pursuant to which a
Collateral Obligation has been created or issued and each other agreement that governs the terms of or secures the obligations represented by such Collateral Obligation or of which the holders of such Collateral Obligation are the beneficiaries.
“Undrawn Fee” a fee payable pursuant to Section 3.1(b) for each day of the related Accrual Period during
the Revolving Period equal to (x) the excess of the aggregate Commitments on such day over the equivalent in Dollars of the aggregate principal amount of outstanding Advances on such day multiplied by (y) the Undrawn Fee Rate
multiplied by (z) 1/360.
“Undrawn Fee Rate” means on any day until the end of the Revolving Period, 0.25%.
“Unfunded Exposure Account” means the collective reference to the segregated, non-interest bearing securities accounts
(within the meaning of Section 8 501 of the UCC), which is created and maintained on the books and records of the Securities Intermediary identified as unfunded exposure accounts in the name of the Borrower and subject to the Lien of the
Collateral Agent for the benefit of the Secured Parties, which is established and maintained pursuant to Section 8.1(a).
“Unfunded Exposure Equity Amount” means, as of any date of determination, with respect to any Revolving Loan or Delayed
Drawdown Loan included in the Collateral, an amount equal to (i) the product of (a) the product of (x) Aggregate Unfunded Amount with respect to such Revolving Loan or Delayed Drawdown Loan multiplied by (y) the Discount
Factor (if any) assigned to such Revolving Loan or Delayed Drawdown Loan multiplied by (b) the difference of (x) 100% minus (y) the lower of the Maximum Portfolio Advance Rate and the Weighted Average Unfunded Advance
Rate, in each case, as of such date plus (ii) the product of (a) Aggregate Unfunded Amount with respect to such Revolving Loan or Delayed Drawdown Loan multiplied by (b) the difference of 100% minus the Discount
Factor (if any) assigned to such Revolving Loan or Delayed Drawdown Loan.
“Unfunded Exposure Shortfall” has the
meaning set forth in Section 8.1(a).
“Unmatured Equityholder Credit Event” means any event that, if it
continues uncured, will, with lapse of time or notice or lapse of time and notice, constitute (A) a Facility Termination Event pursuant to Section 13.1(d)(ii) or (B) a Services Provider Event of Default pursuant to clauses
(f) or (g) of the definition thereof.
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“Unmatured Facility Termination Event” means any event that, if it
continues uncured, will, with lapse of time or notice or lapse of time and notice, constitute a Facility Termination Event.
“Unmatured Services Provider Event of Default” means any event that, if it continues uncured, will, with lapse of time or
notice or lapse of time and notice, constitute a Services Provider Event of Default.
“Unrestricted Cash” means,
(a) with respect to any Loan, the meaning of “Unrestricted Cash” or any comparable term in the Underlying Instruments for the applicable Loan and (b) in any case that “Unrestricted Cash” or such comparable term 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.
“Unspecified Default Waiver Material Modification” has
the meaning set forth in clause (m) of the definition of “Material Modification”.
“USA Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107 56.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day
on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the
Code.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 17.20.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 4.3(f).
“Valuation Standard” means one or a combination of customary and usual valuation methodologies generally accepted in the
pricing and valuation market to derive a fair assessment of the current “fair value” as specified below of a Collateral Obligation and without regard to any compensation received from, or agency relationship with, any Person; provided
that, such fair value shall be based on the most recent financial reporting and/or any other customary financial and other information with respect to such Collateral Obligation including, without limitation, the following: (i) the financial
performance of the Obligor of such Collateral Obligation; (ii) a fundamental analysis which may be based on discounted cash flow and a multiples-based approach based on comparable companies in the relevant sector or another generally accepted
methodology for valuing companies in the relevant sector; and (iii) the current market environment (e.g., quoted trading levels on the Collateral Obligation (if available) and the relative trading levels and yields for debt instruments of
comparable companies). For purposes of this definition, “fair value” is defined as the price that would be received when selling a Collateral Obligation in an orderly transaction between market participants on the date of measuring such
a value.
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“Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act
of 1956, as amended, and the applicable rules and regulations thereunder.
“Warrant Asset” means any equity purchase
warrants or similar rights convertible into or exchangeable or exercisable for any equity interests received by the Borrower as an “equity kicker” from the Obligor in connection with a Collateral Obligation.
“Warranty Collateral Obligation” has the meaning set forth in Section 7.12.
“Weighted Average Advance Rate” means, as of any date of determination with respect to all Eligible Collateral Obligations
included in the Adjusted Aggregate Eligible Collateral Obligation Balance, the number obtained by (i) summing the products obtained by multiplying (a) the Advance Rate of each such Eligible Collateral Obligation by (b) such
Eligible Collateral Obligation’s contribution to the Adjusted Aggregate Eligible Collateral Obligation Balance and (ii) dividing such sum by the Adjusted Aggregate Eligible Collateral Obligation Balance.
“Weighted Average Coupon” means, as of any day, the number expressed as a percentage obtained by dividing (i) the sum
for each Eligible Collateral Obligation (including, for any Deferrable Collateral Obligation, only the required current cash pay interest thereon) that is a Fixed Rate Collateral Obligation of (x) the interest rate for each such Collateral
Obligation minus the Applicable Interest Rate multiplied by (y) the Collateral Obligation Amount of each such Collateral Obligation by (ii) the Adjusted Aggregate Eligible Collateral Obligation Balance for Fixed Rate Collateral
Obligations.
“Weighted Average Life” means, as of any day with respect to all Eligible Collateral Obligations included
in the Collateral, the number of years following such date obtained by (i) summing the products obtained by multiplying (a) the Average Life at such time of each such Eligible Collateral Obligation by (b) the Collateral
Obligation Amount of such Collateral Obligation and (ii) dividing such sum by the Aggregate Eligible Collateral Obligation Amount.
“Weighted Average Spread” means, as of any day, the number expressed as a percentage equal to (i) the Aggregate Funded
Spread divided by (ii) the aggregate Principal Balance of all Eligible Collateral Obligations.
“Weighted Average
Unfunded Advance Rate” means, as of any date of determination with respect to all Eligible Collateral Obligations that are Revolving Loans and Delayed Drawdown Loans included in the Adjusted Aggregate Eligible Collateral Obligation
Balance, the number obtained by dividing (i) the amount obtained by summing the products obtained by multiplying (a) the Advance Rate of each such Revolving Loan or Delayed Drawdown Loan by (b) such Revolving Loan’s or
Delayed Drawdown Loan’s contribution to the Adjusted Aggregate Eligible Collateral Obligation Balance by (ii) the sum of all Revolving Loans’ and Delayed Drawdown Loans’ contributions to the Adjusted Aggregate Eligible
Collateral Obligation Balance.
“Withholding Agent” means the Borrower, the Facility Agent, the Collateral Agent and
the Services Provider.
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“Write-Down and Conversion Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial
Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to
have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under the Bail-In Legislation that are related to or ancillary to any of those powers.
“written” or “in writing” (and other variations thereof) means any form of written communication or a
communication by means of email, telex, telecopier device or cable.
“Yield” means, with respect to any period, the
daily interest accrued on Advances during such period as provided for in Article III.
Section 1.2 Other Definitional
Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement have the meanings as so defined herein when used in the Notes or any other Transaction Document, certificate, report or other document made or delivered
pursuant hereto or thereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere in this
Agreement shall mean the plural thereof when the plural form of such term is used in this Agreement, the Notes or any other Transaction Document, certificate, report or other document made or delivered pursuant hereto or thereto, and each term
defined in the plural form in Section 1.1 shall mean the singular thereof when the singular form of such term is used herein or therein.
(c) The words “hereof,” “herein,” “hereunder” and similar terms when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of this Agreement, the term “including” means “including without limitation,” and article, section, subsection, schedule and exhibit references
herein are references to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified.
(d) The following terms which are defined in the UCC in effect in the State of New York on the date hereof are used herein as
so defined: Accounts, Certificated Securities, Chattel Paper, Control, Deposit Account, Documents, Equipment, Financial Assets, Funds-Transfer System, General Intangibles, Indorse and Indorsed, Instruments,
Inventory, Investment Property, Proceeds, Securities Account, Securities Intermediary, Security Certificates, Security Entitlements, Security Interest and Uncertificated Securities.
(e) Unless otherwise specified, each reference in this Agreement or in any other Transaction Document to a Transaction Document
shall mean such Transaction Document as the same may from time to time be amended, restated, supplemented or otherwise modified in accordance with the terms of the Transaction Documents.
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(f) Unless otherwise specified, each reference to any Applicable Law means
such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder and reference to any Section or other provision of any Applicable
Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such Section or other provision.
(g) All calculations required to be made hereunder with respect to the Collateral Obligations, the Maximum Availability and the
Borrowing Base shall be made on a trade date basis and after giving effect to (x) all purchases or sales to be entered into on such trade date, (y) all Advances requested to be made on such trade date plus the balance of all unfunded
Advances to be made in connection with the Borrower’s purchase of previously requested (and approved) Collateral Obligations or any funding with respect to a Revolving Loan or Delayed Drawdown Loan included in the Collateral and (z) the
application of any Principal Collections on deposit in the Principal Collections Account necessary to settle all outstanding and unsettled assignments.
(h) Any use of “material” or “materially” or words of similar meaning in this Agreement shall mean
material to the ability of the Borrower or the Services Provider to perform its obligations under the Transaction Documents or to the rights and remedies of the Secured Parties under the Transaction Documents, in each case as determined by the
Facility Agent in its commercially reasonable discretion.
(i) For purposes of this Agreement, a Facility Termination Event
or Services Provider Event of Default shall be deemed to be continuing until it is waived in accordance with Section 17.2. In the event that the Borrower or the Services Provider notifies the Facility Agent that the occurrence which
caused any Facility Termination Event or Services Provider Event of Default has been cured, the Facility Agent shall consider, investigate and determine the sufficiency of such cure and notify the Borrower and the Services Provider within a
reasonably prompt period of time as to whether such Facility Termination Event or Services Provider Event of Default will be waived by the Facility Agent in accordance with Section 17.2.
(j) Unless otherwise expressly stated in this Agreement, if at any time any change in generally accepted accounting principles
(including the adoption of IFRS) would affect the computation of any covenant (including the computation of any financial covenant) set forth in this Agreement or any other Transaction Document, Borrower and Facility Agent shall negotiate in good
faith to amend such covenant to preserve the original intent in light of such change; provided, that, until so amended, (i) such covenant shall continue to be computed in accordance with the application of generally accepted accounting
principles prior to such change and (ii) Borrower shall provide to the Facility Agent a written reconciliation in form and substance reasonably satisfactory to the Facility Agent, between calculations of such covenant made before and after
giving effect to such change in generally accepted accounting principles.
(k) All calculations required to be made of the
amount collected in respect of any Collateral Obligation or standing to the credit of any Account shall, if received in an Eligible Currency other than Dollars, be determined as if such amount had been converted by the Collateral Agent into Dollars
on the applicable date of determination using the Applicable Conversion Rate.
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(l) For all purposes under the Transaction Documents, in connection with any
division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person.
ARTICLE II
THE FACILITY, ADVANCE PROCEDURES AND NOTES
Section 2.1 Advances. (a) On the terms and subject to the conditions set forth in this Agreement, each Lender Group hereby
agrees to make advances to or on behalf of the Borrower (individually, an “Advance” and collectively the “Advances”) from time to time on any date (each such date on which an Advance is made, an
“Advance Date”) during the period from the Effective Date to the end of the Revolving Period; provided that there shall be no more than two (2) Advance Dates during any calendar week. The CAD Advances shall be made
solely by the CAD Lenders, the Dollar Advances shall be made solely by the Dollar Lenders, the Euro Advances shall be made solely by the Euro Lenders and the GBP Advances shall be made solely by the GBP Lenders, in each case in accordance with
Section 2.2(d).
(b) Under no circumstances shall any Lender make an Advance if, after giving effect to such
Advance and any purchase of Eligible Collateral Obligations in connection therewith, (x) the equivalent in Dollars of the aggregate outstanding principal amount of all Advances would exceed the lowest of (i) the Facility Amount,
(ii) the Borrowing Base and (iii) the Maximum Availability or (y) the Foreign Currency Advance Amount would exceed the Foreign Currency Sublimit on such day (or the Foreign Currency Advance Amount will be less than the Foreign
Currency Sublimit, on a pro forma basis, after giving effect to such draw and the use of the proceeds of such draw). Subject to the terms of this Agreement, during the Revolving Period, the Borrower may borrow, reborrow, repay and prepay (subject to
the provisions of Section 2.4) one or more Advances.
Section 2.2 Funding of Advances. (a) Subject to the
satisfaction of the conditions precedent set forth in Section 6.2, the Borrower may request Advances hereunder by giving notice to the Facility Agent, each Agent and the Collateral Agent of the proposed Advance at or prior to 11:00 a.m.,
New York City time, at least two (2) Business Days prior to the proposed Advance Date. Such notice (herein called the “Advance Request”) shall be in the form of Exhibit C-1 and shall include (among other things) the
proposed Advance Date and amount of such proposed Advance, and shall, if applicable, be accompanied by an Asset Approval Request setting forth the information required therein with respect to the Collateral Obligations to be acquired by the Borrower
on the Advance Date (if applicable). The amount of any Advance shall at least be equal to the least of (w) $500,000, 250,000 CAD, 250,000 Euros or 250,000 GBP, individually and as applicable, (x) the (1) Borrowing Base on such day
minus (2) the equivalent in Dollars of the Advances outstanding on such day, (y) the (1) Facility Amount on such day minus (2) the equivalent in Dollars of the Advances outstanding on such day and (z) the
Foreign Currency Sublimit on such day minus the Foreign Currency Advance Amount on such day, in each case, before giving effect to the requested Advance as of such date (or the Foreign Currency Advance Amount will be less than the Foreign
Currency Sublimit, on a pro forma basis, after giving effect
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to such draw and the use of the proceeds of such draw). Any Advance Request given by the Borrower pursuant to this Section 2.2, shall be irrevocable and binding on the Borrower. The
Facility Agent shall have no obligation to lend funds hereunder in its capacity as Facility Agent. Subject to receipt by the Collateral Agent of the Officer’s Certificate of the Borrower required under Section 6.2, and the
Collateral Agent’s receipt of such funds from the Lenders, the Collateral Agent shall make the proceeds of such requested Advances available to the Borrower by deposit to such account as may be designated by the Borrower in the Advance Request
in same day funds no later than 3:00 p.m., New York City time, on such Advance Date.
(b) Committed Lender’s
Commitment. At no time will any Uncommitted Lender have any obligation to fund an Advance. At all times on and after the Conduit Advance Termination Date for a Conduit Lender in a Lender Group, all Advances shall be made by the Committed Lenders
in such Lender Group. At any time when any Uncommitted Lender has failed to or has rejected a request to fund an Advance, its Agent shall so notify the Related Committed Lender and such Related Committed Lender shall fund such Advance.
Notwithstanding anything contained in this Section 2.2(b) or elsewhere in this Agreement to the contrary, no Committed Lender shall be obligated to provide its Agent or the Borrower with funds in connection with an Advance in an amount
that would result in the portion of the Advances then funded by it exceeding its Commitment then in effect. The obligation of the Committed Lender in each Lender Group to remit any Advance shall be several from that of the other Lenders, and the
failure of any Committed Lender to so make such amount available to its Agent shall not relieve any other Committed Lender of its obligation hereunder.
(c) Unfunded Commitment Provisions. Notwithstanding anything to the contrary herein, upon the occurrence of the earlier
of (i) any acceleration of the maturity of Advances pursuant to Section 13.2 and (ii) the end of the Revolving Period, the Borrower shall request an Advance in the amount of the Aggregate Unfunded Amount minus the amount
already on deposit in the Unfunded Exposure Account. Following receipt of such Advance Request, the Lenders shall fund such requested amount by transferring such amount directly to the Collateral Agent to be deposited into the Unfunded Exposure
Account, notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 6.2).
(d) Currency Commitment Provisions.
(i) Each Lender hereby agrees that (A) each Advance funded in CADs shall be funded in its entirety by the CAD Lenders,
(B) each Advance funded in Dollars shall be funded in its entirety by the Dollar Lenders, (C) each Advance funded in Euros shall be funded in its entirety by the Euro Lenders and (D) each Advance funded in GBPs shall be funded in its
entirety by the GBP Lenders; provided that, no Lender other than DBNY and its Affiliates shall be required to fund any Advances in any Eligible Currency (other than Dollars) in an amount greater than its Pro Rata Percentage of the Advances to
be made in such Eligible Currency. On the date of each Advance, each Lender shall purchase and sell Advances in an aggregate amount such that, after giving effect to each such purchase, each Lender owns its Pro Rata Percentage of the Advances
outstanding.
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(ii) On each FX Evaluation Date (or (I) with respect to any FX
Evaluation Date specified in clause (d) of the definition thereof, on one Business Day after such FX Evaluation Date and (II) with respect to any FX Evaluation Date specified in clause (c) of the definition thereof,
(A) if the Borrower or the Services Provider has notified the Facility Agent of such Facility Termination Event and a grace period is applicable to such Facility Termination Event, on the date of such notification and (B) if the Borrower
or the Services Provider has notified the Facility Agent of such Facility Termination Event (X) on or before 10:00 a.m. (New York City time) and no grace period is applicable to such Facility Termination Event, on the date of such notification
or (Y) after 10:00 a.m. (New York City time) and no grace period is applicable to such Facility Termination Event, on one Business Day after the date of such notification), the Services Provider shall calculate the Borrowing Base and deliver
such calculation to the Facility Agent, the Collateral Agent and each Lender, together with each Pro Rata Percentage and the actual percentage of the Advances outstanding owing to each Lender as of such FX Evaluation Date. If (x) there is on
any FX Evaluation Date specified in clauses (a), (c) or (d) of the definition thereof, any difference or (y) there is on any FX Evaluation Date specified in clause (b) of the definition thereof, a
difference of 2.5% or more, in each case between any Lender’s actual percentage of the Advances outstanding and such Lender’s Pro Rata Percentage, then on any date of reallocation under this Section 2.2(d)(ii) pursuant to the
last sentence of this paragraph, the Services Provider shall deliver to the Facility Agent and each Lender (with a copy to the Collateral Agent) a notice in the form of Exhibit C-6 (each, an “FX Reallocation Notice”)
directing each Lender (notwithstanding Section 6.2(a)(i)) to sell to, or purchase from, as applicable, the other Lenders’ Advances in an aggregate amount such that, after giving effect to each such purchase, each Lender owns its
Pro Rata Percentage of the Advances outstanding. Each Lender agrees to comply with the direction provided in the FX Reallocation Notice. Each such purchase and sale of Advances outstanding shall occur (x) for any FX Evaluation Date specified in
clause (a) of the definition thereof, the related Funding Date and (y) for all other FX Evaluation Dates, on the second Business Day following delivery of the related FX Reallocation Notice.
(iii) Notwithstanding anything to the contrary herein, at no time shall (w) any CAD Lender have any obligation to fund
any Advance in an Eligible Currency other than CADs, (x) any Dollar Lender have any obligation to fund any Advance in an Eligible Currency other than Dollars, (y) any Euro Lender have any obligation to fund any Advance in an Eligible
Currency other than Euros or (z) any GBP Lender have any obligation to fund any Advance in an Eligible Currency other than GBPs.
Section 2.3 Notes. The Borrower shall, upon request of any Lender Group, on or after such Lender Group becomes a party hereto
(whether on the Effective Date or by assignment or otherwise), execute and deliver a Note evidencing the Advances of such Lender Group. Each such Note shall be payable to the Agent for such Lender Group in a face amount equal to the applicable
Lender Group’s Commitment as of the Effective Date or the effective date on which such Lender Group becomes a party hereto, as applicable. The Borrower hereby irrevocably authorizes each Agent to make (or cause to be made) appropriate
notations on the grid attached to the Notes (or on any continuation of such grid, or at the option of such Agent, in its records), which notations, if made, shall evidence, inter alia, the date of the outstanding principal of the Advances evidenced
thereby and each payment of principal thereon. Such notations shall be rebuttable presumptive evidence of the subject matter thereof absent manifest error; provided, that the failure to make any such notations shall not limit or otherwise
affect any of the Obligations or any payment thereon.
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Section 2.4 Repayment and Prepayments. (a) The Borrower shall repay the
Advances outstanding (i) on each Distribution Date to the extent required to be paid hereunder and funds are available therefor pursuant to Section 8.3 and (ii) in full on the Facility Termination Date. Each repayment shall be
made in the currency in which the Advance being repaid is denominated.
(b) Prior to the Facility Termination Date, the
Borrower may, from time to time, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Advance using Principal Collections on deposit in the Principal Collection Account or other funds available to the Borrower
on such date; provided, that
(i) all such voluntary prepayments shall require prior written notice to the Facility Agent (with a
copy to the Collateral Agent and each Agent) by 11:00 a.m. two (2) Business Days prior to such voluntary prepayment, which notice (herein called the “Prepayment Notice”) shall be in the form of Exhibit C-4 and shall
include (among other things) the proposed date of such prepayment and the amount and allocation of such prepayment;
(ii) all such
voluntary partial prepayments shall be in a minimum amount of $1,000,000, 500,000 CAD, 500,000 Euros or 500,000 GBP, as applicable;
(iii) each prepayment shall be applied on the Business Day received by the Facility Agent if received by 3:00 p.m., New York City time (or if
received thereafter, such prepayment shall be applied on the following Business Day), on such day as Amount Available constituting Principal Collections pursuant to Section 8.3(a) as if (x) the date of such prepayment were a
Distribution Date and (y) such prepayment occurred during the Accrual Period to which such Distribution Date relates; and
(iv) each
prepayment shall be made in the currency in which the Advance being prepaid is denominated.
Each such prepayment shall be subject to the
payment of any amounts required by Section 2.5(b) (if any) resulting from a prepayment or payment.
Section 2.5
Permanent Reduction of Facility Amount. (a) The Borrower may at any time, upon five Business Days’ prior written notice to the Facility Agent and each Agent, permanently reduce the Facility Amount (i) in whole or in part upon
payment in full (in accordance with Section 2.4) of the aggregate outstanding principal amount of all Advances or (ii) in part by any pro rata amount that the Facility Amount exceeds the aggregate outstanding principal amount
of all Advances (after giving effect to any concurrent prepayment thereof). In connection with any permanent reduction of the Facility Amount under this Section 2.5(a), the Commitment of each Committed Lender shall automatically, and
without any further action by any party, be reduced pro rata with all other Committed Lenders such that the sum of all Commitments will equal the newly reduced Facility Amount.
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(b) As a condition precedent to any permanent reduction of the Facility Amount pursuant to
Section 2.5(a), the Borrower shall pay to the Facility Agent, for the respective accounts of the Lenders, any applicable Reduction Fee. Notwithstanding anything to the contrary herein, no Reduction Fee or other prepayment fee or premium
shall be due in respect of any prepayment or permanent reduction of the Facility Amount occurring (i) during the continuation of a Non-Approval Event, (ii) after the Lenders have declined a request for extension of the Revolving Period
under Section 2.6 on substantially the same terms as already set forth herein, (iii) following acceleration of the Obligations pursuant to Section 13.2, (iv) after the 15-month anniversary of the Effective Date,
(v) after the Facility Agent has declined a request to or otherwise does not increase the Facility Amount in accordance with clause (i) of Section 2.8 or (vi) as a result of a Permitted Securitization.
Section 2.6 Extension of Revolving Period. The Borrower may, at any time after the first anniversary of the Effective Date and
prior to the date that is 45 days prior to the last date of the Revolving Period, deliver a written notice to each Agent (with a copy to the Facility Agent) requesting an extension of the Revolving Period for an additional twelve months (each
qualifying request, an “Extension Request”). Each Lender may approve or decline an Extension Request in its sole discretion; provided, that the Lenders shall respond to an Extension Request in writing not later than 30 days
following receipt of such Extension Request, and if any Lender does not respond in writing by the end of such 30 day period it shall be deemed to have denied such Extension Request. No request by the Borrower to extend the Revolving Period shall be
considered an “Extension Request” if such request is conditioned on an amendment to any other provision of the Transaction Documents.
Section 2.7 Calculation of Discount Factor.
(a) In connection with the purchase of each Collateral Obligation and prior to such Collateral Obligation being purchased by
the Borrower and included in the Collateral, the Facility Agent will assign (in its sole discretion) a Discount Factor for such Collateral Obligation, which Discount Factor shall remain effective for such Collateral Obligation except as provided in
clause (b) below; provided that each Specified First Lien Loan and Specified Broadly Syndicated Loan will have an initial Discount Factor equal to 100%.
(b) If, but only if, a Revaluation Event occurs with respect to any Collateral Obligation, the Discount Factor of such
Collateral Obligation may be amended by the Facility Agent, in its sole discretion; provided that if a Revaluation Event occurs as a result of a 1.00x increase in the Leverage Multiple for any Collateral Obligation (other than a Multiple of
Recurring Revenue Loan) (and the then-current Leverage Multiple is less than 2.00x higher than the Original Leverage Multiple), the Facility Agent may elect to decrease the Discount Factor by up to a percentage equal to (x) 1.0 minus (y)(A) the
Original Leverage Multiple divided by (B) the then-current Leverage Multiple of such Collateral Obligation; provided, further that following the occurrence of any other Revaluation Event (including without limitation another 1.00x
increase in the Leverage Multiple) after the occurrence of the first Revaluation Event subject to the foregoing proviso, the Facility Agent in its sole discretion shall determine the Discount Factor of the applicable Collateral Obligation;
provided, further that, so long as (i)(1) the then-current Leverage Multiple with respect to the Collateral Obligation subject to such Revaluation Event is less than 2.00x higher than the related Original Leverage Multiple and
(2) such Collateral Obligation was not previously subject to a Revaluation Event or (ii) such Collateral Obligation is not a Multiple of Recurring Revenue Loan, the Services
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Provider may dispute the Discount Factor determined by the Facility Agent by retaining at the expense of the Borrower an Approved Valuation Firm to determine the Discount Factor in accordance
with the Valuation Standard no later than sixty (60) days after the date of such initial determination by the Facility Agent (any such determination not to exceed the lesser of (x) the Purchase Price paid by the Borrower for such
Collateral Obligation and (y) the outstanding Principal Balance of such Collateral Obligation); provided, further, that if the Facility Agent disputes the determination of the Discount Factor by such Approved Valuation Firm, the
Facility Agent may at the expense of the Borrower elect to retain a different Approved Valuation Firm to determine the Discount Factor in accordance with the Valuation Standard; provided, further, that any determination by any Approved
Valuation Firm of the Discount Factor after a Revaluation Event shall be re-calculated every six (6) months after the date of such initial determination until the Services Provider provides written notice pursuant to Section 2.7(c)
that such Revaluation Event is no longer continuing; provided further, that if a Revaluation Event pursuant to clause (p) of the definition thereof occurs, then (i) the Discount Factor of the applicable Specified Broadly
Syndicated Loan may be amended to be the lower of (x) the Market Value of such Specified Broadly Syndicated Loan as of such date of determination and (y) the Purchase Price (expressed as percentage of par) of such Specified Broadly
Syndicated Loan and (ii) if, after giving effect to clause (i) above, the applicable Specified Broadly Syndicated Loan has a Market Value that exceeds 90% for 30 consecutive days (as agreed between the Borrower and the Facility
Agent), then the Borrower may request that the Facility Agent amend the Discount Factor of such Specified Broadly Syndicated Loan, which amendment shall be in the Facility Agent’s sole discretion; provided further, that if a Revaluation
Event pursuant to clause (s) of the definition thereof occurs at a sale price that (i) exceeds 80.0% (expressed as a percentage of par), the Discount Factor of the applicable Collateral Obligation may be amended to be no less than
the lower of (x) the sale price of the applicable portion of such Collateral Obligation and (y) the Purchase Price of such Collateral Obligation or (ii) does not exceed 80.0% (expressed as a percentage of par), the Discount Factor of
the applicable Collateral Obligation may be amended by the Facility Agent in its sole discretion. If any additional Revaluation Event occurs with respect to any Collateral Obligation, the Discount Factor of such Collateral Obligation may be amended
by the Facility Agent, in its sole discretion, and the Services Provider may dispute such Discount Factor to the extent permitted under the preceding sentence (any such determination not to exceed the lesser of (x) the Purchase Price paid by
the Borrower for such Collateral Obligation and (y) the outstanding Principal Balance of such Collateral Obligation). In the event more than one Discount Factor has been determined by Approved Valuation Firms for any Collateral Obligation in
accordance with this clause (b), the Discount Factor for such Collateral Obligation shall be recalculated by the Facility Agent as average of the valuations provided by the Approved Valuation Firms (such determination not to exceed the lesser
of (x) the Purchase Price paid by the Borrower for such Collateral Obligation and (y) the outstanding Principal Balance of such Collateral Obligation). To the extent the Services Provider has actual knowledge (after reasonable inquiry) or
has received notice of any Revaluation Event with respect to any Collateral Obligation, the Services Provider shall give prompt notice thereof to the Facility Agent (but, in any event, not later than two Business Days after it receives notice or
gains actual knowledge thereof). Notwithstanding anything above to the contrary, the Services Provider shall not dispute a Revaluation Event if such Revaluation Event is caused by the applicable Collateral Obligation becoming a Defaulted Collateral
Obligation.
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(c) If the circumstances with respect to any Collateral Obligation change,
the Services Provider may provide written notice of such changed circumstance to the Facility Agent, and if no Revaluation Event shall then be continuing for such Collateral Obligation, the Facility Agent shall in its sole discretion re-evaluate the
Discount Factor for such Collateral Obligation.
(d) No revised Discount Factor determined pursuant to this
Section 2.7 shall be effective until the Facility Agent has provided written notice of such revised Discount Factor to the Borrower, the Services Provider, each Agent and the Collateral Agent.
Section 2.8 Increase in Facility Amount. The Borrower may, with the prior written consent of the Facility Agent (which consent may
be conditioned on one or more conditions precedent in its sole discretion), (i) request an increase of the Facility Amount to an amount up to $250,000,000, to be effected by increasing the Commitment of one or more existing Lender Groups with
the prior written consent of each Lender Group that is increasing its Commitment (pro rata, unless otherwise approved by the Facility Agent) and/or adding additional Lender Groups, (ii) add additional Lender Groups and/or
(iii) increase the Commitment of any Lender Group with the prior written consent of such Lender Group, in each case which shall increase the Facility Amount by the amount of the Commitment of each such existing or additional Lender Group.
Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Commitment and no Lender’s Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and
without cause, decline to increase its Commitment. Any new Lender Group shall execute a Joinder Agreement (with a copy to the Collateral Agent and the Services Provider); provided that if DBNY, after giving effect to the Joinder Agreement of
any Lender Group, has a Commitment that constitutes less than 35% of the Facility Amount, then the Borrower shall consent to such new Lender Group (which may occur by the Borrower’s execution of the related Joinder Agreement). Notwithstanding
the foregoing, no such increase shall be permitted without the prior written consent of DBNY if, after giving effect to any such increase, DBNY’s Commitment will be less than 35% of the Facility Amount.
Section 2.9 Defaulting Lenders.
(a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) any payment of principal,
interest, fees or other amounts received by the Collateral Custodian for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise), shall be applied at such time or times as may be determined by the Facility
Agent and advised to the Collateral Custodian in writing as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Facility Agent hereunder; second, as the Borrower may request (so long as no Facility Termination Event
or Unmatured Facility Termination Event exists (except to the extent caused by such Defaulting Lender, as determined by the Borrower in its sole discretion)), to the funding of any Advance in respect of which such Defaulting Lender has failed to
fund its portion thereof as required by this Agreement, as determined by the Services Provider, the Facility Agent or the Collateral Agent; third, if so determined by the Facility
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Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund future Advances under this Agreement;
fourth, to the payment of any amounts owing to the other Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of
its obligations under this Agreement; fifth, so long as no Facility Termination Event exists (except to the extent caused by such Defaulting Lender, as determined by the Facility Agent in its sole discretion), to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and
sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Advances in respect of which such Defaulting Lender has not fully
funded its appropriate share, such payment shall be applied solely to pay the Advances of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.9 shall be deemed paid to and redirected by
such Defaulting Lender, and each Lender irrevocably consents hereto; and
(ii) for any period during which such Lender is a
Defaulting Lender, such Defaulting Lender shall not be entitled to receive any Undrawn Fee or Make-Whole Fee for any period during which that Lender is a Defaulting Lender (and under no circumstance shall the Borrower retroactively be or become
required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).
(b) If the Facility
Agent and the Borrower determine in their respective sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Facility Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), such Lender will, to the extent applicable, purchase that portion of Advances outstanding of the other Lenders or take
such other actions as the Facility Agent may determine to be necessary to cause the Advances to be held on a pro rata basis by the Lenders, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Section 2.10 Borrowing Base Deficiency Payments. If, on any day prior to a Facility Termination Date (i) a Borrowing Base
Deficiency exists, then the Borrower may cure such Borrowing Base Deficiency (in whole or in part) by pledging Specified BB Collateral Obligations (including by acquiring any Specified BB Collateral Obligation such that it becomes subject to the
grant of security interest pursuant to Section 12.1) by (x) providing notice to the Facility Agent and the Collateral Agent that it intends to pledge any Specified BB Collateral Obligations in order
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to cure a Borrowing Base Deficiency and (y) delivering a Borrowing Base calculation to the Facility Agent that shows the addition of such Specified BB Collateral Obligation to the Borrowing
Base; provided that the characteristics of such Specified BB Collateral Obligation (e.g., amount, Discount Factor, etc.) shall be as set forth in the related Asset Approval Notice or (ii) a Specified Limited Borrowing Base Deficiency
exists (including immediately after a partial cure of a Borrowing Base Deficiency pursuant to clause (i) or through a contribution of cash or sale of assets), then the Borrower may also cure such Specified Limited Borrowing Base
Deficiency by pledging Specified Broadly Syndicated Loans or Specified First Lien Loans that, as of such date of determination, satisfy clauses (b) and (c) of the definition of Specified BB Collateral Obligation;
provided that any such cure pursuant to this clause (ii) must cure the outstanding Specified Limited Borrowing Base Deficiency in full. The foregoing is without prejudice to the Borrower’s ability to otherwise cure a
Borrowing Base Deficiency in whole or in part as permitted under this Agreement, including through receipt of a contribution (with or without an Equity Cure Notice) to its equity of cash, sale of assets or otherwise.
ARTICLE III
YIELD,
UNDRAWN FEE, ETC.
Section 3.1 Yield and Undrawn Fee. (a) The Borrower hereby promises to pay, on the dates
specified in Section 3.2, Yield on the outstanding amount of each Advance (or each portion thereof) for the period commencing on the applicable Advance Date until such Advance is paid in full. No provision of this Agreement or the Notes
shall require the payment or permit the collection of Yield in excess of the maximum amount permitted by Applicable Law.
(b) The Borrower shall pay the Undrawn Fee on the dates specified in Section 3.2.
Section 3.2 Yield and Undrawn Fee Distribution Dates. Yield accrued on each Advance (including any previously accrued and unpaid
Yield) and (as applicable) the Make-Whole Fee and the Undrawn Fee shall be payable, without duplication:
(a) on the
Facility Termination Date;
(b) on the date of any payment or prepayment, in whole or in part, of principal outstanding on
such Advance; and
(c) on each Distribution Date.
Section 3.3 Yield Calculation. The Advances shall bear interest on each day during each Accrual Period at a rate per annum equal
to the product of (a) the Interest Rate for such Accrual Period multiplied by (b) the outstanding amount of Advances on such day. All Yield shall be computed on the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such Yield is payable over a year comprised of (x) with respect to Dollar Advances and Euro Advances, 360 days, provided that the Yield for any Note accruing interest at the Alternate
Base Rate shall be computed on the basis of the actual number of days elapsed over a year comprised of 365 or 366 days, as applicable, and (y) with respect to Advances for any Eligible Currency other than Dollars or Euros, 365 days.
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Section 3.4 Computation of Yield, Fees, Etc. Each Agent (on behalf of its
respective Lender Group) and the Facility Agent shall determine the applicable Yield and all Fees to be paid by the Borrower on each Distribution Date for the related Accrual Period and shall advise the Collateral Agent thereof in writing no later
than the fifth (5th) Business Day following the end of the related Accrual Period. Such reporting may also include an accounting of any amounts due and payable pursuant to Sections 4.3
and 5.1.
ARTICLE IV
PAYMENTS; TAXES
Section 4.1 Making of Payments. Subject to, and in accordance with, the provisions hereof and Section 2.4 or
Section 8.3(a), as applicable, all payments of principal of or Yield on the Advances and other amounts due to the Lenders shall be made pursuant to Section 8.3(a) no later than 3:00 p.m., New York City time, on the day when
due in the applicable Eligible Currency in immediately available funds. Payments received by any Lender or Agent after 3:00 p.m., New York City time, on any day will be deemed to have been received by such Lender or Agent on the next following
Business Day. The respective Agent for each Lender Group shall allocate to the Lenders in its Lender Group each payment in respect of the Advances received by the respective Agent as provided by Section 8.3(a) or Section 2.4,
as applicable. Payments in reduction of the principal amount of the Advances shall be allocated and applied to Lenders pro rata based on their respective portions of such Advances, or in any such case in such other proportions as each
affected Lender may agree upon in writing from time to time with such Agent and the Borrower. Payments of Yield and Undrawn Fee shall be allocated and applied to Lenders pro rata based upon the respective amounts of such Yield and Undrawn Fee
due and payable to them.
Section 4.2 Due Date Extension. If any payment of principal or Yield with respect to any Advance
falls due on a day which is not a Business Day, then such due date shall be extended to the next following Business Day, and additional Yield shall accrue and be payable for the period of such extension at the rate applicable to such Advance.
Section 4.3 Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower
under any Transaction Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by a Withholding Agent, then the 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
Official Body in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this Section 4.3) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
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(b) Payment of Other Taxes by the Borrower. The Borrower shall timely
pay to the relevant Official Body in accordance with Applicable Law, or at the option of the Facility Agent timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification by the Borrower. The Borrower shall indemnify each Recipient, on the next succeeding Distribution
Date after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4.3) payable or paid by such Recipient or required to be
withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Official Body. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Facility Agent), or by the Facility Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Indemnification by the Lenders. Each Lender shall severally indemnify the Facility Agent, on the next succeeding
Distribution Date 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 Facility Agent for such Indemnified Taxes and without limiting the
obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 15.9 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes
attributable to such Lender, in each case, that are payable or paid by the Facility 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 Official Body. A certificate as to the amount of such payment or liability delivered to any Lender by the Facility Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Facility 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 Facility Agent to the Lender from any other source against any amount due to the Facility Agent under
this Section 4.3(d).
(e) Evidence of Payments. As soon as practicable after any payment of Taxes by the
Borrower to an Official Body pursuant to this Section 4.3, the Borrower shall deliver to the Facility Agent the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the Facility Agent.
(f) Status of
Lenders.
(i) 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 Facility Agent, at the time or times reasonably requested by the Borrower or the Facility Agent, such properly completed and executed documentation reasonably requested by the Borrower or
the Facility 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 Facility Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the Facility Agent as will enable the Borrower or
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the Facility 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 4.3(f)(ii)(A), Section 4.3(f)(ii)(B) and Section 4.3(f)(ii)(D) below) shall not be
required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing:
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Facility Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent) executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup
withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and
the Facility Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Facility Agent) whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming
the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Transaction Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Document, IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed copies of IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c)
of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
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(IV) to the extent a Foreign Lender is not the beneficial owner, executed
copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Facility Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Facility 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 Facility Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Transaction Document would be subject to U.S. federal withholding Tax imposed by
FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Facility
Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Facility 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 Facility Agent as may be necessary for the Borrower and the Facility Agent to (x) comply with their obligations under FATCA and to determine that such Lender has
complied with such Lender’s obligations under FATCA or (y) determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after
the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Facility Agent in writing of its legal inability to do so.
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(g) Treatment of Certain Refunds. If any party determines, in its
sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4.3 (including by the payment of additional amounts pursuant to this
Section 4.3), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4.3 with respect to the 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 by the relevant Official Body 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 4.3(g) (plus any penalties, interest or other charges imposed by the relevant Official Body) in the event that such indemnified party is required to
repay such refund to such Official Body. Notwithstanding anything to the contrary in this Section 4.3(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 4.3(g) 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 Section 4.3(g) 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.
(h) Survival. Each party’s obligations under this Section 4.3 shall
survive the resignation or replacement of the Facility Agent or any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all obligations under any Transaction Document.
(i) Defined Terms. For purposes of this Section 4.3, the term “Applicable Law” includes FATCA.
ARTICLE V
INCREASED COSTS, ETC.
Section 5.1 Increased Costs, Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the
date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether
foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other
than with respect to Taxes) to the Facility Agent, any Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Advance (or any
reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable
(other than with respect to Taxes) by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (x) Indemnified Taxes, (y) Taxes described in clauses
(b) through (d) of the definition of Excluded Taxes and (z) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent pursuant to Section 5.1(d), on behalf of such Affected Person, pay to the Facility Agent, on behalf of
such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this
Section 5.1 shall be without duplication of amounts payable under Section 4.3.
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(b) If either (i) the introduction of or any change following the date
hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule,
regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity,
has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any
such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy), by an amount deemed by such Affected Person to be material,
then, from time to time, after demand by such Affected Person pursuant to Section 5.1(d), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for
such reduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations are then in effect) suffer or
incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with
the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in
the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such
Affected Person or its Affiliates or otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations, then, upon
demand by or on behalf of such Affected Person through the Facility Agent pursuant to Section 5.1(d), the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of
such Affected Person, compensate such Affected Person therefor but only to the extent that there are amounts available therefor on any given day pursuant to Section 8.3(a).
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable
averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the
computations of such additional or increased costs, which certificate shall be conclusive evidence of such amount absent manifest error.
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ARTICLE VI
EFFECTIVENESS; CONDITIONS TO ADVANCES
Section 6.1 Effectiveness. This Agreement shall become effective on the first day (the “Effective Date”) on
which the Facility Agent, on behalf of the Lenders, shall have received the following, each in form and substance reasonably satisfactory to the Facility Agent:
(a) Transaction Documents. This Agreement and each other Transaction Document (other than the Collateral Agent and
Collateral Custodian Fee Letter), in each case duly executed by each party thereto;
(b) Notes. For each Lender
Group that has requested the same, a Note duly completed and executed by the Borrower and payable to the Agent for such Lender Group;
(c) Establishment of Pledged Accounts. Evidence that each Pledged Account has been established;
(d) Resolutions. Certified copies of the resolutions of the board of managers (or similar items) of the Borrower, the
Equityholder and the Services Provider approving the Transaction Documents to be delivered by it hereunder and the transactions contemplated hereby, certified by its secretary or assistant secretary or other authorized officer;
(e) Organizational Documents. The certificate of formation (or similar organizational document) of each of the Borrower,
the Equityholder and the Services Provider certified by the Secretary of State of its jurisdiction of organization; and a certified, executed copy of the Borrower’s, the Equityholder’s and the Services Provider’s organizational
documents;
(f) Good Standing Certificates. Good standing certificates for each of the Borrower, the Equityholder
and the Services Provider issued by the applicable Official Body of its jurisdiction of organization;
(g)
Incumbency. A certificate of the secretary or assistant secretary of each of the Borrower, the Equityholder and the Services Provider certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and
the other Transaction Documents to be delivered by it;
(h) Filings. Copies of proper financing statements, as may
be necessary or, in the opinion of the Facility Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the security interest of the Collateral Agent on behalf of the Secured Parties in all Collateral in
which an interest may be pledged hereunder;
(i) Opinions. Legal opinions of Latham & Watkins LLP, counsel
for the Borrower, the Equityholder and the Services Provider, Eversheds Sutherland (US) LLP, counsel for the Equityholder and the Services Provider, Nixon Peabody LLP, counsel for the Collateral Agent and the Collateral Custodian, each in form and
substance reasonably satisfactory to the Facility Agent covering such matters as the Facility Agent may reasonably request;
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(j) No Facility Termination Event, etc. Each of the Transaction
Documents is in full force and effect and no Facility Termination Event or Unmatured Facility Termination Event has occurred and is continuing or will result from the issuance of the Notes and the borrowing hereunder;
(k) Liens. The Facility Agent shall have received (i) the results of a recent search by a Person satisfactory to
the Facility Agent, of the UCC, judgment, security interest and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the results of such
search shall be satisfactory to the Facility Agent and (ii) filed UCC termination statements, if any, necessary to release all security interests and other rights of any Person in any Collateral previously granted by the Borrower and any
executed pay-off letters reasonably requested by the Facility Agent;
(l)
Payment of Fees. The Facility Agent shall have received evidence, to its sole satisfaction, that all Fees due to the Lenders on the Effective Date have been paid in full;
(m) No Material Adverse Effect. No Material Adverse Effect shall have occurred since the formation date of the
Equityholder and no litigation shall have commenced which, if successful, could have a Material Adverse Effect;
(n)
Financial Statements. The Facility Agent has received the most recently available copies of the financial statements and reports described in Section 7.5(j) (to the extent available) certified by a Responsible Officer of the
Equityholder to be true and correct; such financial statements fairly present in all material respects the financial condition of such Person as of the applicable date of issuance;
(o) Compliance. The Facility Agent, the Lenders and the Collateral Custodian shall have received sufficiently in advance
of the Effective Date, all documents and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act;
(p) Beneficial Ownership Certification. The Facility Agent shall have received the Beneficial Ownership Certification in
respect of the Borrower; and
(q) Other. Such other approvals, documents, opinions, certificates and reports as the
Facility Agent may reasonably request.
Section 6.2 Advances and Reinvestments. The making of any Advance (including the
initial Advance hereunder) and any Reinvestment are all subject to the condition that the Effective Date shall have occurred and to the following further conditions precedent that:
(a) No Facility Termination Event, Etc. Each of the Transaction Documents shall be in full force and effect (unless
terminated in accordance with their terms) and (i) no Facility Termination Event or Unmatured Facility Termination Event shall have occurred and be continuing or will result from the making of such Advance or Reinvestment (other than in
connection with an Advance made pursuant to Section 2.2(c)), (ii) no Services Provider Event of Default or Unmatured Services Provider Event of Default shall have occurred and be
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continuing or will result from the making of such Advance or Reinvestment (other than in connection with an Advance made pursuant to Section 2.2(c)), (iii) the representations
and warranties of the Borrower and the Services Provider contained herein and in the other Transaction Documents shall be true and correct in all material respects as of the related Funding Date (or if such representations and warranties
specifically refer to an earlier date, such earlier date), with the same effect as though made on the date of (and after giving effect to) such Advance or Reinvestment(or, if applicable, such earlier specified date), (iv) no Specified Borrowing
Base Breach shall have occurred and be continuing, and (v) after giving effect to such Advance or Reinvestment (and any purchase of Eligible Collateral Obligations in connection therewith), (A) the equivalent in Dollars of the aggregate
principal amount of all Advances outstanding will not exceed the Borrowing Base, the Maximum Availability or the Facility Amount and (B) the Foreign Currency Advance Amount will not exceed the Foreign Currency Sublimit (or the Foreign Currency
Advance Amount will be less than the Foreign Currency Sublimit, on a pro forma basis, after giving effect to such draw and the use of the proceeds of such draw);
(b) Requests. (i) In connection with the funding of any Advance pursuant to Section 2.2(a), the
Collateral Agent, each Agent and the Facility Agent shall have received the Advance Request for such Advance in accordance with Section 2.2(a), together with all items required to be delivered in connection therewith and (ii) in
connection with any Reinvestment, the Collateral Agent, each Agent and the Facility Agent shall have received the Reinvestment Request for such Reinvestment in accordance with Section 8.3(b), together with all items required to be
delivered in connection therewith;
(c) Revolving Period. The Revolving Period shall not have ended;
(d) Document Checklist. The Facility Agent, each Agent and the Collateral Custodian shall have received a Document
Checklist for each Eligible Collateral Obligation to be added to the Collateral on the related Funding Date;
(e)
Borrowing Base Confirmation. The Collateral Agent, each Agent and the Facility Agent shall have received an Officer’s Certificate of the Borrower or the Services Provider (which may be included as part of the Advance Request or
Reinvestment Request) computed as of the date of such request and after giving effect thereto and to the purchase by the Borrower of the Collateral Obligations to be purchased by it on such date (if any), demonstrating that (A) the aggregate
principal amount of all outstanding Advances shall not exceed the Borrowing Base, the Maximum Availability or the Facility Amount and (B) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit, in each case
calculated as of the Funding Date as if the Collateral Obligations purchased by the Borrower on such Funding Date were owned by the Borrower (or the Foreign Currency Advance Amount will be less than the Foreign Currency Sublimit, on a pro
forma basis, after giving effect to such draw and the use of the proceeds of such draw);
(f) Collateral Quality
Tests, Minimum Equity Condition. The Collateral Agent, each Agent and the Facility Agent shall have received an Officer’s Certificate of the Borrower (or the Services Provider on behalf of the Borrower) (which may be included as part of
the Advance Request or Reinvestment Request) computed as of the proposed Funding Date,
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and after giving effect thereto and to the purchase by the Borrower of the Collateral Obligations to be purchased by it on such Funding Date, demonstrating that all of the Collateral Quality
Tests and the Minimum Equity Condition are satisfied (or, in connection with a Reinvestment, if any such Collateral Quality Test is not satisfied, it is maintained or improved immediately after giving effect to such Reinvestment);
(g) Hedging Agreements. The Facility Agent shall have received evidence, in form and substance satisfactory to the
Required Lenders, that the Borrower has entered into Hedging Agreements to the extent required by, and satisfying the requirements of, Section 10.6;
(h) Facility Agent Approval. In connection with the acquisition of any Collateral Obligation by the Borrower or the
incremental pledge of any Collateral Obligation owned by the Borrower, (1) the Borrower shall have received in connection with the acquisition of any Collateral Obligation other than a Specified First Lien Loan, Specified Broadly Syndicated
Loan or any Specified BB Collateral Obligation, an Asset Approval Notice with respect to such Collateral Obligation from the Facility Agent (it being understood that the Borrower must have received an Asset Approval Notice in connection with the
original acquisition of any Specified BB Collateral Obligation) and (2) the Borrower (or the Services Provider on its behalf) shall have given electronic notice back to the Facility Agent that it acknowledges and agrees to the terms set forth
in the related Asset Approval Notice; provided that the Borrower may request at any time that the Facility Agent approve any Specified Broadly Syndicated Loan by submitting the applicable Asset Approval Request, and upon the Borrower
receiving the related Asset Approval Notice, such Specified Broadly Syndicated Loan shall no longer be considered a Specified Broadly Syndicated Loan;
(i) Permitted Use. The proceeds of any Advance or Reinvestment will be used solely by the Borrower for general corporate
purposes consistent with the terms hereof, which, for the avoidance of doubt, include dividends and distributions to the Equityholder permitted pursuant to Section 10.16, or to acquire Collateral Obligations as identified on the
applicable Asset Approval Request or to satisfy any unfunded commitments in connection with any Revolving Loan or a Delayed Drawdown Loan; provided, that in the event that the proceeds of any Advance are not used to settled the pending
acquisition of Eligible Collateral Obligations within ten (10) Business Days of the related Funding Date, such proceeds shall be returned to the Facility Agent no later than the next Business Day and such repayment shall be deemed a voluntary
repayment of Advances outstanding and not, for the avoidance of doubt, a permanent reduction of the Facility Amount;
(j)
Appraised Value. In connection with the acquisition of each Asset Based Loan and within the time periods set forth below, the Borrower or the Services Provider (on behalf of the Borrower) shall have retained or shall have caused the Obligor
to retain an Approved Valuation Firm to calculate the Appraised Value of (A) with respect to any such Collateral Obligation that has intellectual property, equipment or real property, as the case may be, in its borrowing base, the collateral
securing such Collateral Obligation within twelve (12) months prior to the acquisition of such Collateral Obligation and inclusion into the Collateral and (B) with respect to all other Asset Based Loans, the collateral securing such
Collateral Obligation within six (6) months prior to the acquisition of such Collateral Obligation and inclusion into the Collateral. The Services Provider shall report the Approved Valuation Firm,
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appraisal metric and Appraised Value for such Collateral Obligation to the Facility Agent (with a copy to each Agent) in the Advance Request or Reinvestment Request, as applicable, related to
such Collateral Obligation;
(k) Borrower’s Certification. The Borrower shall have delivered to the Collateral
Agent, each Agent and the Facility Agent an Officer’s Certificate (which may be included as part of the Advance Request or Reinvestment Request) dated the date of such requested Advance or Reinvestment certifying that the conditions described
in Sections 6.2(a) through (j) have been satisfied;
(l) Rating Letters. Solely with respect to
the initial advance to be made by each Conduit Lender, each applicable Agent shall have received a letter from each applicable Rating Agency confirming its rating of such Conduit Lender;
(m) Equity Contribution. On or prior to the date of the initial Advance hereunder, the Facility Agent shall have
received satisfactory evidence that the Equityholder has contributed Eligible Collateral Obligations with an aggregate Collateral Obligation Amount (minus the amount of each Collateral Obligation included in the Excess Concentration Amount)
and/or cash credited to the Principal Collection Account in an aggregate amount of at least $30,000,000;
(n) Collateral
Agent and Collateral Custodian Fee Letter. On or prior to the date of the initial Advance hereunder, the Facility Agent shall have received the Collateral Agent and Collateral Custodian Fee Letter duly executed by each party thereto;
(o) Borrowing Base Model. The Borrower or the Services Provider have delivered an Excel Borrowing Base model to the
Facility Agent and Lenders in connection with such Advance Request; and
(p) Other. The Facility Agent shall have
received such other approvals, documents, opinions, certificates and reports as it may request, which request is reasonable as to scope, content and timing.
Section 6.3 Transfer of Collateral Obligations and Permitted Investments. (a) The Collateral Custodian shall hold all
Certificated Securities (whether Collateral Obligations or Permitted Investments) and Instruments delivered to it in physical form to its office located at 1776 Heritage Drive, North Quincy, Massachusetts 02171.
(b) On the Effective Date (with respect to each Collateral Obligation and Permitted Investment owned by the Borrower on such
date) and each time that the Borrower or the Services Provider shall direct or cause the acquisition of any Collateral Obligation or Permitted Investment, the Borrower or the Services Provider shall, if such Permitted Investment or, in the case of a
Collateral Obligation, the related promissory note or assignment documentation has not already been delivered to the Collateral Custodian in accordance with the requirements set forth in the definition of “Collateral Obligation File”,
cause the delivery of such Permitted Investment or, in the case of a Collateral Obligation, the related promissory note or assignment documentation in accordance with the requirements set forth in the definition of “Collateral Obligation
File” to the Collateral Custodian to be maintained by the Collateral Custodian (on behalf of the Collateral Agent for the benefit of the Secured Parties) in its continuous possession at its address set forth in Section 6.3(a)
above.
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(c) The Borrower or the Services Provider shall cause all Collateral
Obligations or Permitted Investments acquired by the Borrower to be transferred to the Collateral Agent for credit by it to the Principal Collection Account, and shall cause all Collateral Obligations and Permitted Investments acquired by the
Borrower to be delivered to the Collateral Custodian by one of the following means (and shall take any and all other actions necessary to create and perfect in favor of the Collateral Agent a valid security interest in each Collateral Obligation and
Permitted Investment, which security interest shall be senior (subject to Permitted Liens) to that of any other creditor of the Borrower (whether now existing or hereafter acquired)):
(i) in the case of an Instrument or a Certificated Security in registered form by having it Indorsed to the Collateral Custodian or in blank
by an effective Indorsement or registered in the name of the Collateral Custodian and by (A) delivering such Instrument or Certificated Security to the Collateral Custodian at its address set forth in Section 6.3(a) above and
(B) causing the Collateral Custodian to maintain (on behalf of the Collateral Agent for the benefit of the Secured Parties) continuous possession of such Instrument or Certificated Security at its address set forth in Section 6.3(a)
above;
(ii) in the case of an Uncertificated Security, by (A) causing the Collateral Custodian to become the registered owner of
such Uncertificated Security and (B) causing such registration to remain effective;
(iii) in the case of any Security Entitlement,
by causing each such Security Entitlement to be credited to the applicable Pledged Account; and
(iv) in the case of General Intangibles
(including any Collateral Obligation or Permitted Investment not evidenced by an Instrument) by filing, maintaining and continuing the effectiveness of, a financing statement naming the Borrower as debtor and the Collateral Agent as secured party
and describing the Collateral Obligation or Permitted Investment (or a description of “all assets” of the Borrower) as the collateral at the filing office of the Secretary of State of the State of Delaware.
ARTICLE VII
ADMINISTRATION AND MANAGEMENT OF COLLATERAL OBLIGATIONS; THE EQUITYHOLDER
Section 7.1 Retention and Termination of the Services Provider. The servicing, administering and collection of the Collateral
Obligations shall be conducted by the Person designated as Services Provider from time to time in accordance with this Section 7.1. Subject to early termination due to the occurrence of a Services Provider Event of Default or as
otherwise provided below in this Article VII, the Borrower hereby designates Blue Owl Technology Finance Corp., and Blue Owl Technology Finance Corp. hereby agrees to serve, as Services Provider pursuant to this Agreement for as long as
required hereunder. The Services Provider is not an agent of the Facility Agent, any Agent or any Lender.
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Section 7.2 Resignation and Removal of the Services Provider; Appointment of
Successor Services Provider. (a) If a Services Provider Event of Default shall occur and be continuing, the Facility Agent by written notice given to the Services Provider, may terminate all of the rights and obligations of the Services
Provider and appoint a successor pursuant to the terms hereof. In addition, if the Services Provider is terminated upon the occurrence of a Services Provider Event of Default, the Services Provider shall, if so requested by the Facility Agent,
acting at the direction of the Required Lenders, deliver to any successor servicer copies of its Records within five (5) Business Days (or such longer period as agreed in writing by the Facility Agent in its sole discretion) after demand
therefor and a computer tape or diskette (or any other means of electronic transmission acceptable to such successor servicer) containing as of the close of business on the date of demand all of the data maintained by the Services Provider in
computer format in connection with servicing the Collateral Obligations.
(b) The Services Provider shall not resign from
the obligations and duties imposed on it by this Agreement as Services Provider.
(c) Any Person (i) into which the
Services Provider may be merged or consolidated in accordance with the terms of this Agreement, (ii) resulting from any merger or consolidation to which the Services Provider shall be a party, (iii) acquiring by conveyance, transfer or
lease substantially all of the assets of the Services Provider, or (iv) succeeding to the business of the Services Provider in any of the foregoing cases, shall execute an agreement of assumption to perform every obligation of the Services
Provider under this Agreement and, whether or not such assumption agreement is executed, shall be the successor to the Services Provider under this Agreement without the execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary notwithstanding.
(d) Subject to the last sentence of
this Section 7.2(d), until a successor Services Provider has commenced servicing activities in the place of the Services Provider being replaced, such Services Provider being replaced shall continue to perform the obligations of the
Services Provider hereunder. On and after the termination of the Services Provider pursuant to this Section 7.2, the successor servicer appointed by the Facility Agent shall be the successor in all respects to the Services Provider in
its capacity as Services Provider under this Agreement and the transactions set forth or provided for in this Agreement and shall be subject to all the rights, responsibilities, restrictions, duties, liabilities and termination provisions relating
thereto placed on the Services Provider by the terms and provisions of this Agreement. The Services Provider agrees to cooperate and use reasonable efforts in effecting the transition of the responsibilities and rights of servicing of the Collateral
Obligations, including the transfer to any successor servicer for the administration by it of all cash amounts that shall at the time be held by the Services Provider for deposit, or have been deposited by the Services Provider, or thereafter
received with respect to the Collateral Obligations and the delivery to any successor servicer in an orderly and timely fashion of all files and records in its possession or reasonably obtainable by it with respect to the Collateral Obligations
containing all information necessary to enable the successor servicer to service the Collateral Obligations.
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Notwithstanding anything contained herein to the contrary and to the extent permitted by Applicable Law without causing the Services Provider to have liability, the termination of the Services
Provider shall not become effective until an entity acceptable to the Facility Agent in its sole discretion shall have assumed the responsibilities and obligations of the Services Provider.
(e) At any time, the Facility Agent or any Lender may irrevocably waive any rights granted to such party under
Section 7.2(a). Any such waiver shall be in writing and executed by such party that is waiving its rights hereunder. A copy of such waiver shall be promptly delivered by the waiving party to the Services Provider and the Facility Agent.
Section 7.3 Duties of the Services Provider. The Services Provider shall manage, service, administer and make collections on
the Collateral Obligations and perform the other actions required to be taken by the Services Provider in accordance with the terms and provisions of this Agreement and the Servicing Standard.
(a) The Services Provider shall take or cause to be taken all such actions, as may be reasonably necessary or advisable to
attempt to recover Collections from time to time, all in accordance with (i) Applicable Law, (ii) the applicable Collateral Obligation and its Underlying Instruments and (iii) the Servicing Standard. The Borrower hereby appoints the
Services Provider, from time to time designated pursuant to Section 7.1, as agent for itself and in its name to enforce and administer its rights and interests in the Collections and the related Collateral Obligations.
(b) The Services Provider shall administer the Collections in accordance with the procedures described herein. The Services
Provider shall (i) instruct all Obligors (and related agents) to deposit Collections directly into the Collection Account, (ii) deposit all Collections received directly by it into the Collection Account within one (1) Business Day of
receipt thereof and (iii) cause the Equityholder and each administrative agent that is Affiliated with it to deposit all Collections received directly by the Equityholder or Affiliate into the Collection Account within two (2) Business
Days of receipt thereof. The Services Provider shall identify all Collections as either Principal Collections or Interest Collections, as applicable. The Services Provider shall make such deposits or payments by electronic funds transfer through the
Automated Clearing House system, or by wire transfer. The Services Provider may, on any date, instruct the Collateral Agent to convert funds on deposit in the Collection Account into any Eligible Currency using the Applicable Conversion Rate if,
after giving effect to such exchange, (i) the Borrower is in compliance with the Borrowing Base, the Maximum Availability and the Foreign Currency Sublimit (after giving effect to all conversions and payments being made in connection with such
Distribution Date) and (ii) the Borrower will have sufficient amounts in the Eligible Currency being converted to pay all amounts payable (calculated on a pro forma basis) in such Eligible Currency on such Distribution Date. Such requirements
shall be deemed satisfied upon delivery of instructions in respect thereof from the Services Provider to the Collateral Agent.
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(c) The Services Provider shall maintain for the Borrower and the Secured
Parties in accordance with their respective interests all Records that evidence or relate to the Collections not previously delivered to the Collateral Agent and shall, as soon as reasonably practicable upon demand of the Facility Agent, make
available, or, upon the occurrence and during the continuation of a Services Provider Event of Default, deliver to the Facility Agent (with a copy to each Agent) copies of all material Records in its possession which evidence or relate to the
Collections.
(d) The Services Provider shall, as soon as practicable following receipt thereof, turn over to the
applicable Person any cash collections or other cash proceeds received with respect to each Collateral Obligation that does not constitute a Collateral Obligation or was paid in connection with a Retained Interest.
(e) On each Measurement Date, (i) the Services Provider (on behalf of the Borrower) shall monitor the status of each
Eligible Collateral Obligation as of such date and provide notice of any change in the status of any Eligible Collateral Obligation to the Collateral Agent and, as a consequence thereof, Collateral Obligations that were previously Eligible
Collateral Obligations on a prior Measurement Date may be excluded from the Aggregate Eligible Collateral Obligation Amount on such Measurement Date and (ii) the Services Provider shall provide to the Facility Agent the updated Borrowing Base
model in the form agreed pursuant to Section 6.2(o).
(f) The Services Provider may, with the prior written
consent of the Facility Agent, execute any of its duties under this Agreement and the other Transaction Documents by or through its subsidiaries, affiliates, agents or attorneys in fact; provided that, it shall remain liable for all such
duties as if it performed such duties itself.
Section 7.4 Representations and Warranties of the Services Provider. The
Services Provider represents, warrants and covenants as of the Effective Date and each Funding Date as to itself:
(a)
Organization and Good Standing. It has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of organization, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is currently conducted;
(b) Due Qualification. It
is duly qualified to do business as a corporation in good standing and has obtained all necessary licenses and approvals in all jurisdictions where the failure to do so would have a Material Adverse Effect;
(c) Power and Authority. It has the power, authority and legal right to execute and deliver this Agreement and the
Transaction Documents to which it is a party (in any capacity) and to perform its obligations hereunder and thereunder; and the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party (in any
capacity) have been duly authorized by the Services Provider by all necessary corporate action;
(d) Binding
Obligations. This Agreement and the Transaction Documents to which it is a party (in any capacity) have been duly executed and delivered by the Services Provider and, assuming due authorization, execution and delivery by each other party hereto
and thereto, constitute its legal, valid and binding obligations enforceable against it in
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accordance with their respective terms, except as such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of
creditors’ rights generally, (B) equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law and (C) implied covenants of good faith and
fair dealing;
(e) No Violation. The execution, delivery and performance of this Agreement and the Transaction
Documents to which it is a party (in any capacity), the consummation of the transactions contemplated thereby and the fulfillment of the terms thereof do not (A) conflict with, result in any breach of any of the terms and provisions of, its
organizational documents, (B) conflict with, or result in any breach or default under, any indenture, agreement, mortgage, deed of trust or other instrument to which it is a party or by which it or its properties are bound, (C) result in
the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such material indenture, agreement, mortgage, deed of trust or other instrument (except as may be created pursuant to this Agreement or any other
Transaction Document), or (D) violate in any material respect any Applicable Law except, in the case of subclauses (B), (C) and (D), to the extent that such occurrence would not reasonably be expected to have a
Material Adverse Effect;
(f) No Proceedings. There are no proceedings or investigations pending or, to the best of
the Services Provider’s knowledge (after reasonable inquiry), threatened against it, before any Official Body having jurisdiction over it or its properties (A) asserting the invalidity of any of the Transaction Documents, (B) seeking
to prevent the consummation of any of the transactions contemplated by the Transaction Documents or (C) seeking any determination or ruling that would reasonably be expected to have a Material Adverse Effect;
(g) No Consents. No consent, license, approval, authorization or order of, or registration, declaration or filing with,
any Official Body having jurisdiction over it or any of its properties is required to be made in connection with the execution, delivery or performance of this Agreement and the Transaction Documents to which it is a party (in any capacity) or the
consummation of the transactions contemplated thereby, in each case other than (A) consents, licenses, approvals, authorizations, orders, registrations, declarations or filings which have been obtained or made and continuation statements and
renewals in respect thereof and (B) where the lack of such consents, licenses, approvals, authorizations, orders, registrations, declarations or filings would not have a Material Adverse Effect;
(h) Reserved;
(i) Information True and Correct. All information heretofore or hereafter furnished by or on behalf of the Services
Provider in writing to any Lender, the Collateral Agent or the Facility Agent in connection with this Agreement or any transaction contemplated hereby is and will be (when taken as a whole), as of the date such information is furnished, true and
correct in all material respects (or, if not prepared by or under the direction of the Services Provider, true and correct in all material respects to the knowledge of the Services Provider (after reasonable inquiry)) and does not and will not omit
to state a material fact necessary to make the statements contained therein not misleading (or, if not prepared by or under the direction of the Services Provider, does not omit to state such a fact to the knowledge of the
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Services Provider (after reasonable inquiry)). The Services Provider (i) will not furnish (and has not furnished) any such information to any Lender, the Collateral Agent, any Agent or the
Facility Agent in connection with this Agreement or any transaction contemplated hereby that it knows (or knew) (after reasonable inquiry) to be incorrect at the time such information is (or was) furnished in any material respect and (ii) has
informed (or will inform) the applicable Lender, the Collateral Agent, the applicable Agent or the Facility Agent, as applicable, of any such information which it found after such information was furnished to be incorrect in any material respect
when furnished;
(j) Financial Statements. The Services Provider has delivered to each Lender complete and correct
copies of (A) the audited consolidated financial statements of the Services Provider for the fiscal year most recently ended and (B) the audited consolidated financial statements of the Services Provider for the fiscal quarter most
recently ended, in each case when so required under Section 7.5(j). Such financial statements (including the related notes) fairly present the financial condition of the Services Provider as of the respective dates thereof and the
results of operations for the periods covered thereby, each in accordance with GAAP. There has been no material adverse change in the business, operations, financial condition, properties or assets of the Services Provider since the most recent
Determination Date with respect to the most recently delivered financial statements under this clause (j) other than to the extent disclosed to and approved by the Facility Agent. Notwithstanding the foregoing, the obligations under this
clause (j) may be satisfied with respect to financial and other information of the Services Provider by furnishing (A) the applicable financial statements or other materials or (B) the Services Provider’s Form 10-K, 10-Q,
8-K or other filing, as applicable, filed with the SEC and the public filing of such report with the SEC shall constitute delivery under this clause (j);
(k) Eligibility of Collateral Obligations. All Collateral Obligations included as Eligible Collateral Obligations in the
most recent calculation of any Borrowing Base required to be determined hereunder were Eligible Collateral Obligations as of the date of such calculation;
(l) Collections. The Services Provider acknowledges that all Collections received by it or its Affiliates (other than
any Excluded Amount) are held and shall be held in trust for the benefit of the Secured Parties until deposited into the Collection Account;
(m) Reserved.
(n) Solvency. The Services Provider is not the subject of any Insolvency Event. The transactions under this Agreement
and any other Transaction Document to which the Services Provider is a party do not and will not render the Services Provider not solvent;
(o) Exchange Act Compliance; Regulations T, U and X. None of the transactions contemplated herein or the other
Transaction Documents (including, without limitation, the use of the Proceeds from the pledge of the Collateral) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including,
without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II;
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(p) No Injunctions. No injunction, writ, restraining order or other
order of any nature materially adversely affects the Services Provider’s performance of its obligations under this Agreement or any Transaction Document to which the Services Provider is a party; and
(q) Selection Procedures. In selecting the Collateral Obligations hereunder and for Affiliates of the Borrower, no
selection procedures were employed which are intended to be adverse to the interests of any Agent or Lender.
Section 7.5
Covenants of the Services Provider. Until the date on or after the Facility Termination Date on which the Commitments have been terminated in full and the Obligations (other than contingent Obligations for which no claim has been made) shall
have been repaid in full:
(a) Compliance with Agreements and Applicable Laws. The Services Provider shall perform
each of its obligations under this Agreement and the other Transaction Documents and comply with all Applicable Laws, including those applicable to the Collateral Obligations and all Collections thereof, except to the extent that the failure to so
comply would not reasonably be expected to have a Material Adverse Effect.
(b) Maintenance of Existence and Conduct of
Business. The Services Provider shall: (i) do or cause to be done all things necessary to (A) preserve and keep in full force and effect its existence as a corporation and its rights and franchises in the jurisdiction of its
incorporation and (B) qualify and remain qualified as a corporation in good standing and preserve its rights and franchises in each jurisdiction in which the failure to so qualify and remain qualified and preserve its rights and franchises
would reasonably be expected to have a Material Adverse Effect; (ii) continue to conduct its business substantially as now conducted or as otherwise permitted hereunder or under its organizational documents; and (iii) at all times
maintain, preserve and protect all of its licenses, permits, charters and registrations except where the failure to maintain, preserve and protect such licenses, permits, charters and registrations would not reasonably be expected to have a Material
Adverse Effect.
(c) Books and Records. The Services Provider shall keep proper books of record and account in which
full and correct entries shall be made of all financial transactions and the assets and business of the Services Provider in accordance with GAAP, maintain and implement administrative and operating procedures, and keep and maintain all documents,
books, records and other information necessary or reasonably advisable for the collection of all Collateral Obligations.
(d) ERISA. The Services Provider shall give the Facility Agent and each Lender prompt written notice of any ERISA Event
that, alone or together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.
(e) Compliance with Collateral Obligations and Servicing Standard. The Services Provider shall, at its expense, timely
and fully perform and comply with all material provisions, covenants and other promises required to be observed by the Services Provider under any Collateral Obligations (except, in the case of a successor Services Provider, such material
provisions, covenants and other provisions shall only include those provisions relating to the collection and managing the Collateral Obligations to the extent such obligations are set forth in a document included in the related Collateral
Obligation File) and shall comply with the Servicing Standard in all material respects with respect to all Collateral Obligations.
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(f) Maintain Records of Collateral Obligations. The Services Provider
shall, at its own cost and expense, maintain reasonably satisfactory and complete records of the Collateral, including a record of all payments received and all credits granted with respect to the Collateral and all other dealings with the
Collateral. The Services Provider shall maintain its computer systems so that, from and after the time of sale of any Collateral Obligation to the Borrower, the Services Provider’s master computer records (including any back-up archives) that refer to such Collateral Obligation shall indicate the interest of the Borrower and the Collateral Agent in such Collateral Obligation and that such Collateral Obligation is owned by the
Borrower and has been pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement.
(g) Liens. The Services Provider shall not create, incur, assume or permit to exist any Lien on or with respect to any
of its rights under any of the Transaction Documents, whether with respect to the Collateral Obligations or any other Collateral other than Permitted Liens; provided, that the Services Provider shall be permitted to pledge its rights to any
fees, expenses or other amounts to which it is entitled hereunder and any rights related thereto, including claims, rights and interests therein and all substitutions for, additions and accessions to and proceeds thereof, any related accounts and
any rights of collection.
(h) Mergers. The Services Provider shall not directly or indirectly, by operation of law
or otherwise, merge with, consolidate with, acquire all or substantially all of the assets or capital stock of, or otherwise combine with or acquire, any Person, except that the Services Provider shall be permitted to merge with any entity so long
as the Services Provider remains the surviving entity of such merger and such merger does not result in a Change of Control. The Services Provider shall give prior written notice of any merger to the Facility Agent and each Agent.
(i) Investment Management Obligations. The Services Provider will not (i) agree to any amendment, waiver or other
modification of any Transaction Document to which it is a party and to which the Facility Agent is not a party without the prior written consent of the Facility Agent, (ii) agree or permit the Borrower to agree to a Material Modification with
respect to any Collateral Obligation if a Facility Termination Event has occurred without the prior written consent of the Facility Agent, other than as provided in Section 10.18, (iii) interpose any claims, offsets or defenses it
may have as against the Borrower as a defense to its performance of its obligations in favor of any Affected Person hereunder or under any other Transaction Documents or (iv) following the occurrence of an Equityholder Credit Event, agree to
any amendment or modification with respect to any Collateral Obligation without the prior written consent of the Facility Agent.
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(j) Financial Reports. The Services Provider shall furnish, or cause
to be furnished, to the Facility Agent and each Agent:
(i) as soon as available and in any event within 120 days after the end of each
fiscal year, a copy of the audited consolidated financial statements for the prior year for the Services Provider and its consolidated Subsidiaries, certified by Independent Accountants (the report of which shall be unqualified), together with
consolidating financial statements for the Services Provider certified by an Executive Officer of the Services Provider with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Services
Provider and its consolidated Subsidiaries as of and for such fiscal year, with all such financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP
approved by such accountants in accordance with GAAP and disclosed therein); and
(ii) as soon as available and in any event within
60 days after the end of each fiscal quarter of each fiscal year (other than the last fiscal quarter of each fiscal year), an audited consolidated and consolidating balance sheet of the Services Provider and its consolidated Subsidiaries as of
the end of such fiscal quarter, and the unaudited consolidated and consolidating statements of income of the Services Provider and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal
year and ending with the end of such fiscal quarter, certified by an Executive Officer of the Services Provider identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth
therein fairly presents the financial condition of the Services Provider and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the Services
Provider is in compliance with all financial covenants in the Transaction Documents (or, if the Services Provider is not in compliance, specifying the nature and status thereof).
Notwithstanding the foregoing, the obligations under this clause (j) may be satisfied with respect to financial and other information of the Services
Provider by furnishing (A) the applicable financial statements or other materials or (B) the Services Provider’s Form 10-K, 10-Q, 8-K or other filing, as applicable, filed with the SEC and the public filing of such report with the
SEC shall constitute delivery under this clause (j).
(k) Obligor Reports. The Services Provider shall
furnish to the Facility Agent, with respect to each Obligor:
(i) within 15 Business Days of the completion of the Services
Provider’s portfolio review of such Obligor (which, for any individual Obligor, shall occur no less frequently than quarterly), without duplication of any other reporting requirements set forth in this Agreement or any other Transaction
Document, (i) any financial reporting packages with respect to such Obligor and with respect to each Collateral Obligation for such Obligor (including any attached or included information, statements and calculations) received by the Borrower
and/or the Services Provider as of the date of the completion of such review and (ii) the internal monitoring report prepared by the Services Provider with respect to each Obligor. In no case, however, shall the Services Provider be obligated
hereunder to deliver such Obligor reports to the Facility Agent more than once per calendar month. Upon demand by the Facility Agent, the Services Provider will provide such other information as the Facility Agent may reasonably request with respect
to any Collateral Obligation or Obligor (to the extent reasonably available to the Services Provider).
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(ii) within 10 Business Days of each one-year anniversary of the date on which the related
Collateral Obligation was acquired by the Borrower, updated Obligor Information for such Obligor.
(l) Commingling.
The Services Provider shall not, and shall not permit any of its Affiliates to, deposit or permit the deposit of any funds that do not constitute Collections or other proceeds of any Collateral Obligations into the Collection Account.
(m) Proceedings. The Services Provider shall furnish to the Facility Agent, as soon as possible and in any event within
three (3) Business Days after the Services Provider receives notice or obtains actual knowledge thereof (after reasonable inquiry), notice of any settlement of, material judgment (including a material judgment with respect to the liability
phase of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Collateral, the Transaction Documents, the Collateral Agent’s interest in the Collateral or the Services Provider, in each case which could reasonably be expected to cause a material adverse
effect.
Section 7.6 Reserved.
Section 7.7 Covenants of the Equityholder. Until the date on or after the Facility Termination Date on which the Commitments have
been terminated in full and the Obligations (other than contingent Obligations for which no claim has been made) shall have been repaid in full:
(a) Equity of the Borrower. The Equityholder shall neither pledge the equity interests of the Borrower nor otherwise
permit any equity interests of the Borrower to be subject to a Lien.
(b) Limited Liability Company Formalities. The
Equityholder will adhere to the limited liability company formalities of the Borrower in all transfers of assets and other transactions between the Equityholder and the Borrower. In general, the Equityholder observes the appropriate limited
liability company formalities of the Borrower under Applicable Law.
Section 7.8 Collateral Reporting. The Services Provider
shall cooperate with the Collateral Agent in the performance of the Collateral Agent’s duties under Section 11.3. Without limiting the generality of the foregoing, the Services Provider shall supply in a timely fashion any
information maintained by it that the Collateral Agent may from time to time request with respect to the Collateral Obligations and reasonably necessary to complete the reports and certificates required to be prepared by the Collateral Agent
hereunder or required to permit the Collateral Agent to perform its obligations hereunder.
Section 7.9 Notices. The Services
Provider shall deliver to the Facility Agent and the Collateral Agent, promptly after having obtained knowledge thereof (after reasonable inquiry), notice of any Services Provider Event of Default, Facility Termination Event or Material
Modification. The Services Provider shall deliver to the Facility Agent and the Collateral Agent, promptly after having obtained knowledge thereof (after reasonable inquiry), but in no event later than two Business Days thereafter, written notice in
an Officer’s Certificate of any Unmatured Services Provider Event of Default or Unmatured Facility Termination Event.
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Section 7.10 Procedural Review of Collateral Obligations; Access to Services
Provider and Services Provider’s Records. (a) Each of the Borrower and the Services Provider shall, at the Borrower’s expense, permit representatives of the Facility Agent at any time and from time to time as the Facility Agent
shall reasonably request (A) to inspect and make copies of and abstracts from its records relating to the Collateral Obligations, and (B) to visit its properties in connection with the collection, processing or managing of the Collateral
Obligations for the purpose of examining such records, and to discuss matters relating to the Collateral Obligations or such Person’s performance under this Agreement and the other Transaction Documents with any officer or employee or auditor
(if any) of such Person having knowledge of such matters. Each of the Borrower and the Services Provider agrees to render to the Facility Agent such clerical and other assistance as may be reasonably requested with regard to the foregoing;
provided, that such assistance shall not interfere in any material respect with the Services Provider’s business and operations. So long as no Unmatured Facility Termination Event, Facility Termination Event, Unmatured Services Provider
Event of Default or Services Provider Event of Default has occurred and is continuing, such visits and inspections shall occur (i) only upon five Business Days’ prior written notice, (ii) only during normal business hours and
(iii) no more than once in any calendar year, together with any other audits or inspections provided for in this Section 7.10(a). During the existence of an Unmatured Facility Termination Event, a Facility Termination Event, an
Unmatured Services Provider Event of Default or a Services Provider Event of Default, there shall be no limit on the timing or number of such inspections and no prior notice will be required before any inspection.
(b) The Borrower and the Services Provider, as applicable, at the Borrower’s expense, shall provide to the Facility Agent
access to the documentation evidencing the Collateral Obligations and all other documents regarding the Collateral Obligations included as part of the Collateral and the Related Security in each case, in its possession, in such cases where the
Facility Agent is required in connection with the enforcement of the rights or interests of the Lenders, or by applicable statutes or regulations, to review such documentation, such access being afforded without charge but (i) only upon two
Business Days’ prior written notice (so long as no Unmatured Facility Termination Event, Facility Termination Event or Services Provider Event of Default has occurred and is continuing), (ii) only during normal business hours and
(iii) no more than twice in any calendar year, together with any other audits or inspections provided for in this Section 7.10(b) (so long as no Unmatured Facility Termination Event, Facility Termination Event or Services Provider
Event of Default has occurred and is continuing).
(c) From and after the Effective Date and periodically thereafter at the
reasonable discretion of the Facility Agent, the Facility Agent may review the Borrower’s and the Services Provider’s collection and administration of the Collateral Obligations in order to assess compliance by the Services Provider with
the Services Provider’s written policies and procedures, as well as this Agreement and may, no more than once in any calendar year, together with any other audits or inspections provided for in this Section 7.10(c), conduct an
audit of the Collateral Obligations and Records in conjunction with such review.
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(d) Nothing in this Section 7.10 shall derogate from the
obligation of the Borrower and the Services Provider to observe any Applicable Law prohibiting disclosure of information regarding the Obligors, and the failure of the Services Provider to provide access as a result of such obligation shall not
constitute a breach of this Section 7.10.
(e) The Services Provider shall bear the costs and expenses of all
audits and inspections permitted by this Section 7.10 as well as Section 18.6.
Section 7.11 Optional
Sales. (a) The Borrower shall have the right to sell all or a portion of the Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) except as set forth in clause (E)(6) below, each Collateral Quality Test is satisfied, or if not satisfied, the
degree of compliance with each Collateral Quality Test is maintained or improved;
(B) the Minimum Equity Condition is
satisfied;
(C) (1) the Advances outstanding shall not exceed the lower of (x) the Borrowing Base or (y) the
Maximum Availability and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit (or if such Foreign Currency Sublimit is not satisfied, compliance with the Foreign Currency Sublimit is improved after giving
effect to such Optional Sale and the use of the proceeds thereof);
(D) (1) no Facility Termination Event, Unmatured
Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default shall have occurred and be continuing (provided, that, if an Unmatured Facility Termination Event is continuing, the Borrower may
make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale)) and
(2) no Unmatured Equityholder Credit Event shall have occurred; and
(E) the Aggregate Eligible Collateral Obligation
Amount of all Collateral Obligations sold by the Borrower during the then-current calendar year does not exceed 30% of the highest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year; provided, that, this
clause (E) shall not apply to:
(1) any Optional Sale made to cure one or more Collateral Quality Tests (so long as,
immediately following such Optional Sale, (I) each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied, the degree of compliance with each such test or condition is maintained or improved, (II) the
Minimum Equity Condition is satisfied, (III) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (IV) the Minimum Diversity Test is satisfied);
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(2) any Optional Sale made to reduce the Advances outstanding to be less than the Borrowing
Base (or otherwise to cure a Borrowing Base Deficiency or a Specified Borrowing Base Deficiency) or the Maximum Availability or the Minimum Equity Condition (so long as, immediately following such Optional Sale, (I) the Minimum Equity Condition
is satisfied, (II) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (III) the Minimum Diversity Test is satisfied);
(3) any Optional Sale of any Collateral Obligation with a Discount Factor less than par, so long as (I) during the Revolving Period, such
Collateral Obligation is sold at a price (expressed as a percentage of par) not less than its Discount Factor and (II) after the Revolving Period, such Collateral Obligation is either (x) sold at a price that is not less than the outstanding
principal amount of such Collateral Obligation or (y) sold at a price that is less than the outstanding principal amount of such Collateral Obligation and the Borrower receives a contribution of capital from the Equityholder at least equal to
the difference between such outstanding principal amount and such price;
(4) any Optional Sale of a Collateral Obligation that has a
Collateral Obligation Amount of zero;
(5) any Optional Sale of any portion of a Collateral Obligation constituting an Excess
Concentration; and
(6) any Optional Sale to effect a Permitted Securitization if, unless waived by the Facility Agent in its sole
discretion, (1) such sale is effected in accordance with clause (iv) below, (2) immediately following such Optional Sale, each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied,
the degree of compliance with each Collateral Quality Test is maintained or improved and (3) the Minimum Diversity Test is satisfied.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Services Provider shall give the Facility Agent, each
Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an
Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth
herein are satisfied and (y) a certificate of the Services Provider substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such
Optional Sale;
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(iii) such Optional Sale shall be made by the Services Provider, on behalf of the Borrower
(A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the
benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Services Provider, such Optional Sale is made on an arms-length basis at a price at least equal to the fair market value of the Collateral Obligation being sold and the Facility Agent has given its prior written consent (which shall not be unreasonably withheld,
conditioned or delayed) unless such Optional Sale is made at a price at least equal to (x) during the Revolving Period, the Collateral Obligation Amount of the Collateral Obligation being sold or (y) after the end of the Revolving Period,
the outstanding principal amount of such Collateral Obligation (or at a price that is less than the outstanding principal amount of such Collateral Obligation but not less than the fair market value of such Collateral Obligation and the Borrower
receives a contribution to capital from the Equityholder at least equal to the difference between such outstanding principal amount and such price); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account
and (y) with respect to any sold Collateral Obligation, will be in the same Eligible Currency as such Collateral Obligation.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection
Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the
benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of
the Facility Agent, the Collateral Agent, the Collateral Custodian, each Agent and each Lender in connection with any Optional Sale (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 Collateral in connection with such Optional Sale).
(d) In connection with any
Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the
Borrower, or the Services Provider on its behalf, may reasonably request.
Section 7.12 Repurchase or Substitution of Warranty
Collateral Obligations. In the event of (x) a Repurchase Event or (y)(A) a breach of Section 9.5, Section 9.13 or Section 9.26 or (B) a material breach of any other representation, warranty,
undertaking or covenant set forth in Article IX, Article X, Section 18.3 or Section 18.5(b) with respect to a Collateral Obligation (or the Related Security and other related collateral constituting part of the
Collateral related to such
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Collateral Obligation) (each such Collateral Obligation, a “Warranty Collateral Obligation”), no later than 30 days after the earlier of (x) knowledge of such breach
on the part of the Equityholder or the Services Provider and (y) receipt by the Equityholder or the Services Provider of written notice thereof given by the Facility Agent (with a copy to each Agent), the Borrower shall either (a) repay
Advances outstanding in the applicable Eligible Currency in an amount equal to the greater of (I) the aggregate Repurchase Amount or (II) the aggregate Collateral Obligation Amount of such Warranty Collateral Obligation(s) to which such breach
relates on the terms and conditions set forth below or (b) with respect to any Repurchase Event, require the Equityholder pursuant to the Sale Agreement to repurchase such Warranty Collateral Obligation or substitute for such Warranty
Collateral Obligation one or more Eligible Collateral Obligations with an aggregate Collateral Obligation Amount at least equal to the Repurchase Amount of the Warranty Collateral Obligation(s) being replaced; provided, that (i) no such
repayment or substitution shall be required to be made with respect to any Warranty Collateral Obligation (and such Collateral Obligation shall cease to be a Warranty Collateral Obligation) if, on or before the expiration of such 30 day period
either (x) such Repurchase Event shall no longer be continuing or (y) the representations and warranties set forth in clause (A) above with respect to such Warranty Collateral Obligation shall be made true and correct and the
representations, warranties, undertakings and covenants set forth in clause (B) above with respect to such Warranty Collateral Obligation shall be made true and correct in all material respects (or if such representation and warranty is
already qualified by the words “material”, “materially” or “Material Adverse Effect”, then such representation and warranty shall be true and correct in all respects) with respect to such Warranty Collateral
Obligation as if such Warranty Collateral Obligation had become part of the Collateral on such day and (ii) solely with respect to any Collateral Obligation which becomes a Warranty Collateral Obligation during the Revolving Period, no such
repayment or substitution shall be required to be made with respect to any Warranty Collateral Obligation if after excluding such Warranty Collateral Obligation from the Borrowing Base, the equivalent in Dollars of the aggregate principal amount of
all Advances outstanding do not exceed the Borrowing Base, the Maximum Availability or the Facility Amount; provided, further that after the end of the Revolving Period, any such repayment or substitution shall be effected no later
than the earlier to occur of (i) 30 days and (ii) the next Distribution Date, in each case after the earlier of (x) knowledge of such breach on the part of the Equityholder or the Services Provider and (y) receipt by the
Equityholder or the Services Provider of written notice thereof given by the Facility Agent (with a copy to each Agent).
Section 7.13 Servicing of REO Assets. (a) If, in the reasonable business judgment of the Services Provider, it becomes necessary
to convert any Collateral Obligation that is secured by real property into an REO Asset, the Services Provider shall first cause the Borrower to transfer and assign such Collateral Obligation (or the portion thereof owned by the Borrower) to a
special purpose vehicle (the “REO Asset Owner”) using a contribution agreement reasonably acceptable to the Facility Agent. All equity interests of the REO Asset Owner acquired by the Borrower shall immediately become a part of
the Collateral and be subject to the grant of a security interest under Section 12.1 and shall be promptly delivered to the Collateral Agent, each undated and duly indorsed in blank. The REO Asset Owner shall be formed and operated
pursuant to organizational documents reasonably acceptable to the Facility Agent. After execution thereof, the Services Provider shall prevent the REO Asset Owner from agreeing to any amendment or other modification of the REO Asset Owner’s
organizational documents without first obtaining the written consent of the Facility Agent. The Services Provider shall cause each REO Asset to be serviced (i) in accordance with Applicable Law, (ii) with reasonable care and diligence,
(iii) in
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accordance with the applicable REO Asset Owner’s operating agreement, and (iv) in accordance with the Servicing Standard (collectively, the “REO Servicing
Standard”). The Services Provider will cause all “Distributable Cash” (or comparable definition set forth in the REO Asset Owner’s organization documents) to be deposited into the Collection Account within two
(2) Business Days of receipt thereof.
(b) In the event that title to any Related Property is acquired on behalf of
the REO Asset Owner for the benefit of its members in foreclosure, by deed in lieu of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or certificate of sale shall be taken in the name of a REO Asset Owner. The Services
Provider shall cause the REO Asset Owner to manage, conserve, protect and operate each REO Asset for its members solely for the purpose of its prompt disposition and sale.
(c) Notwithstanding any provision to the contrary contained in this Agreement, the Services Provider shall not (and shall not
permit the REO Asset Owner to) obtain title to any Related Property as a result of or in lieu of foreclosure or otherwise, obtain title to any direct or indirect partnership interest in any Obligor pledged pursuant to a pledge agreement and thereby
be the beneficial owner of Related Property, have a receiver of rents appointed with respect to, and shall not otherwise acquire possession of, or take any other action with respect to, any Related Property if, as a result of any such action, the
REO Asset Owner would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of, such Related Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time, or any comparable state or local Environmental Law, unless the Services Provider has previously determined in accordance with the REO Servicing Standard, based on an
updated Phase I environmental assessment report generally prepared in accordance with the ASTM Phase I Environmental Site Assessment Standard E 1527-05, as may be amended or, with respect to residential property, a property inspection and title
report, that:
(i) such Related Property is in compliance in all material respects with applicable Environmental Laws, and
(ii) there are no circumstances present at such Related Property relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or remediation would reasonably be expected to be required by the owner, occupier or operator of the Related Property under applicable federal, state or local law or regulation.
(d) In the event that the Phase I or other environmental assessment first obtained by the Services Provider with respect to
Related Property indicates that such Related Property may not be in compliance with applicable Environmental Laws or that Hazardous Materials may be present but does not definitively establish such fact, the Services Provider shall cause the
Borrower to immediately sell the related Collateral Obligation in accordance with Section 7.11 to the extent permitted thereunder.
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ARTICLE VIII
PLEDGED ACCOUNTS; PAYMENTS
Section 8.1 Pledged Accounts. (a) On or prior to the Effective Date, the Services Provider shall establish each Pledged
Account in the name of the Borrower and each Pledged Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent for
application by the Collateral Agent pursuant to Section 8.3 and the applicable Monthly Report. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that any Pledged Account ceases to be an Eligible
Account (with notice to the Services Provider, the Facility Agent and each Agent), then the Services Provider shall transfer such account to another institution such that such account shall meet the requirements of an Eligible Account.
Except as set forth below, amounts on deposit in the Unfunded Exposure Account may be withdrawn by the Borrower or at the
direction of the Services Provider (i) to fund any draw requests of the relevant Obligors under any Revolving Loan or a Delayed Drawdown Loan, or (ii) to make a deposit into the Collection Account as Principal Collections if, after giving
effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than (i) prior to the end of the Revolving Period, the Aggregate Unfunded Equity Amount and (ii) after the Revolving Period,
the Aggregate Unfunded Amount.
Following the Facility Termination Date, the Services Provider shall forward any draw
request made by an Obligor under a Revolving Loan or a Delayed Drawdown Loan, along with wiring instructions for the applicable Obligor, to the Collateral Agent (with a copy to the Facility Agent and each Agent) along with an instruction to the
Collateral Agent to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the conditions to fund such draw are satisfied, and the Collateral Agent shall fund such draw request in accordance with such instructions
from the Services Provider.
Following the end of the Revolving Period, if the Borrower shall receive any Principal
Collections from an Obligor with respect to a Revolving Loan or a Delayed Drawdown Loan included in the Collateral and, as of the date of such receipt (and after taking into account such repayment), the aggregate amount on deposit in the Unfunded
Exposure Account in each Eligible Currency is less than the Aggregate Unfunded Amount required to be funded in such Eligible Currency (the amount of such shortfall, in each case, the “Unfunded Exposure Shortfall”), the Services
Provider shall direct the Collateral Agent to and the Collateral Agent shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and
(b) the Unfunded Exposure Shortfall.
The Securities Intermediary may establish one or more sub-accounts of any
Account for the purpose of receiving Collections in an Eligible Currency other than Dollars. In accordance with Section 8.3(d), the Services Provider may (and shall, to the extent provided in such Section 8.3(d)) instruct the
Collateral Agent (including by standing instructions), on or prior to any Distribution Date (and prior to any distributions pursuant to Section 8.3), to convert such Collections into Dollars using the Applicable Conversion Rate and
transfer the amount thereof to the applicable Account.
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(b) All amounts held in any Pledged Account shall, to the extent permitted
by Applicable Law, be invested by the Collateral Agent, as directed by the Services Provider in writing (or, if the Services Provider fails to provide such direction, such amounts shall remain uninvested), in Permitted Investments that mature
(i) with respect to the Collection Account, not later than one Business Day prior to the Distribution Date for the Accrual Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately
following Business Day. Any such written direction shall certify that any such investment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, and, except as
specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such
disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Services Provider or,
if the Services Provider shall fail to give such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection
Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any
failure of the Services Provider or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Services Provider or
the Collateral Agent and their respective Affiliates shall be permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s economic self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain
investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Neither the Borrower nor the Services Provider shall have any rights of direction or withdrawal, with respect to amounts
held in any Pledged Account, except to the extent explicitly set forth herein (including the withdrawal rights for the Unfunded Exposure Account set forth in Section 8.1(a)).
Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each
Pledged Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if
any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the
Pledged Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
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(d) The Equityholder may, from time to time in its sole discretion
(x) deposit amounts into the Principal Collection Account or the Unfunded Exposure Account and/or (y) transfer Eligible Collateral Obligations as equity contributions to the Borrower. All such amounts will be included in each applicable
compliance calculation under this Agreement, including, without limitation, calculation of the Borrowing Base, the Maximum Availability and the Minimum Equity Condition.
Section 8.2 Excluded Amounts. The Services Provider may direct the Collateral Agent and the Securities Intermediary to withdraw
from the applicable Pledged Account and pay to the Person entitled thereto any amounts credited thereto constituting Excluded Amounts if the Services Provider has, prior to such withdrawal and consent, delivered to the Facility Agent and the
Collateral Agent a report setting forth the calculation of such Excluded Amounts in form and substance reasonably satisfactory to the Facility Agent, which report shall include a brief description of the facts and circumstances supporting such
request and designate a date for the payment of such reimbursement, which date shall not be earlier than two (2) Business Days following delivery of such notice.
Section 8.3 Distributions, Reinvestment and Dividends. (a) On each Distribution Date, the Collateral Agent shall distribute
from the Collection Account, in accordance with the applicable Monthly Report prepared by the Collateral Agent pursuant to Section 8.5, the Amount Available for such Distribution Date in the following order of priority:
(i) From the Interest Collection Account, the Amount Available constituting Interest Collections for such Distribution Date in the following
order of priority:
(A) FIRST, to the payment of Taxes and governmental fees owing by the Borrower, if any, which expenses
shall not exceed $25,000 on any Distribution Date;
(B) SECOND, pro rata, to the Collateral Agent, the Securities
Intermediary and the Collateral Custodian, any accrued and unpaid Collateral Agent Fees and Expenses and Collateral Custodian Fees and Expenses for the related Accrual Period, which expenses shall not exceed in the aggregate the amount of the Capped
Fees/Expenses;
(C) THIRD, if no Unmatured Equityholder Credit Event has occurred, to the Services Provider (unless waived
or deferred in whole or in part by the Services Provider), any accrued and unpaid Primary Servicing Fee and Secondary Servicing Fee for the related Accrual Period;
(D) FOURTH, pro rata, based on the amounts owed to such Persons under this Section 8.3(a)(i)(D), to the
Lenders, (x) first, an amount equal to the Yield on the Advances accrued during the Accrual Period with respect to such Distribution Date (and any Yield with respect to any prior Accrual Period to the extent not paid on a prior
Distribution Date) and (y) second, amounts indemnified pursuant to Section 4.3(c) (1) with respect thereto and (2) with respect to any payments of principal on an Advance;
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(E) FIFTH, pro rata, based on the amounts owed to such Persons under
this Section 8.3(a)(i)(E), (1) to the Facility Agent and the Agents on behalf of their respective Lenders, all accrued and unpaid Fees and Indemnified Amounts due to the Lenders, the Agents and the Facility Agent and (2) to the
Hedge Counterparties, any amounts owed on the current and prior Distribution Dates to the Hedge Counterparties under Hedging Agreements (other than Hedge Breakage Costs), together with interest accrued thereon;
(F) SIXTH, to the Agents on behalf of their respective Lenders pro rata in accordance with the amount of the outstanding
Advances (1) in the amount necessary to reduce the Advances outstanding to an amount not to exceed the lower of the Borrowing Base and the Maximum Availability, (2) if either (or both of) the Minimum Diversity Diversion Test or the Minimum
Equity Condition is not satisfied on such Distribution Date, in the amount necessary to satisfy the Minimum Diversity Diversion Test and the Minimum Equity Condition and (3) if the Foreign Currency Advance Amount exceeds the Foreign Currency
Sublimit, to repay the Advances outstanding;
(G) SEVENTH, after the end of the Revolving Period, with respect to any
Warranty Collateral Obligation that has not been repurchased or substituted pursuant to Section 7.12, to the Agents on behalf of their respective Lenders pro rata to repay the Advances outstanding in an amount (without
duplication of previous payments pursuant to this Section 8.3(a)(i)(G) or Section 7.12) equal to the Collateral Obligation Amount of all such Warranty Collateral Obligations;
(H) EIGHTH, to the Services Provider (unless waived or deferred in whole or in part by the Services Provider), any fees of the
Services Provider in an aggregate amount not to exceed the amount of any accrued and unpaid Secondary Servicing Fee for the related Accrual Period, as well as any expenses of the Services Provider or other amounts owing to the Services Provider, in
each case reimbursable or owing hereunder;
(I) NINTH, pro rata based on amounts owed to such Persons under this
Section 8.3(a)(i)(I), to the Hedge Counterparties, any unpaid Hedge Breakage Costs, together with interest accrued thereon;
(J) TENTH, to any Affected Persons, any Increased Costs then due and owing;
(K) ELEVENTH, to the extent not previously paid pursuant to Section 8.3(a)(i)(A) above, to the payment of Taxes
and governmental fees owing by the Borrower, if any;
(L) TWELFTH, to the extent not previously paid by or on behalf of
the Borrower, to each Indemnified Party, any Indemnified Amounts then due and owing to each such Indemnified Party;
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(M) THIRTEENTH, to the extent not previously paid pursuant to
Section 8.3(a)(i)(B) above, pro rata to the Collateral Agent, the Securities Intermediary and the Collateral Custodian, any Collateral Agent Fees and Expenses and Collateral Custodian Fees and Expenses due to the Collateral Agent,
the Securities Intermediary and the Collateral Custodian under the Transaction Documents;
(N) FOURTEENTH, at the election
of the Services Provider to pay to the Services Provider any deferred and unpaid Primary Servicing Fee or deferred and unpaid Secondary Servicing Fee;
(O) FIFTEENTH, (1) first, to pay any other amounts due under this Agreement and the other Transaction Documents
and not previously paid pursuant to this Section 8.3(a)(i) and (2) second, to the Equityholder as a Permitted RIC Distribution; and
(P) SIXTEENTH, (x) during an Unmatured Facility Termination Event or an Unmatured Services Provider Event of Default, to
remain in the Interest Collection Account as Interest Collections or (y) otherwise (A) during the Revolving Period, at the election of the Borrower, the remaining Amount Available constituting Interest Collections (1) to be deposited
in the Principal Collection Account as Principal Collections to be reinvested in additional Collateral Obligations or (2) to the Borrower and (B) after the end of the Revolving Period, the remaining Amount Available constituting Interest
Collections to the Borrower.
(ii) From the Principal Collection Account, the Amount Available constituting Principal Collections for
such Distribution Date in the following order of priority:
(A) FIRST, to pay, in accordance with
Section 8.3(a)(i) above, the amounts referred to in clauses (A) through (F), in that order, but, in each case, only to the extent not paid in full thereunder;
(B) SECOND, after the end of the Revolving Period and to the extent not paid pursuant to Section 8.3(a)(i)(G), to
the Agents on behalf of their respective Lenders pro rata to repay the Advances outstanding;
(C) THIRD, to pay, in
accordance with Section 8.3(a)(i) above, the amounts referred to in clauses (H) through (M) of such Section 8.3(a)(i) but, in each case, only to the extent not paid in full thereunder;
(D) FOURTH, to the extent not previously paid pursuant to Section 8.3(a)(i)(B) or
Section 8.3(a)(i)(N), to the Collateral Agent and the Collateral Custodian, any costs and expenses due to the Collateral Agent and the Collateral Custodian under the Transaction Documents (other than Increased Costs and Indemnified
Amounts);
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(E) FIFTH, to pay, in accordance with Section 8.3(a)(i) above,
the amounts referred to in clause (O) of such Section 8.3(a)(i) but only to the extent not paid in full thereunder; and
(F) SIXTH, (x) during an Unmatured Facility Termination Event or an Unmatured Services Provider Event of Default, to
remain in the Principal Collection Account as Principal Collections or (y) otherwise (A) during the Revolving Period, to remain in the Principal Collection Account as Principal Collections and (B) after the end of the Revolving
Period, the remaining Amount Available constituting Principal Collections to the Borrower.
(b) During the Revolving
Period, the Borrower may make distributions pursuant to Section 10.16. The Borrower may also withdraw from the Collection Account (x) any Principal Collections, or (y) if after giving effect to such withdrawal, the Borrower is
able to make all required payments pursuant to Section 8.3 on the next Distribution Date on a pro forma basis, Interest Collections, and apply such Collections to (A) prepay the Advances outstanding in accordance with
Section 2.4 or (B) acquire additional Collateral Obligations (each such reinvestment of Collections, a “Reinvestment”), subject to the following conditions:
(i) the Borrower shall have given written notice to the Collateral Agent, each Agent and the Facility Agent of the proposed Reinvestment at or
prior to 3:00 p.m., New York City time, two Business Days prior to the proposed date of such Reinvestment (the “Reinvestment Date”). Such notice (the “Reinvestment Request”) shall be in the form of Exhibit
C-2 and shall include (among other things) the proposed Reinvestment Date and the amount of such proposed Reinvestment and shall be accompanied by an Asset Approval Request with respect to the Collateral Obligations the Borrower proposes to
acquire;
(ii) each condition precedent set forth in Section 6.2 shall be satisfied;
(iii) upon the written request of the Borrower (or the Services Provider on the Borrower’s behalf) delivered to the Collateral Agent no
later than 11:00 a.m. New York City time on the Reinvestment Date, the Collateral Agent shall have provided to the Facility Agent and each Agent by facsimile or e-mail (to be received no later than 1:30 p.m. New York City time on that same day) a
statement reflecting the total amount on deposit on such day in the Collection Account; and
(iv) any Reinvestment Request given by the
Borrower pursuant to this Section 8.3(b), shall be irrevocable and binding on the Borrower.
Subject to the Collateral
Agent’s receipt of an Officer’s Certificate of the Services Provider as to the satisfaction of the conditions precedent set forth in Section 6.2 and this Section 8.3, the Collateral Agent will release funds from
the Collection Account to the Borrower in an amount not to exceed the lesser of (A) the amount requested by the Borrower and (B) the amount of Collections on deposit in the Collection Account.
(c) At any time, the Borrower may withdraw from the Principal Collection Account the proceeds of any Advance on deposit therein
as may be needed to settle any pending acquisition of an Eligible Collateral Obligation within ten (10) Business Days of the Funding Date with respect to such Advance.
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(d) The Services Provider may, at its option, direct the Collateral Agent to
make payments pursuant to Section 8.3 that are payable in a particular Eligible Currency from amounts on deposit in the applicable Collection Account that are denominated in such Eligible Currency. However, to the extent the Services
Provider otherwise determines or if it is necessary to convert amounts on deposit in the applicable Collection Account in order to make payments in a particular Eligible Currency pursuant to Section 8.3, the Services Provider agrees to
provide written instruction to the Collateral Agent to convert amounts on deposit in the applicable Collection Account into such Eligible Currency (pro rata based on available amounts from each other Eligible Currency, unless otherwise
directed in writing by the Services Provider) using the Applicable Conversion Rate. Any Amount Available on deposit in an Interest Collection Account or a Principal Collection Account denominated in any Eligible Currency shall be applied on any
Distribution Date (A) first, to make payments in such Eligible Currency and (B) second, upon written instruction from the Services Provider to the Collateral Agent, to make payments in any other Eligible Currency (pro rata based on
available amounts from each other Eligible Currency) using the Applicable Conversion Rate. All risk and expense incident to such conversion is the responsibility of the Borrower and the Collateral Agent shall have (x) no responsibility for
fluctuations in exchange rates affecting any Collections or conversion thereof and (y) to the extent it complies with the instructions provided by the Services Provider, no liability for any losses incurred or resulting from the rates obtained
in such foreign exchange transactions.
Section 8.4 Fees. The Borrower shall pay, pursuant hereto, the Undrawn Fee, the
Make-Whole Fee, the Reduction Fee and any other fees (collectively, “Fees”) in the amounts and on the dates set forth herein or in one or more fee letter agreements, dated on or after the date hereof, signed by the Borrower, the
Facility Agent and/or any applicable Lender Group (as any such fee letter agreement may be amended, restated, supplemented or otherwise modified from time to time, a “Fee Letter”).
Section 8.5 Monthly Report. The Collateral Agent shall prepare (based on information provided to it by the Services Provider, the
Facility Agent, the Agents and the Lenders as set forth herein) a Monthly Report in the form of Exhibit D determined as of the close of business on each Determination Date and make available such Monthly Report to the Facility Agent (at the
email addresses set forth under Section 10.21(b)), each Agent the Borrower and the Services Provider on each Reporting Date starting with the Reporting Date in August 2026. Each Monthly Report delivered in a month with a Distribution
Date shall specify the amounts for payment pursuant to each clause of Section 8.3(a) and, to the extent sufficient funds are available therefor, such amounts shall be paid using Collections received in the applicable Eligible Currency.
To the extent Collections in any Eligible Currency are insufficient, the Services Provider shall direct that amounts be converted from each other Eligible Currency (pro rata, or as otherwise specified by the Services Provider to the Facility
Agent and the Collateral Agent in writing) using the Applicable Conversion Rate; provided that the Services Provider shall provide any such direction at least two (2) Business Days prior to the applicable Distribution Date (provided
further that such direction is received by 12:00 p.m. (New York City time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)). If any party receiving any Monthly
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Report disagrees with any items of such report, it shall contact the Collateral Agent and notify it of such disputed item and provide reasonably sufficient information to correct such item, with
(if other than the Facility Agent) a copy of such notice and information to the Facility Agent, each Agent and the Services Provider. If the Collateral Agent agrees with any such correction and unless the Collateral Agent is otherwise timely
directed by the Facility Agent, the Collateral Agent shall distribute a revised Monthly Report on the Business Day after it receives such information. If the Collateral Agent does not agree with any such correction or it is directed by the Facility
Agent that the Collateral Agent should not make such correction, the Collateral Agent shall (within one Business Day) contact the Facility Agent and request instructions on how to proceed. The Facility Agent’s reasonable determination with
regard to any disputed item, after consultation with the Services Provider, in the Monthly Report shall be final.
The Services Provider
shall cooperate with the Collateral Agent in connection with the preparation of the Monthly Reports and any supplement thereto. Without limiting the generality of the foregoing, the Services Provider shall supply any information maintained by it
that the Collateral Agent may from time to time reasonably request with respect to the Collateral and reasonably needs to complete the reports, calculations and certificates required to be prepared by the Collateral Agent hereunder or required to
permit the Collateral Agent to perform its obligations hereunder. Without limiting the generality of the foregoing, in connection with the preparation of a Monthly Report, (i) the Services Provider shall be responsible for providing the
Collateral Agent the information required for parts (a) through (c) of Exhibit D for such Monthly Report and (ii) the Facility Agent and the Lenders shall be responsible for providing to the Collateral Agent the information
required by Section 3.4 for part (d) of Exhibit D for such Monthly Report on which the Collateral Agent may conclusively rely. The Services Provider shall review and verify the contents of the aforesaid reports (including the
Monthly Report), instructions, statements and certificates. Upon receipt of approval from the Services Provider, the Collateral Agent shall send such reports, instructions, statements and certificates to the Borrower and the Services Provider for
execution.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the other parties hereto to enter into this Agreement and, in the case of the Lenders, to make Advances hereunder, the
Borrower hereby represents and warrants to the Facility Agent, the Agents and the Lenders as to itself, as of the Effective Date and each Funding Date, as follows:
Section 9.1 Organization and Good Standing. It has been duly organized and is validly existing under the laws of the jurisdiction
of its organization, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted. It had at all relevant times and now has, power, authority and legal
right (x) to acquire and own the Collateral Obligations and its interest in the Related Security, and to grant to the Collateral Agent a security interest in the Collateral Obligations and the Related Security and the other Collateral and
(y) to enter into and perform its obligations under this Agreement and the other Transaction Documents to which it is a party.
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Section 9.2 Due Qualification. It is duly qualified to do business and has
obtained all necessary licenses and approvals and made all necessary filings and registrations in all jurisdictions, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 9.3 Power and Authority. It has the power, authority and legal right to execute and deliver this Agreement and the other
Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder; it has full power, authority and legal right to grant to the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable
security interest in the Collateral Obligations and the other Collateral and has duly authorized such grant by all necessary action and the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a
party have been duly authorized by it by all necessary action.
Section 9.4 Binding Obligations. This Agreement and the
Transaction Documents to which it is a party have been duly executed and delivered by the Borrower and are enforceable against the Borrower in accordance with their respective terms, except as such enforceability may be limited by
(A) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally, (B) equitable limitations on the availability of specific remedies, regardless of whether such enforceability
is considered in a proceeding in equity or at law and (C) implied covenants of good faith and fair dealing.
Section 9.5
Security Interest. This Agreement creates a valid and continuing Lien on the Collateral in favor of the Collateral Agent, on behalf of the Secured Parties, which security interest is validly perfected under Article 9 of the UCC, and is
enforceable as such against creditors of and purchasers from the Borrower; the Collateral is comprised of Instruments, Security Entitlements, General Intangibles, Certificated Securities, Uncertificated Securities, Securities Accounts, Investment
Property and Proceeds and such other categories of collateral under the applicable UCC as to which the Borrower has complied with its obligations as set forth herein; with respect to Collateral that constitutes Security Entitlements (a) all of
such Security Entitlements have been credited to the Pledged Accounts and the Securities Intermediary has agreed to treat all assets (other than cash) credited to the Pledged Accounts as Financial Assets and that any cash credited to the Pledged
Accounts shall be held in the related Deposit Account that forms part of such Pledged Account and which the Securities Intermediary has agreed shall be maintained as, “deposit accounts” as defined in Section 9-102 of the UCC,
(b) the Borrower has taken all steps necessary to enable the Collateral Agent to obtain Control with respect to the Pledged Accounts and (c) the Pledged Accounts are not in the name of any Person other than the Borrower, subject to the
Lien of the Collateral Agent for the benefit of the Secured Parties; the Borrower has not instructed the Securities Intermediary to comply with the entitlement order of any Person other than the Collateral Agent; provided that, until the
Collateral Agent delivers a Notice of Exclusive Control (as defined in the Account Control Agreement), the Borrower may, or may cause the Services Provider to, cause cash in the Pledged Accounts to be invested or distributed in accordance with this
Agreement; all Pledged Accounts constitute Securities Accounts; the Borrower owns and has good and marketable title to the Collateral free and clear of any Lien (other than Permitted Liens); the Borrower has received all consents and approvals
required by the terms of any Collateral Obligation to the transfer and granting of a security interest in the Collateral Obligations hereunder to the Collateral Agent, on behalf of the Secured Parties;
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the Borrower has taken all necessary steps to file or authorize the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable
Law in order to perfect the security interest in that portion of the Collateral in which a security interest may be perfected by filing pursuant to Article 9 of the UCC as in effect in Delaware; all original executed copies of each underlying
promissory note constituting or evidencing any Collateral Obligation have been or, subject to the delivery requirements contained herein and/or Section 18.7, will be delivered to the Collateral Custodian; the Borrower has received, or
subject to the delivery requirements contained herein will receive, a written acknowledgment from the Collateral Custodian that the Collateral Custodian or its bailee is holding each underlying promissory note evidencing a Collateral Obligation
solely on behalf of the Collateral Agent for the benefit of the Secured Parties; none of the underlying promissory notes that constitute or evidence the Collateral Obligations has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Collateral Agent on behalf of the Secured Parties; with respect to Collateral that constitutes a Certificated Security, such Certificated Security has been delivered to the Collateral
Custodian and, if in registered form, has been specially Indorsed (within the meaning of the UCC) to the Collateral Custodian or in blank by an effective Indorsement or has been registered in the name of the Collateral Custodian upon original issue
or registration of transfer by the Borrower of such Certificated Security, in each case to be held by the Collateral Custodian on behalf of the Collateral Agent for the benefit of the Secured Parties; and in the case of an Uncertificated Security,
by (A) causing the Collateral Custodian to become the registered owner of such Uncertificated Security and (B) causing such registration to remain effective.
Section 9.6 No Violation. The execution, delivery and performance of this Agreement and the other Transaction Documents to which
it is a party, the consummation of the transactions contemplated hereby and thereby, and the fulfillment of the terms of this Agreement and the other Transaction Documents to which the Borrower is a party, shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, its Constituent Documents, or any indenture, agreement, mortgage, deed of trust or other instrument to which it is a party or by
which it is bound or any of its properties are subject, or result in the creation or imposition of any Lien (other than Permitted Liens) upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, or violate in any material respect any Applicable Law or in any way materially adversely affect the Borrower’s ability to perform its obligations under this Agreement or the other Transaction Documents to which it is a party.
Section 9.7 No Proceedings. There are no proceedings or investigations pending or, to its knowledge (after reasonable
inquiry), threatened against the Borrower, before any court or Official Body having jurisdiction over it or its properties (A) asserting the invalidity of this Agreement or any of the other Transaction Documents, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any of the other Transaction Documents, (C) seeking any determination or ruling that might materially and adversely affect the performance by the Borrower of its
obligations under, or the validity or enforceability of, this Agreement or any of the other Transaction Documents or (D) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on any of the
Collateral or on the assignments and security interests granted by the Borrower in this Agreement.
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Section 9.8 No Consents. It is not required to obtain the material consent of
any other Person or any material approval, authorization, consent, license, approval or authorization, or registration or declaration with, any Official Body having jurisdiction over it or its properties in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or the other Transaction Documents to which it is a party, in each case other than consents, licenses, approvals, authorizations, orders, registrations, declarations or filings which have
been obtained or made and continuation statements and renewals in respect thereof.
Section 9.9 Solvency. It is solvent and
will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Transaction Documents. After giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, it will have
an adequate amount of capital to conduct its business in the foreseeable future.
Section 9.10 Compliance with Laws. It has
complied and will comply in all material respects with all Applicable Laws, judgments, agreements with Official Bodies, decrees and orders with respect to its business and properties and all Collateral.
Section 9.11 Taxes. For U.S. federal income tax purposes, it is, and always has been, an entity disregarded as separate from the
Equityholder and the Equityholder is a U.S. Person. It has filed on a timely basis all U.S. federal income and other material Tax returns (including foreign, state, local and otherwise) required to be filed, if any, and has paid all U.S. federal
income and other material Taxes due and payable by it and any assessments made against it or any of its property and all other Taxes, fees or other charges imposed on it or any of its property by any Official Body (other than any amount the validity
of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower). No Lien or similar Adverse Claim has been filed, and no claim
is being asserted, with respect to any U.S. federal income or other material Tax, assessment or other governmental charge. Any Taxes, fees and other governmental charges payable by the Borrower in connection with the execution and delivery of this
Agreement and the other Transaction Documents and the transactions contemplated hereby or thereby including the transfer of each Collateral Obligation and the Related Security to the Borrower have been paid or shall have been paid if and when due at
or prior to the Effective Date or the Advance Date, as applicable.
Section 9.12 Monthly Report. Each Monthly Report is
accurate in all material respects as of the date thereof.
Section 9.13 No Liens, Etc. The Collateral and each part thereof is
owned by the Borrower free and clear of any Adverse Claim (other than Permitted Liens) or restrictions on transferability and the Borrower has the full right, power and lawful authority to assign, transfer and pledge the same and interests therein,
and upon the making of each Advance, the Collateral Agent, for the benefit of the Secured Parties, will have acquired a perfected, first priority and valid security interest (except, as to priority, for any Permitted Liens) in each Collateral
Obligation and the other Collateral, free and clear of any Adverse Claim (other than Permitted Liens) or restrictions on transferability, to the extent (as to perfection and priority with respect to such other Collateral) that a security interest in
such other Collateral may be perfected under the applicable UCC. The Borrower has not pledged, assigned, sold, granted a security interest in or otherwise
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conveyed any of the Collateral and no effective financing statement (other than with respect to Permitted Liens) or other instrument similar in effect naming or purportedly naming the Borrower or
any of its Affiliates as debtor and covering all or any part of the Collateral is on file in any recording office, except such as may have been filed in favor of the Collateral Agent as “Secured Party” pursuant hereto or as necessary or
advisable in connection with the Sale Agreement. There are no judgments or Liens for material Taxes with respect to the Borrower and no claim has been asserted in writing with respect to the material Taxes of the Borrower.
Section 9.14 Information True and Correct. All information (other than any information provided to the Borrower by an
un-Affiliated third party) heretofore or hereafter furnished by or on behalf of the Borrower in writing to any Lender, the Collateral Agent, any Agent or the Facility Agent in connection with this Agreement or any transaction contemplated hereby is
and will be (when taken as a whole), as of the date such information is furnished, true and correct in all material respects (or if not prepared by or under the direction of the Borrower, is true and correct in all material respects to the
Borrower’s knowledge (after reasonable inquiry)) and does not omit to state any material fact necessary to make the statements contained therein not misleading (or, if not prepared by or under the direction of the Borrower, does not omit to
state such a fact to the Borrower’s knowledge (after reasonable inquiry)). With respect to any information received from any un-Affiliated third party, the Borrower (i) will not furnish (and has not furnished) any such information to any
Lender, the Collateral Agent, any Agent or the Facility Agent in connection with this Agreement or any transaction contemplated hereby that it knows (or knew) to be incorrect at the time such information is (or was) furnished in any material respect
and (ii) has informed (or will inform) the applicable Lender, the Collateral Agent, the applicable Agent or the Facility Agent, as applicable, of any such information which it found after such information was furnished to be incorrect in any
material respect when furnished.
Section 9.15 Bulk Sales. The grant of the security interest in the Collateral by the
Borrower to the Collateral Agent, for the benefit of the Secured Parties, pursuant to this Agreement, is in the ordinary course of business for the Borrower and is not subject to the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction.
Section 9.16 Collateral. Except as otherwise expressly permitted or required by the terms of this
Agreement, no item of Collateral has been sold, transferred, assigned or pledged by the Borrower to any Person.
Section 9.17
Selection Procedures. In selecting the Collateral Obligations hereunder and for Affiliates of the Borrower, no selection procedures were employed which are intended to be adverse to the interests of the Facility Agent, any Agent or any
Lender.
Section 9.18 Indebtedness. The Borrower has no Indebtedness or other indebtedness, secured or unsecured, direct or
contingent (including guaranteeing any obligation), other than (i) Indebtedness incurred under the terms of the Transaction Documents and (ii) Indebtedness incurred pursuant to certain ordinary business expenses arising pursuant to the
transactions contemplated by this Agreement and the other Transaction Documents.
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Section 9.19 No Injunctions. No injunction, writ, restraining order or other
order of any nature adversely affects the Borrower’s performance of its obligations under this Agreement or any Transaction Document to which the Borrower is a party.
Section 9.20 No Subsidiaries. The Borrower has no Subsidiaries other than REO Asset Owners.
Section 9.21 ERISA Matters.
(a) The Borrower does not sponsor, maintain, or contribute to, and has never sponsored, maintained, or contributed to, and,
except as would not reasonably be expected to have a Material Adverse Effect, no ERISA Affiliate sponsors, maintains, contributes to, or has any liability in respect of, or has ever sponsored, maintained, contributed to, or had any liability in
respect of, a Plan.
(b) No ERISA Event has occurred on or prior to the date that this representation is made or deemed
made that, whether alone or together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.
(c) The Borrower is not, and will not become at any time while any Obligations are outstanding, a Benefit Plan Investor.
Section 9.22 Investment Company Status. It is not required to register as an “investment company”, as such term is
defined in the 1940 Act, or be subject to regulation as an “investment company” under the 1940 Act; provided that, for purposes of this representation, an entity shall not be deemed to be “controlled” by an investment
company solely by virtue of being a wholly-owned subsidiary of a business development company that has elected to be regulated as such under the 1940 Act.
Section 9.23 Set-Off, Etc. No Collateral Obligation has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set-off or modified by the Borrower or the Obligor thereof, and no Collateral is subject to compromise, adjustment, extension, satisfaction, subordination, rescission,
set-off, counterclaim, defense, abatement, suspension, deferment, deduction, reduction, termination or modification, whether arising out of transactions concerning the Collateral or otherwise, by the Borrower
or the Obligor with respect thereto, except, in each case, pursuant to the Transaction Documents and for amendments, extensions and modifications, if any, to such Collateral otherwise permitted hereby and in accordance with the Servicing Standard.
Section 9.24 Collections. The Borrower acknowledges that (i) all Obligors (and related agents) have been directed to
make all payments directly to the Collection Account and (ii) all Collections received by it or its Affiliates with respect to the Collateral pledged hereunder are held and shall be held in trust for the benefit of the Collateral Agent, on
behalf of the Secured Parties until deposited into the applicable Collection Account in accordance with Section 10.10.
Section 9.25 Value Given. The Borrower has given fair consideration and reasonably equivalent value to the Equityholder
(including, for this purpose, equity of the Borrower) or the applicable third party seller in exchange for the purchase of the Collateral Obligations (or any number of them). No such transfer has been made for or on account of an antecedent debt and
no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.
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Section 9.26 Use of Proceeds. The Borrower is not engaged in the business of
extending credit for the purpose of buying or carrying Margin Stock and none of the proceeds of the Advances will be used, directly or indirectly, for a purpose that violates Regulation U or Regulation X.
Section 9.27 Separate Existence. The Borrower is operated as an entity with assets and liabilities distinct from those of any of
its Affiliates or any Affiliates of the Equityholder, and the Borrower hereby acknowledges that the Facility Agent, each of the Agents and each of the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the
Borrower’s identity as a separate legal entity. Since its formation, the Borrower has been (and will be) operated in such a manner as to comply with the covenants set forth in Section 10.5.
There is not now, nor will there be at any time in the future, any agreement or understanding between the Borrower and the Equityholder (other
than as expressly set forth herein and the other Transaction Documents) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges.
Section 9.28 Transaction Documents. The Transaction Documents delivered, together with the Constituent Documents of the Borrower,
to the Facility Agent represent all material agreements between the Equityholder, on the one hand, and the Borrower, on the other. Upon the purchase and/or contribution of each Collateral Obligation (or an interest in a Collateral Obligation)
pursuant to the this Agreement or the Sale Agreement, the Borrower shall be the lawful owner of, and have good title to, such Collateral Obligation and all assets relating thereto, free and clear of any Adverse Claim; provided that, with
respect to any Assigned Participation Interest purchased by the Borrower, the Borrower shall not be the record owner of the underlying Loan until the Elevation (as defined in the Sale Agreement) of such Assigned Participation Interest. All such
assets are transferred to the Borrower without recourse to the Equityholder except as described in the Sale Agreement. The purchases of such assets by the Borrower constitute valid and true sales for consideration (and not merely a pledge of such
assets for security purposes) and the contributions of such assets received by the Borrower constitute valid and true transfers for consideration, each enforceable against creditors of the Equityholder, and no such assets shall constitute property
of the Equityholder; provided that, with respect to any Assigned Participation Interest purchased by the Borrower, the Borrower shall not be the record owner of the underlying Loan until the Elevation (as defined in the Sale Agreement) of
such Assigned Participation Interest.
Section 9.29 EEA/UK Financial Institution. The Borrower is not an EEA Financial
Institution or a UK Financial Institution.
Section 9.30 Sanctions, Anti-Money Laundering. (a) Neither the Borrower nor
any Affiliate, officer or director, acting on behalf of the Borrower is (i) named on any sanctions list administered or imposed by the U.S. Government including by the Office of Foreign Assets Control (“OFAC”), or any other
list maintained for the purposes of sanctions enforcement by any of the United Nations, the European Union, His Majesty’s Treasury in the UK, Germany, Canada
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or Australia (collectively, “Sanctions”), (ii) a Person that resides, is organized or located in any of the Sanctioned Countries or whose subscription funds are
transferred from or through any Sanctioned Countries (a “Sanctions Target”) or (iii) is owned 50% or more or otherwise controlled, directly or indirectly by, or acting on behalf of, one or more Sanctions Targets. The Borrower
is and each Affiliate, officer or director acting on behalf of the Borrower is in compliance with Sanctions.
(b) The Borrower is in
compliance with, in all material respects, all applicable anti-money laundering laws and regulations in any jurisdiction in which it is located or doing business, including the USA Patriot Act (collectively, the “Anti-Money Laundering
Laws”). No actions, suits, proceedings or investigations by any court, governmental, or regulatory agency are ongoing or pending against the Borrower, its directors, officers or employees or anyone acting on its behalf in relation to a
breach of the Anti-Money Laundering Laws, or, to the knowledge of the Borrower (after reasonable inquiry), threatened.
These
representations apply only to the extent they do not result in a violation of or conflict with any applicable blocking or anti-boycott laws (including, without limitation, the Council Regulation (EC) No 2271/96 and/or section 7 of the German Foreign
Trade and Payments Ordinance (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz))).
Section 9.31 Anti-Bribery and Corruption. (a) Neither the Borrower nor, to the best of the Borrower’s knowledge, any
director, officer or employee of the Borrower, or any agent acting on behalf of the Borrower in connection with the Transaction Documents, has engaged in any activity, or will take any action, directly or indirectly, which would breach applicable
anti-bribery and corruption laws and regulations in any jurisdiction in which the Borrower is located or doing business, including but not limited to the US Foreign and Corrupt Practices Act 1977, as amended, and the Bribery Act 2010 of the United
Kingdom (the “Anti-Bribery and Corruption Laws”).
(b) The Borrower and its Affiliates have each
conducted their businesses in compliance with Anti-Bribery and Corruption Laws and have instituted and maintain policies and procedures reasonably designed to promote and ensure continued compliance with all Anti-Bribery and Corruption Laws and with
the representation and warranty contained herein.
(c) No actions, suits, proceedings or investigations by any court,
governmental, or regulatory agency are ongoing or pending against the Borrower, its directors, officers, employees or, to the best of the Borrower’s knowledge, agents acting on behalf of the Borrower in connection with the Transaction
Documents, in relation to a breach of the Anti-Bribery and Corruption Laws, or, to the knowledge of the Borrower, threatened.
(d) The Borrower will not directly or indirectly use, lend or contribute the proceeds of the Advances for any purpose that
would breach the Anti-Bribery and Corruption Laws.
Section 9.32 Volcker Rule. To the best of the Borrower’s knowledge
and belief, the Advances do not constitute an “ownership interest” in the Borrower for purposes of the Volcker Rule.
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Section 9.33 AIFMD and UK AIFM Regulation. The Borrower is not (i) an AIFM
or an AIF managed by an AIFM (as such term is defined in the AIFMD) required to be authorized or registered in accordance with AIFMD; or (ii) an AIFM or an AIF managed by an AIFM (as such term is defined in the UK AIFM Regulations) required to
be authorized or registered in accordance with the UK AIFM Regulations.
ARTICLE X
COVENANTS
From the
date hereof until the first day following the Facility Termination Date on which all Obligations shall have been finally and fully paid and performed (other than as expressly survive the termination of this Agreement), the Borrower hereby covenants
and agrees with the Lenders, the Agents and the Facility Agent that:
Section 10.1 Protection of Security Interest of the Secured
Parties. (a) At or prior to the Effective Date, the Borrower shall have filed or caused to be filed a UCC-1 financing statement, naming the Borrower as debtor, naming the Collateral Agent (for the
benefit of the Secured Parties) as secured party and describing the Collateral, with the office of the Secretary of State of the State of Delaware. From time to time thereafter, the Borrower shall file (and the Borrower hereby authorizes the
Collateral Agent to so file) such financing statements and cause to be filed such continuation statements, all in such manner and in such places as may be required by Applicable Law fully to preserve, maintain and protect the interest of the
Collateral Agent in favor of the Secured Parties under this Agreement in the Collateral and in the proceeds thereof. The Borrower shall deliver (or cause to be delivered) to the Collateral Agent file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. In the event that the Borrower fails to perform its obligations under this subsection, the Collateral Agent or the Facility Agent
may (but shall have no obligation to) do so, in each case at the expense of the Borrower, however neither the Collateral Agent nor the Facility Agent shall have any liability in connection therewith.
(b) The Borrower shall not change its name, jurisdiction, identity or corporate structure in any manner that would make any
financing statement or continuation statement filed by the Borrower (or by the Collateral Agent on behalf of the Borrower) in accordance with subsection (a) above seriously misleading or change its jurisdiction of organization, unless
the Borrower shall have given the Facility Agent, each Agent and the Collateral Agent at least 30 days prior written notice thereof, and shall promptly file appropriate amendments to all previously filed financing statements and continuation
statements (and shall provide a copy of such amendments to the Collateral Agent, each Agent and Facility Agent together with an Officer’s Certificate to the effect that all appropriate amendments or other documents in respect of previously
filed statements have been filed).
(c) The Borrower shall maintain its computer systems, if any, so that, from and after
the time of the first Advance under this Agreement, the Borrower’s master computer records (including archives) that shall refer to the Collateral indicate clearly that such Collateral is subject to the first priority security interest in
favor of the Collateral Agent, for the benefit of the Secured Parties. Indication of the Collateral Agent’s (for the benefit of the Secured Parties)
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security interest shall be deleted from or modified on the Borrower’s computer systems when, and only when, the Collateral in question shall have been paid in full, the security interest
under this Agreement has been released in accordance with its terms, upon such Collateral Obligation becoming a Repurchased Collateral Obligation or Substituted Collateral Obligation or otherwise as expressly permitted by this Agreement.
(d) Without limiting any of the other provisions hereof, if at any time the Borrower shall propose to sell, grant a security
interest in, or otherwise transfer any interest in loan receivables to any prospective lender or other transferee, the Borrower shall give to such prospective lender or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in any manner whatsoever to any Collateral shall indicate clearly that such Collateral is subject to a first priority security
interest in favor of the Collateral Agent, for the benefit of the Secured Parties.
Section 10.2 Other Liens or Interests.
Except for the security interest granted hereunder and as otherwise expressly permitted hereunder, including pursuant to Sections 7.11, 7.12 and 10.16, the Borrower will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Collateral or any interest therein (other than Permitted Liens), and the Borrower shall defend the right, title, and interest of the Collateral Agent (for the benefit of the Secured
Parties) and the Lenders in and to the Collateral against all claims of third parties claiming through or under the Borrower (other than Permitted Liens).
Section 10.3 Costs and Expenses. The Borrower shall pay (or cause to be paid) all of its reasonable costs, charges and
disbursements in connection with the performance of its obligations hereunder and under the Transaction Documents.
Section 10.4
Reporting Requirements. The Borrower shall furnish, or cause to be furnished, to the Facility Agent, the Collateral Agent and each Lender:
(a) as soon as possible and in any event within three Business Days after a Responsible Officer of the Borrower shall have
knowledge (after reasonable inquiry) of the occurrence of a Facility Termination Event, Unmatured Facility Termination Event, Services Provider Event of Default or Unmatured Services Provider Event of Default, the statement of an Executive Officer
of the Borrower setting forth complete details of such event and the action which the Borrower has taken, is taking and proposes to take with respect thereto;
(b) promptly, from time to time, such other information, documents, records or reports respecting the Collateral Obligations or
the Related Security, the other Collateral or the condition or operations, financial or otherwise, of the Borrower as such Person may, from time to time, reasonably request;
(c) promptly, in reasonable detail, of (i) any Adverse Claim known to it that is made or asserted against any of the
Collateral, (ii) any Material Modification, (iii) any Revaluation Event known to it (after reasonable inquiry) and (iv) any Proceeding to the extent and as required by Section 10.24;
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(d) promptly, in reasonable detail, any new or updated information
reasonably requested by a Lender in connection with “know your customer” laws or any similar regulations; and
(e) promptly following any request therefor, the Borrower shall deliver to the Facility Agent information and documentation
reasonably requested by the Facility Agent for purposes of compliance with its Beneficial Ownership Certification.
Section 10.5
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and
shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) Except as contemplated in the Transaction Documents, it shall pay its own operating expenses and liabilities from its own
funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the
effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable
for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or
hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets
and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any
Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the
Borrower, if any, have notes to the effect that all of the Borrower’s assets are owned by the Borrower and the Borrower is a separate entity.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and
with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any
other Person (although, in connection with certain regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder).
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(k) It shall file its own tax returns separate from those of any other
Person, except to the extent that it is (1) part of a consolidated group (of which it is not the parent) filing a consolidated return or returns, (2) treated as a disregarded entity of another taxpayer for tax purposes, or
(3) otherwise not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its
separate existence (although, in connection with certain regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder).
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any
other Person and not have its assets listed on any financial statement of any other Person; provided, that its assets may be included in a consolidated financial statement of its Affiliate (including the Equityholder) so long as all audited
financial statements that are consolidated to include the Borrower contain detailed notes clearly stating that (x) all of the Borrower’s assets are owned by the Borrower and (y) the Borrower is a separate legal entity.
(n) Except as permitted by the Transaction Documents, it shall not, except for capital contributions or capital distributions
permitted under the terms and conditions of its Constituent Documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated
parties in an arm’s-length transaction.
(o) It shall maintain a sufficient number of employees (which number may be
zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name (although, in connection with certain regulatory filings, advertising
and marketing, it may be identified as a subsidiary of the Equityholder).
(q) It shall correct any known misunderstanding
regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall
maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in
compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to,
or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
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(u) It shall not, to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade
securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the
Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the
Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or
permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses
that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts”
section in the opinion or opinions of Latham & Watkins LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Services Provider nor any other person shall be authorized or empowered, nor shall they permit the Borrower to
take any Material Action without the prior written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at
least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent,
and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Manager of the Borrower may be removed or replaced unless the Borrower
provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the
proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an
Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
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Section 10.6 Hedging Agreements. (a) With respect to any Fixed Rate
Collateral Obligations the Principal Balances of which, as of the time of acquisition by the Borrower, are in excess of 5.0% of the Excess Concentration Measure, the Borrower hereby covenants and agrees that, upon the direction of the Facility Agent
in its sole discretion as notified to the Borrower and the Services Provider on or prior to the related Funding Date for such Collateral Obligation, the Borrower shall obtain and deliver to the Collateral Agent (with a copy to the Facility Agent and
each Agent) one or more Hedging Agreements from qualified Hedge Counterparties having, singly or in the aggregate, an Aggregate Notional Amount not less than the amount determined by the Facility Agent in its reasonable discretion, which
(1) each shall have a notional principal amount equal to or greater than $1,000,000, (2) may provide for reductions of the Aggregate Notional Amount on each Distribution Date on an amortization schedule for such Aggregate Notional Amount
assuming a 0.0 ABS prepayment speed (or such other ABS prepayment speed as may be approved in writing by the Facility Agent) and zero losses, and (3) shall have other terms and conditions and be represented by Hedging Agreements otherwise
acceptable to the Facility Agent in its sole discretion.
(b) In the event that any Hedge Counterparty defaults in its obligation to make
a payment to the Borrower under one or more Hedging Agreements on any date on which payments are due pursuant to a Hedging Agreement, the Borrower shall make a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment by
12:30 p.m., New York City time, on such date. The Borrower shall give notice to each Agent upon the continuing failure by any Hedge Counterparty to perform its obligations during the two Business Days following a demand made by the
Borrower on such Hedge Counterparty, and shall take such action with respect to such continuing failure as may be directed by the Facility Agent.
(c) In the event that any Hedge Counterparty no longer maintains the ratings specified in the definition of “Hedge Counterparty,”
then within 30 days after receiving notice of such decline in the creditworthiness of such Hedge Counterparty as determined by any Rating Agency, the Borrower shall provide the Hedge Counterparty notice of the potential termination event
resulting from such downgrade and, if the Hedge Counterparty fails to cure such potential termination event within the time frame specified in the related Hedging Agreement, the Borrower shall, at the written direction of the Facility Agent,
(i) provided that a Replacement Hedging Agreement or Qualified Substitute Arrangement meeting the requirements of Section 10.6(d) has been obtained, (A) provide written notice to such Hedge Counterparty (with a copy to
the Collateral Agent and the Facility Agent) of its intention to terminate the applicable Hedging Agreement within the 30-day period following the expiration of the cure period set forth in the applicable
Hedging Agreement and (B) terminate the applicable Hedging Agreement within such 30-day period, request the payment to it of all amounts due to the Borrower under the applicable Hedging Agreement through
the termination date and deposit any such amounts so received, on the day of receipt, to the Collection Account, or (ii) establish any other arrangement (including an arrangement or arrangements in addition to or in substitution for any prior
arrangement made in accordance with the provisions of this Section 10.6(c)) with the written consent (in its sole discretion) of the Facility Agent (a “Qualified Substitute Arrangement”); provided, that in the
event at any time any alternative arrangement established pursuant to the above shall cease to be satisfactory to the Facility Agent, then the provisions of this Section 10.6(c), shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Borrower receives notice of such cessation or termination, as the case may be.
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(d) Unless an alternative arrangement pursuant to Section 10.6(c) is being
established, the Borrower shall use its commercially reasonable efforts to obtain a Replacement Hedging Agreement or Qualified Substitute Arrangement meeting the requirements of this Section 10.6 during the
30-day period following the expiration of the cure period set forth in the applicable Hedging Agreement. The Borrower shall not terminate the Hedging Agreement unless, prior to the expiration of such 30-day period, the Borrower delivers to the Collateral Agent (with a copy to the Facility Agent and each Agent) (i) a Replacement Hedging Agreement or Qualified Substitute Arrangement, (ii) to the extent
applicable, an Opinion of Counsel reasonably satisfactory to the Facility Agent as to the due authorization, execution and delivery and validity and enforceability of such Replacement Hedging Agreement or Qualified Substitute Arrangement, as the
case may be, and (iii) evidence that the Facility Agent has consented in writing to the termination of the applicable Hedging Agreement and its replacement with such Replacement Hedging Agreement or Qualified Substitute Arrangement.
(e) The Borrower shall notify the Facility Agent, each Agent and the Collateral Agent within five Business Days after a Responsible Officer of
such Person shall obtain knowledge that the senior unsecured debt rating of a Hedge Counterparty has been withdrawn or reduced by any Rating Agency.
(f) The Borrower may at any time obtain a Replacement Hedging Agreement with the consent (in its sole discretion) of the Facility Agent.
(g) The Borrower shall not agree to any amendment to any Hedging Agreement without the consent (in its sole discretion) of the Facility Agent.
(h) The Borrower shall notify the Facility Agent, each Agent and the Collateral Agent after a Responsible Officer of the Borrower shall
obtain actual knowledge of the transfer by the related Hedge Counterparty of any Hedging Agreement, or any interest or obligation thereunder.
(i) The Borrower, with the consent of the Facility Agent in its sole discretion, may sell all or a portion of the Hedging Agreements;
provided, that no consent of the Facility Agent shall be required for the sale of all or a portion of any Hedging Agreement relating to Fixed Rate Collateral Obligations not counted as “excess” pursuant to clause
(d) of the definition of “Excess Concentration Amount.” The Borrower shall have the duty of obtaining a fair market value price for the sale of any Hedging Agreement, notifying the Facility Agent, each Agent and the Collateral
Agent of prospective purchasers and bids, and selecting the purchaser of such Hedging Agreement. The Borrower and, at the Borrower’s request, the Collateral Agent, upon receipt of the purchase price in the Collection Account shall execute all
documentation necessary to release the Lien of the Collateral Agent on such Hedging Agreement and proceeds thereof.
Notwithstanding
anything to the contrary in this Section 10.6, the parties hereto agree that should the Borrower fail to observe or perform any of its obligations under this Section 10.6 with respect to any Hedging Agreement, the sole result
will be that the Collateral Obligation or Collateral Obligations that are the subject of such Hedging Agreement shall immediately cease to be Eligible Collateral Obligations for all purposes under this Agreement.
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Section 10.7 Tangible Net Worth. The Borrower shall maintain at all times a
positive Tangible Net Worth.
Section 10.8 Taxes. For U.S. federal income tax purposes, the Borrower will be an entity
disregarded as separate from the Equityholder and the Equityholder will be a U.S. Person. The Borrower will file on a timely basis all U.S. federal income and other material Tax returns (including foreign, federal, state, local and otherwise)
required to be filed, if any, and will pay all U.S. federal income and other material Taxes due and payable by it and any assessments made against it or any of its property (other than any amount the validity of which is contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with GAAP are provided on the books of the Borrower). No more than 50% of the debt obligations (as determined for U.S. federal income tax purposes) held by the Borrower may at
any time consist of real estate mortgages as determined for purposes of Section 7701(i) of the Code unless, based on written advice of Orrick, Herrington & Sutcliffe LLP, Latham & Watkins LLP or an opinion of other tax counsel
of nationally recognized standing in the United States experienced in such matters, the ownership of such debt obligations will not cause the Borrower to be treated as a taxable mortgage pool for U.S. federal income tax purposes.
Section 10.9 Merger, Consolidation, Etc. The Borrower shall not merge or consolidate with any other Person or permit any other
Person to become the successor to all or substantially all of its business or assets without the prior written consent of the Facility Agent in its sole discretion.
Section 10.10 Deposit of Collections. The Borrower shall transfer, or cause to be transferred, all Collections to the Collection
Account by the close of business on the second Business Day following the date such Collections are received by the Borrower, the Equityholder, the Services Provider, any sub-advisor of the Services Provider or any of their respective Affiliates.
Section 10.11 Indebtedness; Guarantees. The Borrower shall not create, incur, assume or suffer to exist any Indebtedness
other than Indebtedness permitted under the Transaction Documents. The Borrower shall incur no Indebtedness secured by the Collateral other than the Obligations. The Borrower shall not assume, guarantee, endorse or otherwise be or become directly or
contingently liable for the obligations of any Person by, among other things, agreeing to purchase any obligation of another Person, agreeing to advance funds to such Person or causing or assisting such Person to maintain any amount of capital,
other than as expressly permitted under the Transaction Documents.
Section 10.12 Limitation on Purchases from Affiliates.
Other than pursuant to the Sale Agreement, the Borrower shall not purchase any asset from the Equityholder or the Services Provider or any Affiliate of the Borrower, the Equityholder or the Services Provider.
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Section 10.13 Documents. Except as otherwise expressly permitted herein, it
shall not cancel or terminate any of the Transaction Documents to which it is party (in any capacity), or consent to or accept any cancellation or termination of any of such agreements, or amend or otherwise modify any term or condition of any of
the Transaction Documents to which it is party (in any capacity) or give any consent, waiver or approval under any such agreement, or waive any default under or breach of any of the Transaction Documents to which it is party (in any capacity) or
take any other action under any such agreement not required by the terms thereof, unless (in each case) each of the Facility Agent and the Services Provider shall have consented thereto in its sole discretion.
Section 10.14 Preservation of Existence. It shall do or cause to be done all things necessary to (i) preserve and keep in
full force and effect its existence as a limited liability company and take all reasonable action to maintain its rights and franchises in the jurisdiction of its formation and (ii) qualify and remain qualified as a limited liability company in
good standing in each jurisdiction where the failure to qualify and remain qualified would reasonably be expected to have a Material Adverse Effect.
Section 10.15 Limitation on Investments. The Borrower shall not form, or cause to be formed, any Subsidiaries other than REO Asset
Owners; or make or suffer to exist any loans or advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness, acquisition of the
business or assets, or otherwise) in, any Affiliate or any other Person except investments as otherwise permitted herein and pursuant to the other Transaction Documents.
Section 10.16 Distributions. (a) The Borrower shall not declare or make (i) payment of any distribution on or in respect
of any equity interests, or (ii) any payment on account of the purchase, redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that the Borrower may make one or more
distributions of (x) Principal Collections (excluding any Principal Collections necessary to settle the acquisition of Eligible Collateral Obligations) if, after giving effect to such distribution, (1) as certified in writing by the
Borrower and Services Provider to the Facility Agent (with a copy to each Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)(i) (other than clause (P) thereof) and
Section 8.3(a)(ii) (other than clause (F) thereof) on the next Distribution Date, (2) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event
of Default shall have occurred and be continuing, (3) each Collateral Quality Test is satisfied, (4) the Minimum Equity Condition is satisfied, (5) the Advances outstanding do not exceed the lower of the Borrowing Base and the Maximum
Availability and (6) the Foreign Currency Advance Amount does not exceed the Foreign Currency Sublimit; (y) amounts paid to it pursuant to Section 8.3(a) on the applicable Distribution Date; and (z) any asset that the
Borrower has been directed to divest pursuant to Section 10.29.
(b) Prior to foreclosure by the Facility Agent upon any
Collateral pursuant to Section 13.3(c), nothing in this Section 10.16 or otherwise in this Agreement shall restrict the Borrower from exercising any Warrant Assets issued to it by Obligors from time to time to the extent
funds are available to the Borrower under Section 8.3(a) or made available to the Borrower.
Section 10.17 Performance
of Borrower Assigned Agreements. The Borrower shall (i) perform and observe in all material respects all the terms and provisions of the Transaction Documents (including each of the Borrower Assigned Agreements) to which it is a party to be
performed or observed by it, maintain such Transaction Documents in full force and effect, and enforce such Transaction Documents in accordance with their terms, and (ii) upon reasonable request of the Facility Agent, make to any other party to
such Transaction Documents such demands and requests for information and reports or for action as the Borrower is entitled to make thereunder.
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Section 10.18 Material Modifications. Following the occurrence of any Facility
Termination Event, or during an Equityholder Credit Event, the Borrower shall not consent to a Material Modification with respect to any Collateral Obligation without the express written consent of the Facility Agent (in its sole discretion);
provided that, following the occurrence of any Facility Termination Event or during an Equityholder Credit Event, the Borrower may consent to a Material Modification without the express written consent of the Facility Agent if the
Equityholder shall deposit, on or prior to the date such Material Modification is effected, an amount equal to the outstanding principal amount of such Collateral Obligation (such amount to be calculated prior to giving effect to the related
Revaluation Event) in order to repurchase such Collateral Obligation from the Borrower, subject to compliance with the requirements of Section 7.11 (other than with respect to clause (a)(i)(D)(1) thereof); provided,
further, that if such amount is not deposited on such date for the repurchase of such Collateral Obligation, the requirement to obtain the express consent of the Facility Agent shall be reinstated. Any failure by the Borrower to obtain the
express consent of the Facility Agent to any Material Modification as required under this Section 10.18 shall result in the related Collateral Obligation being subject to a Revaluation Event under clause (e) of the definition
thereof but shall not result in an additional Facility Termination Event.
Section 10.19 Further Assurances; Financing
Statements. (a) The Borrower agrees that at any time and from time to time, at its expense and upon reasonable request of the Facility Agent or the Collateral Agent (acting at the request of the Facility Agent), it shall promptly execute
and deliver all further instruments and documents, and take all reasonable further action, that is necessary or desirable to perfect and protect the assignments and security interests granted or purported to be granted by this Agreement or to enable
the Collateral Agent or any of the Secured Parties to exercise and enforce its rights and remedies under this Agreement with respect to any Collateral. Without limiting the generality of the foregoing, the Borrower authorizes the filing of such
financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable or that the Collateral Agent (acting solely at the Facility Agent’s request) may reasonably request to protect
and preserve the assignments and security interests granted by this Agreement. Such financing statements filed against the Borrower may describe the Collateral in the same manner specified in Section 12.1 or in any other manner as the
Facility Agent may reasonably determine is necessary to ensure the perfection of such security interest (without disclosing the names of, or any information relating to, the Obligors thereunder), including describing such property as all assets or
all personal property of the Borrower whether now owned or hereafter acquired.
(b) The Borrower and each Secured Party
hereby severally authorize the Collateral Agent, upon receipt of written direction from the Facility Agent, to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Collateral.
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(c) It shall furnish to the Collateral Agent and the Facility Agent from
time to time such statements and schedules further identifying and describing the Related Security and such other reports in connection with the Collateral as the Collateral Agent (acting solely at the Facility Agent’s request) or the Facility
Agent may reasonably request, all in reasonable detail.
Section 10.20 Obligor Payment Instructions. The Borrower acknowledges
that the power of attorney granted in Section 13.10 to the Collateral Agent permits the Collateral Agent to send (at the Facility Agent’s written direction after the occurrence of a Facility Termination Event) Obligor notification
forms to give notice to the Obligors of the Collateral Agent’s interest in the Collateral and the obligation to make payments to a Pledged Account as directed by the Collateral Agent (at the written direction of the Facility Agent). The
Borrower further agrees that it shall (or it shall cause the Services Provider to) provide prompt notice to the Facility Agent of any misdirected or errant payments made by any Obligor (if not corrected within two Business Days of such payment) with
respect to any Collateral Obligation and direct such Obligor to make payments as required hereunder.
Section 10.21 Delivery of
Collateral Obligation Files. (a) The Borrower (or the Services Provider on behalf of the Borrower) shall deliver to the Collateral Custodian (with a copy to the Facility Agent at the following e-mail addresses (for electronic copies):
amit.patel@db.com, james.kwak@db.com, christina.flowers@db.com and jack.finnegan@db.com) the Collateral Obligation Files identified on the related Document Checklist promptly upon receipt but in no event later than three (3) Business Days of
the related Funding Date; provided that any file-stamped document included in any Collateral Obligation File shall be delivered as soon as they are reasonably available (even if not within three
(3) Business Days of the related Funding Date). In addition, promptly following the occurrence of a Facility Termination Event, the Borrower shall deliver to the Collateral Custodian (with a copy to the Facility Agent at the email addresses set
forth above) a fully executed assignment in blank for each Collateral Obligation for which the Services Provider, the Equityholder or any of their respective Affiliates is the loan agent. The Borrower shall use commercially reasonable efforts
consistent with its then-current business practices to maintain (or cause to be maintained) for the Secured Parties in accordance with their respective interests all Records that evidence or relate to the Collections not previously delivered to the
Collateral Agent and shall, as soon as reasonably practicable upon demand of the Facility Agent, make available, or, upon the Facility Agent’s demand following the occurrence and during the continuation of a Services Provider Event of Default,
deliver to the Facility Agent copies of all such Records which evidence or relate to the Collections.
(b) The Borrower
shall deliver the following: (i) all Asset Approval Requests to lenderfinance_collatreview@list.db.com, (ii) Monthly Reports delivered in connection with Section 8.5 to csg.india@db.com, abs.conduits@db.com,
dbinvestor@list.db.com, amit.patel@db.com, james.kwak@db.com, christina.flowers@db.com and jack.finnegan@db.com, (iii) requests or notices delivered in accordance with Sections 2.2, 2.4 or 8.3(b), to abs.conduits@db.com,
lenderfinance_collatreview@list.db.com, amit.patel@db.com, james.kwak@db.com, christina.flowers@db.com and jack.finnegan@db.com and (iv) obligor reports delivered in connection with Section 7.5(k) to gcrt.ratingrequests@db.com and
lenderfinance_collatreview@list.db.com.
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Section 10.22 Reserved.
Section 10.23 ERISA.
(a) The Borrower will not become a Benefit Plan Investor at any time while any Obligations are outstanding.
(b) The Borrower will not take any action, or omit to take any action, which would give rise to a non-exempt prohibited
transaction under Section 406(a)(1)(B) of ERISA or Section 4975(c)(1)(B) of the Code that would subject any Lender to any tax, penalty, damages, or any other claim for relief under ERISA or the Code, assuming in each case that no Lender is
a Benefit Plan Investor.
(c) The Borrower shall not sponsor, maintain, or contribute to, any Plan. Except as would not
reasonably be expected to have a Material Adverse Effect, (i) the Borrower shall not, and shall not permit any ERISA Affiliate to, permit to exist any occurrence of any ERISA Event, and (ii) the Borrower shall not permit any ERISA
Affiliate over which it has control to sponsor, maintain, contribute to, or incur any liability in respect of, any Plan.
Section 10.24 Proceedings. As soon as possible and in any event within three (3) Business Days after a Responsible Officer of
the Borrower receives notice or obtains knowledge thereof (after reasonable inquiry), such Responsible Officer shall notify the Facility Agent of any settlement of, material judgment (including a material judgment with respect to the liability phase
of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower Collateral (taken as a whole), the Transaction Documents, the Collateral Agent’s interest in the Collateral, or the Borrower; provided that any settlement, judgment, labor
controversy, litigation, action, suit or proceeding affecting the Collateral (taken as a whole), the Transaction Documents, the Collateral Agent’s interest in the Collateral, or the Borrower in excess of $100,000 or more shall be deemed to be
material for purposes of this Section 10.24.
Section 10.25 Officer’s Certificate. On each anniversary of
the date of this Agreement, the Borrower shall deliver an Officer’s Certificate, in form and substance acceptable to the Facility Agent, providing (i) a certification, based upon a review and summary of UCC search results, that there is
no other interest in the Collateral perfected by filing of a UCC financing statement other than in favor of the Collateral Agent and (ii) a certification, based upon a review and summary of tax and judgment Lien searches satisfactory to the
Facility Agent, that there is no other interest in the Collateral based on any tax or judgment Lien.
Section 10.26 Policies and
Procedures for Sanctions. The Borrower has instituted and maintained policies and procedures designed to promote compliance with Sanctions.
Section 10.27 Compliance with Sanctions. The Borrower shall not directly or knowingly indirectly use the proceeds of the Advances,
or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture, partner or other Person or entity, to fund or facilitate (i) any activities of or business with any Sanctions Target, (ii) any activities of or
business in any Sanctioned Country or (iii) in any other manner that, in each case, would result in a violation by
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any Person that is a party to this agreement of Sanctions. This clause applies only to the extent that compliance does not result in a violation of applicable blocking or anti-boycott laws
(including, without limitation, the Council Regulation (EC) No 2271/96 and/or section 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 of the German Foreign Trade
and Payments Act (Außenwirtschaftsgesetz))).
Section 10.28 Compliance with Anti-Money Laundering. The Borrower shall
comply in all material respects with all applicable Anti-Money Laundering Laws and shall provide notice to the Facility Agent, within five (5) Business Days, of the Borrower’s receipt of any Anti-Money Laundering Law regulatory notice or
action involving the Borrower.
Section 10.29 Ineligible Collateral. At the direction of the Facility Agent (in its sole
discretion), the Borrower shall divest in a manner reasonably satisfactory to the Facility Agent (i) reasonably promptly upon request by the Facility Agent, any asset that does not satisfy the definition of “Eligible Collateral
Obligation” or “Permitted Investment” if (a) such asset is a Structured Finance Obligation, (b) a material breach of Section 7.4(k) has occurred with respect to such asset or (c) any Lender determines
that such asset is reasonably likely to result in any reputational harm to such Lender (in such Lender’s sole discretion) or (ii) as soon as reasonably practicable following the request by the Facility Agent, any asset that does not
satisfy the definition of “Eligible Collateral Obligation” or “Permitted Investment” and the Facility Agent determines that the Borrower’s ownership of such asset is reasonably likely to (x) have materially adverse
regulatory consequences on any Lender (in such Lender’s sole discretion) or (y) result in unfavorable capital treatment for any Lender (in such Lender’s sole discretion) and the Borrower and Facility Agent have not otherwise agreed
to modifications to this Agreement to address such capital treatment; provided that any such divestiture shall not be included in the limitations on sales set forth in Sections 7.11(a)(i)(E) or (F) and that distributions
(including a distribution in respect of an equity interest) of any such asset shall not be subject to any requirement or restriction that would otherwise be applicable to such distribution hereunder. The Facility Agent and each Lender shall provide
any waivers necessary to permit such divestiture and acknowledges that it does not have any discretion with respect to selecting the purchaser of any asset divested pursuant to this Section 10.29; provided that, in no event shall
an Unmatured Facility Termination Event or a Facility Termination Event be deemed to have occurred due to the Borrower’s inability to effect any such divestiture if the Borrower otherwise complies with its obligations under this
Section 10.29. Any direction to divest an asset pursuant to this Section 10.29 shall not be effective unless accompanied by an explanation (which may be provided as e-mail correspondence), in reasonable detail, of the basis
for requesting such direction.
Section 10.30 AIF/AIFM Covenant. The Borrower shall not become (i) an AIFM or an AIF
managed by an AIFM (as such term is defined in the AIFMD) required to be authorized or registered in accordance with AIFMD; or (ii) an AIFM or an AIF managed by an AIFM (as such term is defined in the UK AIFM Regulations) required to be
authorized or registered in accordance with the UK AIFM Regulations.
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ARTICLE XI
THE COLLATERAL AGENT
Section 11.1 Appointment of Collateral Agent. State Street Bank and Trust Company is hereby appointed as Collateral Agent pursuant
to the terms hereof. The Secured Parties hereby appoint the Collateral Agent to act exclusively as the agent for purposes of perfection of a security interest in the Collateral and Collateral Agent of the Secured Parties to act as specified herein
and in the other Transaction Documents to which the Collateral Agent is a party. The Collateral Agent hereby accepts such agency appointment to act as Collateral Agent pursuant to the terms of this Agreement, until its resignation or removal as
Collateral Agent pursuant to the terms hereof.
Section 11.2 Monthly Reports. The Collateral Agent shall prepare the Monthly
Report in accordance with Section 8.5 and distribute funds in accordance with such Monthly Report in accordance with Section 8.3.
Section 11.3 Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the
Collateral on an ongoing basis, and provide to the Borrower, the Services Provider, the Facility Agent and the Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon
information and data received from the Borrower and/or the Services Provider pursuant to Section 7.8 or from the Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the
Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Pledged Accounts from time to time and Permitted Investments in which amounts held in the Pledged Accounts may be
invested from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral
Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent
of, information furnished to the Collateral Agent by the Borrower, the Services Provider or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the
issuer, or trustee or agent bank under an underlying instrument, or similar source;
(iii) track the receipt and allocation to the
Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Services Provider and Facility Agent daily reports reflecting such actions to the accounts as of the close
of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Services Provider upon its request therefor;
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(iv) distribute funds in accordance with such Monthly Report in accordance with
Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Agent, the Borrower and the Services Provider on each
Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Services Provider, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the
applicable Determination Date, the information provided by each Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Services Provider, the
Facility Agent, any Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral
Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Services Provider, the Facility Agent, any Agent or any Lender may reasonably
request from time to time;
(vii) upon the written request of the Services Provider on any Business Day and within three hours after the
Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon (New York City time)) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Agent shall perform
the following functions: as of the date the Services Provider commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth
in Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Services Provider in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Services Provider of its intent to sell
(in accordance with Section 7.11) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon
(New York City time)) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.11(a)(i)(A), (B) and
(C) based upon information contained in the Collateral Database and information furnished by the Services Provider, compare the results thereof and report the results to the Services Provider in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Services Provider upon
request.
(b) The Collateral Agent shall provide to the Services Provider a copy of all written notices and communications
identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under
any duty or obligation to take any action on behalf of the Services Provider in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Services Provider, prior to the
occurrence of a Facility Termination Event or a Services Provider Event of Default or the Facility Agent, after the occurrence and during the continuance of a Facility Termination Event or a Services Provider Event of Default, in which event the
Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
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(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and
without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further
action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to
exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments
thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this
Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Services Provider of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to
file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this
Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more
fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other
actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting
(and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent,
any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral
Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent
does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
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(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty
or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably
satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written
instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement
provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including a Facility Termination Event, unless a
Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses
of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the
Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has
already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and
shall be deemed to have acted in good faith if it acts in accordance with such advice.
(e) Concurrently herewith, the
Facility Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the
Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Section 11.4 Removal or Resignation of Collateral Agent. After the expiration of the 180 day period commencing on the date hereof,
the Collateral Agent may at any time resign and terminate its obligations under this Agreement upon at least 60 days’ prior written notice to the Services Provider, the Borrower and the Facility Agent; provided, that no resignation or
removal of the Collateral Agent will be permitted unless a successor Collateral Agent has been appointed by the Facility Agent with (so long as no Unmatured Services Provider Event of Default, Services Provider Event of Default, Unmatured Facility
Termination Event or Facility Termination Event has occurred and is continuing), the consent of the Services Provider. Promptly after receipt of notice of the Collateral Agent’s resignation, the Facility Agent shall promptly appoint a
successor Collateral Agent by written instrument, in duplicate, copies of which instrument shall be delivered to the Borrower, the Services Provider, the resigning Collateral Agent and to the successor Collateral Agent. In the event no successor
Collateral Agent shall have been appointed within 60 days after the giving of notice of such resignation, the Collateral Agent may petition any court of competent jurisdiction to appoint a successor Collateral Agent. The Facility Agent upon at least
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60 days’ prior written notice to the Collateral Agent, may with or without cause remove and discharge the Collateral Agent or any successor Collateral Agent thereafter appointed from the
performance of its duties under this Agreement. Promptly after giving notice of removal of the Collateral Agent, the Facility Agent shall appoint, or petition a court of competent jurisdiction to appoint, a successor Collateral Agent;
provided that, so long as no Services Provider Event of Default or Facility Termination Event has occurred and is continuing (x) any successor Collateral Agent so appointed by the Facility Agent shall be reasonably acceptable to the
Borrower and (y) the Borrower’s consent shall be required in connection with the Facility Agent’s removal of the Collateral Agent without cause unless any litigation has commenced between the Facility Agent and the Collateral Agent.
Any such appointment shall be accomplished by written instrument and one original counterpart of such instrument of appointment shall be delivered to the Collateral Agent and the successor Collateral Agent, with a copy delivered to the Borrower and
the Services Provider.
Section 11.5 Representations and Warranties. The Collateral Agent represents and warrants to the
Borrower, the Facility Agent, the Lenders and Services Provider that:
(a) the Collateral Agent has the corporate power and
authority and the legal rights to execute and deliver, and to perform its obligations under, this Agreement, and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement;
(b) no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Official Body and no
consent of any other Person (including any stockholder or creditor of the Collateral Agent) is required in connection with the execution, delivery performance, validity or enforceability of this Agreement; and
(c) this Agreement has been duly executed and delivered on behalf of the Collateral Agent and constitutes a legal, valid and
binding obligation of the Collateral Agent enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally and by general principles of equity (whether enforcement is sought in proceedings in equity or at law).
Section 11.6 No
Adverse Interest of Collateral Agent. By execution of this Agreement, the Collateral Agent represents and warrants that it currently holds and during the existence of this Agreement shall hold, no adverse interest, by way of security or
otherwise, in any Collateral Obligation or any document in the Collateral Obligation Files. Neither the Collateral Obligations nor any documents in the Collateral Obligation Files shall be subject to any security interest, lien or right of set-off by the Collateral Agent or any third party claiming through the Collateral Agent, and the Collateral Agent shall not pledge, encumber, hypothecate, transfer, dispose of, or otherwise grant any third party
interest in, the Collateral Obligations or documents in the Collateral Obligation Files, except that the preceding clause shall not apply (i) to the Collateral Agent with respect to the Collateral Agent Fees and Expenses, (ii) to the
Collateral Custodian with respect to the Collateral Custodian Fees and Expenses, and (iii) in the case of any accounts, with respect to (x) returned or charged-back items, (y) reversals or cancellations of payment orders and other
electronic fund transfers, or (z) overdrafts in the Collection Account.
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Section 11.7 Reliance of Collateral Agent. In the absence of bad faith on the
part of the Collateral Agent, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the
Collateral Agent, reasonably believed by the Collateral Agent to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Agreement; but in the case of a request, instruction, document
or certificate which by any provision hereof is specifically required to be furnished to the Collateral Agent, the Collateral Agent shall be under a duty to examine the same in accordance with the requirements of this Agreement to determine that
they conform on their face to the form required by such provision. For avoidance of doubt, Collateral Agent may rely conclusively on certificates setting forth the calculation of the Borrowing Base and the Officer’s Certificate of the Services
Provider. The Collateral Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be within the discretion or powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is
governed hereunder, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
Section 11.8 Limitation of Liability and Collateral Agent Rights. (a) The Collateral Agent may conclusively rely on and shall
be fully protected in acting upon any certificate, instrument, opinion, notice, letter, telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties.
The Collateral Agent may rely conclusively on and shall be fully protected in acting upon (i) the written instructions of any designated officer of the Facility Agent or (ii) the verbal instructions of the Facility Agent.
(b) The Collateral Agent may consult counsel satisfactory to it with a national reputation in the applicable matter and the
advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(c) The Collateral Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it, in
good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct, bad faith, reckless disregard or negligent performance or omission of its
duties.
(d) The Collateral Agent makes no warranty or representation and shall have no responsibility (except as expressly
set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Collateral, and will not be required to and will not make any representations as to the
validity or value (except as expressly set forth in this Agreement) of any of the Collateral.
(e) The Collateral Agent
shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and the other Transaction Documents to which it is a party and no covenants or obligations shall be implied in this
Agreement against the Collateral Agent.
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(f) The Collateral Agent shall not be required to expend or risk its own
funds in the performance of its duties hereunder.
(g) It is expressly agreed and acknowledged that the Collateral Agent is
not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral.
(h) In case any reasonable question arises as to its duties hereunder or under any other Transaction Document, the Collateral
Agent may, prior to the occurrence of a Facility Termination Event, request instructions from the Services Provider and may, after the occurrence of a Facility Termination Event, request instructions from the Facility Agent, and shall be entitled at
all times to refrain from taking any action unless it has received written instructions from the Services Provider or the Facility Agent, as applicable. The Collateral Agent shall in all events have no liability, risk or cost for any action taken
pursuant to and in compliance with the instruction of the Facility Agent. In no event shall the Collateral Agent be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) In the event that the Collateral Custodian is not the same entity as the Collateral Agent, the Collateral Agent shall not
be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian.
(j) Without limiting the generality of any terms of this section, the Collateral Agent shall have no liability for any failure,
inability or unwillingness on the part of the Services Provider, the Facility Agent or the Borrower to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the
terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete
or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(k) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate,
report or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent shall examine the same to determine whether it conforms on its face to the requirements hereof. The Collateral Agent shall
not be deemed to have knowledge or notice of any matter unless actually known to a Responsible Officer of the Collateral Agent. It is expressly acknowledged by the Borrower, the Services Provider, the Facility Agent and each Agent that application
and performance by the Collateral Agent of its various duties hereunder (including, without limitation, recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and
notice provided to it by the Services Provider, the Facility Agent, any Agent, the Borrower and/or any related bank agent, obligor or similar party with respect to the Collateral Obligation, and the Collateral Agent shall have no responsibility for
the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the
Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing
such securities, from time to time.
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(l) The Collateral Agent may exercise any of its rights or powers hereunder
or perform any of its duties hereunder either directly or, by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed hereunder with due care
by it. Neither the Collateral Agent nor any of its affiliates, directors, officers, shareholders, agents or employees will be liable to the Services Provider, Borrower or any other Person, except by reason of acts or omissions by the Collateral
Agent constituting bad faith, willful misfeasance, negligence or reckless disregard of the Collateral Agent’s duties hereunder. The Collateral Agent shall in no event have any liability for the actions or omissions of the Borrower, the
Services Provider, the Facility Agent or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it
from the Borrower, the Services Provider, the Facility Agent or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Agent’s own bad faith, willful misfeasance, negligence or reckless disregard of
its duties hereunder. The Collateral Agent shall not be liable for failing to perform or delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower or the Services Provider,
the Facility Agent or another Person in furnishing necessary, timely and accurate information to the Collateral Agent.
Section 11.9
Tax Reports. The Collateral Agent shall not be responsible for the preparation or filing of any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than in respect of the Collateral
Agent’s compensation or for reimbursement of expenses, except as required by Applicable Law.
Section 11.10 Merger or
Consolidation. Any Person (i) into which the Collateral Agent may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Collateral Agent shall be a party, or (iii) that may succeed to the
properties and assets of the Collateral Agent substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Agent hereunder, shall be the successor to the
Collateral Agent under this Agreement without further act of any of the parties to this Agreement.
Section 11.11 Collateral Agent
Compensation. As compensation for its activities hereunder, the Collateral Agent (in each of its capacities hereunder and as Securities Intermediary under the Account Control Agreement) shall be entitled to its fees and expenses from the
Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter and any other accrued and unpaid expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower or the
Services Provider, or both but without duplication, to the Collateral Agent and the Securities Intermediary under the Transaction Documents (including, without limitation, Indemnified Amounts payable under Article XVI) (collectively, the
“Collateral Agent Fees and Expenses”). The Borrower agrees to reimburse the Collateral Agent in accordance with the provisions of Section 8.3(a) for all reasonable, out-of-pocket, documented expenses,
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disbursements and advances incurred or made by the Collateral Agent in accordance with any provision of this Agreement or the other Transaction Documents or in the enforcement of any provision
hereof or in the other Transaction Documents. The Collateral Agent’s entitlement to receive fees (other than any previously accrued and unpaid fees) shall cease on the earlier to occur of (i) its removal as Collateral Agent pursuant to
Section 11.4 or (ii) the termination of this Agreement.
Section 11.12 Compliance with Applicable Anti-Bribery
and Corruption, Anti-Terrorism and Anti-Money Laundering Regulations. In order to comply with Applicable Banking Law, the Collateral Agent and the Collateral Custodian are required to obtain, verify, record and update certain information
relating to individuals and entities which maintain a business relationship with the Collateral Agent and the Collateral Custodian. Accordingly, each of the parties agrees to provide to the Collateral Agent and the Collateral Custodian, upon their
reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Collateral Agent and the Collateral Custodian to comply with Applicable Banking Law.
ARTICLE XII
GRANT
OF SECURITY INTEREST
Section 12.1 Borrower’s Grant of Security Interest. As security for the prompt payment or
performance in full when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (including Advances, Yield, all Fees and other amounts at any time owing hereunder), the Borrower hereby assigns and pledges to the Collateral
Agent for the benefit of the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties, a security interest in and lien upon the following (other than Margin Stock, Retained Interests and Excluded Amounts), in each
case whether now or hereafter existing or in which Borrower now has or hereafter acquires an interest and wherever the same may be located (collectively, the “Collateral”):
(a) all Collateral Obligations;
(b) all Related Security;
(c) this Agreement, the Sale Agreement and all other documents now or hereafter in effect to which the Borrower is a party
(collectively, the “Borrower Assigned Agreements”), including (i) all rights of the Borrower to receive moneys due and to become due under or pursuant to the Borrower Assigned Agreements, (ii) all rights of the Borrower
to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Borrower Assigned Agreements, (iii) claims of the Borrower for damages arising out of or for breach of or default under the Borrower Assigned Agreements,
and (iv) the right of the Borrower to amend, waive or terminate the Borrower Assigned Agreements, to perform under the Borrower Assigned Agreements and to compel performance and otherwise exercise all remedies and rights under the Borrower
Assigned Agreements;
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(d) all of the following (the “Account Collateral”):
(i) each Pledged Account, all funds held in any Pledged Account (other than Excluded Amounts), and all certificates and instruments, if any,
from time to time representing or evidencing any Pledged Account or such funds,
(ii) all investments from time to time of amounts in the
Pledged Accounts and all certificates and instruments, if any, from time to time representing or evidencing such investments,
(iii) all
notes, certificates of deposit and other instruments from time to time delivered to or otherwise possessed by the Collateral Agent or any Secured Party or any assignee or agent on behalf of the Collateral Agent or any Secured Party in substitution
for or in addition to any of the then existing Account Collateral, and
(iv) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in respect of or in exchange for any and all of the then existing Account Collateral;
(e) all additional property that may from time to time hereafter be granted and pledged by the Borrower or by anyone on its
behalf under this Agreement;
(f) all Accounts, all Certificated Securities, all Chattel Paper, all Documents, all
Equipment, all Financial Assets, all General Intangibles, all Instruments, all Investment Property, all Inventory, all Securities Accounts, all Security Certificates, all Security Entitlements and all Uncertificated Securities of the Borrower;
(g) each Hedging Agreement, including all rights of the Borrower to receive moneys due and to become due thereunder;
(h) all of the Borrower’s other personal property; and
(i) all Proceeds, accessions, substitutions, rents and profits of any and all of the foregoing Collateral (including proceeds
that constitute property of the types described in clauses (a) through (h) above) and, to the extent not otherwise included, all payments under insurance (whether or not the Collateral Agent or a Secured Party or any assignee
or agent on behalf of the Collateral Agent or a Secured Party is the loss payee thereof) or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral.
Section 12.2 Borrower Remains Liable. Notwithstanding anything in this Agreement, (a) except to the extent of the Services
Provider’s duties under the Transaction Documents, the Borrower shall remain liable under the Collateral Obligations, Borrower Assigned Agreements and other agreements included in the Collateral to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by a Secured Party or the Collateral Agent of any of its rights under this Agreement shall not release the Borrower or the Services Provider from any of
their respective duties or obligations under the Collateral Obligations, Borrower Assigned Agreements or other agreements included in the
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Collateral, (c) the Secured Parties and the Collateral Agent shall not have any obligation or liability under the Collateral Obligations, Borrower Assigned Agreements or other agreements
included in the Collateral by reason of this Agreement, and (d) neither the Collateral Agent nor any of the Secured Parties shall be obligated to perform any of the obligations or duties of the Borrower or the Services Provider under the
Collateral Obligations, Borrower Assigned Agreements or other agreements included in the Collateral or to take any action to collect or enforce any claim for payment assigned under this Agreement.
Section 12.3 Release of Collateral. Until the Obligations have been paid in full and the Commitments have been reduced to zero,
the Collateral Agent may not release any Lien covering any Collateral except for (i) Collateral Obligations sold pursuant to Section 7.11, (ii) any Related Security identified by the Borrower (or the Services Provider on behalf
of the Borrower) to the Collateral Agent so long as the Facility Termination Date has not occurred or (iii) Repurchased Collateral Obligations or Substituted Collateral Obligations pursuant to Section 7.12.
In connection with the release of a Lien on any Collateral permitted pursuant to this Section 12.3 and conducted in the ordinary
course of business consistent with industry standards and practices (including the use of escrows), the Collateral Agent, on behalf of the Secured Parties, will, at the sole expense of the Borrower, execute and deliver to the Borrower any
assignments, bills of sale, termination statements and any other releases and instruments as the Borrower may reasonably request in order to effect the release and transfer of such Collateral; provided, that the Collateral Agent, on behalf of
the Secured Parties, will make no representation or warranty, express or implied, with respect to any such Collateral in connection with such sale or transfer and assignment.
ARTICLE XIII
FACILITY TERMINATION EVENTS
Section 13.1 Facility Termination Events. Each of the following shall constitute a “Facility Termination Event” under
this Agreement:
(a) the Borrower shall fail to pay any amount on the Obligations (x) on the Facility Termination Date
or (y) as otherwise provided for in any Transaction Document when due (in all cases, whether on any Distribution Date, on the Facility Termination Date, by reason of acceleration, by notice of intention to prepay, by required prepayment or
otherwise) and, solely in the case of clause (y), such failure continues for two (2) Business Days;
(b) the
Borrower, the Equityholder or the Services Provider shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case
of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11, and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a
period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower, the Equityholder or the Services Provider, and
(ii) the date on which a Responsible Officer of the Borrower, the Equityholder or the Services Provider acquires knowledge thereof (after reasonable inquiry);
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(c) any representation or warranty of the Borrower, the Equityholder or the
Services Provider made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower, the Equityholder or the Services Provider to the Facility Agent, any
Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and,
except in the case of a beach of the Borrower’s representation in Section 9.21(c), the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the
date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower, the Equityholder or the Services Provider, and (ii) the date on which a Responsible Officer of the Borrower, the Equityholder
or the Services Provider acquires knowledge thereof (after reasonable inquiry); provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any
Collateral Obligation if either (i) the Borrower complies with its obligations in Section 7.12 with respect to such Collateral Obligation or (ii) after giving effect to the resulting change in the Collateral Obligation Amount
with respect to such Collateral Obligation, the equivalent in Dollars of the aggregate principal amount of all Advances outstanding hereunder does not exceed the Borrowing Base;
(d) either (i) an Insolvency Event shall have occurred and be continuing with respect to the Borrower or (ii) an
Insolvency Event shall have occurred and be continuing with respect to the Equityholder and an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such occurrence;
(e) other than solely as a result of a Specified Borrowing Base Breach, the equivalent in Dollars of the aggregate principal
amount of all Advances outstanding hereunder exceeds the Borrowing Base or the Maximum Availability, calculated in accordance with Section 1.2(g) and such condition continues unremedied for (x) two (2) consecutive Business Days
or (y) if such event constitutes a Specified Limited Borrowing Base Deficiency and an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (unless, upon request by the Borrower, the Facility
Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned) (or such longer period as consented to by the Facility Agent
in its sole discretion in the event the next monthly equity subscription into the Equityholder is not scheduled to occur until after the expiration of such period)); provided that the Borrower may partially cure such event at different points
in time and subject to different cure periods in accordance with this clause (e);
(f) (i) any Transaction
Document or any Lien granted thereunder shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or
(ii) the Borrower or the Services Provider or any other Person shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest
granted under any Transaction Document securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens);
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(g) a Services Provider Event of Default shall have occurred and be
continuing past any applicable notice or cure period provided in the definition thereof and, in the case of a Services Provider Event of Default under clauses (f) or (g) of the definition thereof while the Services Provider
is the Equityholder, an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such occurrence;
(h) the Borrower shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal
amount of $250,000 or greater, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower, or any other event, shall occur and such default or event shall continue after the
applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled required prepayment), 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; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such
Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(i) a Change of Control shall have occurred;
(j) either (i) the Borrower shall become required to register as an “investment company” within the meaning of
the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) Blue Owl Technology Finance Corp. ceases to be a
“business development company” within the meaning of the 1940 Act;
(k) failure on the part of the Borrower,
the Equityholder or the Services Provider to (i) make any payment or deposit (including, without limitation, with respect to remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the
terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and
Section 10.10; provided that the Borrower, the Equityholder or the Services Provider shall have two (2) Business Days after the date on which a Responsible Officer of the Borrower, the Equityholder or the Services Provider
acquires actual knowledge thereof to cure any such failure under this clause (k)(i) caused by administrative error so long as it provides prior written notice to the Facility Agent of such error and its proposal for such cure or
(ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral and such failure under this clause (ii) continues for two
(2) Business Days;
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(l) (i) failure of the Borrower to maintain at least one Independent
Manager or (ii) the removal of any Independent Manager without Cause or prior written notice to the Facility Agent and each Agent (in each case as required by the Constituent Documents of the Borrower); provided that, in the case of each
of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the resignation, removal for cause, death or incapacitation of the current Independent Manager;
(m) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or
any other Transaction Document without first obtaining the specific written consent of the Facility Agent, which consent may be withheld in the exercise of its sole and absolute discretion;
(n) (i) any court shall render a final, non-appealable judgment against the Borrower (x) in an amount in excess of
$250,000 which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (y) for which the Facility Agent shall not have received evidence satisfactory to it that an insurance
provider for the Borrower has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000; or (ii) the attachment of any material portion of the property of the Borrower which has not been released or provided for
to the reasonable satisfaction of the Facility Agent within 30 days after the making thereof;
(o) the Borrower shall fail
to qualify as a bankruptcy-remote entity based upon customary criteria such that Latham & Watkins LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with
respect to the Borrower;
(p) at any time, the Minimum Equity Condition is not satisfied and such condition continues
unremedied for (x) two (2) consecutive Business Days or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (unless, upon request by the Borrower, the Facility Agent has
given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned));
(q) (i) a Specified Borrowing Base Breach (Type 1) shall have occurred and continue unremedied for the shorter of (x) 180
consecutive days and (y) two consecutive Distribution Dates or (ii) a Specified Borrowing Base Breach (Type 2) shall have occurred and continue unremedied for 90 consecutive days; or
(r) an ERISA Event occurs that, alone or together with all other ERISA Events that have occurred, would reasonably be expected
to have a Material Adverse Effect.
Section 13.2 Effect of Facility Termination Event.
(a) Optional Termination. Upon notice by the Collateral Agent, acting at the direction of the Facility Agent or the
Required Lenders, that a Facility Termination Event (other than a Facility Termination Event described in Section 13.1(d)) has occurred, the Revolving Period will automatically terminate and no Advances will thereafter be made, and the
Collateral Agent, acting at the direction of the Facility Agent or the Required Lenders, may declare all or any portion of the outstanding principal amount of the Advances and other Obligations to be
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due and payable, whereupon the full unpaid amount of such Advances and other Obligations which shall be so declared due and payable shall be and become immediately due and payable, without
further notice, demand or presentment (all of which are hereby expressly waived by the Borrower) and the Facility Termination Date shall be deemed to have occurred.
(b) Automatic Termination. Upon the occurrence of a Facility Termination Event described in Section 13.1(d),
the Facility Termination Date shall be deemed to have occurred automatically, and all outstanding Advances under this Agreement and all other Obligations under this Agreement shall become immediately and automatically due and payable, all without
presentment, demand, protest or notice of any kind (all of which are hereby expressly waived by the Borrower).
(c)
Specified Borrowing Base Breach. Upon the occurrence of any Specified Borrowing Base Breach, such event shall be deemed to be continuing until such time as the Advances outstanding no longer exceed the Borrowing Base (or as otherwise waived
by the Facility Agent in its sole discretion).
Section 13.3 Rights upon Facility Termination Event. If a
Facility Termination Event shall have occurred and be continuing, the Facility Agent may, in its sole discretion, or shall at the direction of the Required Lenders, direct the Collateral Agent to exercise any of the remedies specified herein in
respect of the Collateral and the Collateral Agent may (with the consent of the Facility Agent) but shall have no obligation, or the Collateral Agent shall promptly, at the written direction of the Facility Agent or the Required Lenders, also do one
or more of the following (subject to Section 13.9):
(a) institute proceedings in its own name and on behalf of
the Secured Parties as Collateral Agent for the collection of all Obligations, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Borrower and any other obligor with respect thereto moneys adjudged due, for the
specific enforcement of any covenant or agreement in any Transaction Document or in the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Collateral Agent by Applicable Law or any
Transaction Document;
(b) exercise any remedies of a secured party under the UCC and take any other appropriate action to
protect and enforce the right and remedies of the Collateral Agent and the Secured Parties which rights and remedies shall be cumulative; and
(c) require the Borrower and the Services Provider, at the Services Provider’s expense, to (1) assemble all or any
part of the Collateral as directed by the Collateral Agent (at the direction of the Facility Agent) and make the same available to the Collateral Agent at a place to be designated by the Collateral Agent (at the direction of the Facility Agent) that
is reasonably convenient to such parties and (2) without notice except as specified below, sell the Collateral (at the direction of the Facility Agent) or any part thereof in one or more parcels at a public or private sale, at any of the
Collateral Agent’s or the Facility Agent’s offices or elsewhere in accordance with Applicable Law. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to the Borrower of the
time and place of any public sale or the time after which any private sale is to be made shall constitute
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reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent (at the direction of the
Facility Agent) may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. All cash proceeds
received by the Collateral Agent in respect of any sale of, collection from, or other realization upon, all or any part of the Collateral (after payment of any amounts incurred in connection with such sale) shall be deposited into the Collection
Account and to be applied against the outstanding Obligations pursuant to Section 4.1. The Collateral Agent shall give the Services Provider notice of any sale of Collateral following an acceleration of the outstanding Advances. The
Services Provider, the Lenders and any of their respective Affiliates shall be permitted to participate in any such sale.
Section 13.4 Collateral Agent May Enforce Claims Without Possession of Notes. All rights of action and of asserting claims under
the Transaction Documents, may be enforced by the Collateral Agent (at the direction of the Facility Agent) without the possession of the Notes or the production thereof in any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Collateral Agent shall be brought in its own name as Collateral Agent and any recovery of judgment, subject to the payment of the reasonable, out-of-pocket and documented expenses, disbursements and compensation of the
Collateral Agent each predecessor Collateral Agent and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Notes and other Secured Parties.
Section 13.5 Collective Proceedings. In any proceedings brought by the Collateral Agent to enforce the Liens under the Transaction
Documents (and also any proceedings involving the interpretation of any provision of any Transaction Document), the Collateral Agent shall be held to represent all of the Secured Parties, and it shall not be necessary to make any Secured Party a
party to any such proceedings.
Section 13.6 Insolvency Proceedings. In case there shall be pending, relative to the Borrower
or any other obligor upon the Notes or any Person having or claiming an ownership interest in the Collateral, proceedings under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Borrower, its property or such other obligor or Person, or in case of any other
comparable judicial proceedings relative to the Borrower or other obligor upon the Notes, or to the creditors of property of the Borrower or such other obligor, the Collateral Agent irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Collateral Agent shall have made any demand pursuant to the provisions of this Section 13.6, shall be entitled and empowered but without
any obligation, subject to Section 13.9(a), by intervention in such proceedings or otherwise:
(a) to file and
prove a claim or claims for the whole amount of principal and Yield owing and unpaid in respect of the Notes, all other amounts owing to the Lenders and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Collateral Agent (including any claim for reimbursement of all expenses (including the
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fees and expenses of counsel) and liabilities incurred, and all advances, if any, made, by the Collateral Agent and each predecessor Collateral Agent except as determined to have been caused by
its own gross negligence or willful misconduct) and of each of the other Secured Parties allowed in such proceedings;
(b)
unless prohibited by Applicable Law and regulations, to vote (at the direction of the Facility Agent) on behalf of the holders of the Notes in any election of a trustee, a standby trustee or person performing similar functions in any such
proceedings;
(c) to collect and receive any moneys or other property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of the Secured Parties on their behalf; and
(d) to file such
proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Collateral Agent or the Secured Parties allowed in any judicial proceedings relative to the Borrower, its creditors and its property;
and any trustee, receiver, liquidator, collateral agent or trustee or other similar official in any such proceeding is hereby authorized
by each of such Secured Parties to make payments to the Collateral Agent and, in the event that the Collateral Agent shall consent (at the direction of the Facility Agent) to the making of payments directly to such Secured Parties, to pay to the
Collateral Agent such amounts as shall be sufficient to cover all reasonable expenses and liabilities incurred, and all advances made, by the Collateral Agent and each predecessor Collateral Agent except as determined to have been caused by its own
negligence or willful misconduct.
Section 13.7 Delay or Omission Not Waiver. No delay or omission of the Collateral Agent or
of any other Secured Party to exercise any right or remedy accruing upon any Facility Termination Event shall impair any such right or remedy or constitute a waiver of any such Facility Termination Event or an acquiescence therein. Every right and
remedy given by this Article XIII or by law to the Collateral Agent or to the other Secured Parties may be exercised from time to time, and as often as may be deemed expedient, by the Collateral Agent or by the other Secured Parties, as the
case may be.
Section 13.8 Waiver of Stay or Extension Laws. The Borrower waives and covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force (including filing a
voluntary petition under Chapter 11 of the Bankruptcy Code and by the voluntary commencement of a proceeding or the filing of a petition seeking winding up, liquidation, reorganization or other relief under any bankruptcy, insolvency, receivership
or similar law now or hereafter in effect), which may affect the covenants, the performance of or any remedies under this Agreement; and the Borrower (to the extent that it may lawfully do so) hereby expressly waives all benefits or advantages of
any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Collateral Agent, but will suffer and permit the execution of every such power as though no such law had been enacted.
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Section 13.9 Limitation on Duty of Collateral Agent in Respect of Collateral.
(a) Beyond the safekeeping of the Collateral Obligation Files in accordance with Article XVIII, the Collateral Agent shall not have any duty as to any Collateral in its possession or control or in the possession or control of any agent
or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any
documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall not be liable or responsible for any misconduct,
negligence or loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent, attorney or bailee selected by the Collateral Agent in good faith and with due care hereunder.
(b) Neither the Collateral Agent nor the Collateral Custodian shall be responsible for the existence, genuineness or value
of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, or for insuring the
Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(c) Neither the Collateral Agent nor the Collateral Custodian shall have any duty to act outside of the United States in
respect of any Collateral located in any jurisdiction other than the United States.
Section 13.10 Power of Attorney.
(a) Each of the Borrower and the Services Provider hereby irrevocably appoints the Collateral Agent as its true and lawful attorney (with full power of substitution) in its name, place and stead and at its expense (at the direction of the
Facility Agent), in connection with the enforcement of the rights and remedies provided for (and subject to the terms and conditions set forth) in this Agreement including without limitation the following powers: (i) to give any necessary
receipts or acquittance for amounts collected or received hereunder, (ii) to make all necessary transfers of the Collateral in connection with any such sale or other disposition made pursuant hereto, (iii) to execute and deliver for value
all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower and the Services Provider hereby ratifying and confirming all that such attorney (or any substitute)
shall lawfully do hereunder and pursuant hereto, and (iv) to sign any agreements, orders or other documents in connection with or pursuant to any Transaction Document. Nevertheless, if so requested by the Collateral Agent (at the direction of
the Facility Agent), the Borrower shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Agent all proper bills of sale, assignments, releases and other instruments as may be designated in any such
request.
(b) No person to whom this power of attorney is presented as authority for the Collateral Agent to take any
action or actions contemplated by clause (a) shall inquire into or seek confirmation from the Borrower or the Services Provider as to the authority of the Collateral Agent to take any action described below, or as to the existence of or
fulfillment of any condition to the power of attorney described in clause (a), which is intended to grant to the Collateral Agent unconditionally the authority to take and perform the actions contemplated herein, and each of the Borrower and
the Services Provider irrevocably waives any right to
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commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this power of attorney. The power of attorney
granted in clause (a) is coupled with an interest and may not be revoked or canceled by the Borrower or the Services Provider until all obligations of each of the Borrower and the Services Provider under the Transaction Documents have
been paid in full and the Collateral Agent has provided its written consent thereto.
(c) Notwithstanding anything to the
contrary herein, the power of attorney granted pursuant to this Section 13.10 shall only be effective after the occurrence of a Facility Termination Event.
Section 13.11 Purchase Right. It is understood that the Equityholder, the Services Provider or any of their respective Affiliates
may submit its bid for the Collateral or any portion thereof as a combined bid with the bids of other members of a group of bidders, and shall have the right to find bidders to bid on the Collateral or any portion thereof.
ARTICLE XIV
THE FACILITY
AGENT
Section 14.1 Appointment. Each Lender and each Agent hereby irrevocably designates and appoints DBNY as Facility Agent
hereunder and under the other Transaction Documents, and authorizes the Facility Agent to take such action on its behalf under the provisions of this Agreement and the other Transaction Documents and to exercise such powers and perform such duties
as are expressly delegated to the Facility Agent by the terms of this Agreement and the other Transaction Documents, together with such other powers as are reasonably incidental thereto. Each Lender in each Lender Group hereby irrevocably designates
and appoints the Agent for such Lender Group as the agent of such Lender under this Agreement, and each such Lender irrevocably authorizes such Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Transaction Documents and to exercise such powers and perform such duties thereunder as are expressly delegated to such Agent by the terms of this Agreement and the other Transaction Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither the Facility Agent nor any Agent (the Facility Agent and each Agent being referred to in this Article XIV as a
“Note Agent”) shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any Note Agent.
Section 14.2 Delegation of Duties.
Each Note Agent may execute any of its duties under this Agreement and the other Transaction Documents by or through its subsidiaries, affiliates, agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Note Agent shall be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
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Section 14.3 Exculpatory Provisions. No Note Agent (acting in such capacity) nor
any of its directors, officers, agents or employees shall be (a) liable for any action lawfully taken or omitted to be taken by it or them or any Person described in Section 14.2 under or in connection with this Agreement or the
other Transaction Documents (except, solely with respect to liability to the Borrower, for its, their or such Person’s own gross negligence or willful misconduct), or (b) responsible in any manner to any Person for any recitals,
statements, representations or warranties of any Person (other than itself) contained in the Transaction Documents or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with,
the Transaction Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Transaction Documents or any other document furnished in connection therewith or herewith, or for any failure of any Person (other
than itself or its directors, officers, agents or employees) to perform its obligations under any Transaction Document or for the satisfaction of any condition specified in a Transaction Document. Except as otherwise expressly provided in this
Agreement, no Note Agent shall be under any obligation to any Person to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, the Transaction Documents, or to inspect the
properties, books or records of the Borrower or the Services Provider.
Section 14.4 Reliance by Note Agents. Each Note Agent
shall in all cases be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to each of the Lenders), Independent
Accountants and other experts selected by such Note Agent. Each Note Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement, any other Transaction Document or any other document furnished in
connection herewith or therewith unless it shall first receive such advice or concurrence of the Lenders, as it deems appropriate, or it shall first be indemnified to its satisfaction (i) in the case of the Facility Agent, by the Lenders or
(ii) in the case of an Agent, by the Lenders in its Lender Group, against any and all liability, cost and expense which may be incurred by it by reason of taking or continuing to take any such action. The Facility Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement, the other Transaction Documents or any other document furnished in connection herewith or therewith in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement, the other Transaction Documents or any
other document furnished in connection herewith or therewith in accordance with a request of the Lenders in its Lender Group holding greater than 50% of the outstanding Advances held by such Lender Group, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders in such Lender Group.
Section 14.5 Notices. No Note
Agent shall be deemed to have knowledge or notice of the occurrence of any breach of this Agreement or the occurrence of any Facility Termination Event unless it has received notice from the Services Provider, the Borrower or any Lender, referring
to this Agreement and describing such event. In the event that any Agent receives such a notice, it shall promptly give notice thereof to the Lenders in its Lender Group. The Facility Agent shall take such action with respect to such event as shall
be reasonably directed in writing by the Required Lenders, and each Agent shall take such action with respect to such event as shall be reasonably directed by Lenders in its Lender Group holding greater than 50% of the outstanding
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Advances held by such Lender Group; provided, that unless and until such Note Agent shall have received such directions, such Note Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such event as it shall deem advisable in the best interests of the Lenders or of the Lenders in its Lender Group, as applicable.
Section 14.6 Non-Reliance on Note Agents. The Lenders expressly acknowledge that no Note
Agent, nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by any
Note Agent hereafter taken, including any review of the affairs of the Borrower or the Services Provider, shall be deemed to constitute any representation or warranty by such Note Agent to any Lender. Each Lender represents to each Note Agent that
it has, independently and without reliance upon any Note Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower, the Services Provider, and the Collateral Obligations and made its own decision to purchase its interest in the Notes hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Note Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis, appraisals and decisions in
taking or not taking action under any of the Transaction Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower,
the Services Provider, and the Collateral Obligations. Except as expressly provided herein, no Note Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the Collateral or the business,
operations, property, prospects, financial and other condition or creditworthiness of the Borrower, the Services Provider or the Lenders which may come into the possession of such Note Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
In no event shall any Note
Agent be liable for any indirect, special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if such Note Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action. In no event shall such Note Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Agreement.
Section 14.7 Indemnification. The Lenders agree to indemnify the Facility Agent and its officers, directors, employees,
representatives and agents (to the extent not reimbursed by the Borrower or the Services Provider under the Transaction Documents, and without limiting the obligation of such Persons to do so in accordance with the terms of the Transaction
Documents), ratably according to the outstanding amounts of their Advances (or their Commitments, if no Advances are outstanding) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for the Facility Agent or the affected Person in connection with any investigative, or judicial proceeding commenced or
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threatened, whether or not the Facility Agent or such affected Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Facility Agent
or such affected Person as a result of, or arising out of, or in any way related to or by reason of, any of the transactions contemplated hereunder or under the Transaction Documents or any other document furnished in connection herewith or
therewith.
Section 14.8 Successor Note Agent. If the Facility Agent shall resign as Facility Agent under this Agreement, then
the Required Lenders and the Borrower shall appoint a successor agent, whereupon such successor agent shall succeed to the rights, powers and duties of the Facility Agent, and the term “Facility Agent” shall mean such successor agent,
effective upon its acceptance of such appointment, and the former Facility Agent’s rights, powers and duties as Facility Agent shall be terminated, without any other or further act or deed on the part of such former Facility Agent or any of
the parties to this Agreement; provided that, unless a Facility Termination Event has occurred and is continuing, no successor agent shall be a Competitor. Any Agent may resign as Agent upon ten days’ notice to the Lenders in its Lender
Group and the Facility Agent (with a copy to the Borrower) with such resignation becoming effective upon a successor agent succeeding to the rights, powers and duties of the Agent pursuant to this Section 14.8. If an Agent shall resign
as Agent under this Agreement, then the Lenders in its Lender Group holding greater than 50% of the outstanding Advances held by such Lender Group shall appoint a successor agent for such Lender Group. After any Note Agent’s resignation
hereunder, the provisions of this Article XIV shall inure to its benefit as to any actions taken or omitted to be taken by it while it was a Note Agent under this Agreement. No resignation of any Note Agent shall become effective until a
successor Note Agent shall have assumed the responsibilities and obligations of such Note Agent hereunder; provided, that in the event a successor Note Agent is not appointed within 60 days after such notice of its resignation is given as
permitted by this Section 14.8, the applicable Note Agent may petition a court for its removal.
Section 14.9 Note
Agents in their Individual Capacity. Each Note Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower or the Services Provider as though such Note Agent were not an agent
hereunder. Any Person which is a Note Agent may act as a Note Agent without regard to and without additional duties or liabilities arising from its role as such administrator or agent or arising from its acting in any such other capacity.
Section 14.10 Borrower Procedural Review. The Facility Agent shall, at the Borrower’s expense, retain Protiviti, Inc. (or
another nationally recognized audit firm acceptable to the Facility Agent in its sole discretion) to conduct and complete a procedural review of the Collateral Obligations in compliance with the standards set forth on Exhibit B hereto (as
such Exhibit B may be reasonably amended from time to time in the sole discretion of the Facility Agent by delivery of such amended Exhibit B by the Facility Agent to the Borrower), (i) within 180 days after the Effective Date and
(ii) annually thereafter; provided that there shall be no limits on the Facility Agent’s right to conduct audits (at the Borrower’s expense) during the occurrence of a Facility Termination Event or Unmatured Facility
Termination Event. The Facility Agent shall promptly forward the results of such audit to the Services Provider.
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Section 14.11 Compliance with Applicable Anti-Bribery and Corruption, Anti-Terrorism
and Anti-Money Laundering Regulations. In order to comply with Applicable Banking Law, the Facility Agent is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business
relationship with the Facility Agent. Accordingly, each of the parties agree to provide to the Facility Agent, upon its reasonable request from time to time such identifying information and documentation as may be available for such party in order
to enable the Facility Agent to comply with Applicable Banking Law.
ARTICLE XV
ASSIGNMENTS
Section 15.1 Restrictions on Assignments by the Borrower and the Services Provider. Except as specifically provided herein,
neither the Borrower nor the Services Provider may assign any of their respective rights or obligations hereunder or any interest herein without the prior written consent of the Facility Agent and the Required Lenders in their respective sole
discretion and any attempted assignment in violation of this Section 15.1 shall be null and void; provided that, the Services Provider, acting in accordance with the Servicing Standard, may delegate certain of its administrative
obligations hereunder to any Affiliate thereof; provided further that, the Services Provider shall remain liable for the performance of its obligations hereunder.
Section 15.2 Documentation. In connection with any permitted assignment, each Lender shall deliver to each assignee an assignment,
in such form as such Lender and the related assignee may agree, duly executed by such Lender assigning any such rights, obligations, Advance or Note to the assignee; and such Lender shall promptly execute and deliver all further instruments and
documents, and take all further action, that the assignee may reasonably request, in order to perfect, protect or more fully evidence the assignee’s right, title and interest in and to the items assigned, and to enable the assignee to exercise
or enforce any rights hereunder or under the Notes evidencing such Advance. In the case of an assignment of any Commitment (or any portion thereof) or any Advance (or any portion thereof) the assignee shall execute and deliver to the Services
Provider, the Borrower, the Facility Agent and the Collateral Agent a fully executed Joinder Agreement substantially in the form of Exhibit E hereto. If the assignee is not an existing Lender it shall deliver to the Facility Agent any
tax forms and other information requested by the Facility Agent for purposes of conducting its customary “know your customer” inquiries. Each Lender represents to the Borrower and the Services Provider that it is, as of the date it
became a Lender and on each date on which it remains a Lender, a qualified purchaser for purposes of Section 3(c)(7) of the 1940 Act.
Section 15.3 Rights of Assignee. Upon the foreclosure of any assignment of any Advances made for security purposes, or upon any
other assignment of any Advance from any Lender pursuant to this Article XV, the respective assignee receiving such assignment shall have all of the rights of such Lender hereunder with respect to such Advances and all references to the
Lender or Lenders in Sections 4.3 or 5.1 shall be deemed to apply to such assignee.
Section 15.4 Assignment by
Lenders. So long as no Unmatured Facility Termination Event, Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default has occurred and is continuing, no Lender may make any assignment, and no
such assignment shall be permitted, without the prior written consent of the Borrower (which consent, unless (a) such assignment is to a Competitor or (b) such assignment leads to
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DBNY holding less than 51% of the Facility Amount, shall not be unreasonably withheld, delayed or conditioned) other than any proposed assignment (i) to an Affiliate of such Lender,
(ii) to another Lender hereunder or (iii) if (x) such Lender makes a reasonable determination that its ownership of any of its rights or obligations hereunder (and under other similar facilities (if any) held by such Lender) is
prohibited by Applicable Law (including, without limitation, the Volcker Rule and/or GBSA) and (y) to the extent such Lender is permitted by the applicable documentation, such Lender is making commercially reasonable efforts to assign its
interest in other similar facilities in a manner similar to such proposed assignment, to any Person other than a Competitor; provided that the Lenders shall not assign any interest in, or sell a participation in any Advance (or portion
thereof) or its Commitment (or any portion thereof), to the Equityholder or any Affiliate thereof without the prior written consent of the Facility Agent in its sole discretion; provided, further that in the event that any Lender shall
assign any interest in, or sell a participation in any Advance (or portion thereof) or its Commitment (or any portion thereof), to the Equityholder or any Affiliate thereof, then the Equityholder or such Affiliate thereof shall have no right to
vote, consent or object to any requirements set forth in this Agreement and any Advances held by the Equityholder or such Affiliate thereof shall be deemed not outstanding for purposes of any such vote, consent or objection; provided further,
that each Lender shall first offer to sell such interest(s) (i) to the Lender affiliated with the Facility Agent and, if such Lender does not accept such offer within 10 Business Day, then (ii) to each remaining Lender (pro rata)
for a period of 10 Business Days prior to offering to any Person that is not an existing Lender. Each Lender shall endorse the Notes to reflect any assignments made pursuant to this Article XV or otherwise. The Lenders shall provide
notice of any assignment by such Lender to the Borrower and the Services Provider.
Section 15.5 Registration; Registration of
Transfer and Exchange.
(a) The Collateral Agent, acting solely for this purpose as agent for the Borrower (and, in such
capacity, the “Loan Registrar”), shall maintain a register for the recordation of the name and address of each Lender (including any assignees), and the principal amounts (and stated interest) owing to such Lender pursuant to the
terms hereof from time to time (the “Loan Register”). The entries in the Loan Register shall be conclusive absent manifest error, and the Borrower, the Collateral Agent, the Facility Agent, each Agent and each Lender shall
treat each Person whose name is recorded in the Loan Register pursuant to the terms hereof as a Lender hereunder. The Loan Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(b) Each Person who has or who acquired an interest in a Note shall be deemed by such
acquisition to have agreed to be bound by the provisions of this Section 15.5. A Note may be exchanged (in accordance with Section 15.5(c)) and transferred to the holders (or their agents or nominees) of the Advances and to
any assignee (in accordance with Section 15.1) (or its agent or nominee) of all or a portion of the Advances. The Loan Registrar shall not register (or cause to be registered) the transfer of such Note, unless the proposed transferee
shall have delivered to the Loan Registrar either (i) an Opinion of Counsel that the transfer of such Note is exempt from registration or qualification under the Securities Act of 1933, as amended, and all applicable state securities laws and
that the transfer does not constitute a non-exempt “prohibited transaction” under ERISA or (ii) an express agreement by the proposed transferee to be bound by and to abide by the provisions of this Section 15.5 and the
restrictions noted on the face of such Note.
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(c) At the option of the holder thereof, a Note may be exchanged for one or
more new Notes of any authorized denominations and of a like class and aggregate principal amount at an office or agency of the Borrower. Whenever any Note is so surrendered for exchange, the Borrower shall execute and deliver (through the Loan
Registrar) the new Note which the holder making the exchange is entitled to receive at the Loan Registrar’s office, located at 1776 Heritage Drive– Mail Stop: JAB0527, North Quincy, MA 02171.
(d) Upon surrender for registration of transfer of any Note at an office or agency of the Borrower, the Borrower shall execute
and deliver (through the Loan Registrar), in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like class and aggregate principal amount.
(e) All Notes issued upon any registration of transfer or exchange of any Note in accordance with the provisions of this
Agreement shall be the valid obligations of the Borrower, evidencing the same debt, and entitled to the same benefits under this Agreement, as the Note(s) surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Borrower or
the Loan Registrar) be fully endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Loan Registrar, duly executed by the holder thereof or his attorney duly authorized in writing.
(g) Reserved.
(h) The holders of the Notes shall be bound by the terms and conditions of this Agreement.
Section 15.6 Mutilated, Destroyed, Lost and Stolen Notes. (a) If any mutilated Note is surrendered to the Loan Registrar, the
Borrower shall execute and deliver (through the Loan Registrar) in exchange therefor a new Note of like class and tenor and principal amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Borrower and the Loan Registrar prior to the payment of the Notes (i) evidence to
their satisfaction of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Borrower or the
Loan Registrar that such Note has been acquired by a bona fide Lender, the Borrower shall execute and deliver (through the Loan Registrar), in lieu of any such destroyed, lost or stolen Note, a new Note of like class, tenor and principal amount and
bearing a number not contemporaneously outstanding.
(c) Upon the issuance of any new Note under this
Section 15.6, the Borrower may require the payment from the transferor holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith.
(d) Every new Note issued pursuant to this Section 15.6 and in accordance with the provisions of this Agreement, in
lieu of any destroyed, lost or stolen Note shall
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constitute an original additional contractual obligation of the Borrower, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all other Notes duly issued hereunder.
(e) The
provisions of this Section 15.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of a mutilated, destroyed, lost or stolen Note.
Section 15.7 Persons Deemed Owners. The Borrower, the Services Provider, the Facility Agent, the Collateral Agent and any agent
for any of the foregoing may treat the holder of any Note as the owner of such Note for all purposes whatsoever, whether or not such Note may be overdue, and none of Borrower, the Services Provider, the Facility Agent, the Collateral Agent and any
such agent shall be affected by notice to the contrary.
Section 15.8 Cancellation. All Notes surrendered for payment or
registration of transfer or exchange shall be promptly canceled. The Borrower shall promptly cancel and deliver to the Loan Registrar any Notes previously authenticated and delivered hereunder which the Borrower may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the Borrower. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section 15.8, except as expressly permitted by this
Agreement.
Section 15.9 Participations; Pledge. (a) At any time and from time to time, each Lender may, in accordance
with Applicable Law, at any time grant participations in all or a portion of its Note and/or its interest in the Advances and other payments due to it under this Agreement to any Person (each, a “Participant”) other than, unless
an Unmatured Facility Termination Event, Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default has occurred and is continuing, a Competitor. Each Lender hereby acknowledges and agrees that
(A) any such participation will not alter or affect such Lender’s direct obligations hereunder, and (B) none of the Borrower, the Services Provider, the Facility Agent, any Agent, any Lender, the Collateral Agent nor the Services
Provider shall have any obligation to have any communication or relationship with any Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Section 4.3 and Section 5.1 (subject to the
requirements and limitations therein, including the requirements under Section 4.3(f) (it being understood that the documentation required under Section 4.3(f) 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 this Article XV; provided that such Participant (A) agrees to be subject to the provisions of Section 17.16 as if it were an
assignee under this Article XV; and (B) shall not be entitled to receive any greater payment under Section 4.3 or Section 5.1, with respect to any participation, than its participating Lender would have been
entitled to receive, except to the extent that such entitlement to receive a greater payment results from a change in any Applicable Law that occurs after the Participant acquired the applicable participation with respect to a Participation;
provided, that with respect to any greater payment under Section 5.1, such Participant shall not be entitled to receive any greater payment than its participating Lender would have been entitled to receive unless the Borrower has
consented to such participation (unless an Unmatured Facility Termination Event, Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default has occurred and is continuing, in which case no such
consent shall be required
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for any greater payment to be received). Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to
effectuate the provisions of Section 17.16(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 17.1 as though it were a Lender.
(b) Notwithstanding anything in Section 15.9(a) to the contrary, each Lender may pledge its interest in the
Advances and the Notes to any Federal Reserve Bank as collateral in accordance with Applicable Law without the prior written consent of any Person.
(c) Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under the Transaction Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest
in any obligations under any Transaction Document) except to the extent that such disclosure is necessary to establish that such obligation is in registered form under Section 5f.103-1(c) and proposed Section 1.163-5 of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Facility Agent (in its capacity as Facility Agent) shall have no responsibility for maintaining a Participant Register.
Section 15.10 Reallocation of Advances. Any reallocation of Advances among Committed Lenders pursuant to an assignment executed by
such Committed Lender and its assignee(s) and delivered pursuant to Article XV or pursuant to a Joinder Agreement executed and delivered pursuant to Article XV in each case shall be wired by the applicable purchasing
Lender(s) to the Collateral Agent pursuant to the wiring instructions provided by the Collateral Agent; provided that the Collateral Agent shall not fund such wire until it has received an executed assignment agreement or Joinder Agreement,
as applicable.
ARTICLE XVI
INDEMNIFICATION
Section 16.1 Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable
Law, the Borrower agrees to indemnify the Facility Agent, the Agents, the Lenders, the Loan Registrar, the Collateral Custodian and the Collateral Agent and each of their Affiliates, and each of their respective successors, transferees, participants
and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from
and against any and all damages, losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and disbursements (all of the
foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any
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of them arising out of or relating to any Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions) or the use of
proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower, the Equityholder or the Services Provider in any Transaction Document or in any
certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent
jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of such Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Indemnified Amounts shall not include any Taxes or
Increased Costs, other than any Taxes that represent Indemnified Amounts arising from any non-Tax claim.
Indemnification under this
Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and out-of-pocket expenses of counsel and reasonable and documented
out-of-pocket expenses of litigation. Notwithstanding anything to the contrary contained herein, the Borrower will be obligated to pay any Indemnified Amount on any given day only to the extent there are amounts available therefor pursuant to
Section 8.3(a).
In no event shall any party hereto be liable for special, indirect, or punitive loss or damage of any kind whatsoever
(including but not limited to lost profits), even if such party has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that, this sentence shall in no way limit or vitiate any obligations of
such party to indemnify an Indemnified Party hereunder with respect to any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever.
Section 16.2 Services Provider Indemnity. Without limiting any other rights which any such Person may have hereunder or under
Applicable Law, the Services Provider agrees to indemnify the Indemnified Parties forthwith on demand, from and against any and all Indemnified Amounts incurred by such Indemnified Party resulting from (i) any act or omission constituting bad
faith, fraud, willful misconduct, or gross negligence by the Services Provider in the performance of or reckless disregard of its duties hereunder or under any other Transaction Document or (ii) any material breach by the Services Provider of
any representation, warranty or covenant of the Services Provider hereunder or under any other Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent
jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of such Indemnified Party and (b) resulting from any loss in value of any Permitted Investment acquired by the Borrower in accordance with the
terms hereof and (c) resulting from the performance of the Collateral Obligations.
Indemnification under this
Section 16.2 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and out-of-pocket expenses of counsel and reasonable and documented
out-of-pocket expenses of litigation.
Section 16.3 Contribution. (a) If for any reason (other than the exclusions set forth
in the first paragraph of Section 16.1) the indemnification provided above in Section 16.1 is unavailable
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to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower agrees to contribute to the amount paid or payable by such Indemnified Party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party, on the one hand, and the Borrower and its Affiliates, on the other hand, but also the relative
fault of such Indemnified Party, on the one hand, and the Borrower and its Affiliates, on the other hand, as well as any other relevant equitable considerations.
(b) If for any reason (other than the exclusions set forth in the first paragraph of Section 16.2) the
indemnification provided above in Section 16.2 is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Services Provider agrees to contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party, on the one hand, and the Services Provider and its Affiliates,
on the other hand, but also the relative fault of such Indemnified Party, on the one hand, and the Services Provider and its Affiliates, on the other hand, as well as any other relevant equitable considerations.
ARTICLE XVII
MISCELLANEOUS
Section 17.1 No Waiver; Remedies. No failure on the part of any Lender, the Facility Agent, the Collateral Agent, the Collateral
Custodian, any Indemnified Party or any Affected Person to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by any of them of any right, power or
remedy hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Without limiting the foregoing, each
Lender is hereby authorized by the Borrower during the existence of a Facility Termination Event, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by it to or for the credit or the account of the Borrower to the amounts owed by the Borrower under this Agreement, to the Facility Agent, the Collateral Agent, the Collateral Custodian, any
Affected Person, any Indemnified Party or any Lender or their respective successors and assigns. Without limiting the foregoing, each Lender is hereby authorized by the Services Provider during the existence of a Facility Termination Event, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by it to or for the credit or the account of the Services
Provider to the amounts owed by the Services Provider under this Agreement, to the Facility Agent, the Collateral Agent, the Collateral Custodian, any Affected Person, any Indemnified Party, any Agent or any Lender or their respective successors and
assigns.
Section 17.2 Amendments, Waivers. (a) This Agreement may not be amended, supplemented or modified nor may any
provision hereof be waived except in accordance with the provisions of this Section 17.2. The Borrower, the Services Provider and the Facility Agent may, upon written notice to each Agent, from time to time enter into written amendments,
supplements,
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waivers or modifications hereto for the purpose of adding any provisions to this Agreement or changing in any manner the rights of any party hereto or waiving, on such terms and conditions as may
be specified in such instrument, any of the requirements of this Agreement; provided, that no such amendment, supplement, waiver or modification shall (i) reduce the amount of or extend the maturity of any payment with respect to an
Advance or reduce the rate or extend the time of payment of Yield thereon, or reduce or alter the timing of any other amount payable to any Lender hereunder, in each case without the consent of each Lender affected thereby, (ii) amend, modify
or waive any provision of this Section 17.2 or Section 17.11, or reduce the percentage specified in the definition of Required Lenders, in each case without the written consent of all Lenders, (iii) amend, modify or
waive any provision adversely affecting the obligations or duties of the Collateral Agent, in each case without the prior written consent of the Collateral Agent, (iv) amend, modify or waive any provision adversely affecting the obligations or
duties of the Facility Agent, in each case without the prior written consent of the Facility Agent, (v) amend, modify or waive any provision adversely affecting the obligations or duties of the Collateral Custodian, in each case without the
prior written consent of the Collateral Custodian, (vi) constitute a Fundamental Amendment without the prior written consent of each Lender, (vii) waive any Facility Termination Event or Services Provider Event of Default without the prior
written consent of the Required Lenders or (viii) materially affect the rights or duties of the Services Provider unless the Services Provider has consented thereto. Upon execution of any amendments by the Borrower, the Services Provider and
the Facility Agent as provided herein, the Services Provider shall deliver a copy of such amendment to the Collateral Agent. Any waiver of any provision of this Agreement shall be limited to the provisions specifically set forth therein for the
period of time set forth therein and shall not be construed to be a waiver of any other provision of this Agreement.
Notwithstanding the
foregoing, upon the determination by any Lender that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law (including, without limitation, the Volcker Rule and/or GBSA), each of the Borrower, the Services
Provider, each Lender, each Agent, the Collateral Agent, the Collateral Custodian and the Facility Agent hereby agree to work in good faith to amend or amend and restate the commercial terms of this Agreement (including, if necessary, to re-document
under a note purchase agreement or indenture) to ensure future compliance with such Applicable Law.
The Borrower and the Services
Provider each acknowledge that the Facility Agent may be communicating with other Lenders, Agents or potential lenders in connection with an amendment or syndication of this Agreement.
(b) Notwithstanding the foregoing, if the Applicable Interest Rate ceases to exist or is reasonably expected to cease to exist
within the succeeding three (3) months, the Borrower, the Services Provider and the Facility Agent may (and such parties will reasonably cooperate with each other in good faith in order to) amend this Agreement to replace references herein to
such Applicable Interest Rate (and any associated terms and provisions) with any alternative floating reference rate (and any associated terms and provisions) that is then being generally used in the applicable credit markets for similar types of
facilities (including collateralized loan obligation transactions).
(c) The Facility Agent does not warrant or accept any
responsibility for, and shall not have any liability with respect to, the administration, submission, performance related
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to Alternate Base Rate, any Applicable Index or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or
characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any
existing interest rate prior to its discontinuance or unavailability. The Facility Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any
alternative, successor or alternative rate and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Facility Agent may select information sources or services in its reasonable discretion to ascertain any
interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity
for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any
such rate (or component thereof) provided by any such information source or service so long as the rate (or component thereof) used by the Facility Agent in connection therewith is consistent with the such rate (or component thereof) provided by any
such information source or service.
Section 17.3 Notices, Etc. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including facsimile communication) and shall be personally delivered or sent by certified mail, electronic mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on Annex A or at such other address or facsimile number as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall be
effective, (a) if personally delivered, when received, (b) if sent by certified mail, three Business Days after having been deposited in the mail, postage prepaid, (c) if sent by overnight courier, one Business Day after having been
given to such courier, and (d) if transmitted by facsimile, when sent, receipt confirmed by telephone or electronic means, except that notices and communications pursuant to Section 2.2, shall not be effective until received. The
words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Transaction Documents shall be deemed to include electronic signatures or electronic records, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 17.4 Costs and Expenses. In addition to the rights of indemnification granted under Section 16.1, the Borrower
agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Facility Agent, the Collateral Agent, the Collateral Custodian, the Agents and the Lenders in connection with the preparation, execution, delivery,
syndication and administration of this Agreement, any liquidity support facility and the other documents and agreements to be delivered hereunder or with respect hereto, in each case, subject to any cap on such costs and expenses agreed upon in a
separate letter agreement among the Borrower, the Services Provider and the Facility Agent or the Collateral Agent and Collateral Custodian Fee Letter, as applicable, and the Borrower further agrees to pay all reasonable and documented out-
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of-pocket costs and expenses of the Facility Agent in connection with any amendments, waivers or consents executed in connection with this Agreement, including the reasonable fees and out-of-pocket, documented expenses of counsel for the Facility Agent, the Collateral Agent, the Collateral Custodian, the Agents and the Lenders with respect thereto and with
respect to advising the Facility Agent and the Lenders as to its rights and remedies under this Agreement, and to pay all reasonable, documented and out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses), of the
Facility Agent, the Collateral Agent, the Collateral Custodian, the Agents and the Lenders, in connection with the enforcement against the Services Provider or the Borrower of this Agreement or any of the other Transaction Documents and the other
documents and agreements to be delivered hereunder or with respect hereto; provided, that in the case of reimbursement of (A) counsel for the Lenders other than the Facility Agent, such reimbursement shall be limited to one counsel for
all the Facility Agent, the Agents and Lenders and (B) counsel for the Collateral Agent and Collateral Custodian shall be limited to one counsel for each such Person. For the avoidance of doubt, the costs and expenses described in this
Section 17.4 shall not include Taxes.
Section 17.5 Binding Effect; Survival. This Agreement shall be binding upon
and inure to the benefit of Borrower, the Lenders, the Facility Agent, the Services Provider, the Agents, the Collateral Agent, the Collateral Custodian and their respective successors and assigns, and the provisions of Section 4.3,
Article V, and Article XVI shall inure to the benefit of the Affected Persons and the Indemnified Parties, respectively, and their respective successors and assigns; provided, nothing in the foregoing shall be deemed
to authorize any assignment not permitted by Article XV. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until (subject
to the immediately following sentence) such time when all Obligations have been finally and fully paid in cash and performed. The rights and remedies with respect to any breach of any representation and warranty made by the Borrower pursuant to
Article IX and the indemnification and payment provisions of Article V and Article XVI and the provisions of Section 17.10, Section 17.11 and Section 17.12 shall be continuing
and shall survive any termination of this Agreement and any termination of any Person’s rights to act as Services Provider hereunder or under any other Transaction Document.
Section 17.6 Captions and Cross References. The various captions (including the table of contents) in this Agreement are provided
solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Unless otherwise indicated, references in this Agreement to any Section, Schedule or Exhibit are to such Section of or
Schedule or Exhibit to this Agreement, as the case may be, and references in any Section, subsection, or clause to any subsection, clause or subclause are to such subsection, clause or subclause of such Section, subsection or clause.
Section 17.7 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
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Section 17.8 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND ANY DISPUTE, SUIT,
ACTION OR PROCEEDING, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE NOTES OR TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 17.9 Counterparts; Electronic Execution. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be deemed to be an original but all of which shall constitute together but one and the same agreement. Delivery of this Agreement by facsimile or electronic mail shall be
equally as effective as delivery of an original executed counterpart of this Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format
shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents shall be
deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 17.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE EQUITYHOLDER, THE BORROWER, THE SERVICES PROVIDER, THE FACILITY AGENT, THE AGENTS OR ANY OTHER AFFECTED PERSON. EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
ITS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.
Section 17.11 No Proceedings.
(a) Notwithstanding any other provision of this Agreement, each of the Services Provider, the Collateral Agent, the Collateral
Custodian, each Agent, each Lender and the Facility Agent hereby agrees that it will not institute against the Borrower, or join any other Person in instituting against the Borrower, any insolvency proceeding (namely, any proceeding of the type
referred to in the definition of Insolvency Event) so long as any Advances or other amounts due from the Borrower hereunder shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Advances or
other amounts shall be outstanding. The foregoing shall not limit such Person’s right to file any claim in or otherwise take any action with respect to any insolvency proceeding that was instituted by any Person other than such Person.
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(b) Each of the parties hereto hereby agrees that it will not institute
against, or join any other Person in instituting against any Conduit Lender, any insolvency proceeding (namely, any proceeding of the type referred to in the definition of Insolvency Event) so long as any commercial paper note issued by such
applicable Conduit Lender shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such commercial paper notes shall be outstanding; provided that nothing in this sentence shall limit the
right of any party hereto to file any claim or otherwise take any action with respect to any proceeding of the type described in this sentence that was instituted against any Conduit Lender by any Person other than such party.
(c) The provisions of this Section 17.11 are a material inducement for the Secured Parties to enter into this
Agreement and the transactions contemplated hereby and are an essential term hereof. The parties hereby agree that monetary damages are not adequate for a breach of the provisions of this Section 17.11 and the Facility Agent may
seek and obtain specific performance of such provisions (including injunctive relief), including, without limitation, in any bankruptcy, reorganization, arrangement, winding up, insolvency, moratorium, winding up or liquidation proceedings, or other
proceedings under United States federal or state bankruptcy laws or any similar laws. The provisions of this Section 17.11 shall survive the termination of this Agreement.
Section 17.12 Limited Recourse. No recourse under any obligation, covenant or agreement of a Lender contained in this Agreement
shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of any Lender or any of their respective Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of each Lender, and that no personal liability whatever shall attach to or be incurred by any
incorporator, stockholder, officer, director, member, manager, employee or agent of any Lender or any of their respective Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or
agreements of a Lender contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by a Lender of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or
regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
Notwithstanding anything to the contrary in this Agreement or in any of the Transaction Documents, the parties hereto acknowledge that the
obligations of any Conduit Lender arising hereunder are limited recourse obligations payable solely from the unsecured assets of such Conduit Lender (the “Available Funds”) and, following the application of such Available Funds or
the proceeds thereof, any claims of the parties hereto (and the obligations of such Conduit Lender) shall be extinguished. No recourse shall be had for the payment of any amount owing under this Agreement against any officer, member, director,
employee, security holder or incorporator of any Conduit Lender or its successors or assigns, and no action may be brought against any officer, member, director, employee, security holder or incorporator of any Conduit Lender personally;
provided that the foregoing shall not relieve any such Persons from any liability they might otherwise have as a result of fraudulent actions taken or omissions made by them. The provisions of this paragraph shall survive the termination of
this Agreement.
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Each Conduit Lender shall only be required to pay (a) any fees or liabilities that it
may incur under this Agreement only to the extent such Conduit Lender has Excess Funds on the date of such determination and (b) any expenses, indemnities or other liabilities that it may incur under this Agreement or any fees, expenses,
indemnities or other liabilities under any other Transaction Document only to the extent such Conduit Lender receives funds designated for such purposes or to the extent it has Excess Funds not required, after giving effect to all amounts on deposit
in its commercial paper account, to pay or provide for the payment of all of its outstanding commercial paper notes as of the date of such determination. In addition, no amount owing by any Conduit Lender hereunder in excess of the liabilities that
such Conduit Lender is required to pay in accordance with the preceding sentence shall constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code) against such Conduit Lender.
Notwithstanding anything to the contrary in this Agreement or in any of the Transaction Documents, the parties hereto acknowledge that the
obligations of the Borrower arising hereunder are limited recourse obligations payable solely from the Collateral and, following the application of such Collateral or the proceeds thereof, any claims of the parties hereto (and the obligations of the
Borrower) shall be extinguished. No recourse shall be had for the payment of any amount owing under this Agreement against any officer, member, director, employee, security holder or incorporator of the Borrower, the Services Provider, the
Equityholder or its successors or assigns, and no action may be brought against any officer, member, director, employee, security holder or incorporator of such Person personally; provided that the foregoing shall not relieve any such Persons
from any liability they might otherwise have as a result of fraudulent actions taken or omissions made by them.
Section 17.13
ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS EXECUTED AND DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Section 17.14
Confidentiality. (a) The Borrower, the Services Provider, the Collateral Custodian and the Collateral Agent shall hold in confidence, and not disclose to any Person, the identity of any Lender or the terms of any fees payable in
connection with this Agreement except they may disclose such information (i) to their officers, directors, employees, agents, counsel, accountants, auditors, advisors, prospective lenders, equity investors or representatives, (ii) with the
consent of such Lender, (iii) to the extent such information has become available to the public other than as a result of a disclosure by or through such Person, or (iv) to the extent the Borrower, the Services Provider, the Collateral
Custodian or the Collateral Agent or any Affiliate of any of them should be required by any law or regulation applicable to it (including securities laws) or requested by any Official Body to disclose such information.
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(b) The Facility Agent, the Collateral Agent, the Collateral Custodian, each
Agent and each Lender, severally and with respect to itself only, covenants and agrees that any information about the Borrower or its Affiliates or the Obligors, the Collateral Obligations, the Related Security or otherwise obtained by the Facility
Agent, the Collateral Agent, such Agent or such Lender pursuant to this Agreement (“Information”) shall be held in confidence (it being understood that documents provided to the Facility Agent hereunder may in all cases be
distributed by the Facility Agent to the Lenders and Agents) except that the Facility Agent, the Collateral Agent, the Collateral Custodian, such Agent or such Lender may disclose such information (i) to its affiliates, officers, directors,
employees, agents, counsel, accountants, auditors, advisors or representatives, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through the Facility Agent, the Collateral
Agent, the Collateral Custodian, such Agent or such Lender, (iii) to the extent such information was available to the Facility Agent, such Agent or such Lender on a non-confidential basis prior to its disclosure to the Facility Agent, such
Agent or such Lender hereunder, (iv) with the consent of the Services Provider, (v) to the extent permitted by Article XV, or (vi) to the extent the Facility Agent, such Agent or such Lender should be (A) required in
connection with any legal or regulatory proceeding or (B) requested by any Official Body to disclose such information; provided, that in the case of clause (vi) above, the Facility Agent, such Agent or such Lender, as
applicable, will use reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by law) notify the Services Provider of its intention to make any such disclosure prior to making any such disclosure. For the avoidance of
doubt, the Facility Agent shall not make any confidential information of the Borrower or the Services Provider available to prospective Lenders without the prior written approval of the Borrower or the Services Provider, as applicable.
(c) For the avoidance of doubt, nothing in this Section 17.14 shall prohibit any Person from voluntarily disclosing
or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on
disclosure set forth in this Section 17.14 shall be prohibited by the laws or regulations applicable to such Regulatory Authority. For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing
Information regarding suspected violations of laws, rules, or regulations to a Regulatory Authority without any notification to any Person.
Section 17.15 Non-Confidentiality of Tax Treatment. All parties hereto agree that each of them and each of their employees,
representatives, and other agents may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including, without limitation, opinions or other tax
analyses) that are provided to any of them relating to such tax treatment and tax structure. “Tax treatment” and “tax structure” shall have the same meaning as such terms have for purposes of Treasury Regulation
Section 1.6011-4; provided that with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of the transaction as well as other information, the provisions of this
Section 17.15 shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the transactions contemplated hereby.
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Section 17.16 Replacement of Lenders.
(a) If any Lender requests compensation under Section 5.1, or requires the Borrower to pay any Indemnified Taxes or
additional amounts to any Lender or Official Body for the account of any Lender pursuant to Section 4.3, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding
or booking the Obligations or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 4.3 or Section 5.1, as the case may be, in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) At any time there is more than one Lender, the Borrower shall be permitted, at its sole expense and effort, to replace any
Lender, except (i) the Facility Agent or (ii) any Lender which is administered by the Facility Agent or an Affiliate of the Facility Agent, that (a) requests reimbursement, payment or compensation for any amounts owing pursuant to
Section 4.3 or Section 5.1 or (b) has received a written notice from the Borrower of an impending change in law that would entitle such Lender to payment of additional amounts pursuant to Section 4.3 or
Section 5.1, unless such Lender designates a different lending office before such change in law becomes effective pursuant to Section 17.16(a) and such alternate lending office obviates the need for the Borrower to make
payments of additional amounts pursuant to Section 4.3 or Section 5.1 or (c) has not consented to any proposed amendment, supplement, modification, consent or waiver, each pursuant to Section 17.2 or
(d) becomes a Defaulting Lender; provided, that (i) nothing herein shall relieve a Lender from any liability it might have to the Borrower or to the other Lenders for its failure to make any Advance, (ii) the replacement
financial institution shall purchase, at par, all Advances and other amounts owing to such replaced Lender on or prior to the date of replacement and reallocation of such Advances between the replacement financial institution and such replaced
Lender shall be made in accordance with Section 15.10, (iii) during the Revolving Period, the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Facility Agent, (iv) the replaced
Lender shall be obligated to make such replacement in accordance with the provisions of Section 15.4(a), (v) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) for
Increased Costs or Taxes, as the case may be, (vi) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Facility Agent or any other Lender shall have against the replaced Lender, and (vii) if such
replacement is being effected as a result of a Lender requesting compensation pursuant to Section 4.3 or Section 5.1, such replacement, if effected, will result in a reduction in such compensation or payment thereafter or
(e) does not consent to a request to extend the date set forth in the definition of “Facility Termination Date.” Notwithstanding anything contained to the contrary in this Agreement, no Lender removed or replaced under the
provisions hereof shall have any right to receive any amounts set forth in Section 2.5(b) in connection with such removal or replacement. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Section 17.17 Consent to Jurisdiction. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of any New York
State or Federal court sitting in New York County in
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any action or proceeding, whether in contract, tort or otherwise and whether at law or in equity, arising out of or relating to the Transaction Documents, and each party hereto hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. The parties hereto hereby irrevocably waive, to the fullest extent
they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding, whether in contract, tort or otherwise and whether at law or in equity. The parties hereto agree that a final judgment in any such
action or proceeding, whether in contract, tort or otherwise and whether at law or in equity, shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 17.18 Option to Acquire Rating. Each party hereto hereby acknowledges and agrees that the Facility Agent (on behalf and at
the expense of the requesting Lender) may, at any time and in its sole discretion, obtain a public rating for this Facility. The Borrower and the Services Provider hereby agree to use commercially reasonable efforts, at the request of the Facility
Agent, to cooperate with the acquisition and maintenance of any such rating; provided, that neither the Borrower nor the Services Provider shall be obligated to enter into any amendment, supplement or modification to this Agreement or any
other Transaction Document pursuant to this Section 17.18 unless it consents thereto in its sole discretion.
Section 17.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary
in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Transaction Document, to the extent
such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any write-down and conversion powers by the applicable Resolution Authority to any such liabilities
arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or
cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in
lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
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Section 17.20 Acknowledgement Regarding Any Supported QFCs. To the extent that
this Agreement provides support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported
QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that this
Agreement and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such
interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and this Agreement were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and
agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
ARTICLE XVIII
COLLATERAL CUSTODIAN
Section 18.1 Designation of Collateral Custodian. The role of Collateral Custodian with respect to the Collateral Obligation Files
shall be conducted by the Person designated as Collateral Custodian hereunder from time to time in accordance with this Section 18.1. State Street Bank and Trust Company is hereby appointed as, and hereby accepts such appointment and
agrees to perform the duties and obligations of, Collateral Custodian pursuant to the terms hereof.
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Section 18.2 Duties of the Collateral Custodian.
(a) Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and
obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the
Services Provider shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.21), the Collateral Obligation Files delivered to it
for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral
Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information
necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the
Collateral Custodian shall send notice of such receipt to the Services Provider, the Facility Agent and each Agent.
(ii) With respect to
each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File
for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the
Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation
File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in
accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents
delivered electronically) shall be maintained in cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Services Provider in a written notice at
least thirty (30) days prior to such change; provided that, any Collateral Obligation File that comes into the possession of the Collateral Agent in the form of a physical promissory note shall be maintained in fire-resistant vaults.
Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the
Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
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(iv) With respect to the documents comprising each Collateral Obligation File, the
Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties
and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written
instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall
accept only written instructions of an Executive Officer, in the case of the Borrower or the Services Provider, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation
Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Services Provider, the Collateral Custodian or
the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall
institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving
such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The
Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction
permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Facility
Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other
actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from
acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility
Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall
expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility
Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to
consent to the relevant action.
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(viii) The Collateral Custodian shall not be liable for any action taken, suffered or
omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not
be deemed to have knowledge or notice of the occurrence of a Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default unless the Collateral Custodian has
received written notice from the Facility Agent, Services Provider or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Facility Termination Event,” “Notice of Unmatured
Facility Termination Event,” “Notice of Unmatured Services Provider Event of Default,” or “Notice of Services Provider Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian
may conclusively assume that there is no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default, in each case unless it has actual knowledge of any such
occurrence.
(b) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral
Custodian shall not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the
other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be
required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of the Borrower, Facility Agent or Collateral Agent
hereunder or under any other Transaction Document.
Section 18.3 Delivery of Collateral Obligation Files. (a) In
connection with each delivery of a Collateral Obligation File to the Collateral Custodian, the Borrower shall represent, warrant and agree that the Collateral Obligation Files delivered to the Collateral Custodian shall include all of the documents
listed in the related Document Checklist and all of such documents and the information contained in the Schedule of Collateral Obligations are complete in all material respects and correct pursuant to a certification in the form of Exhibit H
executed by or on behalf of the Borrower.
(b) Reserved.
(c) With respect to any documents comprising the Collateral Obligation File that have been delivered or are being delivered to
recording offices for recording and have not been returned to the Borrower or the Services Provider in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, the Borrower or the Services Provider
shall indicate such on a Schedule of Collateral Obligations supplement and deliver to the Collateral Custodian a true copy thereof. The Borrower or the Services Provider shall deliver such original documents to the Collateral Custodian promptly when
they are received.
Section 18.4 Collateral Obligation File Certification. (a) On or prior to each Funding Date, the
Services Provider shall provide a Schedule of Collateral Obligations and related Document Checklist dated as of such Funding Date to the Collateral Custodian, the Collateral Agent, the Facility Agent and each Agent (such information contained on the
Schedule of Collateral Obligations shall also be delivered in Microsoft Excel format or another format reasonably acceptable to the Collateral Custodian) with respect to the Collateral Obligations to be delivered to the Collateral Agent on such
Funding Date.
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(b) In connection with (and as a part of) each Monthly Report, with respect
to the Collateral Obligation Files delivered at least three (3) Business Days’ prior to the related Reporting Date, the Collateral Custodian shall prepare a report (to be included as a part of each Monthly Report) in respect of each of
the Collateral Obligations, to the effect that, as to each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Advance Request or Reinvestment Request, based on the Collateral Custodian’s examination
of the Collateral Obligation File for each Collateral Obligation and the related Document Checklist, except for variances from the documents identified in the Document Checklist with respect to the related Collateral Obligation Files
(“Exceptions”), (i) all documents required to be delivered in respect of such Collateral Obligations pursuant to the Document Checklist have been delivered and are in the possession of the Collateral Custodian as part of the
Collateral Obligation File for such Collateral Obligation (other than those released pursuant to Section 18.5), and (ii) all such documents have been reviewed by the Collateral Custodian and appear on their face to relate to such
Collateral Obligation. The Collateral Custodian shall also maintain records of the total number of Collateral Obligation Files that do not have the documents provided on the Document Checklist and will include such total in each Monthly Report.
Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review all documents required to be delivered in respect of Collateral Obligations pursuant to a Document Checklist shall be limited to reviewing such
documents based on the information provided on the Document Checklist.
(c) Notwithstanding any language to the contrary
herein, the Collateral Custodian shall make no representations as to, and shall not be responsible to verify, (i) the validity, legality, ownership, title, perfection, priority, enforceability, due authorization, recordability, sufficiency for
any purpose, or genuineness of any of the documents contained in each Collateral Obligation File or (ii) the collectibility, insurability, effectiveness or suitability of any such Collateral Obligation.
Section 18.5 Release of Collateral Obligation Files. (a) Upon satisfaction of any of the conditions set forth in
Section 12.3, the Services Provider will provide an Officer’s Certificate to such effect to the Collateral Custodian (with a copy to the Collateral Agent) and shall request in writing delivery to it of the Collateral Obligation
File and a copy thereof shall be sent concurrently by the Services Provider to the Facility Agent and each Agent. Upon receipt of such certification and request, unless it receives notice to the contrary from the Facility Agent, the Collateral
Custodian shall within three Business Days (or such other time as may be agreed to by the Services Provider) release the related Collateral Obligation File to the Services Provider and the Services Provider will not be required to return the related
Collateral Obligation File to the Collateral Custodian.
(b) From time to time and as appropriate for the management or
foreclosure of any of the Collateral Obligations, including, for this purpose, collection under any insurance policy relating to the Collateral Obligations, the Collateral Custodian shall, upon receipt of a Request for Release and Receipt
substantially in the form of Exhibit F-2 from an authorized representative of the Services Provider (as listed on Exhibit F-1, as such exhibit may be
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amended from time to time by the Services Provider with notice to the Collateral Custodian, the Facility Agent and each Agent), release the related Collateral Obligation File or the documents set
forth in such Request for Release and Receipt to the Services Provider. In the event an Unmatured Facility Termination Event, a Facility Termination Event, an Unmatured Services Provider Event of Default or a Services Provider Event of Default has
occurred and is continuing, the Borrower shall not permit the Services Provider to make any such request with respect to any original documents unless the Facility Agent shall have consented in writing thereto (which consent may be evidenced by an
executed counterpart to such request). The Services Provider shall return each and every original document previously requested from the Collateral Obligation File to the Collateral Custodian when the need therefor by the Services Provider no longer
exists unless (x) the Collateral Obligation File or such document has been delivered to an attorney, or to a public trustee or other public official as required by law, for purposes of initiating or pursuing legal action or other proceedings
for the foreclosure of the Related Security either judicially or non-judicially, and (y) the Services Provider has delivered to the Collateral Custodian a certificate executed by an Executive Officer certifying as to the name and address of the
Person to which such Collateral Obligation File or such document was delivered and the purpose or purposes of such delivery, in which case the Services Provider shall complete such return as soon as possible. Upon receipt of a certificate of the
Services Provider substantially in the form of Exhibit F-3, with a copy to the Facility Agent and each Agent, stating that such Collateral Obligation was either (x) liquidated and that all amounts
received or to be received in connection with such liquidation that are required to be deposited have been so deposited, or (y) sold pursuant to an Optional Sale in accordance with Section 7.11, the Collateral Custodian shall within
three (3) Business Days release the Request for Release and Receipt to the Services Provider, or, in connection with an Optional Sale, the requested Collateral Obligation File, and the Services Provider will not be required to return the
related Collateral Obligation File to the Collateral Custodian.
(c) Notwithstanding anything to the contrary set forth
herein, the Services Provider shall not, without the prior written consent of the Facility Agent, request any documents (other than copies thereof) held by the Collateral Custodian if the sum of the unpaid Principal Balances of all Collateral
Obligations for which the Services Provider is then in possession of the related Collateral Obligation File or any document comprising such Collateral Obligation File (other than for Collateral Obligations then held by the Services Provider which
have been sold, repurchased, paid off or liquidated in accordance with this Agreement) (including the documents to be requested) exceeds 5% of the Adjusted Aggregate Eligible Collateral Obligation Balance. The Services Provider may hold, and hereby
acknowledges that it shall hold, any documents and all other property included in the Collateral that it may from time to time receive hereunder as custodian for the Secured Parties solely at the will of the Collateral Custodian and the Secured
Parties for the sole purpose of facilitating the management of the Collateral Obligations and such retention and possession shall be in a custodial capacity only. To the extent the Services Provider, as agent of the Collateral Custodian and the
Borrower, holds any Collateral, the Services Provider shall do so in accordance with the Servicing Standard as such standard applies to services providers acting as custodial agent. The Services Provider shall promptly report to the Collateral
Custodian and the Facility Agent the loss by it of all or part of any Collateral Obligation File previously provided to it by the Collateral Custodian and shall promptly take appropriate action to remedy any such loss. The Services Provider shall
hold (in accordance with Section 9-313(C) of the UCC) all documents comprising the Collateral Obligation Files in its possession as agent of the Collateral Agent. In such custodial capacity, the Services Provider shall have and perform the
following powers and duties:
(i) hold the Collateral Obligation Files and any document comprising a Collateral Obligation File that it
may from time to time receive hereunder from the Collateral Custodian for the benefit of the Collateral Custodian, on behalf of the Secured Parties, maintain accurate records pertaining to each Collateral Obligation to enable it to comply with the
terms and conditions of this Agreement, and maintain a current inventory thereof;
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(ii) implement policies and procedures consistent with the requirements of this Agreement
so that the integrity and physical possession of such Collateral Obligation Files will be maintained; and
(iii) take all other actions,
in accordance with the Servicing Standard, in connection with maintaining custody of such Collateral Obligation Files on behalf of the Collateral Agent.
Acting as custodian of the Collateral Obligation Files pursuant to this Section 18.5, the Services Provider agrees that it does
not and will not have or assert any beneficial ownership interest in the Collateral Obligations or the Collateral Obligation Files.
Section 18.6 Examination of Collateral Obligation Files. Upon reasonable prior written notice to the Collateral Custodian, the
Borrower, the Services Provider and their agents, accountants, attorneys and auditors will be permitted during normal business hours to examine and make copies of the Collateral Obligation Files, documents, records and other papers in the possession
of or under the control of the Collateral Custodian relating to any or all of the Collateral Obligations. Prior to the occurrence of an Unmatured Facility Termination Event, a Facility Termination Event, an Unmatured Services Provider Event of
Default or a Services Provider Event of Default, upon the request of the Facility Agent and at the cost and expense of the Borrower, the Collateral Custodian shall promptly provide the Facility Agent with the Collateral Obligation Files or copies,
as designated by the Facility Agent, subject to any applicable cap on costs and expenses, the Collateral Custodian shall promptly provide the Facility Agent with the Collateral Obligation Files or copies, as designated by the Facility Agent;
provided, the Collateral Custodian shall not be required to provide such copies if it does not receive adequate assurance of payment.
Section 18.7 Lost Note Affidavit. In the event that the Collateral Custodian fails to produce any original promissory note
delivered to it related to a Collateral Obligation that was in its possession pursuant to Section 10.21 within five (5) Business Days after required or requested by the Facility Agent and provided that (a) the Collateral
Custodian previously certified in writing to the Facility Agent that it had received such original promissory note and (b) such original promissory note is not outstanding pursuant to a Request for Release and Receipt, then the Collateral
Custodian shall with respect to any missing original promissory note, promptly deliver to the Facility Agent upon request a lost note affidavit.
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Section 18.8 Transmission of Collateral Obligation Files. Written instructions
as to the method of shipment and shipper(s) the Collateral Custodian is directed to utilize in connection with the transmission of Collateral Obligation Files in the performance of the Collateral Custodian’s duties hereunder shall be delivered
by the Borrower or the Services Provider to the Collateral Custodian prior to any shipment of any Collateral Obligation Files hereunder. In the event the Collateral Custodian does not receive such written instruction from the Borrower or the
Services Provider, the Collateral Custodian shall be authorized and indemnified as provided herein to utilize a nationally recognized courier service. The Services Provider shall arrange for the provision of such services at its sole cost and
expense (or, at the Collateral Custodian’s option, reimburse the Collateral Custodian for all costs and expenses incurred by the Collateral Custodian consistent with such instructions) and shall maintain such insurance against loss or damage
to the Collateral Obligation Files as the Services Provider deems appropriate.
Section 18.9 Merger or Consolidation. Any
Person (i) into which the Collateral Custodian may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Collateral Custodian shall be a party, or (iii) that may succeed to the properties and
assets of the Collateral Custodian substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Custodian hereunder, shall be the successor to the Collateral
Custodian under this Agreement without further act of any of the parties to this Agreement.
Section 18.10 Collateral Custodian
Compensation. As compensation for its Collateral Custodian activities hereunder, the Collateral Custodian shall be entitled to its fees and expenses from the Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter and
any other accrued and unpaid fees, expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower or the Services Provider, or both but without duplication, to the Collateral Custodian
(including Indemnified Amounts under Article XVI) under the Transaction Documents (collectively, the “Collateral Custodian Fees and Expenses”). The Borrower agrees to reimburse the Collateral Custodian in accordance with
the provisions of Section 8.3(a) for all reasonable expenses, disbursements and advances incurred or made by the Collateral Custodian in accordance with any provision of this Agreement or the other Transaction Documents or in the
enforcement of any provision hereof or in the other Transaction Documents. The Collateral Custodian’s entitlement to receive fees (other than any previously accrued and unpaid fees) shall cease on the earlier to occur of: (i) its removal
or resignation as Collateral Custodian and appointment and acceptance by the successor Collateral Custodian pursuant to Section 18.11 and the Collateral Custodian has ceased to hold any Collateral Obligation Files or (ii) the
termination of this Agreement.
Section 18.11 Removal or Resignation of Collateral Custodian. (a) After the expiration of
the 180-day period commencing on the date hereof, the Collateral Custodian may at any time resign and terminate its obligations under this Agreement upon at least 30 days’ prior written notice to the
Services Provider, the Borrower and the Facility Agent and each Agent; provided, that no resignation or removal of the Collateral Custodian will be permitted unless a successor Collateral Custodian has been appointed which successor
Collateral Custodian, so long as no Unmatured Services Provider Event of Default, Services Provider Event of Default, Unmatured Facility Termination Event or Facility Termination Event has occurred and is continuing, is reasonably acceptable to the
Services Provider. Promptly after receipt of notice of the Collateral Custodian’s resignation, the Facility Agent shall promptly appoint a successor Collateral Custodian by written instrument, in duplicate, copies of which instrument shall be
delivered to the Borrower, the Services Provider, each Agent, the resigning Collateral Custodian and to the successor Collateral Custodian.
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(b) The Facility Agent upon at least 30 days’ prior written notice to
the Collateral Custodian and each Agent, may remove and discharge the Collateral Custodian or any successor Collateral Custodian thereafter appointed from the performance of its duties under this Agreement with or without cause. Promptly after
giving notice of removal of the Collateral Custodian, the Facility Agent shall appoint, or petition a court of competent jurisdiction to appoint, a successor Collateral Custodian; provided that, so long as no Services Provider Event of
Default or Facility Termination Event has occurred and is continuing (x) any successor Collateral Custodian so appointed by the Facility Agent shall be reasonably acceptable to the Borrower and (y) the Borrower’s consent shall be
required in connection with the Facility Agent’s removal of the Collateral Custodian without cause unless any litigation has commenced between the Facility Agent and the Collateral Custodian. Any such appointment shall be accomplished by
written instrument and one original counterpart of such instrument of appointment shall be delivered to the Collateral Custodian and the successor Collateral Custodian, with a copy delivered to the Borrower and the Services Provider.
(c) In the event of any such resignation or removal, the Collateral Custodian shall, no later than five (5) Business Days
after receipt of notice of the successor Collateral Custodian, transfer to the successor Collateral Custodian, as directed in writing by the Facility Agent, all the Collateral Obligation Files being administered under this Agreement. The cost of the
shipment of Collateral Obligation Files arising out of the resignation of the Collateral Custodian pursuant to Section 18.11(a), or the termination for cause of the Collateral Custodian pursuant to Section 18.11(b), shall be
at the expense of the Collateral Custodian. Any cost of shipment arising out of the removal or discharge of the Collateral Custodian without cause pursuant to Section 18.11(b) shall be at the expense of the Borrower.
(d) For the avoidance of doubt, the Collateral Custodian shall be entitled to receive, as and when such amounts are payable in
accordance with this Agreement, any Collateral Custodian Fees accrued through the effective date of its resignation or removal pursuant to and in accordance with this Section 18.11.
Section 18.12 Limitations on Liability. (a) The Collateral Custodian may conclusively rely on and shall be fully protected in
acting upon any certificate, instrument, opinion, notice, letter, telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Collateral
Custodian shall not be bound to make any investigation into the facts or matters stated in any such certificate, instrument, opinion, notice, letter, telegram or other document; provided, however, that, if the form thereof is prescribed by
this Agreement, the Collateral Custodian shall examine the same to determine whether it conforms on its face to the requirements hereof. The Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the
written instructions of any designated officer of the Facility Agent or (b) the verbal instructions of the Facility Agent, and no party shall have any right of action whatsoever against the Collateral Custodian as a result of the Collateral
Custodian acting or (where so instructed) refraining from acting hereunder in accordance with the instructions of the Facility Agent.
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(b) The Collateral Custodian may consult counsel satisfactory to it and the
advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(c) Neither the Collateral Custodian nor any of its directors, officers, agents, or employees shall be liable for any error of
judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or negligent
performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Collateral Obligation Files; provided that, the Collateral Custodian hereby agrees that any failure of the
Collateral Custodian to produce an original promissory note satisfying the conditions described in clauses (a) and (b) of Section 18.7 shall constitute negligence. The Collateral Custodian shall not be obligated
to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(d) The Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set
forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Collateral, and will not be required to and will not make any representations as to the validity
or value (except as expressly set forth in this Agreement) of any of the Collateral.
(e) The Collateral Custodian shall
have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian. The duties, obligations
and responsibilities of the Collateral Custodian shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral
Custodian. Any permissive right of the Collateral Custodian to take any action hereunder shall not be construed as a duty.
(f) The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.
In no event shall the Collateral Custodian be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action (including any laws, ordinances, regulations) or the like that delay, restrict or prohibit the providing of services by the Collateral Custodian as contemplated by this Agreement.
(g) It is expressly agreed and acknowledged that the Collateral Custodian is not guaranteeing performance of or assuming any
liability for the obligations of the other parties hereto or any parties to the Collateral.
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(h) In case any reasonable question arises as to its duties hereunder, the
Collateral Custodian may, prior to the occurrence of a Facility Termination Event or the Facility Termination Date, request instructions from the Services Provider and may, after the occurrence of a Facility Termination Event or the Facility
Termination Date, request instructions from the Facility Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from the Services Provider or the Facility Agent, as applicable. The Collateral
Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Facility Agent. In no event shall the Collateral Custodian be liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) Beyond the safekeeping of the Collateral Obligation Files in accordance with Article XVIII, the Collateral
Custodian shall not have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining
thereto. The Collateral Custodian shall not be liable or responsible for any misconduct, negligence or loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent,
attorney or bailee selected by the Collateral Custodian in good faith and with due care hereunder.
(j) Each of the
protections, reliances, indemnities and immunities offered to the Collateral Agent in Section 11.7 and Section 11.8 shall be afforded to the Collateral Custodian.
Section 18.13 Collateral Custodian as Agent of Collateral Agent. The Collateral Custodian agrees that, with respect to any
Collateral Obligation File at any time or times in its possession or held in its name, the Collateral Custodian shall be the agent and custodian of the Collateral Agent, for the benefit of the Secured Parties, for purposes of perfecting (to the
extent not otherwise perfected) the Collateral Agent’s security interest in the Collateral and for the purpose of ensuring that such security interest is entitled to first priority status under the UCC. If the Collateral Custodian is the same
entity as the Collateral Agent, the Collateral Custodian shall be entitled to the same rights and protections afforded to the Collateral Agent hereunder.
[signature pages begin on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.
ATHENA FUNDING III LLC, as Borrower
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: President
BLUE OWL TECHNOLOGY FINANCE CORP., as Services Provider
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: Chief Financial Officer and Chief Operating Officer
S-2
BLUE OWL TECHNOLOGY FINANCE CORP., as Equityholder
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: Chief Financial Officer and Chief Operating Officer
S-3
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent and as Collateral Custodian
By:
/s/ D. Scott Berry
Name: Scott Berry
Title: Vice President
S-4
DEUTSCHE BANK AG, NEW YORK BRANCH, as Facility Agent
By:
/s/ Amit Patel
Name: Amit Patel
Title: Managing Director
By:
/s/ Ho Min Kwak
Name: Ho Min Kwak
Title: Director
S-5
DEUTSCHE BANK AG, NEW YORK BRANCH, as an Agent and as a Committed Lender
By:
/s/ Amit Patel
Name: Amit Patel
Title: Managing Director
By:
/s/ Ho Min Kwak
Name: Ho Min Kwak
Title: Director
S-6
ANNEX A
ATHENA FUNDING III LLC,
as Borrower
c/o Blue Owl Technology Finance Corp.
399 Park Avenue,
38th Floor
New York, NY 10022
Attention: Jonathan Lamm
Phone: (212) 651-4782
Email: jonathan.lamm@blueowl.com
BLUE OWL TECHNOLOGY FINANCE CORP.,
as
Equityholder
399 Park Avenue, 38th Floor
New York, NY
10022
Attention: Jonathan Lamm
Phone: (212) 651-4782
Email: jonathan.lamm@blueowl.com
BLUE OWL TECHNOLOGY
FINANCE CORP.,
as Services Provider
399 Park Avenue, 38th Floor
New York, NY 10022
Attention: Jonathan Lamm
Phone: (212) 651-4782
Email: jonathan.lamm@blueowl.com
STATE STREET BANK AND TRUST
COMPANY,
as Collateral Agent and as Collateral Custodian
1776 Heritage Drive – Mail Stop: JAB0527
North Quincy, MA
02171
Attention: Structured Trust & Analytics
Ref:
ATHENA FUNDING III LLC
Telephone: 617-662-9840
Facsimile:
617-937-4370
Email: scott.berry@statestreet.com
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Facility Agent
1 Columbus Circle
New York, New York 10019
Attention: Asset Finance Department
Email: amit.patel@db.com, james.kwak@db.com, christina.flowers@db.com and
jack.finnegan@db.com
DEUTSCHE BANK AG, NEW YORK
BRANCH,
as an Agent and as a Committed Lender
1 Columbus Circle
New York, New York 10019
Attention: Asset Finance Department
Email: amit.patel@db.com,
james.kwak@db.com, christina.flowers@db.com and
jack.finnegan@db.com
A-2
Annex B
Lender
Commitment
Deutsche Bank AG, New York Branch
$
150,000,000
EX-10.2
EX-10.2
Filename: d154722dex102.htm · Sequence: 3
EX-10.2
Exhibit 10.2
Execution Version
SALE AND CONTRIBUTION AGREEMENT
between
BLUE OWL
TECHNOLOGY FINANCE CORP.,
as Seller
and
ATHENA FUNDING III
LLC,
as Purchaser
Dated as
of May 21, 2026
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
SECTION 1.1 Definitions
1
SECTION 1.2 Other Terms
2
SECTION 1.3 Computation of Time Periods
3
SECTION 1.4 Interpretation
3
SECTION 1.5 References
3
ARTICLE II CONVEYANCES OF TRANSFERRED ASSETS
4
SECTION 2.1 Conveyances
4
SECTION 2.2 Repurchase or Substitution of Loan Assets
6
SECTION 2.3 Assignments
6
SECTION 2.4 Actions Pending Completion of Conveyance
6
SECTION 2.5 Indemnification
7
SECTION 2.6 Assignment of Rights and Indemnities
8
ARTICLE III CONSIDERATION AND PAYMENT; REPORTING
9
SECTION 3.1 Purchase Price, Substitution Value and Repurchase Price
9
SECTION 3.2 Payment of Purchase Price
9
ARTICLE IV REPRESENTATIONS AND WARRANTIES
10
SECTION 4.1 Seller’s Representations and Warranties
10
SECTION 4.2 Reaffirmation of Representations and Warranties by the Seller; Notice of Breach
14
ARTICLE V COVENANTS OF THE SELLER
15
SECTION 5.1 Covenants of the Seller
15
SECTION 5.2 Covenant of the Purchaser
17
ARTICLE VI CONDITIONS PRECEDENT
17
SECTION 6.1 Conditions Precedent
17
ARTICLE VII MISCELLANEOUS PROVISIONS
18
SECTION 7.1 Amendments, Etc.
18
SECTION 7.2 Governing Law: Submission to Jurisdiction; Waiver of Jury Trial
18
SECTION 7.3 Notices
19
SECTION 7.4 Severability of Provisions
19
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TABLE OF CONTENTS
(continued)
Page
SECTION 7.5 Further Assurances
20
SECTION 7.6 No Waiver; Cumulative Remedies
20
SECTION 7.7 Counterparts
20
SECTION 7.8 Non-Petition
20
SECTION 7.9 Transfer of Seller’s Interest
21
SECTION 7.10 Binding Effect; Third-Party Beneficiaries and
Assignability
21
SECTION 7.11 Merger and Integration
21
SECTION 7.12 Headings
21
SECTION 7.13 Electronic Signatures
21
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This SALE AND CONTRIBUTION AGREEMENT, dated as of May 21, 2026 (as amended,
supplemented or otherwise modified and in effect from time to time, this “Agreement”), between BLUE OWL TECHNOLOGY FINANCE CORP., a Maryland corporation, as seller (in such capacity, the “Seller”), and ATHENA
FUNDING III LLC, a Delaware limited liability company, as purchaser (in such capacity, the “Purchaser”).
WITNESSETH:
WHEREAS, on
and after the date hereof, the Seller may, from time to time on each Conveyance Date (as defined below), sell or contribute, transfer, and otherwise convey, to the Purchaser, without recourse except to the extent specifically provided herein, and
the Purchaser may, from time to time on each Conveyance Date, purchase or accept a contribution of all right, title and interest of the Seller (whether now owned or hereafter acquired or arising, and wherever located) in and to the Loan Assets (as
defined below) mutually agreed by the Seller and the Purchaser; and
WHEREAS, it is the Seller’s and the Purchaser’s intention
that the conveyance of the Transferred Assets (as defined below) under each assignment agreement and this Agreement is a “true sale” or a “true contribution” for all purposes, such that, upon payment of the purchase price
therefor or the making of a contribution, the Transferred Assets will constitute property of the Purchaser from and after the applicable transfer date;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by and
between the Purchaser and the Seller as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, 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). All capitalized terms used herein but not defined herein shall have the respective meanings specified in, or incorporated by reference into, the Loan Financing and
Servicing Agreement, dated as of May 21, 2026 (as amended, supplemented or otherwise modified and in effect from time to time, the “LFSA”), by and among the Purchaser, as borrower, Blue Owl Technology Finance Corp., as
equityholder and services provider, the Lenders party thereto from time to time, the agents for each lender group from time to time party thereto, Deutsche Bank AG, New York Branch, as Facility Agent (the “Facility Agent”) and
State Street Bank and Trust Company, as collateral agent (in such capacity, the “Collateral Agent”) and collateral custodian (in such capacity, the “Collateral Custodian”).
“Agreement” has the meaning set forth in the preamble hereto.
“Contribution” has the meaning set forth in Section 3.2.
“Convey” means to sell, transfer, assign, contribute, substitute or otherwise convey assets hereunder (each such Conveyance
being herein called a “Conveyance”).
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“Conveyance Date” means the date of a Conveyance.
“Elevation” has the meaning set forth in Section 2.4(b).
“Indemnified Amounts” has the meaning set forth in Section 2.5(a).
“Indemnified Party” has the meaning set forth in Section 2.5(a).
“Indorsement” has the meaning specified in Section 8-102(a)(11) of the UCC,
and “Indorsed” has a corresponding meaning.
“Loan Asset” means each commercial loan identified on
Schedule A hereto.
“Participation” has the meaning set forth in Section 2.4(a).
“Proceeds” has the meaning set forth in Section 4.1(o).
“Purchase Price” has the meaning set forth in Section 3.1(a).
“Purchaser” has the meaning set forth in the preamble hereto.
“Repurchase” has the meaning set forth in Section 2.2(a).
“Repurchase Event” means the lapse of two (2) Business Days following the receipt by the Seller of written notice from
the Purchaser of the existence of any Loan Asset with respect to which any of the Seller’s representations and warranties set forth in Sections 4.1(f), (g), (h), (j), (k), (l), (p), (q) or
(r) was not true and correct at the time made solely with respect to such Loan Asset as of its applicable Conveyance Date.
“Repurchase Price” has the meaning set forth in Section 3.1 (c).
“Seller” has the meaning set forth in the preamble hereto.
“Substitute Loan Asset” has the meaning set forth in Section 2.2(a).
“Substitution” has the meaning set forth in Section 2.2(a).
“Substitution Value” has the meaning set forth in Section 3.1(b).
“Transferred Asset” means each asset, including any Loan Asset, Conveyed by the Seller to the Purchaser hereunder,
including with respect to each such asset, all Related Security; provided that the foregoing will exclude the Retained Interest and the Excluded Amounts.
SECTION 1.2 Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC, and not specifically defined herein, are used herein as defined in such Article 9.
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SECTION 1.3 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 means “to but
excluding.”
SECTION 1.4 Interpretation. In this Agreement, unless a contrary intention appears:
(i) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Transaction Documents;
(ii) reference to any gender includes each other gender;
(iii) reference to day or days without further qualification means calendar days;
(iv) unless otherwise stated, reference to any time means New York time;
(v) references to “writing” include printing, typing, lithography, electronic or other means of reproducing words
in a visible form;
(vi) reference to any agreement (including any Transaction Document or underlying instrument), document
or instrument means such agreement, document or instrument as amended, modified, supplemented, replaced, restated, waived or extended and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of the other
Transaction Documents, and reference to any promissory note includes any promissory note that is an extension or renewal thereof or a substitute or replacement therefor;
(vii) reference to any requirement of law means such requirement of law as amended, modified, codified, replaced or reenacted,
in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder and reference to any Section or other provision of any requirement of law means that provision of such requirement of law from time to time
in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such Section or other provision; and
(viii) references to “including” mean “including, without limitation”.
SECTION 1.5 References.
All Section references (including references to the Preamble), unless otherwise indicated, shall be to Sections (and the Preamble) in this
Agreement.
-3-
ARTICLE II
CONVEYANCES OF TRANSFERRED ASSETS
SECTION 2.1 Conveyances.
(a) On the terms and subject to the conditions set forth in this Agreement and the LFSA, the Seller shall Convey to the Purchaser without
recourse (except to the extent specifically provided herein), and the Purchaser shall accept such Conveyance, on the applicable Conveyance Date, all of the Seller’s right, title and interest (whether now owned or hereafter acquired or arising,
and wherever located) in and to each Loan Asset then reported by the Seller on the supplement to Schedule A and the Related Security, together with all proceeds of the foregoing, but excluding any applicable Retained Interests or Excluded
Amounts. For the avoidance of doubt, Schedule A, when delivered in accordance with the terms hereof, shall automatically be deemed to update any previously delivered Schedule A without the need for action or consent on the part of any
Person and Schedule A is deemed to be updated with the delivery of new borrowing base calculations in connection with each applicable Conveyance of Loan Assets hereof. On each applicable Conveyance Date, the Purchaser agrees to acquire the
Loan Assets set forth on Schedule A and the Related Security from the Seller and the Seller agrees to Convey such Loan Assets and Related Security to the Purchaser for the applicable Purchase Prices set forth on Schedule A.
(b) It is the express intent of the Seller and the Purchaser that each Conveyance of Transferred Assets by the Seller to the Purchaser
pursuant to this Agreement be construed as an absolute sale and/or contribution of such Transferred Assets by the Seller to the Purchaser providing Purchaser with the full risks and benefits of ownership of the Transferred Assets. Further, it is not
the intention of the Seller and the Purchaser that any Conveyance be deemed a grant of a security interest in the Transferred Assets by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, to protect the
Purchaser’s rights in the event that, notwithstanding the intent of the parties expressed herein, the Conveyances hereunder are characterized as secured financings and not as sales and/or contributions, then (i) this Agreement also shall
be deemed to be, and hereby is, a security agreement within the meaning of the UCC and other applicable law and (ii) the Conveyances by the Seller provided for in this Agreement shall be deemed to be, and the Seller hereby grants to the
Purchaser, a first priority security interest (subject only to Permitted Liens) in, to and under all of the Seller’s right, title and interest in, to and under, whether now owned or hereafter acquired, such Transferred Assets and all proceeds
of the foregoing to secure an obligation of the Seller to pay over and transfer to the Purchaser any and all distributions received by the Seller (other than Excluded Amounts) in relation to the Transferred Assets from time to time, whether in cash
or in kind, so that the Purchaser will receive all distributions under, proceeds of and benefits of ownership of the Transferred Assets and to secure all other obligations of the Seller hereunder. If the Conveyances hereunder shall be characterized
as secured financings and not as sales and/or contributions, the Purchaser and its assignees shall have, with respect to such Transferred Assets and other related rights, in addition to all the other rights and remedies available to the Purchaser
and its assignees hereunder and under the underlying instruments, all the rights and remedies of a secured party under any applicable UCC.
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(c) The Seller and the Purchaser shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Transferred Assets to secure a debt or other obligation, such security interest would be deemed to be a first priority perfected
security interest in favor of the Purchaser under applicable law and will be maintained as such throughout the term of this Agreement. The Seller represents and warrants that the Transferred Assets are being transferred with the intention of
removing them from the Seller’s estate pursuant to Section 541 of the Bankruptcy Code. The Purchaser assumes all risk relating to nonpayment or failure by the obligors to make any distributions owed by them under the Transferred Assets.
Except with respect to the representations, warranties and covenants expressly stated in this Agreement, the Seller assigns each Transferred Asset “as is,” and makes no covenants, representations or warranties regarding the Transferred
Assets.
(d) In connection with this Agreement, the Seller agrees to file (or cause to be filed) on or prior to the Effective Date, a
financing statement or statements with respect to the Transferred Assets Conveyed by the Seller hereunder from time to time meeting the requirements of applicable state law in the jurisdiction of the Seller’s organization to perfect and
protect the interests of the Purchaser created hereby under the UCC against all creditors of, and purchasers from, the Seller, and to deliver a file-stamped copy of such financing statements or other evidence
of such filings to the Purchaser as soon as reasonably practicable after its receipt thereof and to keep such financing statements effective at all times during the term of this Agreement.
(e) The Seller agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents and take all
actions as may be reasonably necessary or as the Purchaser may request, in order to perfect or protect the interest of the Purchaser in the Transferred Assets Conveyed hereunder or to enable the Purchaser to exercise or enforce any of its rights
hereunder. Without limiting the foregoing, the Seller will, in order to accurately reflect the Conveyances contemplated by this Agreement, execute and file such financing or continuation statements or amendments thereto or assignments thereof (as
permitted pursuant hereto) or other documents or instruments as may be requested by the Purchaser and mark its records noting the Conveyance to the Purchaser of the Transferred Assets and the Lien of the Collateral Agent pursuant to the LFSA. The
Seller hereby authorizes the Purchaser or the Facility Agent to file and, to the fullest extent permitted by applicable law the Purchaser shall be permitted to sign (if necessary) and file, initial financing statements, continuation statements and
amendments thereto and assignments thereof without further acts of the Seller; provided that the description of collateral contained in such financing statements shall be limited to only Transferred Assets. Carbon, photographic or other
reproduction of this Agreement or any financing statement shall be sufficient as a financing statement.
(f) Each of the Seller and the
Purchaser agrees that prior to the time of Conveyance of any Loan Asset hereunder, the Purchaser has no rights to or claim of benefit from any Loan Asset (or any interest therein) owned by the Seller.
(g) The Transferred Assets acquired, transferred to and assumed by the Purchaser from the Seller shall include the Seller’s entitlement
to any surplus or responsibility for any deficiency that, in either case, arises under, out of, in connection with, or as a result of, the foreclosure upon or acceleration of any such Transferred Assets (other than Excluded Amounts).
-5-
SECTION 2.2 Repurchase or Substitution of Loan Assets.
(a) The Seller may (in accordance with and subject to the requirements of the LFSA) from time to time, in its sole discretion, either
(i) repurchase a Loan Asset (each, a “Repurchase”) or (ii) substitute for such Loan Asset a Collateral Loan (each, a “Substitution” and such Collateral Loan, a “Substitute Loan
Asset”), in each case in accordance with and subject to the requirements of Section 7.11 of the LFSA. The Seller shall repurchase or substitute any Warranty Collateral Obligation upon the request of the Purchaser in accordance with
and subject to the requirements of Section 7.12 of the LFSA. For the avoidance of doubt, any Optional Sale of Collateral Obligations by the Purchaser to the Seller or any Affiliate thereof in accordance with Section 7.11 of the LFSA shall
not be required to be made pursuant to this Section 2.2.
(b) On the terms and subject to the conditions set forth in this Agreement
and the LFSA, the Purchaser shall Convey to the Seller without recourse (except to the extent specifically provided herein), and the Seller shall accept such Conveyance, on the applicable Conveyance Date, all of the Purchaser’s right, title
and interest (whether now owned or hereafter acquired or arising, and wherever located) in and to each Loan Asset then reported by the Purchaser on the supplement to Schedule A, together with all Related Security and
proceeds of the foregoing. In the case of a Substitution, Seller shall then Convey to the Purchaser without recourse (except to the extent specifically provided herein), and the Purchaser shall accept such Conveyance, on the applicable Conveyance
Date, all of the Seller’s right, title and interest (whether now owned or hereafter acquired or arising, and wherever located) in and to each Substitute Loan Asset then reported by the Purchaser on the supplement to
Schedule A, together with all Related Security and proceeds of the foregoing. For the avoidance of doubt, Schedule A, when delivered in accordance with the terms hereof, shall automatically be
deemed to update any previously delivered Schedule A without the need for action or consent on the part of any Person.
SECTION 2.3 Assignments. The Seller and the Purchaser acknowledge and agree that, solely for administrative convenience, any
transfer document or assignment agreement required to be executed and delivered in connection with the transfer of a Transferred Asset in accordance with the terms of the related underlying instruments may reflect that (i) the Seller (or any
Affiliate or third party from whom the Seller or the applicable Affiliate may purchase Transferred Assets) is assigning such Transferred Asset directly to the Purchaser or (ii) the Purchaser is acquiring such Transferred Asset at the closing of
such Transferred Asset.
SECTION 2.4 Actions Pending Completion of Conveyance.
(a) Pending the receipt of any required consents to, and the effectiveness of, the sale of any Loan Assets from the Seller to the Purchaser in
accordance with the applicable underlying instrument, the Seller hereby sells to the Purchaser a 100% participation in each Loan Asset to be participated hereunder as indicated in Schedule A hereto and its related right, title and interest (each, a
“Participation”). The Participations will not include any rights that are not permitted to be participated pursuant to the terms of the underlying instruments. Such sale of the Participations shall be without recourse to the
Seller (including with regard to collectability), except as otherwise expressly provided in the representations and warranties set forth in Article IV, and shall constitute an absolute sale of each such Participation. Each of the
Participations has the following characteristics:
(i) the Participation represents an undivided participating interest in
100% of the underlying Loan Asset and its proceeds (including the Proceeds);
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(ii) the Seller does not provide any guaranty of payments to the holder of
the Participation or other form of recourse (except as otherwise expressly provided in the representations and warranties set forth in Article IV) or credit support;
(iii) the Participation represents a pass through of all of the payments made on the Loan Asset (including the Proceeds) and
will last for the same length of time as such Loan Asset except that each Participation will terminate automatically upon the settlement of the assignment of the underlying right, title and interest of the related Loan Asset from the Seller to the
Purchaser; and
(iv) the Seller holds title in such participated Loan Assets for the benefit of the Purchaser and shall
exercise the same care in the administration of the participated Loan Assets as it would exercise for loans held for its own account.
(b)
Each party hereto shall use commercially reasonable efforts to, as soon as reasonably practicable after the Conveyance Date (or within two (2) Business Days following the occurrence of an Unmatured Facility Termination Event or a Facility
Termination Event), to elevate such Participation to an assignment and cause the Purchaser to become a lender under the underlying instrument with respect to the Seller’s interest in each Transferred Asset and take such action as shall be
mutually agreeable in connection therewith and in accordance with the terms and conditions of the underlying instrument and consistent with the terms of this Agreement. Such elevation is referred to herein as the “Elevation” with
respect to any Participation.
(c) Pending completion of the assignment of the Seller’s interest in each Transferred Asset in
accordance with the applicable underlying instruments, the Seller shall comply with any written instructions provided to the Seller by or on behalf of the Purchaser with respect to voting rights to be exercised by holders of such Transferred Assets
and shall refrain from taking any action with respect to the participated Loan Assets other than as instructed by the Purchaser, other than with respect to any voting rights that are not permitted to be participated pursuant to the terms of the
applicable underlying instrument (and such restrictions, requirements or prohibitions are hereby incorporated by reference as if set forth herein).
(d) Until such time as an Elevation has been effectuated with respect to each Transferred Asset, the Services Provider, on behalf of the
Purchaser, shall provide to the Facility Agent, on a weekly basis, a report identifying (i) each Transferred Asset with respect to which an Elevation has been effected and (ii) each Transferred Asset with respect to which an Elevation has
not been effected.
SECTION 2.5 Indemnification. (a) The Seller hereby agrees to indemnify the Purchaser and its
successors, transferees, and assigns (including each Secured Party) or any of such Person’s respective shareholders, officers, employees, agents or Affiliates (each of the foregoing Persons being individually called an “Indemnified
Party”) against, and hold each Indemnified Party harmless from, any and all costs, losses, claims, damages, liabilities and related expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements
-7-
of any outside counsel for any Indemnitee) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnified Party or awarded against any
Indemnified Party in favor of any Person (including the Seller) other than such Indemnified Party arising out of any material breach by the Seller of any of its obligations hereunder or arising as a result of the failure of any representation or
warranty of the Seller herein to be true and correct in all material respects or, if qualified as to materiality or Material Adverse Effect, in all respects, on the date such representation or warranty was made; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such Indemnified Amounts (i) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnified Party or its reckless disregard of its duties hereunder or any Transaction Document, (ii) result from a claim brought by the Seller against an Indemnified Party for breach in bad faith of such Indemnified
Party’s obligations hereunder or under any other Transaction Document, if the Seller has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction, (iii) include any
punitive, indirect, consequential, special damages, lost profits or other similar damages, (iv) arise due to an Obligor’s failure to pay any amounts due under the applicable loan agreement in accordance with its terms or otherwise arise
due to an Obligor’s creditworthiness, (v) include any Excluded Taxes (other than any Excluded Taxes that represent Indemnified Amounts arising out of a non-Tax claim) or (vi) include
Indemnified Amounts resulting from the performance or non-performance of the Transferred Assets.
(b) If the Seller has made any payment pursuant to this Section 2.5 and the recipient thereof later collects any
payments from others (including insurance companies) in respect of such amounts or is found in a final and nonappealable judgment by a court of competent jurisdiction not to be entitled to such indemnification, then the recipient agrees that it
shall promptly repay to the Seller such amounts collected.
(c) Any Indemnified Amounts shall be paid by the Seller to the Facility Agent,
for the benefit of the applicable Indemnified Party, within two (2) Business Days following receipt by the Seller of the Facility Agent’s written demand therefor (and the Facility Agent shall pay such amounts to the applicable Indemnified
Party promptly after the receipt by the Facility Agent of such amounts).
(d) The obligations of the Seller under this
Section 2.5 shall survive the resignation or removal of the Facility Agent, the Lenders, the Collateral Agent or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any
other Transaction Document, any investigation made by or on behalf of the Facility Agent, the Collateral Agent, any Lender, the Purchaser or the Collateral Custodian and the termination of this Agreement.
SECTION 2.6 Assignment of Rights and Indemnities. The Seller acknowledges that, pursuant to the LFSA, the Purchaser shall assign
all of its right, title and interest in, to and under this Agreement, including its rights of indemnity granted hereunder, to the Collateral Agent, for the benefit of the Secured Parties. Upon such assignment, (a) the Collateral Agent, for the
benefit of the Secured Parties, shall have all rights of the Purchaser hereunder and may in turn assign such rights, and (b) the obligations of the Seller under Section 2.5 and Section 2.6
shall inure to the Collateral Agent, for the benefit of the Secured Parties. The Seller agrees that, upon such assignment, the Collateral Agent, for the benefit of the Secured Parties, may enforce directly, without joinder of the Purchaser, the
indemnities set forth in Section 2.5 and Section 2.6.
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ARTICLE III
CONSIDERATION AND PAYMENT; REPORTING
SECTION 3.1 Purchase Price, Substitution Value and Repurchase Price.
(a) The purchase price (the “Purchase Price”) for each Loan Asset Conveyed on each Conveyance Date shall be a dollar amount
equal to the fair market value in accordance with the LFSA (as agreed upon between the Seller and the Purchaser at the time of such Conveyance) of such Loan Asset Conveyed as of such date.
(b) The substitution value (the “Substitution Value”) for each Substitute Loan Asset Conveyed from the Seller to the
Purchaser on each Conveyance Date shall be (i) solely with respect to a Repurchase Event, the Repurchase Amount (including all Related Security related thereto) and (ii) otherwise, a dollar amount equal to the fair market value in
accordance with the LFSA (as agreed upon between the Seller and the Purchaser at the time of such Conveyance) of such Substitute Loan Asset Conveyed as of such date.
(c) The purchase price for each Repurchase (the “Repurchase Price”) shall be (i) solely with respect to a Repurchase
Event, the Repurchase Amount (including all Related Security related thereto) and (ii) otherwise, a dollar amount equal to the fair market value of the Loan Assets being Repurchased (including all Related Security related thereto), as agreed
upon between the Seller and the Purchaser at the time of such Repurchase.
SECTION 3.2 Payment of Purchase Price.
(a) The Purchase Price, along with any fees from origination of the applicable Loan Asset, for the Transferred Assets Conveyed from the Seller
to the Purchaser shall be paid on the related Conveyance Date (a) by payment in cash in immediately available funds and/or (b) to the extent not paid in cash, as a capital contribution by the Seller to the Purchaser (a
“Contribution”).
(b) The Repurchase Price for the Loan Assets Conveyed from the Purchaser to the Seller in a Repurchase shall
be paid on the related Conveyance Date (a) subject to the restrictions on the release of cash by the Purchaser under the LFSA, by payment in cash in immediately available funds and/or (b) to the extent not paid in cash, in the form of a
Substitution by the Seller to the Purchaser of a Substitute Loan Asset with a Substitution Value greater than or equal to the portion of the Repurchase Price not paid in cash. To the extent that the Substitution Value of a Substitute Loan Asset
exceeds the Repurchase Price of the related Loan Assets, the Purchaser shall pay a cash purchase price to the Seller equal to the amount of such excess unless the Seller elects in its sole discretion to designate such excess as a Contribution.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Seller’s Representations and Warranties. The Seller represents and warrants to the Purchaser as of
the Effective Date and as of each Conveyance Date with respect to itself and the Transferred Assets (x) with respect to clause (g), clause (h), clause (j), clause (m), clause (n) and the first sentence of clause (o) below (such
clauses, the “Bringdown Representations”), conveyed hereunder on any Conveyance Date, and (y) otherwise, that are Conveyed on such Conveyance Date (but, for the avoidance of doubt, not with respect to any Transferred Assets
that were Conveyed on a prior Conveyance Date):
(a) Existence, Qualification and Power. The Seller (i) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization, (ii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted,
to enter into the Transaction Documents to which it is a party and to carry out the transactions contemplated thereby, and (iii) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.
(b) Authorization; No Contravention. The execution, delivery and performance by the Seller of this Agreement and the Transaction
Documents to which it is a party (in any capacity), and the consummation of the transactions contemplated by this Agreement do not and will not (a) violate (1) any provision of any law or any governmental rule or regulation applicable to it,
(2) any of its Constituent Documents, or (3) any order, judgment or decree of any court or other agency of government binding on it or its properties (except where the violation could not reasonably be expected to have a Material Adverse
Effect); (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any of its contractual obligations (except where the violation could not reasonably be expected to have a Material Adverse
Effect); (c) result in or require the creation or imposition of any Lien upon any of its properties or assets (other than Permitted Liens and any Liens created under any of the Transaction Documents in favor of the Collateral Agent for the benefit
of the Secured Parties); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any contractual obligation.
(c) Binding Obligations. This Agreement and the Transaction Documents to which it is a party (in any capacity) have been duly executed
and delivered by the Seller and, assuming due authorization, execution and delivery by each other party hereto and thereto, constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except
as such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally, (B) equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in equity or at law and (C) implied covenants of good faith and fair dealing.
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(d) Governmental Authorization; Other Consents. The execution, delivery and
performance by the Seller and the consummation of the transactions contemplated by this Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority,
except for filings and recordings with respect to the Collateral to be made by the Seller as of the Effective Date.
(e) No Adverse
Proceeding; Title. There is no litigation, proceeding or investigation pending or threatened against the Seller, before any Governmental Authority (i) asserting the invalidity of this Agreement or any other Transaction Document to which the
Seller is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Seller is a party or (iii) seeking any determination or ruling that would
reasonably be expected to have a Material Adverse Effect. No injunction, writ, restraining order or other order of any nature materially adversely affects the Seller’s performance of its obligations under this Agreement or any other
Transaction Document to which the Seller is a party. The Seller is not (a) in violation of any applicable laws that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (b) subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) Good and Marketable
Title. The Seller owns and has good and marketable title to the Transferred Assets Conveyed to the Purchaser on the applicable Conveyance Date, which Transferred Assets were originated or acquired without any fraud or misrepresentation by the
Seller or, to the best of the Seller’s knowledge (after reasonable inquiry), on the part of the applicable Obligor, and free and clear of any Lien (other than the Liens in favor of the Purchaser and the Secured Parties pursuant to the
Transaction Documents and inchoate Liens arising by operation of law, Permitted Liens or any Lien that will be released prior to or contemporaneously with the applicable Conveyance) and there are no financing statements naming the Seller as debtor
and covering the Transferred Assets other than any financing statements in favor of the Purchaser and the Collateral Agent for the benefit of the Secured Parties pursuant to the Transaction Documents, Permitted Liens or any Lien that will be
released prior to or contemporaneously with the applicable Conveyance.
(g) Backup Security Interest. In the event that,
notwithstanding the intent of the parties, the Conveyances hereunder shall be characterized as loans and not as sales and/or contributions, then:
(i) this Agreement creates a valid and continuing Lien on the Seller’s right, title and interest in and to the
Transferred Assets in favor of the Purchaser and the Collateral Agent, as assignee, for the benefit of the Secured Parties, which security interest is validly perfected under Article 9 of the UCC (to the extent such security interest may be
perfected by filing a UCC financing statement under such article), and is enforceable as such against creditors of and purchasers from the Seller;
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(ii) the Transferred Assets are comprised of instruments, security
entitlements, general intangibles, accounts, certificated securities, uncertificated securities, securities accounts, deposit accounts, supporting obligations, insurance, investment property and proceeds (each as defined in the UCC) and such other
categories of collateral under the UCC as to which the Seller has complied with its obligations as set forth herein;
(iii)
the Seller has received all consents and approvals required by the terms of any Loan Asset to the Conveyance and granting of a security interest in the Loan Assets hereunder to the Purchaser and the Collateral Agent, as assignee on behalf of the
Secured Parties; the Seller has taken all necessary steps to file or authorize the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security
interest in that portion of the Transferred Assets in which a security interest may be perfected by filing pursuant to Article 9 of the UCC as in effect in Maryland;
(iv) none of the underlying promissory notes that constitute or evidence the Loan Assets has any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any Person other than the Purchaser and the Collateral Agent, as assignee on behalf of the Secured Parties; and
(v) with respect to a Transferred Asset that constitutes a “certificated security,” such certificated security has
been delivered to the Collateral Custodian, or will be delivered to the Collateral Custodian, for the benefit of the Collateral Agent and, if in registered form, has been specially Indorsed to the Collateral Agent or in blank by an effective
Indorsement or has been registered in the name of the Collateral Agent upon original issue or registration of transfer by the Seller of such certificated security, in each case, promptly upon receipt; provided that any file-stamped document, promissory note and certificates relating to any Loan Asset shall be delivered as soon as they are reasonably available; and in the case of an uncertificated security, by (A) causing the
Collateral Agent to become the registered owner of such uncertificated security and (B) causing such registration to remain effective.
(h) Fair Consideration; No Avoidance for Loan Asset Payments. With respect to each Transferred Asset Conveyed hereunder, the Seller
Conveyed such Transferred Asset to the Purchaser in exchange for payment, made in accordance with the provisions of this Agreement, in an amount which constitutes fair consideration and reasonably equivalent value. Each such Conveyance referred to
in the preceding sentence shall not have been made for or on account of an antecedent debt owed by the Seller to the Purchaser and, accordingly, no such Conveyance is or may be voidable or subject to avoidance under the Bankruptcy Code and the rules
and regulations thereunder.
(i) Adequate Capitalization; No Insolvency. As of such date it is, and after giving effect to any
Conveyance it will be, adequately capitalized for its business as proposed to be conducted in the foreseeable future and solvent and it is not entering into this Agreement or any other Transaction Document or consummating any transaction
contemplated hereby or thereby with any intent to hinder, delay or defraud any of its creditors.
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(j) True Sale or True Contribution. Each Transferred Asset Conveyed hereunder shall
have been Conveyed by the Seller to the Purchaser in a “true sale” or a “true contribution.”
(k) True and
Complete Information. No report, financial statement, certificate or other information (other than projections, forward-looking information, general economic data, industry information or information
relating to third parties) furnished in writing by the Seller to the Purchaser in connection with the transactions contemplated hereby or delivered hereunder (in each case, as modified or supplemented by other information so furnished) contains as
of their date any material misstatement of fact or omits to state any material fact necessary to make the statements therein, when taken as a whole in the light of the circumstances under which they were made, not misleading in any material respect,
in each case as of the date so furnished (or, in the case of certificates, notices, reports, financial statements or similar information or records, the stated date thereof); provided that solely with respect to written or electronic
information furnished by the Seller which was provided to the Seller from a third party, such information need only be true and correct in all material respects to the knowledge of the Seller (after reasonable inquiry).
(l) Transferred Assets. The information contained in Schedule A is true, correct and complete in all material respects as of
each such Conveyance Date.
(m) Price of Loan Assets. Other than with respect to Repurchases or Substitutions the Seller is
required to make, the Purchase Price or Substitution Value, as applicable, for each Loan Asset Conveyed hereunder represents the fair market value of such Loan Asset as of the time of Conveyance hereunder, as may have changed from the time the
applicable Loan Asset was originally acquired by the Seller.
(n) Notice to Agents and Obligors. The Seller will direct any agent,
administrative agent or obligor for any Loan Asset included in the Transferred Assets to remit all payments and collections with respect to such Loan Asset directly to the accounts comprising the Collection Account titled “Interest Collection
Account” or “Principal Collection Account” as applicable.
(o) Proceeds. The Seller acknowledges that all
Collections received by it or its Affiliates with respect to the Transferred Assets (other than Excluded Amounts) (the “Proceeds”) Conveyed to the Purchaser are held and shall be held in trust for the benefit of the Purchaser
and its assignees until deposited into the Interest Collection Account or the Principal Collection Account. The Seller shall promptly, but in no event later than two (2) Business Days, remit to the Purchaser or the Purchaser’s designee
any payment or any other sums relating to, or otherwise payable on account of, the Transferred Assets (other than Excluded Amounts) that the Seller receives after the applicable Conveyance Date.
(p) Collateral Loan. As of the applicable Conveyance Date, each Loan Asset was an Eligible Collateral Obligation.
(q) Selection Procedures. In selecting the Loan Assets, no selection procedures were employed which are intended to be adverse to the
interests of the Lenders.
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(r) Restricted Payments. The Seller shall not cause or permit the Purchaser to make
any payments or distributions which would violate Section 10.16 of the LFSA.
(s) Special Purpose Entity. The Seller hereby
acknowledges and agrees that the Purchaser is an entity with assets and liabilities separate and distinct from those of the Seller and any Affiliates thereof, and that the Facility Agent, the Lenders and the other Secured Parties are entering into
the transactions contemplated by the LFSA in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and from each other Affiliate of the Seller. Therefore, from and after the date of execution and delivery of
this Agreement, the Seller shall take all reasonable steps, including all steps that the Purchaser or the Facility Agent may from time to time reasonably request, to maintain the Purchaser’s identity as a legal entity that is separate from the
Seller and from each other Affiliate of the Seller, and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of
the Seller or any such other Affiliate.
(t) No Set-Off. As of each the applicable
Conveyance Date, each Loan Asset has not been compromised, adjusted, extended, satisfied, subordinated, rescinded, set–off or modified by the Seller or by the Obligor thereof other than to the extent provided in the information and underlying
instruments for such Loan Asset provided to the Purchaser and the Facility Agent regarding such Loan Asset, and such Loan Asset is not subject to rescission, set–off, counterclaim, defense, abatement, suspension, deferment, deduction,
reduction, termination or modification other than as provided in the underlying instruments of such Loan Asset or applicable law.
(u)
Allocation of Charges. There is not any agreement or understanding between the Seller and the Purchaser (other than as expressly set forth in the LFSA or as consented to by the Facility Agent), providing for the allocation or sharing of
obligations to make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges.
SECTION 4.2
Reaffirmation of Representations and Warranties by the Seller; Notice of Breach. On each Conveyance Date, the Seller, by accepting the proceeds of the related Conveyance, shall be deemed to have certified that all
representations and warranties described in Section 4.1 are true and correct in all material respects (or, if already qualified by the words “material”, “materially” or “Material Adverse Effect”, then
such representation and warranty shall be true and correct in all respects) with respect to itself and the Transferred Assets (x) with respect to the Bringdown Representations, that are Conveyed on each Conveyance Date and (y) otherwise,
that are Conveyed on such Conveyance Date (but, for the avoidance of doubt with respect to this clause (y), not with respect to any Transferred Assets that were Conveyed on a prior Conveyance Date) on and as of such day as though made on and as of
such day (or if specifically referring to an earlier date, as of such earlier date). The representations and warranties set forth in Section 4.1 shall survive (i) the Conveyance of the Transferred Assets to the Purchaser,
(ii) the termination of the rights and obligations of the Purchaser and the Seller under this Agreement and (iii) the termination of the rights and obligations of the Purchaser under the LFSA. Upon discovery by a Responsible Officer of the
Purchaser or the Seller of a breach of any of the foregoing representations and warranties in any material respect, the party discovering such breach shall give prompt written notice to the other and to the Facility Agent.
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ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1 Covenants of the Seller. The Seller hereby covenants and agrees with the Purchaser that, from the date hereof, and
until all amounts owed by the Seller pursuant to this Agreement have been paid in full (other than as expressly survive the termination of this Agreement), unless the Purchaser otherwise consents in writing:
(a) Deposit of Collections. The Seller shall transfer, or cause to be transferred, all Collections (if any) it receives in respect of
the Loan Assets (other than Excluded Amounts) to the Interest Collection Account or the Principal Collection Account by the close of business on the second Business Day following the date such Collections are received by the Seller.
(b) Books and Records. The Seller shall maintain proper books of record and account of the transactions contemplated hereby, in which
full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions contemplated hereunder.
(c) Accounting of Purchases. Other than for consolidated accounting purposes, the Seller will not account for or treat the transactions
contemplated hereby in any manner other than as a sale or contribution of the Transferred Assets by the Seller to the Purchaser; provided that solely for federal income tax reporting purposes, the Purchaser is treated as a “disregarded
entity” and, therefore, the Conveyance of Transferred Assets by the Seller to the Purchaser hereunder will not be recognized.
(d)
Liens. The Seller shall not create, incur, assume or permit to exist any Lien on or with respect to any of its rights under any of the Transaction Documents or on or with respect to any of its rights in the Transferred Assets (other than the
Liens in favor of the Purchaser and the Collateral Agent for the benefit of the Secured Parties pursuant to the Transaction Documents, Permitted Liens and any Lien that will be released prior to or contemporaneously with the applicable Conveyance).
For the avoidance of doubt, this Section 5.1(d) shall not apply to any property retained by the Seller and not Conveyed or purported to be Conveyed hereunder.
(e) Change of Name, Etc. The Seller shall not change its name, or name under which it does business, in any manner that would make any
financing statement or continuation statement filed by the Seller or Purchaser pursuant hereto (or by the Facility Agent on behalf of the Seller or Purchaser) seriously misleading or change its jurisdiction of organization, unless the Seller shall
have given the Purchaser at least 30 days prior written notice thereof, and shall promptly file appropriate amendments to all previously filed financing statements and continuation statements and, in the case of a change in jurisdiction, new
financing statements.
(f) Sale Characterization. The Seller shall not make statements or disclosures, or treat the transactions
contemplated by this Agreement (other than for consolidated tax or accounting purposes) in any manner other than as a true sale, contribution or absolute assignment of the title to and sole record and beneficial ownership interest of the Transferred
Assets Conveyed or purported to be Conveyed hereunder; provided that for federal income tax reporting purposes,
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if the Purchaser is treated as a “disregarded entity” the transfer of Transferred Assets by the Seller to the Purchaser hereunder will not be recognized; provided, further that the
Seller may consolidate the Purchaser and/or its properties and other assets for accounting purposes in accordance with GAAP if any consolidated financial statements of the Seller contain footnotes that the Transferred Assets have been sold or
contributed to the Purchaser.
(g) Expenses. The Seller shall pay its operating expenses and liabilities from its own assets.
(h) Commingling. The Seller shall not, and shall not permit any of its Affiliates to, deposit or permit the deposit of any funds that
do not constitute Collections of any Loan Asset into the Interest Collection Account or the Principal Collection Account.
(i) Separate
Identity. The Seller acknowledges that the Facility Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the LFSA in reliance upon the Purchaser’s identity as a legal entity
that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps to maintain the Purchaser’s identity as a
legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate
thereof and not just a division of the Seller or any such other Affiliate. The Seller shall not take any action that would cause a violation of Section 10.5 of the LFSA by the Purchaser.
(j) Delivery of Documents. With respect to each Loan Asset Conveyed to the Purchaser hereunder, the Seller shall deliver to or at the
direction of the Purchaser all documents that the Purchaser, as borrower, is required to deliver with respect to such Loan Asset pursuant to Section 6.2(d) of the LFSA, as applicable, no later than the Purchaser is obligated to deliver such
documents thereunder.
(k) Compliance with Agreements and Applicable Laws. The Seller shall perform each of its obligations under
this Agreement and the other Transaction Documents and comply with all Applicable Laws, including those applicable to the Loan Assets and all proceeds thereof, except to the extent that the failure to so comply would not reasonably be expected to
have a Material Adverse Effect.
(l) Maintenance of Existence and Conduct of Business. The Seller shall do or cause to be done all
things necessary to (A) preserve and keep in full force and effect its existence as a corporation and its rights and franchises in the jurisdiction of its formation and (B) qualify and remain qualified as a foreign corporation in good
standing and preserve its rights and franchises in each jurisdiction in which the failure to so qualify and remain qualified and preserve its rights and franchises would reasonably be expected to have a Material Adverse Effect.
(m) Compliance with Sanctions. The Seller shall not directly or knowingly indirectly use the proceeds of the Advances, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture, partner or other Person or entity, to fund or facilitate (i) any activities of or business with any Sanctions Target, (ii) any activities of or business
in any Sanctioned Country or (iii) in any other manner that, in each case, would result in a violation by any Person that is a party to this agreement of Sanctions.
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(n) Compliance with Anti-Money Laundering. The Seller is in compliance with, in all
material respects, all applicable Anti-Money Laundering Laws. Each of this clause (n) and the forgoing clause (m) applies only to the extent that compliance does not result in a violation of applicable blocking or anti-boycott laws
(including, without limitation, the Council Regulation (EC) No 2271/96 and/or section 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 of the German Foreign Trade
and Payments Act (Außenwirtschaftsgesetz))).
(o) Proceedings. The Seller shall furnish to the Facility Agent, as soon as
possible and in any event within three (3) Business Days after the Seller receives notice or obtains actual knowledge thereof (after reasonable inquiry), notice of any settlement of, material judgment (including a material judgment with respect
to the liability phase of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting the Collateral, the Transaction Documents, the Collateral Agent’s interest in the Collateral or the Seller, in each case, which could reasonably be expected to cause a material adverse
effect.
(p) Information. The Seller (i) will not furnish any such information to the Purchaser in connection with this
Agreement or any transaction contemplated hereby that it knows (after reasonable inquiry) to be incorrect at the time such information is furnished in any material respect and (ii) will inform the Purchaser and the Facility Agent of any such
information which it found after such information was furnished to be incorrect in any material respect when furnished.
SECTION 5.2
Covenant of the Purchaser. The Purchaser hereby covenants and agrees with the Seller that, from the date hereof until the termination of this Agreement, unless the Seller otherwise consents in writing, the Purchaser shall comply with
Section 9(j) of the Purchaser’s Amended and Restated Limited Liability Company Agreement dated as of May 21, 2026.
ARTICLE VI
CONDITIONS
PRECEDENT
SECTION 6.1 Conditions Precedent. The obligations of the Purchaser to pay the Purchase Price for the
Transferred Assets Conveyed on the Effective Date and any other Conveyance Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller contained in this Agreement shall be (I) to the extent already qualified with respect
to “material” matters or “Material Adverse Effect,” shall be true and correct on and as of such date and (II) to the extent not already qualified with respect to “material” matters or “Material Adverse
Effect”, shall be true and correct in all material respects on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (in all
material respects or as so qualified, as applicable) as of such earlier date;
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(b) The Seller shall have performed in all material respects all other obligations required
to be performed by it pursuant to the provisions of this Agreement, the underlying instruments and the other Transaction Documents to which it is a party as of such date;
(c) The Seller shall have either filed, caused to be filed or confirmed the filing of the financing statement(s) required to be filed pursuant
to Section 2.1(d); and
(d) All organizational and legal proceedings, and all instruments in connection with the transactions
contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Purchaser, and the Purchaser shall have received from the Seller copies of all documents (including records of corporate
proceedings) relevant to the transactions herein contemplated as the Purchaser may reasonably have requested.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Amendments, Etc. This Agreement and the rights and obligations of the parties hereunder may not be amended,
supplemented, waived or otherwise modified except in an instrument in writing signed by the Purchaser and the Seller and consented to in writing by the Facility Agent. Any reconveyance executed in accordance with the provisions hereof shall not be
considered an amendment or modification to this Agreement.
SECTION 7.2 Governing Law: Submission to Jurisdiction; Waiver of Jury
Trial.
(a) THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (AND ANY
DISPUTE, SUIT, ACTION OR PROCEEDING, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT
LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(b) Each party hereto hereby irrevocably submits to the exclusive jurisdiction of any New York State or Federal court sitting in New York
County in any action or proceeding, whether in contract, tort or otherwise and whether at law or in equity, arising out of or relating to the Transaction Documents, and each party hereto hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. The parties hereto hereby irrevocably
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waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding, whether in contract, tort or otherwise and whether
at law or in equity. The parties hereto agree that a final judgment in any such action or proceeding, whether in contract, tort or otherwise and whether at law or in equity, shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION, WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE SELLER, THE PURCHASER OR ANY OTHER AFFECTED PERSON. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ITS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER TRANSACTION DOCUMENT.
SECTION 7.3 Notices. All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including electronic communication) and shall be personally delivered or sent by certified or registered mail, return receipt requested, by overnight delivery service, with all charges paid, by
electronic mail (“e-mail”) or by hand delivery, to the intended party at the address of such party set forth below:
(a) in the case of the Purchaser, as provided under the LFSA;
(b) in the case of the Seller as provided under the LFSA.
(in each case, with a copy to the Facility Agent at the address for notice provided under the LFSA).
All such notices and correspondence shall be deemed given (a) if sent by certified or registered mail, three (3) Business Days after being
postmarked, (b) if sent by overnight delivery service or by hand delivery, when received at the above stated addresses or when delivery is refused and (c) if sent by e-mail, when received.
SECTION 7.4 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
-19-
SECTION 7.5 Further Assurances.
(a) The Purchaser and the Seller each agree that at any time and from time to time, at its expense and upon reasonable request of the Facility
Agent or the Collateral Agent, it shall promptly execute and deliver all further instruments and documents, and take all reasonable further action, that is necessary or desirable to perfect and protect the Conveyances and security interests granted
or purported to be granted by this Agreement or to enable the Collateral Agent or any of the Secured Parties to exercise and enforce its rights and remedies under this Agreement with respect to any Transferred Assets, including the execution of any
financing statements or continuation statements or equivalent documents relating to the Transferred Assets for filing under the provisions of the UCC or other laws of any applicable jurisdiction.
(b) The Purchaser and the Seller hereby severally authorize the Collateral Agent, upon receipt of written direction from the Facility Agent,
to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Transferred Assets.
(c) The Seller shall furnish to the Collateral Agent and the Facility Agent from time to time such statements and schedules further
identifying and describing the Related Security and such other reports in connection with the Transferred Assets as the Collateral Agent (acting solely at the Facility Agent’s request) or the Facility Agent may reasonably request, all in
reasonable detail.
SECTION 7.6 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part
of the Purchaser, the Seller or the Facility Agent, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 7.7 Counterparts. This Agreement may be executed in two or more counterparts including electronic transmission
thereof (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile or e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 7.8 Non-Petition. The Seller covenants and agrees that, prior to the date
that is one year (or, if longer, any applicable preference period) and one day after the payment in full of all Obligations (other than contingent reimbursement and indemnification obligations which are unknown, unmatured and for which no claim has
been made), no party hereto shall institute against, or join any other Person in instituting against, the Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceedings under any federal,
state or foreign bankruptcy or similar law. This Section 7.8 shall survive termination of the Agreement.
-20-
SECTION 7.9 Transfer of Seller’s Interest. With respect to
each transfer of a Transferred Asset on any Conveyance Date, (i) the Purchaser shall, as to each Transferred Asset, be a party to the relevant underlying instruments and have the rights and obligations of a lender thereunder, and (ii) the
Seller shall, to the extent provided in this Agreement, and the applicable underlying instruments, relinquish its rights and be released from its obligations, as to each Transferred Asset. The obligors or agents on the Transferred Asset were or will
be notified of the transfer of the Transferred Asset to the Purchaser to the extent required under the applicable underlying instruments. The Collateral Custodian will have possession of the related underlying instrument (including the underlying
promissory notes, if any).
SECTION 7.10 Binding Effect; Third-Party Beneficiaries
and Assignability. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. The Collateral Agent, for the benefit of the Secured Parties, and the Facility Agent are
each intended by the parties hereto to be an express third-party beneficiary of this Agreement. Notwithstanding anything to the contrary contained herein, this Agreement may not be assigned by the Purchaser or
the Seller without the prior written consent of the Facility Agent.
SECTION 7.11 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this
Agreement and the other Transaction Documents.
SECTION 7.12 Headings. The headings herein are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision hereof.
SECTION 7.13 Electronic Signatures. The
words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-21-
IN WITNESS WHEREOF, the Purchaser and the Seller each have caused this Sale and Contribution
Agreement to be duly executed by their respective officers as of the day and year first above written.
BLUE OWL TECHNOLOGY FINANCE CORP., as Seller
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: Chief Financial Officer and Chief Operating Officer
ATHENA FUNDING III LLC, as Purchaser
By:
/s/ Jonathan Lamm
Name: Jonathan Lamm
Title: President
[Signature Page to Sale
and Contribution Agreement]
Schedule A
SCHEDULE OF LOAN ASSETS
None.
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