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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________________________________________
FORM 10-Q
_______________________________________________________________________
(Mark One)
☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2019
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                      to                      
Commission File Number 814-01299
_______________________________________________________________________
Blackstone / GSO Secured Lending Fund
(Exact name of Registrant as specified in its Charter)
_______________________________________________________________________
Delaware   82-7020632
(State or other jurisdiction of
incorporation or organization) 		  (I.R.S. Employer
Identification No.)
     
345 Park Avenue, 31st Floor
New York, New York 		  10154
(Address of principal executive offices)   (Zip Code)
Registrant’s telephone number, including area code: (212) 503-2100
_______________________________________________________________________

Securities registered pursuant to Section 12(b) of the Act:
Title of each class   Trading
Symbol(s) 		  Name of each exchange
on which registered
None               None               None            
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    YES  ☒   NO  ☐
Indicate by check mark whether the Registrant has submitted electronically  every Interactive Data File required to be submitted  pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit  such files).    YES  ☐   NO  ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large accelerated filer ☐   Accelerated filer ☐
Non-accelerated filer ☒   Smaller reporting company ☐
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. ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act).   YES  ☐   NO  ☒
The number of shares of Registrant’s Common Stock, $0.001 par value per share, outstanding as of November 12, 2019 was 53,735,678.


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Table of Contents
    Page
PART I FINANCIAL INFORMATION
Item 1.
2
3
4
5
6
12
Item 2.
33
Item 3.
41
Item 4.
43
PART II OTHER INFORMATION  
Item 1.
43
Item 1A.
43
Item 2.
43
Item 3.
43
Item 4.
43
Item 5.
43
Item 6.
44

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements that involve substantial risks and uncertainties. Such statements involve known and unknown risks, uncertainties and other factors and undue reliance should not be placed thereon. These forward-looking statements are not historical facts, but rather are based on current expectations, estimates and projections about Blackstone / GSO Secured Lending Fund (together, with its consolidated subsidiaries, the “Company,” “we” or “our”), our current and prospective portfolio investments, our industry, our beliefs and opinions, and our assumptions. Words such as “anticipates,” “expects,” “intends,” “plans,” “will,” “may,” “continue,” “believes,” “seeks,” “estimates,” “would,” “could,” “should,” “targets,” “projects,” “outlook,” “potential,” “predicts” and variations of these words and similar expressions are intended to identify forward-looking statements. These statements are not guarantees of future performance and are subject to risks, uncertainties and other factors, some of which are beyond our control and difficult to predict and could cause actual results to differ materially from those expressed or forecasted in the forward-looking statements, including without limitation:
•our future operating results;
•our business prospects and the prospects of the companies in which we may invest;
•the impact of the investments that we expect to make;
•our ability to raise sufficient capital to execute our investment strategy;
•the ability of our portfolio companies to achieve their objectives;
•our current and expected financing arrangements and investments;
•changes in the general interest rate environment;
•the adequacy of our cash resources, financing sources and working capital;
•the timing and amount of cash flows, distributions and dividends, if any, from our portfolio companies;
•our contractual arrangements and relationships with third parties;
•actual and potential conflicts of interest with GSO Asset Management LLC (the “Adviser”) or any of its affiliates;
•the dependence of our future success on the general economy and its effect on the industries in which we may invest;
•our use of financial leverage;
•the ability of the Adviser to source suitable investments for us and to monitor and administer our investments;
•the ability of the Adviser or its affiliates to attract and retain highly talented professionals;
•our ability to qualify for and maintain our qualification as a regulated investment company and as a business development company (“BDC”);
•the impact on our business of U.S. and international financial reform legislation, rules and regulations;
•the effect of changes to tax legislation and our tax position; and
•the tax status of the enterprises in which we may invest.
Although we believe that the assumptions on which these forward-looking statements are based are reasonable, any of those assumptions could prove to be inaccurate, and as a result, the forward-looking statements based on those assumptions also could be inaccurate. In light of these and other uncertainties, the inclusion of any projection or forward-looking statement in this report should not be regarded as a representation by us that our plans and objectives will be achieved. These risks and uncertainties include those described or identified in the section entitled “Risk Factors” in Part I, Item 1A of our annual report on Form 10-K for the year ended December 31, 2018 and Part II, Item 1A of this Form 10-Q. These projections and forward-looking statements apply only as of the date of this report. Moreover, we assume no duty and do not undertake to update the forward-looking statements, except as required by applicable law. Because we are an investment company, the forward-looking statements and projections contained in this report are excluded from the safe harbor protection provided by Section 21E of the U.S. Securities Exchange Act of 1934 Act, as amended (the “1934 Act”).

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PART I - FINANCIAL INFORMATION

Item 1. Financial Statements.

Blackstone / GSO Secured Lending Fund
Consolidated Statements of Assets and Liabilities
(in thousands, except share and per share amounts)
  September 30, 2019 December 31, 2018
ASSETS (Unaudited)
Investments at fair value  
Non-controlled/non-affiliated investments (cost of $2,019,904 and $548,753 at September 30, 2019 and December 31, 2018, respectively) $ 2,028,453    $ 545,325   
Cash and cash equivalents 135,486    6,228   
Interest receivable from non-controlled/non-affiliated investments 12,704    2,212   
Deferred financing costs 4,120    2,270   
Deferred offering costs 558    591   
Receivable for investments 672    17,746   
Subscription Receivable (Note 8) 9,190    —   
Other assets 191    371   
Total assets $ 2,191,374    $ 574,743   
LIABILITIES
Debt $ 777,369    $ 185,000   
Payable for investments purchased —    149,513   
Due to affiliates 2,149    1,761   
Management fees payable 3,599    309   
Income based incentive fee payable 3,718    —   
Capital gains incentive fee payable 1,819    —   
Forward purchase liability at fair value (cost: $0 at September 30, 2019 and December 31, 2018) (Note 7) —    222   
Interest payable 2,980    918   
Distribution payable (Note 8) 19,692    —   
Accrued expenses and other liabilities 1,386    655   
Total liabilities 812,712    338,378   
Commitments and contingencies (Note 7)
NET ASSETS
Common shares, $0.001 par value (unlimited shares authorized; 53,735,678 and 9,621,319 shares issued and outstanding at September 30, 2019 and December 31, 2018, respectively) 54    10   
Additional paid in capital 1,364,138    239,247   
Distributable earnings (loss) 14,470    (2,892)  
Total net assets 1,378,662    236,365   
Total liabilities and net assets $ 2,191,374    $ 574,743   
NET ASSET VALUE PER SHARE $ 25.66    $ 24.57   
The accompanying notes are an integral part of these consolidated financial statements.

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Blackstone / GSO Secured Lending Fund
Consolidated Statements of Operations
(in thousands, except share and per share amounts)
(Unaudited)
Three Months Ended
September 30, 2019 		Nine Months Ended September 30, 2019
Investment income:  
From non-controlled/non-affiliated investments:  
Interest income $ 38,507    $ 82,802   
Fee income 83    666   
Total investment income 38,590    83,468   
Expenses:
Interest expense 8,606    21,061   
Management fees 3,599    7,590   
Income based incentive fee 3,718    7,473   
Capital gains incentive fee (243)   1,819   
Professional fees 417    964   
Board of Trustees' fees 105    329   
Administrative service expenses (Note 3) 213    1,045   
Other general and administrative 540    1,919   
Amortization of offering costs 325    742   
Total expenses 17,280    42,942   
Expense support (Note 3) —    (570)  
Recoupment of expense support (Note 3) 200    400   
Net expenses 17,480    42,772   
Net investment income 21,110    40,696   
Realized and unrealized gain (loss):
Net change in unrealized appreciation (depreciation):
Non-controlled/non-affiliated investments (1,881)   12,821   
Forward purchase obligation  (Note 7) 154    222   
Translation of assets and liabilities in foreign currencies (14)   (81)  
Net unrealized appreciation (depreciation) (1,741)   12,962   
Realized gain (loss):
Non-controlled/non-affiliated investments 113    3,325   
Foreign currency transactions 5    71   
Net realized gain (loss) 118    3,396   
Net realized and unrealized gain (loss) (1,623)   16,358   
Net increase (decrease) in net assets resulting from operations $ 19,487    $ 57,054   
Net investment income per share (basic and diluted) $ 0.54    $ 1.53   
Earnings (loss) per share (basic and diluted) $ 0.49    $ 2.15   
Weighted average shares outstanding (basic and diluted) 39,380,756    26,532,236   
Distributions declared per share $ 0.50    $ 1.50   
The accompanying notes are an integral part of these consolidated financial statements.
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Blackstone / GSO Secured Lending Fund
Consolidated Statements of Changes in Net Assets
(in thousands)
(Unaudited)
Par Amount Additional Paid in Capital Distributable Earnings (Loss) Total Net Assets
Balance, June 30, 2019 $ 38    $ 948,995    $ 14,675    $ 963,708   
Issuance of common shares 16    413,395    —    413,411   
Reinvestment of dividends —    1,748    —    1,748   
Net investment income —    —    21,110    21,110   
Net realized gain (loss) on investments —    —    118    118   
Net change in unrealized appreciation (depreciation) on investments —    —    (1,741)   (1,741)  
Dividends declared from net investment income —    —    (19,692)   (19,692)  
Balance, September 30, 2019 $ 54    $ 1,364,138    $ 14,470    $ 1,378,662   

Par Amount Additional Paid in Capital Distributable Earnings (Loss) Total Net Assets
Balance, December 31, 2018 $ 10    $ 239,247    $ (2,892)   $ 236,365   
Issuance of common shares 44    1,122,624    —    1,122,668   
Reinvestment of dividends —    2,267    —    2,267   
Net investment income —    —    40,696    40,696   
Net realized gain (loss) on investments —    —    3,396    3,396   
Net change in unrealized appreciation (depreciation) on investments —    —    12,962    12,962   
Dividends declared from net investment income —    —    (39,692)   (39,692)  
Balance, September 30, 2019 $ 54    $ 1,364,138    $ 14,470    $ 1,378,662   

The accompanying notes are an integral part of these consolidated financial statements.
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Blackstone / GSO Secured Lending Fund
Consolidated Statement of Cash Flows
(in thousands)
(Unaudited)
  Nine Months Ended September 30, 2019
Cash flows from operating activities:
Net increase (decrease) in net assets resulting from operations $ 57,054   
Adjustments to reconcile net increase (decrease) in net assets resulting from operations to net cash provided by (used in) operating activities:
Net unrealized (appreciation) depreciation on investments (12,821)  
Net unrealized (appreciation) depreciation on forward purchase obligation (222)  
Net unrealized (appreciation) depreciation on translation of assets and liabilities in foreign currencies 81   
Net realized (gain) loss on investments (3,325)  
Net accretion of discount and amortization of premium (4,171)  
Amortization of deferred financing costs 1,104   
Amortization of offering costs 742   
Purchases of investments (1,831,368)  
Proceeds from sale of investments and principal repayments 367,713   
Changes in operating assets and liabilities:
Interest receivable (10,492)  
Receivable for investments 17,074   
Other assets 180   
Payable for investments purchased (149,513)  
Due to affiliates 67   
Management fee payable 3,290   
Income based incentive fee payable 3,718   
Capital gains incentive fee payable 1,819   
Interest payable 2,062   
Accrued expenses and other liabilities (54)  
Net cash provided by (used in) operating activities (1,557,062)  
Cash flows from financing activities:
Borrowings on credit facilities 1,242,902   
Repayments on credit facilities (649,754)  
Deferred financing costs paid (2,170)  
Deferred offering costs paid (387)  
Dividends paid in cash (17,733)  
Proceeds from issuance of common shares 1,113,478   
Net cash provided by (used in) financing activities 1,686,336   
Net increase (decrease) in cash and cash equivalents 129,274   
Effect of foreign exchange rate changes on cash and cash equivalents (16)  
Cash and cash equivalents, beginning of period 6,228   
Cash and cash equivalents, end of period $ 135,486   
Supplemental information and non-cash activities:
Interest paid during the period $ 17,712   
Distribution payable $ 19,692   
Subscription receivable $ 9,190   
Reinvestment of distributions during the period $ 2,267   
Accrued but unpaid deferred financing and debt issuance costs $ 784   
Accrued but unpaid offering costs $ 322   
The accompanying notes are an integral part of these consolidated financial statements.

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Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments
September 30, 2019
(in thousands)
(Unaudited)
Investments—non-controlled/non-affiliated (1)(5) Reference Rate
and Spread 		Interest Rate (2) Maturity
Date 		Par
Amount/Units 		Cost (3) Fair
Value 		Percentage
of Net Assets
First Lien Debt
Air Freight and Logistics
Livingston International Inc. (6) L + 5.75% 7.85%    4/30/2026 $ 116,708    $ 113,407    $ 114,957    8.34  %
R1 Holdings, LLC (4)(7) L + 6.25% 8.35%    1/2/2026 44,845    44,130    44,621    3.24   
157,537    159,578    11.58   
Building Products
Jacuzzi Brands LLC (4)(7) L + 6.50% 8.55%    2/25/2025 91,871    90,285    90,952    6.60   
Latham Pool Products, Inc. L + 6.00% 8.06%    6/13/2025 53,914    52,074    52,566    3.81   
Lindstrom, LLC (4) L + 6.25% 8.45%    4/7/2025 130,879    128,581    130,225    9.45   
The Wolf Organization, LLC (4) L + 6.50% 8.63%    9/3/2026 75,000    73,516    73,500    5.33   
344,456    347,243    25.19   
Chemicals
Alchemy US Holdco 1, LLC (4) L + 5.50% 7.54%    10/10/2025 3,925    3,916    3,886    0.28   
Ascend Performance Materials Operations, LLC L + 5.25% 7.35%    8/27/2026 20,000    19,406    20,100    1.46   
Polymer Additives, Inc. (4) L + 6.00% 8.12%    7/31/2025 29,828    28,470    26,099    1.89   
VDM Buyer, Inc. (4) L + 6.75% 9.03%    4/22/2025 € 24,328    26,873    25,992    1.89   
VDM Buyer, Inc. (4)(7) L + 6.75% 9.03%    4/22/2025 63,890    62,707    62,612    4.54   
141,372    138,689    10.06   
Commercial Services & Supplies
Research Now Group, LLC L + 5.50% 7.75%    12/20/2024 34,735    34,270    34,903    2.53   
Construction & Engineering
IEA Energy Services LLC (4) L + 8.25% 10.35%    9/25/2024 15,504    14,962    15,039    1.09   
Therma LLC (4) L + 6.50% 8.61%    3/29/2025 128,421    126,004    126,675    9.19   
140,966    141,714    10.28   
Distributors
Tailwind Colony Holding Corporation (4)(7) L + 7.50% 9.60%    11/13/2024 31,680    31,292    31,363    2.27   
EIS Buyer, LLC (4)(5)(7) L + 6.25% 8.29%    9/30/2025 134,400    131,712    131,712    9.55   
EIS Buyer, LLC (4)(5) L + 6.25% 8.29%    9/30/2020 19,600    19,208    19,208    1.39   
Fastlane Parent Company, Inc. L + 4.50% 6.60%    2/4/2026 34,825    34,191    34,285    2.49   
PSS Industrial Group Corp. (4) L + 6.00% 8.20%    4/10/2025 59,145    55,059    58,627    4.25   
Unified Door and Hardware Group, LLC (4)(7) L + 6.25% 8.35%    6/30/2025 39,146    38,397    38,852    2.82   
309,859    314,047    22.77   
Diversified Consumer Services
American Residential Services, LLC (4) L + 4.00% 6.04%    6/30/2022 479    477    469    0.03   
Electronic Equipment, Instruments & Components .
Convergeone Holdings, Inc. L + 5.00% 7.04%    1/4/2026 14,803    14,258    13,382    0.97   
Energy Equipment & Services
Tetra Technologies, Inc. (4)(6) L + 6.25% 8.29%    9/10/2025 24,055    23,895    23,393    1.70   
Health Care Equipment & Supplies
Lifescan Global Corporation L + 6.00% 8.66%    10/1/2024 27,122    26,135    24,646    1.79   
Surgical Specialties Corp (US) Inc. (6) L + 5.00% 7.04%    5/7/2025 33,416    32,162    33,249    2.41   
58,297    57,895    4.20   
Health Care Providers & Services
Epoch Acquisition, Inc. (4)(7) L + 6.75% 8.79%    10/4/2024 25,130    24,839    25,130    1.82   
The GI Alliance Management, LLC (4)(7) L + 6.25% 8.31%    11/2/2024 60,155    59,323    59,523    4.32   
Odyssey Holding Company, LLC (4) L + 5.75% 7.78%    11/16/2025 13,628    13,477    13,492    0.98   
97,639    98,145    7.12   
Health Care Technology
Precyse Acquisition Corporation L + 4.50% 6.54%    10/20/2022 2,969    2,946    2,712    0.20   
Hotels, Restaurants & Leisure
Hotel Acquisition Company, LLC (4) L + 6.00% 8.04%    12/9/2024 122,078    120,751    123,298    8.94   
United PF Holdings, LLC (7) L + 4.50% 6.54%    6/10/2026 9,222    9,136    9,216    0.67   
129,887    132,514    9.61   
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Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments
September 30, 2019
(in thousands)
(Unaudited)
Investments—non-controlled/non-affiliated (1)(5) Reference Rate
and Spread 		Interest Rate (2) Maturity
Date 		Par
Amount/Units 		Cost (3) Fair
Value 		Percentage
of Net Assets
First Lien Debt (continued)
Industrial Conglomerates
Tailwind Smith Cooper Intermediate Corporation (4) L + 5.00% 7.05%    5/28/2026 35,000    34,166    32,900    2.39   
Interactive Media & Services
Bungie, Inc. (4) L + 6.25% 8.29%    8/28/2024 47,200    46,505    46,492    3.37   
IT Services
Tierpoint, LLC L + 3.75% 5.79%    5/6/2024 7,415    7,049    6,919    0.50   
Travelport Worldwide Ltd. (6) L + 5.00% 7.10%    5/29/2026 55,000    53,950    49,952    3.62   
60,999    56,871    4.12   
Machinery
Apex Tool Group, LLC L + 5.50% 7.54%    8/1/2024 38,557    37,940    37,576    2.73   
Media
DiscoverOrg, LLC L + 4.50% 6.54%    2/2/2026 21,540    21,344    21,506    1.56   
Radiate Holdco LLC (5) L + 3.50% 5.54%    2/1/2024 4,988    4,917    4,996    0.36   
26,261    26,502    1.92   
Professional Services
APFS Staffing Holdings, Inc. (4) L + 5.00% 7.06%    4/15/2026 22,670    22,246    22,585    1.64   
Minotaur Acquisition, Inc. L + 5.00% 7.04%    3/27/2026 17,641    17,313    17,178    1.25   
GI Revelation Acquisition LLC L + 5.00% 7.04%    4/16/2025 9,194    9,076    8,841    0.64   
48,635    48,604    3.53   
Software
LD Intermediate Holdings, Inc. L + 5.88% 8.19%    12/9/2022 6,472    6,282    6,434    0.47   
PaySimple, Inc. (4)(5)(7) L + 5.50% 7.55%    8/23/2025 24,268    23,788    23,786    1.73   
30,070    30,220    2.19   
Specialty Retail
CustomInk, LLC (4) L + 6.00% 8.21%    5/3/2026 133,125    130,672    132,460    9.61   
Spencer Spirit Holdings, Inc. L + 6.00% 8.06%    6/19/2026 50,000    47,112    49,292    3.58   
177,784    181,752    13.19   
Technology Hardware, Storage & Peripherals
Electronics For Imaging, Inc.(4) L + 5.00% 7.10%    7/23/2026 35,000    32,614    32,725    2.37   
Trading Companies & Distributors
The Cook & Boardman Group, LLC (4) L + 5.75% 8.37%    10/17/2025 6,823    6,766    6,789    0.49   
Transportation Infrastructure
Spireon, Inc. (4)(7) L + 6.50% 8.67%    10/4/2024 22,703    22,458    22,703    1.65   
Total First Lien Debt $ 1,980,057    $ 1,987,819    144.18  %
Second Lien Debt
Commercial Services & Supplies
TKC Holdings, Inc. L + 8.00% 10.05%    2/1/2024 $ 1,000    $ 997    $ 982    0.07  %
Hotels, Restaurants & Leisure
United PF Holdings, LLC L + 8.50% 10.54%    6/10/2027 14,189    13,503    14,225    1.03   
IT Services
WEB.COM Group, Inc. L + 7.75% 9.78%    10/9/2026 1,464    1,454    1,429    0.10   
Media
DiscoverOrg, LLC L + 8.50% 10.60%    2/1/2027 11,250    11,095    11,213    0.81   
Software
Imperva, Inc. L + 7.75% 9.93%    1/11/2027 1,421    1,426    1,386    0.10   
Rocket Software, Inc. L + 8.25% 10.29%    11/27/2026 3,500    3,372    3,296    0.24   
4,798    4,682    0.34   
Total Second Lien Debt $ 31,847    $ 32,531    2.36  %
Equity Investments
CustomInk, LLC - Series A Preferred Units (4) 384,520    $ 5,200    $ 5,303    0.38  %
EIS Acquisition Holdings, LP - Class A Units (4) 11,200    2,800    2,800    0.20   
Total Equity Investments $ 8,000    $ 8,103    0.58  %
Total Investment Portfolio $ 2,019,904    $ 2,028,453    147.13  %
Cash and Cash Equivalents
State Street Institutional U.S. Government Money Market Fund $ 84,167    $ 84,167    6.10  %
Other Cash and Cash Equivalents 51,319    51,319    3.72   
Total Cash and Cash Equivalents $ 135,486    $ 135,486    9.82  %
Total Portfolio Investments, Cash and Cash Equivalents $ 2,155,390    $ 2,163,939    156.95  %

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Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments
September 30, 2019
(in thousands)
(Unaudited)

(1)Unless otherwise indicated, issuers of debt and equity investments held by the Company (which such term “Company” shall include the Company’s consolidated subsidiaries for purposes of this Consolidated Schedule of Investments) are denominated in dollars. All debt investments are income producing unless otherwise indicated. All equity investments are non-income producing unless otherwise noted. Certain portfolio company investments are subject to contractual restrictions on sales. Under the Investment Company Act of 1940, as amended (together with the rules and regulations promulgated thereunder, the “1940 Act”), the Company would be deemed to “control” a portfolio company if the Company owned more than 25% of its outstanding voting securities and/or held the power to exercise control over the management or policies of the portfolio company. As of September 30, 2019, the Company does not “control” any of these portfolio companies. Under the 1940 Act, the Company would be deemed an “affiliated person” of a portfolio company if the Company owns 5% or more of the portfolio company’s outstanding voting securities. As of September 30, 2019, the Company is not an “affiliated person” of any of its portfolio companies.
(2)Variable rate loans to the portfolio companies bear interest at a rate that is determined by reference to either LIBOR (“L”) or an alternate base rate (commonly based on the Federal Funds Rate (“F”) or the U.S. Prime Rate (“P”)), which generally resets periodically. For each loan, the Company has indicated the reference rate used and provided the spread and the interest rate in effect as of September 30, 2019. As of September 30, 2019, the reference rates for our variable rate loans were the 30-day L at 2.02%, the 90-day L at 2.09% and the 180-day L at 2.06% and P at 5.00%. Variable rate loans typically include a base rate floor feature, which is generally 1.00%.
(3)The cost represents the original cost adjusted for the amortization of discounts and premiums, as applicable, on debt investments using the effective interest method.
(4)These investments were valued using unobservable inputs and are considered Level 3 investments. Fair value was determined in good faith by or under the direction of the Board of Trustees (see Note 2 and Note 5), pursuant to the Company’s valuation policy.
(5)Each of the Company’s investments is pledged as collateral, other than the investments in PaySimple, Inc., EIS Acquisition Holdings, LP and Radiate Holdco LLC, under one or more of its credit facilities. A single investment may be divided into parts that are individually pledged as collateral to separate credit facilities.  
(6)The investment is not a qualifying asset under Section 55(a) of the 1940 Act. The Company may not acquire any non-qualifying asset unless, at the time of acquisition, qualifying assets represent at least 70% of the Company’s total assets. As of September 30, 2019, non-qualifying assets represented 11.4% of total assets as calculated in accordance with regulatory requirements.
(7)Position or portion thereof is an unfunded loan commitment, and no interest is being earned on the unfunded portion, although the investment may earn unused commitment fees. Negative cost and fair value, if any, results from unamortized fees, which are capitalized to the cost of the investment. The unfunded loan commitment may be subject to a commitment termination date that may expire prior to the maturity date stated. See below for more information on the Company’s unfunded commitments:
Investments—non-controlled/non-affiliated (1)(5) Commitment Type Commitment
Expiration Date 		Unfunded
Commitment 		Fair
Value
First Lien Debt        
Epoch Acquisition, Inc. Delayed Draw Term Loan 10/4/2024 $ 4,688    $ —   
Jacuzzi Brands LLC Delayed Draw Term Loan 2/25/2025 8,450    —   
PaySimple, Inc. Delayed Draw Term Loan 8/23/2025 7,875    —   
R1 Holdings, LLC Delayed Draw Term Loan 1/2/2026 20,282    —   
Spireon, Inc. Delayed Draw Term Loan 10/5/2024 6,375    —   
Tailwind Colony Holding Corporation Delayed Draw Term Loan 10/31/2024 474    —   
EIS Acquisition Holdings, LP Delayed Draw Term Loan 9/30/2025 16,800    —   
The GI Alliance Management, LLC Delayed Draw Term Loan 11/2/2024 3,053    (31)  
Unified Door and Hardware Group, LLC Delayed Draw Term Loan 6/30/2025 15,094    —   
United PF Holdings, LLC Delayed Draw Term Loan 6/10/2026 1,048    —   
VDM Buyer, Inc. Delayed Draw Term Loan 4/22/2025 18,000    —   
Total First Lien Debt Unfunded Commitments     $ 102,139    $ (31)  


The accompanying notes are an integral part of these consolidated financial statements


8
Table of Contents
Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments
December 31, 2018
(in thousands)
Investments—non-controlled/non-affiliated (1)(5) Reference Rate
and Spread 		Interest Rate (2) Maturity
Date 		Par
Amount 		Cost (3) Fair
Value 		Percentage
of Net Assets
First Lien Debt              
Aerospace and Defense              
StandardAero Aviation Holdings, Inc. L + 3.75% 6.27%    7/7/2022 $ 6,977    $ 6,924    $ 6,913    2.92  %
Building Products  
American Bath Group, LLC (4) L + 4.25% 7.05%    9/30/2023 4,987    4,888    4,838    2.05   
Latham Pool Products, Inc. (4) L + 6.00% 8.80%    6/13/2025 44,618    42,833    43,502    18.40   
Ply Gem Midco, Inc. L + 3.75% 6.18%    4/12/2025 3,491    3,366    3,194    1.35   
  53,096    51,087    51,534    21.80   
Capital Markets  
Advisor Group, Inc. L + 3.75% 6.27%    8/15/2025 998    994    983    0.42   
Victory Capital Holdings, Inc. (4)(6) L + 2.75% 5.55%    2/12/2025 1,500    1,496    1,487    0.63   
  2,498    2,490    2,470    1.05   
Chemicals  
Alchemy US Holdco 1, LLC (4)(6) L + 5.50% 8.17%    10/10/2025 4,000    3,990    3,990    1.69   
Polymer Additives, Inc. (4) L + 6.00% 8.52%    7/31/2025 15,053    14,530    13,924    5.89   
  19,053    18,520    17,914    7.58   
Commercial Services & Supplies  
Allied Universal Holdco LLC L + 3.75% 6.14%    7/28/2022 2,992    2,850    2,847    1.20   
Allied Universal Holdco LLC L + 4.25% 6.77%    7/28/2022 7,000    6,798    6,703    2.84   
LegalZoom, Inc. (4) L + 4.50% 7.00%    11/20/2024 4,500    4,472    4,433    1.88   
Revspring, Inc. (4) L + 4.25% 7.05%    10/11/2025 3,000    2,993    2,993    1.27   
TKC Holdings, Inc. L + 3.75% 6.28%    2/1/2023 4,987    4,851    4,760    2.01   
    22,479    21,964    21,736    9.20   
Construction & Engineering  
IEA Energy Services LLC (4) L + 6.25% 9.05%    9/25/2024 12,000    11,559    11,610    4.91   
Containers & Packaging  
Trident TPI Holdings, Inc. L + 3.25% 5.77%    10/17/2024 1,990    1,961    1,878    0.79   
Distributors  
Tailwind Colony Holding Corporation (4)(7) L + 7.50% 10.28%    11/13/2024 25,835    25,514    25,318    10.71   
Diversified Consumer Services  
American Residential Services, LLC L + 4.00% 6.52%    6/30/2022 1,990    1,981    1,950    0.83   
Prime Security Services Borrower, LLC L + 2.75% 5.27%    5/2/2022 1,492    1,458    1,427    0.60   
Weight Watchers International, Inc. (6) L + 4.75% 7.56%    11/29/2024 7,500    7,466    7,434    3.14   
    10,982    10,905    10,811    4.57   
Diversified Financial Services  
PI US MergerCo, Inc.  (6) L + 3.50% 6.02%    12/20/2024 1,990    1,948    1,934    0.82   
York Risk Services Holding Corp L + 3.75% 6.27%    10/1/2021 5,984    5,703    5,612    2.37   
    7,974    7,651    7,546    3.19   
Diversified Telecommunication Services   .   
Securus Technologies Holdings, Inc. L + 4.50% 7.02%    11/1/2024 4,987    4,825    4,813    2.04   
Energy Equipment & Services                           
Tetra Technologies, Inc. (4)(6)(7) L + 6.25% 8.72%    9/10/2025 21,818    21,685    21,600    9.14   
Health Care Equipment & Supplies  
Lifescan Global Corporation L + 6.00% 8.40%    10/1/2024 41,974    40,223    39,770    16.83   
Health Care Providers & Services  
AMGH Holding Corp L + 3.25% 5.68%    4/28/2022 6,982    6,606    6,548    2.77   
AMGH Holding Corp L + 4.25% 6.75%    3/14/2025 6,226    5,904    5,817    2.46   
Envision Healthcare Corporation L + 3.75% 6.27%    10/10/2025 4,000    3,760    3,739    1.58   
Epoch Acquisition, Inc. (4)(7) L + 6.75% 9.13%    10/4/2024 22,500    22,221    22,050    9.33   
The GI Alliance Management, LLC (4)(7) L + 6.25% 8.81%    11/2/2024 37,436    36,711    36,427    15.41   
Onex TSG Intermediate Corp. (6) L + 4.00% 6.52%    7/31/2022 1,000    994    963    0.41   
Odyssey Holding Company, LLC (4) L + 5.75% 8.21%    11/16/2025 13,628    13,459    13,356    5.65   
Prospect Medical Holdings, Inc. L + 5.50% 7.94%    2/22/2024 1,995    1,983    1,976    0.84   
Regionalcare Hospital Partners Holding, Inc. L + 4.50% 7.13%    11/16/2025 5,040    4,845    4,796    2.03   
U.S Renal Care, Inc. L + 4.25% 7.05%    12/30/2022 2,420    2,331    2,311    0.98   
    101,227    98,814    97,983    41.46   
Health Care Technology  
Precyse Acquisition Corporation L + 4.50% 7.02%    10/20/2022 2,992    2,963    2,869    1.21   
Hotels, Restaurants & Leisure  
Casablanca US Holdings Inc.(4)(6) L + 4.00% 6.53%    3/29/2024 995    958    945    0.40   
Hotel Acquisition Company, LLC (4)(8) L + 6.00% 8.52%    12/9/2024 93,000    91,665    91,650    38.77   
    93,995    92,623    92,595    39.17   
Insurance  
Achilles Acquisition LLC L + 4.00% 6.56%    10/8/2025 1,000    994    988    0.42   
9
Table of Contents
Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments (continued)
December 31, 2018
(in thousands)
Investments—non-controlled/non-affiliated (1)(5) Reference Rate
and Spread 		Interest Rate (2) Maturity
Date 		Par
Amount 		Cost (3) Fair
Value 		Percentage
of Net Assets
First Lien Debt (continued)
IT Services                           
Tierpoint, LLC L + 3.75% 6.27%    5/6/2024 8,972    8,470    8,411    3.56   
WEB.COM Group Inc. L + 3.75% 6.17%    10/10/2025 4,000    3,934    3,860    1.63   
    12,972    12,404    12,271    5.19   
Machinery  
Apex Tool Group LLC L + 3.75% 6.25%    2/1/2022 4,968    4,819    4,802    2.03   
Media  
Champ Acquisition Corporation L + 5.50% 8.13%    12/12/2025 14,925    14,328    14,562    6.16   
Entravision Communications Corporation (4)(6) L + 2.75% 5.27%    11/29/2024 1,241    1,218    1,160    0.49   
    16,166    15,546    15,722    6.65   
Oil, Gas & Consumable Fuels  
Traverse Midstream Partners LLC L + 4.00% 6.60%    9/27/2024 1,995    1,980    1,920    0.81   
Professional Services  
GI Revelation Acquisition LLC L + 5.00% 7.52%    4/16/2025 7,264    7,165    7,164    3.03   
Real Estate Management & Development  
Forest City Enterprises, L.P. L + 4.00% 6.38%    12/7/2025 5,000    4,991    4,896    2.07   
Software  
Banff Merger Sub Inc. L + 4.25% 7.05%    10/2/2025 1,500    1,477    1,451    0.61   
Brave Parent Holdings, Inc. L + 4.00% 6.52%    4/18/2025 4,988    4,952    4,838    2.05   
Imperva, Inc. (4) L + 4.00% 6.52%    11/7/2025 4,000    3,975    3,945    1.67   
Ivanti Software, Inc. L + 4.25% 6.76%    1/20/2024 4,984    4,917    4,860    2.06   
LD Intermediate Holdings, Inc. L + 5.88% 8.49%    12/9/2022 2,980    2,767    2,705    1.14   
Quest Software US Holdings Inc. (6) L + 4.25% 6.78%    5/18/2025 4,500    4,471    4,365    1.85   
Rocket Software, Inc. L + 4.25% 6.77%    11/28/2025 6,000    5,952    5,898    2.50   
Vero Parent, Inc. L + 4.50% 7.02%    8/16/2024 2,494    2,496    2,471    1.05   
    31,446    31,007    30,533    12.93   
Specialty Retail  
Bass Pro Group, LLC L + 5.00% 7.52%    9/25/2024 5,407    5,350    5,197    2.20   
EG Group Limited (6) L + 4.00% 6.81%    2/7/2025 3,985    3,914    3,850    1.63   
    9,392    9,264    9,047    3.83   
Trading Companies & Distributors  
DiversiTech Holdings, Inc. L + 3.00% 5.80%    6/3/2024 995    965    946    0.40   
The Hillman Group Inc. L + 4.00% 6.80%    5/31/2025 997    963    950    0.40   
LBM Borrower, LLC L + 3.75% 6.25%    8/19/2022 8,000    7,505    7,490    3.17   
The Cook & Boardman Group, LLC (4) L + 5.75% 8.54%    10/17/2025 2,500    2,494    2,481    1.05   
    12,492    11,927    11,867    5.02   
Transportation Infrastructure  
Spireon, Inc. (4)(7) L + 6.50% 9.00%    10/4/2024 22,875    22,591    22,418    9.48   
Total First Lien Debt   $ 555,449    $ 542,395    $ 538,983    228.03  %
Second Lien Debt  
Commercial Services & Supplies  
TKC Holdings, Inc. L + 8.00% 10.53%    2/1/2024 $ 1,000    $ 997    $ 987    0.42  %
IT Services  
WEB.COM Group, Inc. L + 7.75% 10.17%    10/9/2026 1,881    1,867    1,867    0.79   
Software  
Imperva, Inc. L + 7.75% 10.27%    1/11/2027 1,500    1,506    1,500    0.63   
Rocket Software, Inc. L + 8.25% 10.77%    11/27/2027 2,000    1,988    1,988    0.84   
           3,500    3,494    3,488    1.47   
Total Second Lien Debt          6,381    6,358    6,342    2.68  %
Total Investment Portfolio          $ 561,830    $ 548,753    $ 545,325    230.71  %
Cash and Cash Equivalents         
State Street Institutional U.S. Government Money
   Market Fund 		         $ 2,000    $ 2,000    0.85  %
Other Cash and Cash Equivalents          4,228    4,228    1.79   
Total Cash and Cash Equivalents          $ 6,228    $ 6,228    2.64  %
Total Portfolio Investments, Cash and Cash Equivalents          $ 554,981    $ 551,553    233.35  %
(1)Unless otherwise indicated, issuers of debt and equity investments held by the Company (which such term “Company” shall include the Company’s consolidated subsidiaries for purposes of this Consolidated Schedule of Investments) are denominated in dollars. All debt investments are income producing unless otherwise indicated. Certain portfolio company investments are subject to contractual restrictions on sales. Under 1940 Act, the Company would be deemed to “control” a portfolio company if the Company owned more than 25% of its outstanding voting securities and/or held the power to exercise control over the management or policies of the portfolio company. As of December 31, 2018, the Company does not “control” any of these portfolio companies. Under the 1940 Act, the Company would be deemed an “affiliated person” of a portfolio company if the Company owns 5% or more of the portfolio company’s outstanding voting securities. As of December 31, 2018, the Company is not an “affiliated person” of any of its portfolio companies.
10
Table of Contents
Blackstone / GSO Secured Lending Fund
Consolidated Schedule of Investments (continued)
December 31, 2018
(in thousands)
(2)Variable rate loans to the portfolio companies bear interest at a rate that is determined by reference to either LIBOR (“L”) or an alternate base rate (commonly based on the Federal Funds Rate (“F”) or the U.S. Prime Rate (“P”)), which generally resets periodically. For each loan, the Company has indicated the reference rate used and provided the spread and the interest rate in effect as of December 31, 2018. As of December 31, 2018, the reference rates for our variable rate loans were the 30-day L at 2.50%, the 90-day L at 2.81% and the 180-day L at 2.88% and P at 5.50%. Variable rate loans typically include a base rate floor feature, which is generally 1.00%.
(3)The cost represents the original cost adjusted for the amortization of discounts and premiums, as applicable, on debt investments using the effective interest method.
(4)These investments were valued using unobservable inputs and are considered Level 3 investments. Fair value was determined in good faith by or under the direction of the Board of Trustees (see Note 2 and Note 5), pursuant to the Company’s valuation policy.
(5)Each of the Company’s investments is pledged as collateral under one or more of its credit facilities. A single investment may be divided into parts that are individually pledged as collateral to separate credit facilities.  
(6)The investment is not a qualifying asset under Section 55(a) of the 1940 Act. The Company may not acquire any non-qualifying asset unless, at the time of acquisition, qualifying assets represent at least 70% of the Company’s total assets. As of December 31, 2018, non-qualifying assets represented 11.3% of total assets as calculated in accordance with regulatory requirements.
(7)Position or portion thereof is an unfunded loan commitment, and no interest is being earned on the unfunded portion, although the investment may earn unused commitment fees. Negative cost and fair value, if any, results from unamortized fees, which are capitalized to the cost of the investment. The unfunded loan commitment may be subject to a commitment termination date that may expire prior to the maturity date stated. See below for more information on the Company’s unfunded commitments: 
Investments—non-controlled/non-affiliated (1)(5) Commitment Type Commitment
Expiration Date 		Unfunded
Commitment 		Fair
Value
First Lien Debt        
Epoch Acquisition, Inc. Delayed Draw Term Loan 10/4/2024 $ 7,500    $ —   
Spireon, Inc. Delayed Draw Term Loan 10/5/2024 6,375    —   
Tailwind Colony Holding Corporation Delayed Draw Term Loan 10/31/2024 6,540    —   
Tetra Technologies, Inc. Delayed Draw Term Loan 9/10/2025 8,182    —   
The GI Alliance Management, LLC Delayed Draw Term Loan 11/2/2024 26,053    (260)  
Total First Lien Debt Unfunded Commitments     54,650    (260)  
Forward purchase obligation (Note 7)     29,786    (222)  
Total Unfunded Commitments     $ 84,436    $ (482)  
(8)This investment was held by both the Company and the Middle Market Warehouse as of December 31, 2018. Refer to Note 7.
The accompanying notes are an integral part of these consolidated financial statements
11
Table of Contents
Blackstone / GSO Secured Lending Fund
Notes to Consolidated Financial Statements
(Unaudited)
(in thousands, except per share data, percentages and as otherwise noted)

Note 1. Organization
Blackstone / GSO Secured Lending Fund (together with its consolidated subsidiaries, the “Company”), is a Delaware statutory trust formed on March 26, 2018, and structured as an externally managed, non-diversified closed-end investment company.  On October 26, 2018, the Company elected to be regulated as a business development company (“BDC”) under the Investment Company Act of 1940, as amended (the “1940 Act”).  In addition, the Company elected to be treated for U.S. federal income tax purposes, as a regulated investment company (“RIC”), as defined under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). The Company also intends to continue to comply with the requirements prescribed by the Code in order to maintain tax treatment as a RIC.  
The Company’s investment objectives are to generate current income and, to a lesser extent, long-term capital appreciation.  The Company seeks to achieve its investment objective primarily through originated loans and other securities, including syndicated loans, of private U.S. companies, specifically small and middle market companies, typically in the form of first lien senior secured and unitranche loans (including first out/last out loans), and to a lesser extent, second lien, third lien, unsecured and subordinated loans and other debt and equity securities.
The Company is externally managed by GSO Asset Management LLC (the “Adviser”), a subsidiary of GSO Capital Partners LP.  GSO Capital Partners LP (the “Administrator” and, collectively with its affiliates in the credit-focused business of The Blackstone Group Inc., “GSO,” which, for the avoidance of doubt, excludes Harvest Fund Advisors LLC and Blackstone Insurance Solutions) provides certain administrative and other services necessary for the Company to operate pursuant to an administration agreement (the “Administration Agreement”).  GSO is part of the credit-focused platform of The Blackstone Group Inc. (“Blackstone”) and is the primary part of its credit reporting segment. 
The Company is conducting a private offering (the “Private Offering”) of its common shares of beneficial interest to accredited investors, as defined in Regulation D under the Securities Act of 1933 (the “1933 Act”) in reliance on exemptions from the registration requirements of the 1933 Act. At each closing of the Private Offering, each investor makes a capital commitment (“Capital Commitment”) to purchase shares of the beneficial interest of the Company pursuant to a subscription agreement entered into with the Company.  Investors are required to fund drawdowns to purchase the Company’s shares up to the amount of their Capital Commitments on as as-needed basis each time the Company delivers a notice to investors. 
On October 31, 2018, the Company completed its initial closing of capital commitments ("Initial Closing Period") and commenced its loan origination and investment activities on November 20, 2018, the date of receipt of the initial drawdown from investors in the Private Offering (the "Initial Drawdown Date").
Note 2. Significant Accounting Policies
Basis of Presentation
The consolidated financial statements have been prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).  As an investment company, the Company applies the accounting and reporting guidance in Accounting Standards Codification (“ASC”) Topic 946, Financial Services – Investment Companies (“ASC 946”) issued by the Financial Accounting Standards Board (“FASB”). U.S. GAAP for an investment company requires investments to be recorded at fair value.  The carrying value for all other assets and liabilities approximates their fair value.
The interim consolidated financial statements have been prepared in accordance with U.S. GAAP for interim financial information and pursuant to the requirements for reporting on Form 10-Q and Article 6 of Regulation S-X. Accordingly, certain disclosures accompanying the annual consolidated financial statements prepared in accordance with U.S. GAAP are omitted.  In the opinion of management, all adjustments, consisting solely of normal recurring accruals considered necessary for the fair presentation of financial statements for the interim period presented, have been included. The current period’s results of operations will not necessarily be indicative of results that ultimately may be achieved for the fiscal year ending December 31, 2019. All intercompany balances and transactions have been eliminated.
12
Use of Estimates
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements. Such amounts could differ from those estimates and such differences could be material.  Assumptions and estimates regarding the valuation of investments involve a higher degree of judgment and complexity and these assumptions and estimates may be significant to the consolidated financial statements.
Consolidation
As provided under ASC 946, the Company will not consolidate its investment in a company other than an investment company subsidiary or a controlled operating company whose business consists of providing services to the Company.  Accordingly, the Company consolidated the results of the Company’s wholly-owned subsidiaries.
As of September 30, 2019, the Company's consolidated subsidiaries were BGSL Jackson Hole Funding LLC (“Jackson Hole Funding”), BGSL Breckenridge Funding LLC (“Breckenridge Funding”) and BGSL Investments LLC (collectively with Jackson Hole Funding and Breckenridge Funding the "SPVs").
Cash and Cash Equivalents
Cash and cash equivalents consist of demand deposits and highly liquid investments, such as money market funds, with original maturities of three months or less. Cash and cash equivalents are carried at cost, which approximates fair value. The Company deposits its cash and cash equivalents with financial institutions and, at times, may exceed the Federal Deposit Insurance Corporation insured limit.
Investments
Investment transactions are recorded on the trade date. Realized gains or losses are measured by the difference between the net proceeds received (excluding prepayment fees, if any) and the amortized cost basis of the investment using the specific identification method without regard to unrealized gains or losses previously recognized, and include investments charged off during the period, net of recoveries. The net change in unrealized gains or losses primarily reflects the change in investment values, including the reversal of previously recorded unrealized gains or losses with respect to investments realized during the period.
The Company is required to report its investments for which current market values are not readily available at fair value. The Company values its investments in accordance with FASB ASC 820, Fair Value Measurements (“ASC 820”), which defines fair value as the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the applicable measurement date. ASC 820 prioritizes the use of observable market prices derived from such prices over entity-specific inputs.  Due to the inherent uncertainties of valuation, certain estimated fair values may differ significantly from the values that would have been realized had a ready market for these investments existed, and these differences could be material. See “– Note 5. Fair Value Measurements.”
Where available, fair value is based on observable market prices or parameters or derived from such prices or parameters. The Company utilizes mid-market pricing (i.e., mid-point of average bid and ask prices) to value these investments. These market quotations are obtained from independent pricing services, if available; otherwise from at least two principal market makers or primary market dealers.  To assess the continuing appropriateness of pricing sources and methodologies, the Adviser regularly performs price verification procedures and issues challenges as necessary to independent pricing services or brokers, and any differences are reviewed in accordance with the valuation procedures. The Adviser does not adjust the prices unless it has a reason to believe market quotations are not reflective of the fair value of an investment.  Examples of events that would cause market quotations to not reflect fair value could include cases when a security trades infrequently or not at all, causing a quoted purchase or sale price to become stale, or in the event of a “fire sale” by a distressed seller.  All price overrides require approval from the Company’s Board of Trustees (the “Board”).  
Where prices or inputs are not available or, in the judgment of the Board, not reliable, valuation techniques based on the facts and circumstances of the particular investment will be utilized.  Securities that are not publicly traded or for which market prices are not readily available are valued at fair value as determined in good faith by the Board, based on, among other things, the input of the Adviser, the Audit Committee of the Board (the “Audit Committee”) and independent valuation firms engaged on the recommendation of the Adviser and at the direction of the Board.  These valuation approaches involve some
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level of management estimation and judgment, the degree of which is dependent on the price transparency for the investments or market and the investments’ complexity.
The Company’s Board undertakes a multi-step valuation process each quarter in connection with determining the fair value of the Company’s investments for which market quotations are not readily available, or are available but deemed not reflective of the fair value of an investment, which includes, among other procedures, the following:
•The valuation process begins with each investment being preliminarily valued by the Adviser’s valuation team in conjunction with the Adviser’s investment professionals responsible for each portfolio investment;
•In addition, independent valuation firms engaged by the Board prepare valuations of all the Company’s investments over a de minimis threshold.  The independent valuation firms provide a final range of values on such investments to the Board and the Adviser.  The independent valuation firms also provide analyses to support their valuation methodology and calculations;
•The Adviser's Valuation Committee reviews each valuation recommendation to confirm they have been calculated in accordance with the valuation policy and compares such valuations to the independent valuation firms’ valuation ranges to ensure the Adviser’s valuations are reasonable;
•The Valuation Committee makes valuation recommendations to the Audit Committee;
•The Audit Committee reviews the valuation recommendations made by the Valuation Committee, including the independent valuation firms' valuations, and once approved, recommends them for approval by the Board; and
•The Board reviews the valuation recommendations of the Audit Committee and determines the fair value of each investment in the portfolio in good faith based on the input of the Audit Committee, the Valuation Committee and, where applicable, the independent valuation firms.
As part of the valuation process, the Board takes into account relevant factors in determining the fair value of its investments, many of which are loans, including and in combination, as relevant, of: (i) the estimated enterprise value of a portfolio company, (ii) the nature and realizable value of any collateral, (iii) the portfolio company’s ability to make payments based on its earnings and cash flow, (iv) the markets in which the portfolio company does business, (v) a comparison of the portfolio company’s securities to any similar publicly traded securities, and (vi) overall changes in the interest rate environment and the credit markets that may affect the price at which similar investments may be made in the future. When an external event such as a purchase transaction, public offering or subsequent equity or debt sale occurs, the Board considers whether the pricing indicated by the external event corroborates its valuation. See “—Note 5. Fair Value Measurements.”
The Board has and will continue to engage independent valuation firms to provide assistance regarding the determination of the fair value of the Company’s portfolio securities for which market quotations are not readily available or are readily available but deemed not reflective of the fair value of the investment each quarter, and the Board may reasonably rely on that assistance. However, the Board is responsible for the ultimate valuation of the portfolio investments at fair value as determined in good faith pursuant to the Company’s valuation policy and a consistently applied valuation process.
Derivative Instruments
The Company recognizes all derivative instruments as assets or liabilities at fair value in its consolidated financial statements. Derivative contracts entered into by the Company are not designated as hedging instruments, and as a result the Company presents changes in fair value through current period gains or losses.
In the normal course of business, the Company has commitments and risks resulting from its investment transactions, which may include those involving derivative instruments. Derivative instruments are measured in terms of the notional contract amount and derive their value based upon one or more underlying instruments. While the notional amount gives some indication of the Company’s derivative activity, it generally is not exchanged, but is only used as the basis on which interest and other payments are exchanged. Derivative instruments are subject to various risks similar to non-derivative instruments including market, credit, liquidity, and operational risks. The Company manages these risks on an aggregate basis as part of its risk management process.
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Forward Purchase Agreement
The Company was a party to a forward purchase agreement pursuant to which the Company agreed to purchase certain assets held in the Middle Market Warehouse (defined in Note 7) at a purchase price based on the cost of the asset to the warehouse provider plus amounts of unpaid interest, original issue discount and structuring fees accrued to the warehouse provider during the time the warehouse provider owned the asset.
Forward purchase agreements are recognized at fair value through current period gains or losses on the date on which the contract is entered into and are subsequently re-measured at fair value. All forward purchase agreements are carried as assets when fair value is positive and as liabilities when fair value is negative.  A forward purchase agreement is derecognized when the obligation specified in the contract is discharged, canceled or expired.
Foreign Currency Transactions

Amounts denominated in foreign currencies are translated into U.S. dollars on the following basis: (i) investments and other assets and liabilities denominated in foreign currencies are translated into U.S. dollars based upon currency exchange rates effective on the last business day of the period; and (ii) purchases and sales of investments, borrowings and repayments of such borrowings, income, and expenses denominated in foreign currencies are translated into U.S. dollars based upon currency exchange rates prevailing on the transaction dates.

The Company includes net changes in fair values on investments held resulting from foreign exchange rate fluctuations in translation of assets and liabilities in foreign currencies on the Consolidated Statements of Operations, if any. Foreign security and currency translations may involve certain considerations and risks not typically associated with investing in U.S. companies and U.S. government securities. These risks include, but are not limited to, currency fluctuations and revaluations and future adverse political, social and economic developments, which could cause investments in foreign markets to be less liquid and prices more volatile than those of comparable U.S. companies or U.S. government securities.

Revenue Recognition
Interest Income
Interest income is recorded on an accrual basis and includes the accretion of discounts and amortizations of premiums.  Discounts from and premiums to par value on debt investments purchased are accreted/amortized into interest income over the life of the respective security using the effective interest method.  The amortized cost of debt investments represents the original cost, including loan origination fees and upfront fees received that are deemed to be an adjustment to yield, adjusted for the accretion of discounts and amortization of premiums, if any.  Upon prepayment of a loan or debt security, any prepayment premiums, unamortized upfront loan origination fees and unamortized discounts are recorded as interest income in the current period.  
PIK Income
The Company may have loans in its portfolio that contain payment-in-kind (“PIK”) provisions.  PIK represents interest that is accrued and recorded as interest income at the contractual rates, increases the loan principal on the respective capitalization dates, and is generally due at maturity.  Such income is included in interest income in the Consolidated Statements of Operations.  If at any point the Company believes PIK is not expected to be realized, the investment generating PIK will be placed on non-accrual status.  When a PIK investment is placed on non-accrual status, the accrued, uncapitalized interest is generally reversed through interest income.  To maintain the Company’s status as a RIC, this non-cash source of income must be paid out to shareholders in the form of dividends, even though the Company has not yet collected cash.  
Dividend Income
Dividend income on preferred equity securities is recorded on the accrual basis to the extent that such amounts are payable by the portfolio company and are expected to be collected. Dividend income on common equity securities is recorded on the record date for private portfolio companies or on the ex-dividend date for publicly-traded portfolio companies.  
Fee Income
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The Company may receive various fees in the ordinary course of business such as structuring, consent, waiver, amendment, syndication fees as well as fees for managerial assistance rendered by the Company to the portfolio companies.  Such fees are recognized as income when earned or the services are rendered.  
Non-Accrual Income
Loans are generally placed on non-accrual status when there is reasonable doubt that principal or interest will be collected in full.  Accrued interest is generally reversed when a loan is placed on non-accrual status. Additionally, any original issue discount and market discount are no longer accreted to interest income as of the date the loan is placed on non-accrual status.  Interest payments received on non-accrual loans may be recognized as income or applied to principal depending upon management’s judgment regarding collectability. Non-accrual loans are restored to accrual status when past due principal and interest is paid current and, in management’s judgment, are likely to remain current. Management may make exceptions to this treatment and determine to not place a loan on non-accrual status if the loan has sufficient collateral value and is in the process of collection.
Organization Expenses and Offering Expenses
Costs associated with the organization of the Company are expensed as incurred, subject to the limitations discussed below. These expenses consist primarily of legal fees and other costs of organizing the Company.
Costs associated with the offering of the Company’s shares will be capitalized as “deferred offering costs” on the Consolidated Statements of Assets and Liabilities and amortized over a twelve-month period from incurrence, subject to the limitation below.  These expenses consist primarily of legal fees and other costs incurred in connection with the Company’s continuous Private Offering of its shares.  
The Company will not bear more than an amount equal to 0.10% of the aggregate Capital Commitments of the Company for organization and offering expenses in connection with the offering of shares. If actual organization and offering costs incurred exceed 0.10% of the Company’s total Capital Commitments, the Adviser or its affiliate will bear the excess costs.  To the extent the Company’s Capital Commitments later increase, the Adviser or its affiliates may be reimbursed for past payments of excess organization and offering costs made on the Company’s behalf provided that the total organization and offering costs borne by the Company do not exceed 0.10% of total Capital Commitments and provided further that the Adviser of its affiliates may not be reimbursed for payment of excess organization and offering expenses that were incurred more than three years prior to the proposed reimbursement.
The Company’s initial organization costs of $0.7 million were expensed as incurred during the year ended December 31, 2018. For the three and nine months ended September 30, 2019, the Company accrued offering costs of $0.3 million and $0.7 million, respectively.
Deferred Financing Costs and Debt Issuance Costs
Deferred financing and debt issuance costs represent fees and other direct incremental costs incurred in connection with the Company’s borrowings.  These expenses are deferred and amortized into interest expense over the life of the related debt instrument using the straight-line method. Deferred financing costs related to revolving credit facilities are presented separately as an asset on the Company’s Statements of Assets and Liabilities.  Debt issuance costs related to any issuance of installment debt or notes are presented net against the outstanding debt balance of the related security.
Income Taxes
The Company has elected to be treated as a BDC under the 1940 Act.  The Company also has elected to be treated as a RIC under the Code for the taxable year ended December 31, 2018.  So long as the Company maintains its status as a RIC, it generally will not pay corporate-level U.S. federal income taxes on any ordinary income or capital gains that it distributes at least annually to its shareholders as dividends. Rather, any tax liability related to income earned and distributed by the Company would represent obligations of the Company’s investors and would not be reflected in the consolidated financial statements of the Company.
The Company evaluates tax positions taken or expected to be taken in the course of preparing its consolidated financial statements to determine whether the tax positions are “more-likely-than-not” to be sustained by the applicable tax authority. Tax positions not deemed to meet the “more-likely-than-not” threshold are reserved and recorded as a tax benefit or expense in the current year. All penalties and interest associated with income taxes are included in income tax expense. Conclusions
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regarding tax positions are subject to review and may be adjusted at a later date based on factors including, but not limited to, on-going analyses of tax laws, regulations and interpretations thereof.
To qualify for and maintain qualification as a RIC, the Company must, among other things, meet certain source-of-income and asset diversification requirements. In addition, to qualify for RIC tax treatment, the Company must distribute to its shareholders, for each taxable year, at least 90% of the sum of (i) its “investment company taxable income” for that year (without regard to the deduction for dividends paid), which is generally its ordinary income plus the excess, if any, of its realized net short-term capital gains over its realized net long-term capital losses and (ii) its net tax-exempt income.
In addition, based on the excise tax distribution requirements, the Company is subject to a 4% nondeductible federal excise tax on undistributed income unless the Company distributes in a timely manner in each taxable year an amount at least equal to the sum of (i) 98% of its ordinary income for the calendar year, (ii) 98.2% of capital gain net income (both long-term and short-term) for the one-year period ending October 31 in that calendar year and (iii) any income realized, but not distributed, in prior years. For this purpose, however, any ordinary income or capital gain net income retained by the Company that is subject to corporate income tax is considered to have been distributed.
Distributions
To the extent that the Company has taxable income available, the Company intends to make quarterly distributions to its shareholders.  Distributions to shareholders are recorded on the record date.  All distributions will be paid at the discretion of the Board and will depend on our earnings, financial condition, maintenance of our tax treatment as a RIC, compliance with applicable BDC regulations and such other factors as the Board may deem relevant from time to time.  
Recent Accounting Pronouncements
In August 2018, the FASB issued ASU 2018-13, Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurement, which changes the fair value disclosure requirements. The new guidance includes new, eliminated and modified fair value disclosures. Among other requirements, the guidance requires disclosure of the range and weighted average of the significant unobservable inputs for Level 3 fair value measurements and the way it is calculated. The guidance also eliminated the following disclosures: (i) amount and reason for transfers between Level 1 and Level 2, (ii) policy for timing of transfers between levels of the fair value hierarchy and (iii) valuation processes for Level 3 fair value measurement. The guidance is effective for all entities for interim and annual periods beginning after December 15, 2019. Early adoption is permitted upon issuance of the guidance. The adoption of this guidance is not expected to have a material effect on the Company’s consolidated financial statements.
Note 3. Agreements and Related Party Transactions
Investment Advisory Agreement
On October 1, 2018, the Company entered into an investment advisory agreement with the Adviser (the “Investment Advisory Agreement”), pursuant to which the Adviser manages the Company on a day-to-day basis. The Adviser is responsible for originating prospective investments, conducting research and due diligence investigations on potential investments, analyzing investment opportunities, negotiating and structuring the Company’s investments and monitoring its investments and portfolio companies on an ongoing basis.  
The Company pays the Adviser a fee for its services under the Investment Advisory Agreement consisting of two components: a management fee and an incentive fee. The cost of both the management fee and the incentive fee will ultimately be borne by the shareholders.
Base Management Fee
The management fee is payable quarterly in arrears at an annual rate of (i) prior to a quotation or listing of the Company’s securities on a national securities exchange (including through an initial public offering) or a sale of all or substantially all of its assets to, or a merger or other liquidity transaction with, an entity in which the Company’s shareholders receive shares of a publicly-traded company which continues to be managed by the Adviser or an affiliate thereof (“Exchange Listing”), 0.75%, and (ii) following an Exchange Listing, 1.0%, in each case of the average value of the Company’s gross assets at the end of the two most recently completed calendar quarters. For purposes of the Investment Advisory Agreement, gross assets means the Company’s total assets determined on a consolidated basis in accordance with U.S. GAAP, excluding undrawn commitments but including assets purchased with borrowed amounts. For the first calendar quarter in which the
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Company had operations, gross assets were measured as the average of gross assets at the Initial Drawdown Date and at the end of such first calendar quarter. If an Exchange Listing occurs on a date other than the first day of a calendar quarter, the management fee will be calculated for such calendar quarter at a weighted rate calculated based on the fee rates applicable before and after the Exchange Listing based on the number of days in such calendar quarter before and after the Exchange Listing.
For the three and nine months ended September 30, 2019, base management fees were $3.6 million and $7.6 million, respectively. As of September 30, 2019 and December 31, 2018, $3.6 million and $0.3 million, respectively, was payable to the Adviser relating to management fees.
Incentive Fees
The incentive fee consists of two components that are determined independently of each other, with the result that one component may be payable even if the other is not. One component is based on income and the other component is based on capital gains, each as described below:
(i) Income based incentive fee:
The first part of the incentive fee, an income based incentive fee, is calculated and payable quarterly in arrears based on the Company’s pre-incentive fee net investment income as defined in the Investment Advisory Agreement.  Pre-incentive fee net investment income means, as the context requires, either the dollar value of, or percentage rate of return on the value of the Company’s net assets at the end of the immediately preceding quarter from, interest income, dividend income and any other income (including any other fees (other than fees for providing managerial assistance), such as commitment, origination, structuring, diligence and consulting fees or other fees that the Company receives from portfolio companies) accrued during the calendar quarter, minus the Company’s operating expenses accrued for the quarter (including the management fee, expenses payable under the Administration Agreement, and any interest expense or fees on any credit facilities or outstanding debt and dividends paid on any issued and outstanding preferred shares, but excluding the incentive fee.  Pre-incentive fee net investment income includes, in the case of investments with a deferred interest feature (such as original issue discount, debt instruments with PIK interest and zero coupon securities)), accrued income that the Company has not yet received in cash.  Pre-incentive fee net investment income excludes any realized capital gains, realized capital losses or unrealized capital appreciation or depreciation. The Company excludes the impact of expense support payments and recoupments from pre-incentive fee net investment income.
The Company pays its Adviser an income based incentive fee with respect to the Company’s pre-incentive fee net investment income in each calendar quarter as follows:  
•No income based incentive fee if the Company’s pre-incentive fee net investment income, expressed as a return on the value of our net assets at the end of the immediately preceding calendar quarter, does not exceed the hurdle rate of 1.5%;
•100% of the Company’s pre-incentive fee net investment income, if any, that exceeds the hurdle rate but is less than or equal to 1.76% (7.06% annualized) prior to an Exchange Listing, or 1.82% (7.27% annualized) following an Exchange Listing, of the value of the Company’s net assets.  This “catch-up” portion is meant to provide the Adviser with approximately 15% prior to an Exchange Listing, or 17.5% following an Exchange Listing, of the Company’s pre-incentive fee net investment income as if a hurdle rate did not apply if the “catch up” is achieved; and
•15% prior to an Exchange Listing, or 17.5% following an Exchange Listing, of the Company’s pre-incentive fee net investment income, if any, that exceeds the rate of return of 1.76% (7.06% annualized) prior to an Exchange Listing, or 1.82% (7.27% annualized) following an Exchange Listing.
These calculations are prorated for any period of less than three months and adjusted for any share issuances or repurchases during the relevant quarter. If an Exchange Listing occurs on a date other than the first day of a calendar quarter, the income based incentive fee with respect to the Company’s pre-incentive fee net investment income shall be calculated for such calendar quarter at a weighted rate calculated based on the fee rates applicable before and after the Exchange Listing based on the number of days in such calendar quarter before and after the Exchange Listing.
(ii) Capital gains based incentive fee:
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The second part of the incentive fee, a capital gains incentive fee, will be determined and payable in arrears as of the end of each calendar year in an amount equal to 15% prior to an Exchange Listing, or 17.5% following an Exchange Listing, of realized capital gains, if any, on a cumulative basis from inception through the end of each calendar year, computed net of all realized capital losses and unrealized capital depreciation on a cumulative basis, less the aggregate amount of any previously paid capital gain incentive fees as calculated in accordance with U.S. GAAP.  The Company will accrue, but will not pay, a capital gains incentive fee with respect to unrealized appreciation because a capital gains incentive fee would be owed to the Adviser if the Company were to sell the relevant investment and realize a capital gain.  
For the three and nine months ended September 30, 2019, the Company accrued income based incentive fees of $3.7 million and $7.5 million, respectively, of which $3.7 million was unpaid as of September 30, 2019. For the three and nine months ended September 30, 2019, the Company accrued capital gains incentive fees of $(0.2) million and $1.8 million, respectively, of which $1.8 million was not yet payable as of September 30, 2019. As of December 31, 2018, there was no income based or capital gains incentive fees payable to the Adviser.
Administration Agreement
On October 1, 2018, the Company entered into an Administration Agreement with GSO.  Under the terms of the Administration Agreement, the Administrator provides, or oversees the performance of, administrative and compliance services, including, but not limited to, maintaining financial records, overseeing the calculation of net asset value ("NAV"), compliance monitoring (including diligence and oversight of the Company’s other service providers), preparing reports to shareholders and reports filed with the United States Securities and Exchange Commission (“SEC”), preparing materials and coordinating meetings of the Company’s Board, managing the payment of expenses and the performance of administrative and professional services rendered by others and providing office space, equipment and office services. The Administrator may also offer to provide, on the Company’s behalf, managerial assistance to the Company’s portfolio companies. The initial term of the agreement is two years from October 1, 2018 and, unless terminated earlier, the Administration Agreement will renew automatically for successive annual periods, provided that such continuance is approved at least annually by (i) the vote of the Board or by a majority vote of the outstanding voting securities of the Company and (ii) the vote of a majority of the Company’s independent trustees.  
For providing these services, the Company will reimburse the Administrator for its costs, expenses and allocable portion of overhead (including rent, office equipment and utilities) and other expenses incurred by the Administrator in performing its administrative obligations under the Administration Agreement, including but not limited to: (i) the Company’s chief compliance officer, chief financial officer and their respective staffs; (ii) investor relations, legal, information technology, operations and other non-investment professionals of the Administrator that perform duties for the Company; and (iii) any internal audit group personnel of Blackstone or any of its affiliates. The Administrator has elected to forgo any reimbursement for rent and other occupancy costs from the commencement of operations through September 30, 2019.
For the three and nine months ended September 30, 2019, the Company incurred $0.2 million and $1.0 million, respectively, in expenses under the Administration Agreement, which were recorded in administrative service expenses in the Company’s Consolidated Statements of Operations. As of September 30, 2019 and December 31, 2018, $1.4 million and $0.4 million, respectively, was unpaid and included in due to affiliate in the Consolidated Statements of Assets and Liabilities, respectively.  
Sub-Administration and Custody Agreement
On October 1, 2018, the Administrator entered into a sub-administration agreement (the “Sub-Administration Agreement”) with State Street Bank and Trust Company (the “Sub-Administrator”) under which the Sub-Administrator provides various accounting and administrative services to the Company.  The Sub-Administrator also serves as the Company’s custodian (the “Custodian”).  The initial term of the Sub-Administration Agreement is two years from the effective date and after expiration of the initial term and the Sub-Administration Agreement shall automatically renew for successive one-year periods, unless a written notice of non-renewal is delivered prior to 120 days prior to the expiration of the initial term or renewal term.  
For the three and nine months ended September 30, 2019, the Company incurred expenses for services provided by the Sub-Administrator and the Custodian of $0.2 million and $0.6 million, respectively, which were recorded in other general and administrative expenses in the Company’s Consolidated Statements of Operations.  
Expense Support and Conditional Reimbursement Agreement
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On December 12, 2018, the Company entered into an Expense Support and Conditional Reimbursement Agreement (the “Expense Support Agreement”) with the Adviser. The Adviser may elect to pay certain expenses of the Company on the Company’s behalf (each, an “Expense Payment”), provided that no portion of the payment will be used to pay any interest of the Company. Any Expense Payment that the Adviser has committed to pay shall be paid by the Adviser to the Company in any combination of cash or other immediately available funds no later than forty-five days after such commitment was made in writing, and/or offset against amounts due from the Company to the Adviser or its affiliates.
Following any calendar quarter in which Available Operating Funds (as defined below) exceed the cumulative distributions accrued to the Company’s shareholders based on distributions declared with respect to record dates occurring in such calendar quarter (the amount of such excess being hereinafter referred to as “Excess Operating Funds”), the Company shall pay such Excess Operating Funds, or a portion thereof, to the Adviser until such time as all Expense Payments made by the Adviser to the Company within three years prior to the last business day of such calendar quarter have been reimbursed. Any payments required to be made by the Company shall be referred to herein as a “Reimbursement Payment.” Available Operating Funds means the sum of (i) the Company’s net investment company taxable income (including net short-term capital gains reduced by net long-term capital losses), (ii) the Company’s net capital gains (including the excess of net long-term capital gains over net short-term capital losses) and (iii) dividends and other distributions paid to the Company on account of investments in portfolio companies (to the extent such amounts listed in clause (iii) are not included under clauses (i) and (ii) above).
No Reimbursement Payment for any calendar quarter shall be made if the annualized rate of regular cash distributions declared by the Company on record dates in the applicable calendar quarter of such Reimbursement Payment is less than the annualized rate of regular cash distributions declared by the Company on record dates in the calendar quarter in which the Expense Payment was committed to which such Reimbursement Payment relates. The Company’s obligation to make a Reimbursement Payment shall automatically become a liability of the Company on the last business day of the applicable calendar quarter. The Company may or may not be obligated to reimburse remaining expense support in the future.

The following table presents a summary of Expense Payments and Reimbursement Payments since the Company's commencement of operations:
For the Quarter Ended Expense Payments by Adviser Reimbursement Payments to Adviser Unreimbursed Expense Payments
December 31, 2018 $ 1,696    $ (400)   $ 1,296   
March 31, 2019 570    —    570   
Total $ 2,266    $ (400)   $ 1,866   

For the three months ended September 30, 2019, the Company made $0.2 million of Reimbursement Payments related to Expense Payments by the Adviser in previous periods. For the nine months ended September 30, 2019, the Adviser made Expense Payments of $0.6 million, partially offset with $0.4 million of Reimbursement Payments to the Adviser. The Adviser has elected to forgo its right to receive any Reimbursement Payment related to Excess Operating Funds greater than $0.2 million and $0.4 million for the three and nine months ended September 30, 2019, respectively.
Note 4. Investments
The composition of the Company’s investment portfolio at cost and fair value was as follows:
September 30, 2019 December 31, 2018
Cost Fair Value % of Total
Investments at
Fair Value 		Cost Fair Value % of Total
Investments at
Fair Value
First lien debt $ 1,980,057    $ 1,987,819    98.00  % $ 542,395    $ 538,983    98.84  %
Second lien debt 31,847    32,531    1.60    6,358    6,342    1.16   
Equity investments 8,000    8,103    0.40    —    —    —   
Total $ 2,019,904    $ 2,028,453    100.00  % $ 548,753    $ 545,325    100.00  %
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The industry composition of investments at fair value was as follows:
  September 30, 2019 December 31, 2018
Aerospace & Defense —  % 1.27  %
Air Freight & Logistics 7.87    —   
Building Products 17.12    9.46   
Capital Markets —    0.45   
Chemicals 6.84    3.29   
Commercial Services & Supplies 1.77    4.17   
Construction & Engineering 6.99    2.13   
Containers & Packaging —    0.34   
Distributors 15.62    4.64   
Diversified Consumer Services 0.02    1.98   
Diversified Financial Services —    1.38   
Diversified Telecommunication Services —    0.88   
Electronic Equipment, Instruments & Components 0.66    —   
Energy Equipment & Services 1.15    3.96   
Health Care Equipment & Supplies 2.85    7.29   
Health Care Providers & Services 4.84    17.97   
Health Care Technology 0.13    0.53   
Hotels, Restaurants & Leisure 7.23    16.98   
Industrial Conglomerates 1.62    —   
Insurance —    0.18   
Interactive Media & Services 2.29    —   
IT Services 2.87    2.59   
Machinery 1.85    0.88   
Media 1.86    2.88   
Oil, Gas & Consumable Fuels —    0.35   
Professional Services 2.40    1.31   
Real Estate Management & Development —    0.90   
Software 1.72    6.24   
Specialty Retail 9.22    1.66   
Technology Hardware, Storage & Peripherals 1.61    —   
Trading Companies & Distributors 0.34    2.18   
Transportation Infrastructure 1.13    4.11   
Total 100.00  % 100.00  %
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The geographic composition of investments at cost and fair value was as follows:
September 30, 2019
Cost Fair Value % of Total
Investments at
Fair Value 		Fair Value
as % of Net
Assets
United States $ 1,820,385    $ 1,830,295    90.23  % 132.76  %
Canada 113,407    114,957    5.67    8.34   
Luxembourg 86,112    83,201    4.10    6.03   
Total $ 2,019,904    $ 2,028,453    100.00  % 147.13  %

December 31, 2018
Cost Fair Value % of Total
Investments at
Fair Value 		Fair Value
as % of Net
Assets
United States $ 542,891    $ 539,541    98.94  % 228.26  %
United Kingdom 5,862    5,784    1.06    2.45   
Total $ 548,753    $ 545,325    100.00  % 230.71  %

As of September 30, 2019 and December 31, 2018, no loans in the portfolio were on non-accrual status.

Note 5. Fair Value Measurements
The fair value of a financial instrument is the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the applicable measurement date.  
The fair value hierarchy under ASC 820 prioritizes the inputs to valuation methodology used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). The levels used for classifying investments are not necessarily an indication of the risk associated with investing in these securities. The three levels of the fair value hierarchy are as follows:
•Level 1: Inputs to the valuation methodology are quoted prices available in active markets for identical instruments as of the reporting date. The types of financial instruments included in Level 1 include unrestricted securities, including equities and derivatives, listed in active markets.
•Level 2:  Inputs to the valuation methodology are other than quoted prices in active markets, which are either directly or indirectly observable as of the reporting date. The types of financial instruments in this category include less liquid and restricted securities listed in active markets, securities traded in other than active markets, government and agency securities and certain over-the-counter derivatives where the fair value is based on observable inputs.
•Level 3:  Inputs to the valuation methodology are unobservable and significant to overall fair value measurement. The inputs into the determination of fair value require significant management judgment or estimation. Financial instruments that are included in this category include debt and equity investments in privately held entities, collateralized loan obligations (“CLOs”) and certain over-the-counter derivatives where the fair value is based on unobservable inputs.
In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, an investment’s level within the fair value hierarchy is based on the lowest level of input that is significant to the overall fair value measurement. The Adviser’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment, and considers factors specific to the investment.  Transfers between levels, if any, are recognized at the beginning of the quarter in which the transfer occurs.
In addition to using the above inputs in investment valuations, the Company applies the valuation policy approved by its Board that is consistent with ASC 820.  Consistent with the valuation policy, the Company evaluates the source of the inputs, including any markets in which its investments are trading (or any markets in which securities with similar attributes are trading), in determining fair value. When an investment is valued based on prices provided by reputable dealers or pricing
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services (that is, broker quotes), the Company subjects those prices to various criteria in making the determination as to whether a particular investment would qualify for treatment as a Level 2 or Level 3 investment.
In the absence of independent, reliable market quotes, an enterprise value analysis is typically performed to determine the value of equity investments, control debt investments and non-control debt investments that are credit-impaired, and to determine if debt investments are credit impaired.  Enterprise value (“EV”) means the entire value of the portfolio company to a market participant, including the sum of the values of debt and equity securities used to capitalize the enterprise at a point in time.  When an investment is valued using an EV analysis, the EV of a portfolio company is first determined and allocated over the portfolio company’s securities in order of their preference relative to one another (i.e. “waterfall” allocation).  
If debt investments are credit-impaired, which occurs when there is insufficient coverage under the EV analysis through the respective investment’s position in the capital structure, the Adviser uses the enterprise value “waterfall” approach or a recovery method (if a liquidation or restructuring is deemed likely) to determine fair value.  For debt investments that are not determined to be credit-impaired, the Adviser uses a market interest rate yield analysis (discussed below) to determine fair value.
The Adviser will generally utilize approaches including the market approach, the income approach or both approaches, as appropriate, when calculating EV.  The primary method for determining EV for non-control investments, and control investments without reliable projections, uses a multiple analysis whereby appropriate multiples are applied to the portfolio company’s earnings before interest, taxes, depreciation and amortization (“EBITDA”) or another key financial metric (e.g. such as revenues, cash flows or net income) (“Performance Multiple”).  Performance Multiples are typically determined based upon a review of publicly traded comparable companies and market comparable transactions, if any.  The second method for determining EV (and primary method for control investments with reliable projections) uses a discounted cash flow analysis whereby future expected cash flows and the anticipated terminal value of the portfolio company are discounted to determine a present value using estimated discount rates.  The income approach is generally used when the Adviser has visibility into the long term projected cash flows of a portfolio company, which is more common with control investments.  
Subsequently, for non-control debt investments that are not credit-impaired, and where there is an absence of available market quotations, fair value is determined using a yield analysis. To determine fair value using a yield analysis, the expected cash flows are projected based on the contractual terms of the debt security and discounted back to the measurement date based on a market yield.  A market yield is determined based upon an assessment of current and expected market yields for similar investments and risk profiles.  The Company considers the current contractual interest rate, the maturity and other terms of the investment relative to risk of the company and the specific investment. A key determinant of risk, among other things, is the leverage through the investment relative to the enterprise value of the portfolio company. As these debt investments held by the Company are substantially illiquid with no active transaction market, the Company depends on primary market data, including newly funded transactions, as well as secondary market data with respect to high yield debt instruments and syndicated loans, as inputs in determining the appropriate market yield, as applicable.  The fair value of loans with call protection is generally capped at par plus applicable prepayment premium in effect at the measurement date.  
The following table presents the fair value hierarchy of financial instruments:
September 30, 2019
Level 1 Level 2 Level 3 Total
First lien debt $ —    $ 542,711    $ 1,445,108    $ 1,987,819   
Second lien debt —    32,531    —    32,531   
Equity investments —    —    8,103    8,103   
Total —    575,242    1,453,211    2,028,453   

December 31, 2018
Level 1 Level 2 Level 3 Total
First lien debt $ —    $ 210,858    $ 328,125    $ 538,983   
Second lien debt —    6,342    —    6,342   
Total Investments —    217,200    328,125    545,325   
Forward purchase obligation —    —    (222)   (222)  
Total $ —    $ 217,200    $ 327,903    $ 545,103   

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The following table presents changes in the fair value of financial instruments for which Level 3 inputs were used to determine the fair value:
Three Months Ended September 30, 2019
First Lien Debt Second Lien Debt Equity Investments Total Investments Forward Purchase
Obligation
Fair value, beginning of period $ 867,199    $ 14,083    $ 5,200    $ 886,482    $ (154)  
Purchases of investments 492,766    —    2,800    495,566    —   
Proceeds from principal repayments and sales of investments (2,838)   —    —    (2,838)   —   
Accretion of discount/amortization of premium 1,159    —    —    1,159    —   
Net change in unrealized appreciation (depreciation) 1,883    —    103    1,986    154   
Transfers into Level 3 (1)
138,383    —    —    138,383    —   
Transfers out of Level 3 (1)
(53,444)   (14,083)   —    (67,527)   —   
Fair value, end of period $ 1,445,108    $ —    $ 8,103    $ 1,453,211    $ —   
Net change in unrealized appreciation (depreciation) included in earnings related to financial instruments still held as of September 30, 2019 included in net unrealized appreciation (depreciation) on the Consolidated Statements of Operations
$ 1,883    $ —    $ 103    $ 1,986    $ —   

Nine Months Ended September 30, 2019
First Lien Debt Second Lien Debt Equity Investments Total Investments Forward Purchase
Obligation
Fair value, beginning of period $ 328,125    $ —    $ —    $ 328,125    $ (222)  
Purchases of investments 1,202,865    —    8,000    1,210,865    —   
Proceeds from principal repayments and sales of investments (56,474)   —    —    (56,474)   —   
Accretion of discount/amortization of premium 2,299    —    —    2,299    —   
Net change in unrealized appreciation (depreciation) 9,845    —    103    9,948    222   
Transfers into Level 3 (1)
1,950    —    —    1,950    —   
Transfers out of Level 3 (1)
(43,502)   —    —    (43,502)   —   
Fair value, end of period $ 1,445,108    $ —    $ 8,103    $ 1,453,211    $ —   
Net change in unrealized appreciation (depreciation) included in earnings related to financial instruments still held as of September 30, 2019 included in net unrealized appreciation (depreciation) on the Consolidated Statements of Operations
$ 9,646    $ —    $ 103    $ 9,749    $ —   
(1)For the three and nine months ended September 30, 2019, transfers into or out of Level 3 were primarily due to decreased or increased price transparency, respectively.
The following table presents quantitative information about the significant unobservable inputs of the Company’s Level 3 financial instruments. The table is not intended to be all-inclusive but instead captures the significant unobservable inputs relevant to the Company’s determination of fair value.
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September 30, 2019
Range
Fair Value Valuation
Technique 		Unobservable
Input 		Low High Weighted
Average
Investments in first lien debt $ 1,222,202    Yield analysis Discount rate 7.05  % 12.94  % 8.08  %
222,906    Market quotations Broker quotes 87.50    99.63    96.03   
1,445,108   
Investments in equity 8,103    Market Approach Performance multiple 6.15x 14.59x 11.67x
Total $ 1,453,211   

December 31, 2018
Range
Fair Value Valuation
Technique 		Unobservable
Input 		Low High Weighted
Average
Investments in first lien debt $ 232,818    Yield analysis Discount rate 8.84  % 9.90  % 9.34  %
95,307    Market quotations Broker quotes 92.50    99.75    96.91   
328,125   
Forward purchase obligation (1)
(222)   Yield analysis Discount rate 9.13  % 9.13  % 9.13  %
Total $ 327,903   
(1)The forward purchase obligation is valued as the excess of the (a) agreed upon purchase price under the Forward Purchase Agreement over the (b) fair value of the underlying investments, which is calculated in the same manner as the Company’s debt investments. Refer to Note 7 for additional information.
The significant unobservable input used in the yield analysis is the discount rate based on comparable market yields. The significant unobservable input used for market quotations are the quoted prices from independent pricing services.  The significant unobservable input used under the market approach is the performance multiple. Significant increases in discount rates would result in a significantly lower fair value measurement. Significant decreases in quoted prices or performance multiples would result in a significantly lower fair value measurement.  
Due to the inherent uncertainty of determining the fair value of investments that do not have a readily available market value, the fair value of the Company’s investments may fluctuate from period to period. Additionally, the fair value of the Company’s investments may differ significantly from the values that would have been used had a ready market existed for such investments and may differ materially from the values that the Company may ultimately realize. Further, such investments are generally subject to legal and other restrictions on resale or otherwise are less liquid than publicly traded securities. If the Company was required to liquidate a portfolio investment in a forced or liquidation sale, it could realize significantly less than the value at which the Company has recorded it.  In addition, changes in the market environment and other events that may occur over the life of the investments may cause the gains or losses ultimately realized on these investments to be different than the unrealized gains or losses reflected in the valuations currently assigned.
Financial Instruments Not Carried at Fair Value
The carrying amounts of the Company’s financial assets and liabilities, other than investments at fair value, approximate fair value. These financial instruments are categorized as Level 3 within the hierarchy.
Note 6. Borrowings
In accordance with the 1940 Act, with certain limitations, the Company is allowed to borrow amounts such that its asset coverage, as defined in the 1940 Act, is at least 150% after such borrowing. As of September 30, 2019 and December 31, 2018, the Company’s asset coverage was 277.3% and 227.8%, respectively.
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Subscription Facility
On November 6, 2018, the Company entered into a revolving credit facility (which was subsequently amended on September 16, 2019 and as further amended from time to time, the “Subscription Facility”) with Bank of America, N.A., as the administrative agent, the sole lead arranger, the letter of credit issuer and a lender, and the other lenders from time to time party thereto.
The initial maximum commitment amount of the Subscription Facility was $200 million. Effective September 16, 2019, the maximum commitment amount of the Subscription Facility was increased to $400 million, subject to availability under the borrowing base, which is based on the undrawn capital commitments of the shareholders, and restrictions imposed on borrowings under the 1940 Act. The maximum commitment amount of the Subscription Facility may be increased to $700 million through the exercise by the Company of an uncommitted accordion feature through which existing and new lenders may, at their option, agree to provide additional financing. The Company is permitted to borrow under the Subscription Facility for any purpose permitted under its constituent documents.
Borrowings under the Subscription Facility bear interest, at the Company’s election at the time of drawdown, at a rate per annum equal to (i) in the case of LIBOR rate loans, an adjusted LIBOR rate for the applicable interest period plus 2.00% or (ii) in the case of reference rate loans, the greatest of (A) the prime rate plus 1.00%, (B) the federal funds rate plus 1.50%, and (C) one-month adjusted LIBOR plus 2.00%. Loans may be converted from one rate to another at any time at the Company’s election, subject to certain conditions. Effective November 6, 2018, the Company pays an unused commitment fee equal to (x) 0.30% per annum when the outstanding principal obligations are less than 50% of the maximum commitment and (y) 0.25% per annum when the outstanding principal obligations are greater than or equal to 50% of the maximum commitment.  
The Subscription Facility will mature upon the earliest of: (i) November 6, 2020 (the “Stated Maturity Date”); (ii) the date upon which the administrative agent declares the obligations under the Subscription Facility due and payable after the occurrence of an event of default; (iii) 30 days prior to the termination of the Company’s constituent documents; (iv) 30 days prior to the date on which the Company’s ability to call capital contributions for the purpose of repaying the obligations under the Subscription Facility is terminated; and (v) the date the Company terminates the lender commitments pursuant to the Subscription Facility. The Stated Maturity Date may be extended, at the Company’s option, for two additional terms not longer than 364 days each, subject to customary conditions, including (x) the consent of the administrative agent and the extending lenders and (y) payment of an extension fee.
The Subscription Facility is secured by a pledge of the Company’s right, title, and interest in and to the undrawn capital commitments of the Company’s investors. The Subscription Facility includes customary affirmative and negative covenants and consent rights granted to the lenders, as well as usual and customary events of default for revolving credit facilities of this nature.
As of September 30, 2019, the Company was in compliance with all covenants and other requirements of the Subscription Facility.
JPM SPV Facility
On November 16, 2018, BGSL Jackson Hole Funding LLC (“Jackson Hole Funding”), the Company’s wholly-owned subsidiary that holds primarily originated loan investments, entered into a senior secured revolving credit facility (which was subsequently amended on February 6, 2019 and September 20, 2019 and as further amended from time to time, the “JPM SPV Facility”) with JPMorgan Chase Bank, National Association (“JPM”). JPM serves as administrative agent, Citibank, N.A., serves as collateral agent and securities intermediary, Virtus Group, LP serves as collateral administrator and the Company serves as portfolio manager under the JPM SPV Facility.
Advances under the JPM SPV Facility bear interest at a per annum rate equal to the three-month LIBOR in effect, plus the applicable margin of 2.375% per annum. Effective January 16, 2019, Jackson Hole Funding pays a commitment fee of 0.60% per annum (or 0.375% per annum until March 20, 2020) on the average daily unused amount of the financing commitments until the third anniversary of the JPM SPV Facility.  
The initial maximum commitment amount of the JPM SPV Facility was $300 million. Effective September 20, 2019, the maximum commitment amount of the JPM SPV Facility was increased to $600 million. The JPM SPV Facility has an accordion feature, subject to the satisfaction of various conditions, which could bring total commitments under the JPM SPV Facility to up to $900 million. Proceeds from borrowings under the JPM SPV Facility may be used to fund portfolio investments by Jackson Hole Funding and to make advances under delayed draw term loans where Jackson Hole Funding is a
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lender. The period during which Jackson Hole Funding may make borrowings under the JPM SPV Facility expires on November 16, 2021 and the JPM SPV Facility is scheduled to mature on May 16, 2023 (“Maturity Date”).
Jackson Hole Funding’s obligations to the lenders under the JPM SPV Facility are secured by a first priority security interest in Jackson Hole Funding’s portfolio of investments and cash. The obligations of Jackson Hole Funding under the JPM SPV Facility are non-recourse to the Company, and the Company’s exposure under the JPM SPV Facility is limited to the value of its investment in Jackson Hole Funding.  
In connection with the JPM SPV Facility, Jackson Hole Funding has made certain customary representations and warranties and is required to comply with various covenants, reporting requirements and other customary requirements for similar facilities. The JPM SPV Facility contains customary events of default for similar financing transactions, including if a change of control of Jackson Hole Funding occurs or if the Company is no longer the portfolio manager of Jackson Hole Funding. Upon the occurrence and during the continuation of an event of default, JPM may declare the outstanding advances and all other obligations under the JPM SPV Facility immediately due and payable.
The occurrence of an event of default (as described above) or a market value event (as defined in the JPM SPV Facility) triggers a requirement that Jackson Hole Funding obtain the consent of JPM prior to entering into any sale or disposition with respect to portfolio assets, and the occurrence of a market value event triggers the right of JPM to direct Jackson Hole Funding to enter into sales or dispositions with respect to any portfolio assets, in each case in JPM’s sole discretion.
As of September 30, 2019, the Company was in compliance with all covenants and other requirements of the JPM SPV Facility.
BNP SPV Facility
On December 21, 2018, BGSL Breckenridge Funding LLC (“Breckenridge Funding”), the Company’s wholly-owned subsidiary that holds primarily syndicated loan investments, entered into a senior secured revolving credit facility (which was subsequently amended on June 11, 2019, August 2, 2019 and September 27, 2019 and as further amended from time to time, the “BNP SPV Facility”) with BNP Paribas (“BNP”). BNP serves as administrative agent, Wells Fargo Bank, National Association serves as collateral agent and the Company serves as servicer under the BNP SPV Facility.
Advances under the BNP SPV Facility bear interest at a per annum rate equal to the three-month LIBOR in effect, plus an applicable margin of 1.52% (or 1.25% prior to the collection period end date on June 3, 2019) to 2.15% per annum depending on the nature of the advances being requested under the facility. Effective December 11, 2019, Breckenridge Funding will also pay a commitment fee of 0.70% per annum if the unused facility amount is greater than 50% or 0.35% per annum if the unused facility amount is less than or equal to 50% and greater than 25% on the average daily unused amount of the financing commitments until the third anniversary of the BNP SPV Facility.
The initial maximum commitment amount of the BNP SPV Facility was $400 million. Effective June 11, 2019, the maximum commitment amount of the BNP SPV Facility was increased to $575 million and effective September 27, 2019, the maximum commitment amount of the BNP SPV Facility was increased to $875 million. Proceeds from borrowings under the BNP SPV Facility may be used to fund portfolio investments by Breckenridge Funding and to make advances under delayed draw and revolving loans where Breckenridge Funding is a lender. The period during which Breckenridge Funding may make borrowings under the BNP SPV Facility expires on December 21, 2021 (or such later date as may be agreed by Breckenridge Funding, BNP, as administrative agent, and the lenders under the BNP SPV Facility) and the BNP SPV Facility is scheduled to mature on December 21, 2023.
Breckenridge Funding’s obligations to the lenders under the BNP SPV Facility are secured by a first priority security interest in all of Breckenridge Funding’s portfolio of investments and cash. The obligations of Breckenridge Funding under the BNP SPV Facility are non-recourse to the Company, and the Company’s exposure under the BNP SPV Facility is limited to the value of its investment in Breckenridge Funding.
In connection with the BNP SPV Facility, Breckenridge Funding has made certain customary representations and warranties and is required to comply with various covenants, reporting requirements and other customary requirements for similar facilities. The BNP SPV Facility contains customary events of default for similar financing transactions, including if a change of control of Breckenridge Funding occurs or if the Company is no longer the servicer of Breckenridge Funding. Upon the occurrence and during the continuation of an event of default, BNP may declare the outstanding advances and all other
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obligations under the BNP SPV Facility immediately due and payable. The occurrence of an event of default (as described above) suspends the ability of Breckenridge Funding to acquire or sell additional assets.
As of September 30, 2019, the Company was in compliance with all covenants and other requirements of the BNP SPV Facility.
The Company’s outstanding debt obligations were as follows:
September 30, 2019
Aggregate
Principal
Committed 		Outstanding
Principal 		Carrying
Value
Unused
Portion (1)
Amount
Available (2)
Subscription Facility
$ 400,000    $ —    $ —    $ 400,000    $ 274,442   
JPM SPV Facility(3)
600,000    250,033    250,033    349,967    39,982   
BNP SPV Facility 875,000    527,336    527,336    347,664    61,415   
Total $ 1,875,000    $ 777,369    $ 777,369    $ 1,097,631    $ 375,839   

December 31, 2018
Aggregate
Principal
Committed 		Outstanding
Principal 		Carrying
Value
Unused
Portion (1)
Amount
Available (2)
Subscription Facility $ 200,000    $ —    $ —    $ 200,000    $ 174,032   
JPM SPV Facility 300,000    120,000    120,000    180,000    22,966   
BNP SPV Facility 400,000    65,000    65,000    335,000    5,183   
Total $ 900,000    $ 185,000    $ 185,000    $ 715,000    $ 202,181   
(1)The unused portion is the amount upon which commitment fees, if any, are based.
(2)The amount available reflects any limitations related to each respective credit facility’s borrowing base.
(3)Under the JPM SPV Facility, the Company may borrow in U.S. dollars or certain other permitted currencies. As of September 30, 2019, the Company had borrowings denominated in Euros (EUR) of 23.9 million. As of December 31, 2018, all borrowings outstanding were in USD.
As of September 30, 2019 and December 31, 2018, $2.9 million and $0.8 million, respectively, of interest expense and $0.1 million and $0.1 million, respectively, of unused commitment fees were included in interest payable. For the three and nine months ended September 30, 2019, the weighted average interest rate on all borrowings outstanding was 4.48% and 4.59% (including unused fees), respectively, and the average principal debt outstanding was $731.7 million and $580.3 million, respectively.
The components of interest expense were as follows:
Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Borrowing interest expense $ 8,019    $ 19,334   
Facility unused fees 183    623   
Amortization of financing costs 404    1,104   
Total interest expense $ 8,606    $ 21,061   
Cash paid for interest expense $ 7,983    $ 17,712   

Note 7. Commitments and Contingencies
Portfolio Company Commitments
The Company’s investment portfolio contains and is expected to continue to contain debt investments which are in the form of lines of credit or delayed draw commitments, which require us to provide funding when requested by portfolio companies in accordance with underlying loan agreements.  As of September 30, 2019 and December 31, 2018, the Company had delayed draw term loans with an aggregate of $102.1 million and $54.7 million of unfunded commitments, respectively.
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Warehousing Transactions
The Company entered into two warehousing transactions whereby the Company agreed, subject to certain conditions, to purchase certain assets from parties unaffiliated with the Adviser. Such warehousing transactions were designed to assist the Company in deploying capital upon receipt of drawdown proceeds. One of these warehousing transactions related primarily to originated or anchor investments in middle market loans (the “Middle Market Warehouse”).  The other warehouse related primarily to broadly syndicated loans (the “Syndicated Warehouse” and, together with the Middle Market Warehouse, the “Warehousing Transactions”) prior to the acquisition of the equity interests of the Syndicated Warehouse by the Company and merger of the Syndicated Warehouse with the Company’s wholly-owned subsidiary, as described below.
Middle Market Warehouse
On September 10, 2018, the Company entered into a Warehousing Transaction for primarily middle market loans with a warehouse provider unaffiliated with the Adviser. After the Middle Market Warehouse arrangement was entered into, the warehouse provider became a holder of greater than 5% of the Company's outstanding shares. The warehouse investments for the Middle Market Warehouse were ultimately selected by the warehouse provider, in its sole discretion, for an account which it solely controlled.  Recommendations for such investments were made on a non-discretionary basis by an affiliate of the Adviser, but only if the Adviser determined the investment was desirable for the Company.  The Company was a party to a forward purchase agreement pursuant to which the Company agreed to purchase certain assets held in the Middle Market Warehouse at a purchase price based on the cost of the asset to the warehouse provider plus amounts of unpaid interest, original issue discount and structuring fees accrued to the warehouse provider during the time the warehouse provider owned the asset.
On July 12, 2019, the Company purchased all investments held by the Middle Market Warehouse for a total consideration of $86.9 million (including $0.2 million of accrued interest). The Middle Market Warehouse was terminated on September 10, 2019.
Syndicated Warehouse
On August 21, 2018, the Company entered into a Warehousing Transaction with a third party whereby the Company agreed, subject to certain contingencies, to purchase (or for its designee to purchase) the equity interests of a warehouse vehicle from such third party at a price equal to the initial capital contribution made by the third party equity holder plus accrued but unpaid interest on the underlying assets in the warehouse vehicle remaining after the payment of all other obligations outstanding under the credit agreement of the Syndicated Warehouse vehicle other than principal on the loan made under such credit agreement. The warehouse investments for the Syndicated Warehouse vehicle were selected by an affiliate of the Adviser as the collateral manager of the Syndicated Warehouse. Neither the Adviser nor any of its affiliates received any additional compensation from the Company in connection with serving as collateral manager of the warehouse vehicle.
The Company exercised its rights to acquire the equity interests of the Syndicated Warehouse on December 11, 2018, at which time the assets and liabilities of the warehouse started to be included in the Company’s consolidated financial statements for a total purchase price of $24.9 million. For the period ended December 31, 2018, the Company recorded a loss $0.6 million, which represented the excess of total consideration paid for the equity interests over the fair value of the net assets of the Syndicated Warehouse the Company assumed on the date of acquisition.
Other Commitments and Contingencies
From time to time, the Company may become a party to certain legal proceedings incidental to the normal course of its business. At September 30, 2019, management is not aware of any pending or threatened material litigation.
Note 8. Net Assets
Capital Activity
In connection with its formation, the Company has the authority to issue an unlimited number of shares at $0.001 per share par value.
Subscriptions and Drawdowns
During the nine months ended September 30, 2019, the Company entered into additional subscription agreements (the “Subscription Agreements”) with investors providing for the private placement of the Company’s shares. Under the terms of
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the Subscription Agreements, investors are required to fund drawdowns to purchase the Company’s shares up to the amount of their respective Capital Commitment on an as-needed basis each time the Company delivers a drawdown notice to its investors. As of September 30, 2019, the Company had received Capital Commitments totaling $2,688.5 million ($1,326.5 million remaining undrawn), of which $65.0 million ($31.9 million remaining undrawn) are from affiliated entities of the Adviser.
The following table summarizes the total shares issued and proceeds received related to the Company’s capital drawdowns delivered pursuant to the Subscription Agreements for the nine months ended September 30, 2019 (dollars in millions):
Common Share Issuance Date Number of
Common
Shares Issued 		Aggregate
Offering Price
January 24, 2019 5,666,095    $ 142.1   
March 28, 2019 9,818,817    247.5   
June 27, 2019
12,453,261    319.7   
August 9, 2019 1,401,367    36.1   
September 25, 2019 (1)
14,686,050    377.3   
Total 44,025,590    $ 1,122.7   
(1)On September 11, 2019, the Company issued a capital call and delivered capital drawdown notices totaling $377.3 million, of which $9.2 million was received subsequent to September 30, 2019 and recorded as a subscription receivable on the Consolidated Statements of Assets and Liabilities.
Distributions and Dividend Reinvestment
The Company has adopted a dividend reinvestment plan ("DRIP"), pursuant to which it will reinvest all cash dividends declared by the Board on behalf of its shareholders who do not elect to receive their dividends in cash as provided below. As a result, if the Board and the Company declares, a cash dividend or other distribution, then the Company’s shareholders who have not opted out of its dividend reinvestment plan will have their cash distributions automatically reinvested in additional shares as described below, rather than receiving the cash dividend or other distribution.  Distributions on fractional shares will be credited to each participating shareholder’s account to three decimal places.  A participating shareholder will receive an amount of shares equal to the amount of the distribution on that participant’s shares divided by the most recent quarter-end NAV per share that is available on the date such distribution was paid (unless the Board determines to use the NAV per share as of another time). Shareholders who receive distributions in the form of shares will generally be subject to the same U.S. federal, state and local tax consequences as if they received cash distributions; however, since their cash distributions will be reinvested, those shareholders will not receive cash with which to pay any applicable taxes.  The Company intends to use newly issued shares to implement the plan.  Shares issued under the dividend reinvestment plan will not reduce outstanding Capital Commitments.

The following table summarizes the Company’s distributions declared and payable for the nine months ended September 30, 2019 (dollars in thousands except per share amounts):
Date Declared Record Date Payment Date Per Share Amount Total Amount DRIP Shares Value DRIP Shares Issued
January 22, 2019 January 23, 2019 May 15, 2019 $ 0.1239    $ 1,192    $ —    —   
February 28, 2019 March 27, 2019 May 15, 2019 0.3536    5,406    469    18,566   
March 26, 2019 March 31, 2019 May 15, 2019 0.0225    565    50    2,039   
June 26, 2019
June 26, 2019 August 14, 2019 0.4780    12,010    1,743    67,986   
June 26, 2019
June 30, 2019 August 14, 2019 0.0220    827    5    178   
August 8, 2019 (1)
August 8, 2019 November 14, 2019 0.2120    7,967   
September 24, 2019 (1)
September 24, 2019 November 14, 2019 0.2554    9,973   
September 24, 2019 (1)
September 30, 2019 November 14, 2019 0.0326    1,752   
Total distributions $ 1.5000    $ 39,692    $ 2,267    88,769   
(1)The number of shares issued under the DRIP for this distribution will be determined on the applicable distribution payment date.

Note 9. Earnings Per Share
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The following table sets forth the computation of basic and diluted earnings per share:
Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Net increase (decrease) in net assets resulting from operations $ 19,487    $ 57,054   
Weighted average shares outstanding (basic and diluted) 39,380,756    26,532,236   
Earnings (loss) per common share (basic and diluted) $ 0.49    $ 2.15   

Note 10. Income Taxes
Taxable income during the three and nine months ended September 30, 2019 differs from net increase (decrease) in net assets resulting from operations primarily due to unrealized appreciation (depreciation) on investments, as gains and losses are generally not included in taxable income until realized.
The Company makes certain adjustments to the classification of net assets as a result of permanent book-to-tax differences, which include differences in the book and tax basis of certain assets and liabilities, and nondeductible federal taxes or losses among other items. To the extent these differences are permanent, they are charged or credited to additional paid in capital, undistributed net investment income or undistributed net realized gains on investments, as appropriate.  For the nine months ended September 30, 2019, there were no permanent differences.
The cost and unrealized gain (loss) on the Company’s financial instruments, as calculated on a tax basis, at September 30, 2019 are as follows (amounts calculated using book-tax differences as of the most recent fiscal year ended December 31, 2018):
  September 30, 2019
Gross unrealized appreciation $ 21,471   
Gross unrealized depreciation (13,503)  
Net unrealized appreciation (depreciation) $ 7,968   
Tax cost of investments at period end $ 2,020,485   

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Note 11. Financial Highlights
The following are the financial highlights for the nine months ended September 30, 2019:
  Nine Months Ended
September 30, 2019
Per Share Data:  
Net asset value, beginning of period $ 24.57   
Net investment income (1)
1.53   
Net unrealized and realized gain (loss) (2)
1.06   
Net increase (decrease) in net assets resulting from operations 2.59   
Distributions declared (3)
(1.50)  
Total increase (decrease) in net assets 1.09   
Net asset value, end of period $ 25.66   
Shares outstanding, end of period 53,735,678   
Total return based on NAV (4)
10.69  %
Ratios:
Ratio of net expenses to average net assets (5)
8.39  %
Ratio of net investment income to average net assets (5)
7.98  %
Portfolio turnover rate 28.57  %
Supplemental Data:
Net assets, end of period $ 1,378,662   
Total capital commitments, end of period $ 2,688,498   
Ratios of total contributed capital to total committed capital, end of period 50.66  %
Asset coverage ratio 277.3  %
(1)The per share data was derived by using the weighted average shares outstanding during the period.
(2)For the nine months ended September 30, 2019, the amount shown does not correspond with the aggregate amount for the period as it includes a $0.43 impact from the effect of the timing of capital transactions.
(3)The per share data for distributions was derived by using the actual shares outstanding at the date of the relevant transactions (refer to Note 8).
(4)Total return (not annualized) is calculated as the change in NAV per share during the period, plus distributions per share (assuming dividends and distributions are reinvested in accordance with the Company's dividend reinvestment plan) divided by the beginning NAV per share.
(5)Amounts are annualized except for expense support amounts relating to organizational costs.  The ratio of total operating expenses to average net assets was 8.43% on an annualized basis, excluding the effect of expense support (recoupment) which represented 0.04% of average net assets.
Note 12. Subsequent Events
The Company’s management evaluated subsequent events through the date of issuance of the consolidated financial statements.  There have been no subsequent events that occurred during such period that would require disclosure in, or would be required to be recognized in, the consolidated financial statements as of September 30, 2019, except as discussed below.

In October and November 2019, the Company received the remaining outstanding amount of $9.2 million related to the capital call issued on September 11, 2019.


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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The information contained in this section should be read in conjunction with “Item 1. Financial Statements.”  This discussion contains forward-looking statements, which relate to future events our future performance or financial condition and involves numerous risks and uncertainties, including, but not limited to, those set forth in “Risk Factors” in Part I, Item 1A of our annual report on Form 10-K for the year ended December 31, 2018 and Part II, Item 1A of and elsewhere in this Form 10-Q.
Overview and Investment Framework
We are a Delaware statutory trust structured as a non-diversified, closed-end management investment company that has elected to be regulated as a BDC under the 1940 Act. In addition, for U.S. federal income tax purposes, we elected to be treated as a RIC under the Code. We are managed by our Adviser. The Administrator will provide the administrative services necessary for us to operate.
Our investment objectives are to generate current income and, to a lesser extent, long-term capital appreciation.
Under normal market conditions, we generally invest at least 80% of our total assets (net assets plus borrowings for investment purposes) in secured debt investments (including investments that are secured by equity interests) and our portfolio is composed primarily of first lien senior secured and unitranche loans (including first out/last out loans), generally with total investment sizes less than $300 million, which criteria may change from time to time. To a lesser extent, we also invest in second lien, third lien, unsecured or subordinated loans, generally with total investment sizes less than $100 million, which criteria may change from time to time, and other debt and equity securities. We do not currently focus on investments in issuers that are distressed or in need of rescue financing.
We commenced our loan origination and investment activities contemporaneously with the initial drawdown on November 20, 2018.  The proceeds from the initial drawdown and availability under our credit facilities provided us with the necessary seed capital to commence operations.  See “—Financial Condition, Liquidity and Capital Resources—Borrowings.” We anticipate raising additional equity capital for investment purposes through additional closings under the Private Offering.
Key Components of Our Results of Operations
Investments
We focus primarily on loans and securities, including syndicated loans, of private U.S. companies, specifically small and middle market companies, which we define as companies with annual revenue of $50 million to $2.5 billion, at the time of investment. Specifically, for our originated investments, we expect to target companies with $25 million to $75 million of EBITDA. In many market environments, we believe such a focus offers an opportunity for superior risk-adjusted returns.
Our level of investment activity (both the number of investments and the size of each investment) can and will vary substantially from period to period depending on many factors, including the amount of debt and equity capital available to middle market companies, the level of merger and acquisition activity for such companies, the general economic environment, trading prices of loans and other securities and the competitive environment for the types of investments we make.
Revenues
We generate revenues in the form of interest income from the debt securities we hold and dividends and capital appreciation on either direct equity investments or equity interests obtained in connection with originating loans, such as options, warrants or conversion rights.  Our debt investments typically have a term of five to eight years and bear interest at floating rates on the basis of a benchmark such as LIBOR. In some instances, we receive payments on our debt investments based on scheduled amortization of the outstanding balances. In addition, we may receive repayments of some of our debt investments prior to their scheduled maturity date. The frequency or volume of these repayments fluctuates significantly from period to period. Our portfolio activity also reflects the proceeds of sales of securities. In some cases, our investments may provide for deferred interest payments or PIK interest. The principal amount of loans and any accrued but unpaid interest generally become due at the maturity date.
In addition, we generate revenue in the form of commitment, loan origination, structuring or diligence fees, fees for providing managerial assistance to our portfolio companies, and possibly consulting fees.
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Expenses
Except as specifically provided below, all investment professionals and staff of the Adviser, when and to the extent engaged in providing investment advisory services to us, and the base compensation, bonus and benefits, and the routine overhead expenses, of such personnel allocable to such services, will be provided and paid for by the Adviser. We will bear all other costs and expenses of our operations, administration and transactions, including, but not limited to (a) investment advisory fees, including management fees and incentive fees, to the Adviser, pursuant to the Investment Advisory Agreement; (b) our allocable portion of compensation, overhead (including rent, office equipment and utilities) and other expenses incurred by the Administrator in performing its administrative obligations under the Administration Agreement, including but not limited to: (i) our chief compliance officer, chief financial officer and their respective staffs; (ii) investor relations, legal, operations and other non-investment professionals at the Administrator that perform duties for us; and (iii) any internal audit group personnel of Blackstone or any of its affiliates; and (c) all other expenses of our operations and transactions.
With respect to costs incurred in connection with the Company's organization and offering costs, if actual organization and offering costs incurred exceed 0.10% of our total Capital Commitments, the Adviser or its affiliates will bear the excess costs.  To the extent our Capital Commitments later increase, the Adviser or its affiliates may be reimbursed for past payments of excess organization and offering costs made on our behalf provided that the total organization and offering costs borne by us do not exceed 0.10% of total Capital Commitments and provided further that the Adviser or its affiliates may not be reimbursed for payment of excess organization and offering expenses that were incurred more than three years prior to the proposed reimbursement.  Any sales load, platform fees, servicing fees or similar fees or expenses charged directly to an investor in our Private Offering by a placement agent or similar party will not be considered organization or offering expenses of the Company for purposes of our cap on organization and offering expenses.
From time to time, the Adviser, the Administrator or their affiliates may pay third-party providers of goods or services. We will reimburse the Adviser, Administrator or such affiliates thereof for any such amounts paid on our behalf. From time to time, the Adviser or the Administrator may defer or waive fees and/or rights to be reimbursed for expenses. In this regard, the Administrator has waived the right to be reimbursed for rent and related occupancy costs. However, the Administrator may seek reimbursement for such costs in future periods. All of the foregoing expenses will ultimately be borne by our shareholders, subject to the cap on organization and offering expenses described above.
Costs and expenses of the Administrator and the Adviser that are eligible for reimbursement by us will be reasonably allocated to the Company on the basis of time spent, assets under management, usage rates, proportionate holdings, a combination thereof or other reasonable methods determined by the Administrator in accordance with policies adopted by the Board.
On December 12, 2018, we entered into an Expense Support Agreement with the Adviser.  The Expense Support Agreement provides that, at such times as the Adviser determines, the Adviser may pay certain Expense Payments of the Company, provided that no portion of the payment will be used to pay any interest expense of ours. Such Expense Payment will be made in any combination of cash or other immediately available funds no later than forty-five days after a written commitment from the Adviser to pay such expense, and/or by an offset against amounts due from us to the Adviser or its affiliates. Following any calendar quarter in which Available Operating Funds (as defined in the Expense Support Agreement) exceed Excess Operating Funds, we shall pay Reimbursement Payments to the Adviser until such time as all Expense Payments made by the Adviser to us within three years prior to the last business day of such calendar quarter have been reimbursed. The amount of the Reimbursement Payment for any calendar quarter shall equal the lesser of (i) the Excess Operating Funds in such quarter and (ii) the aggregate amount of all Expense Payments made by the Adviser to us within three years prior to the last business day of such calendar quarter that have not been previously reimbursed by us to the Adviser. The Expense Support Agreement provides additional restrictions on the amount of each Reimbursement Payment for any calendar quarter. The Adviser may waive its right to receive all or a portion of any Reimbursement Payment in any particular calendar quarter, so that such Reimbursement Payment may be reimbursable in a future calendar quarter.
Portfolio and Investment Activity
For the three months ended September 30, 2019, we acquired $553.4 million aggregate principal amount of investments (including $16.8 million of unfunded commitments), $550.6 million of which was first lien debt and $2.8 million of which was equity.
As of September 30, 2019, based on fair value, our portfolio consisted of 98.00% first lien debt investments, 1.60% second lien debt investments and 0.40% equity investments. As of September 30, 2019, our weighted average total yield of debt
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and income producing securities at cost and fair value was 8.75% and 8.71%, respectively. As of September 30, 2019 we had investments in 50 portfolio companies with an aggregate fair value of $2,028.5 million.
As of December 31, 2018, based on fair value, our portfolio consisted of 98.84% first lien debt investments and 1.16% second lien debt investments. As of December 31, 2018, our weighted average total yield of debt and income producing securities at cost and fair value was 8.70% and 8.76%, respectively. As of December 31, 2018, we had investments in 61 portfolio companies with an aggregate fair value of $545.3 million.
Our investment activity is presented below (information presented herein is at cost unless otherwise indicated) (dollar amounts in thousands).
  As of and for the three months ended September 30, 2019
Investments:  
Total investments, beginning of period $ 1,508,097   
New investments purchased 556,960   
Net accretion of discount on investments 1,900   
Net realized gain (loss) on investments 113   
Investments sold or repaid (47,166)  
Total investments, end of period $ 2,019,904   
Amount of investments funded at principal:     
First lien debt investments $ 555,927   
Second lien debt investments —   
Equity investments 2,800   
Total $ 558,727   
Proceeds from investments sold or repaid:     
First lien debt investments $ (47,092)  
Second lien debt investments (74)  
Equity investments —   
Total $ (47,166)  
Number of portfolio companies 50   
Weighted average yield on debt and income producing investments, at
cost(1)
8.75  %
Weighted average yield on debt and income producing investments, at
fair value(1)
8.71  %
Percentage of debt investments bearing a floating rate 100  %
Percentage of debt investments bearing a fixed rate 0  %
(1)Computed as (a) the annual stated interest rate or yield plus the annual accretion of discounts or less the annual amortization of premiums, as applicable, on accruing debt included in such securities, divided by (b) total first lien and second lien debt (at fair value or cost, as applicable) included in such securities. Actual yields earned over the life of each investment could differ materially from the yields presented above.
Our investments consisted of the following (dollar amounts in thousands):
September 30, 2019 December 31, 2018
Cost Fair Value % of Total
Investments at
Fair Value 		Cost Fair Value % of Total
Investments at
Fair Value
First lien debt $ 1,980,057    $ 1,987,819    98.00  % $ 542,395    $ 538,983    98.84  %
Second lien debt 31,847    32,531    1.60    6,358    6,342    1.16   
Equity investments 8,000    8,103    0.40    —    —    —   
Total $ 2,019,904    $ 2,028,453    100.00  % $ 548,753    $ 545,325    100.00  %

Results of Operations
Comparative financial statements are not presented as we had not begun operations as of the year ago period. We were initially capitalized on September 14, 2018 and commenced our operations on November 20, 2018. The following table represents the operating results (dollar amounts in thousands):
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  Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Total investment income $ 38,590    83,468   
Less: Net expenses 17,480    42,772   
Net investment income 21,110    40,696   
Net unrealized appreciation (depreciation) (1,741)   12,962   
Net realized gain (loss) 118    3,396   
Net increase (decrease) in net assets resulting from operations $ 19,487    $ 57,054   
Investment Income
Investment income, was as follows (dollar amounts in thousands):
  Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Interest income $ 38,507    $ 82,802   
Fee income 83    666   
Total investment income $ 38,590    $ 83,468   
For the three and nine months ended September 30, 2019, total investment income was driven by our deployment of capital and increased invested balance of investments.  The size of our investment portfolio at fair value increased from $545.3 million at December 31, 2018 to $2,028.5 million at September 30, 2019. With the exception of two equity investments (which represented 0.40% of the total fair value of the portfolio), all investments were income producing senior secured debt investments.  There were no loans on non-accrual status as of September 30, 2019 and December 31, 2018.
Expenses
Expenses were as follows (dollar amounts in thousands):
  Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Interest expense $ 8,606    $ 21,061   
Management fees 3,599    7,590   
Income based incentive fee 3,718    7,473   
Capital gains incentive fee (243)   1,819   
Professional fees 417    964   
Board of Trustees' fees 105    329   
Administrative service expenses 213    1,045   
Other general and administrative 540    1,919   
Amortization of offering costs 325    742   
Total expenses 17,280    42,942   
Expense support —    (570)  
Recoupment of expense support 200    400   
Net expenses $ 17,480    $ 42,772   

Interest expense for the three and nine months ended September 30, 2019 was driven by $731.7 million and $580.3 million, respectively, of average borrowings (at an average effective interest rate, including unused fees, of 4.48% and 4.59%, respectively) under our credit facilities related to borrowing for investments.
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Management fees and income based incentive fees for the three and nine months ended September 30, 2019 were driven by our deployment of capital. For the three and nine months ended September 30, 2019, there was $24.8 million and $49.8 million of pre-incentive fee net investment income which resulted in income based incentive fees of $3.7 million and $7.5 million, respectively.
For the three and nine months ended September 30, 2019, we recorded a capital gains incentive fee of $(0.2) million and $1.8 million based upon our cumulative net realized and unrealized gains as of September 30, 2019 in the amount of $12.1 million. The accrual for any capital gains incentive fee under U.S. GAAP in a given period may result in an additional expense if such cumulative amount is greater than in the prior period or a reduction of previously recorded expense if such cumulative amount is less than in the prior period. If such cumulative amount is negative, then there is no accrual.
Organization costs and offering costs include expenses incurred in our initial formation and our Private Offering. Professional fees include legal, rating agencies, audit, tax, valuation, technology and other professional fees incurred related to the management of us. Administrative service fees represent fees paid to the Administrator for our allocable portion of overhead and other expenses incurred by the Administrator in performing its obligations under the administration agreement, including our allocable portion of the cost of certain of our executive officers, their respective staff and other non-investment professionals that perform duties for us. Other general and administrative expenses include insurance, filing, research, our sub-administrator, subscriptions and other costs.
For the three months ended September 30, 2019, the Adviser recouped $0.2 million of expense support provided to us in previous periods. For the nine months ended September 30, 2019, the Adviser provided expense support of $0.6 million, partially offset with $0.4 million of recoupments. The Adviser may elect to provide additional expense support to us, subject to future Reimbursement Payments pursuant to the Expense Support Agreement described above in “—Key Components of Our Results of Operations—Expenses.”
Income Taxes, Including Excise Taxes
We elected to be treated as a RIC under Subchapter M of the Code, and we intend to operate in a manner so as to continue to qualify for the tax treatment applicable to RICs. To qualify for tax treatment as a RIC, we must, among other things, distribute to our shareholders in each taxable year generally at least 90% of the sum of our investment company taxable income, as defined by the Code (without regard to the deduction for dividends paid), and net tax-exempt income for that taxable year. To maintain our tax treatment as a RIC, we, among other things, intend to make the requisite distributions to our shareholders, which generally relieve us from corporate-level U.S. federal income taxes.
Depending on the level of taxable income earned in a tax year, we may carry forward taxable income (including net capital gains, if any) in excess of current year dividend distributions from the current tax year into the next tax year and pay a nondeductible 4% U.S. federal excise tax on such taxable income, as required. To the extent that we determine that our estimated current year annual taxable income will be in excess of estimated current year dividend distributions from such income, we will accrue excise tax on estimated excess taxable income.
Net Unrealized Gain (Loss)
Net unrealized gain (loss) was comprised of the following (dollar amounts in thousands):
Three Months Ended
September 30, 2019 		Nine Months Ended
September 30, 2019
Net unrealized gain (loss) on investments $ (1,881)   $ 12,821   
Net unrealized gain (loss) on forward purchase obligation 154    222   
Net unrealized gain (loss) on translation of assets and liabilities in foreign currencies (14)   (81)  
Net unrealized gain (loss) $ (1,741)   $ 12,962   
For the three months ended September 30, 2019, the net unrealized gains on investments were primarily driven by decreases in the value of our syndicated loan portfolio of $8.4 million partially offset by increases to our originated loan portfolio of $6.6 million.
For the nine months ended September 30, 2019, the net unrealized gains on investments were primarily driven by increases in the value of our syndicated loan portfolio, originated loan portfolio and our borrowings denominated in foreign currency of $8.7 million, $3.4 million and $0.7 million, respectively.

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Net Realized Gain (Loss)
For the three and nine months ended September 30, 2019, we generated net realized gains of $0.1 million and $3.4 million, respectively, resulting primarily from full or partial sales of syndicated loans.
Financial Condition, Liquidity and Capital Resources
We generate cash from the net proceeds from the drawdown of Capital Commitments, proceeds from net borrowings on our credit facilities and income earned on our debt investments. The primary uses of our cash and cash equivalents are for (i) originating loans and purchasing senior secured debt investments, (ii) funding the costs of our operations (including fees paid to our Adviser and expense reimbursements paid to our Administrator), (iii) debt service, repayment and other financing costs of our borrowings and (iv) cash distributions to the holders of our shares.
As of September 30, 2019, we had three revolving credit facilities outstanding, as described in “—Borrowings” below. We may from time to time enter into additional credit facilities, increase the size of our existing credit facilities or issue debt securities. Any such incurrence or issuance would be subject to prevailing market conditions, our liquidity requirements, contractual and regulatory restrictions and other factors. In accordance with the 1940 Act, with certain limited exceptions, we are only allowed to incur borrowings, issue debt securities or issue preferred stock, if immediately after the borrowing or issuance, the ratio of total assets (less total liabilities other than indebtedness) to total indebtedness plus preferred stock, is at least 150%. As of September 30, 2019, we had an aggregate amount of $777.4 million of senior securities outstanding and our asset coverage ratio was 277.3%. The independent members of our Board and our sole initial shareholder approved our asset coverage limit of 150% pursuant to Section 61(a)(2) of the 1940 Act effective September 25, 2018. As of such date, our initial shareholder was the only holder of our shares and it waived the right to receive repurchase offers pursuant to Section 61(a)(2)(D)(ii) of the 1940 Act. We seek to carefully consider our unfunded commitments for the purpose of planning our ongoing financial leverage. Further, we maintain sufficient borrowing capacity within the 150% asset coverage limitation to cover any outstanding unfunded commitments we are required to fund.
Cash and cash equivalents as of September 30, 2019, taken together with our $1,097.6 million of available capacity under our credit facilities (subject to borrowing base availability) and our $1,326.5 million of uncalled Capital Commitments is expected to be sufficient for our investing activities and to conduct our operations in the near term.
As of September 30, 2019, we had $135.5 million in cash and cash equivalents. During the nine months ended September 30, 2019, cash used in operating activities was $1,557.1 million, primarily as a result of funding portfolio investments of $1,831.4 million and a decrease in payables for investments purchased of $149.5 million; partially offset by proceeds from sale of investments of $367.7 million. Cash provided by financing activities was $1,686.3 million during the period, which was primarily the result of proceeds from the issuance of shares of $1,113.5 million, net borrowings on our credit facilities of $593.1 million; partially offset by dividends paid in cash of $17.7 million.
Equity
The following table summarizes the total shares issued and proceeds received related to capital drawdowns delivered pursuant to the Subscription Agreements for the nine months ended September 30, 2019 (dollar amounts in millions, unless otherwise noted):
Common Share Issuance Date Number of
Common
Shares Issued 		Aggregate
Offering Price
January 24, 2019 5,666,095    $ 142.1   
March 28, 2019 9,818,817    247.5   
June 27, 2019 12,453,261    319.7   
August 9, 2019 1,401,367    36.1   
September 25, 2019 (1)
14,686,050    377.3   
Total 44,025,590    $ 1,122.7   
(1)On September 11, 2019, we issued a capital call and delivered capital drawdown notices totaling $377.3 million, of which $9.2 million was received subsequent to September 30, 2019 and recorded as a subscription receivable on the Consolidated Statements of Assets and Liabilities.
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During the three months ended September 30, 2019, we entered into Subscription Agreements with a number of investors providing for the private placement of our shares. Under the terms of the Subscription Agreements, investors are required to fund drawdowns to purchase our shares up to the amount of their respective capital commitment on an as-needed basis each time we deliver a drawdown notice to our investors. As of September 30, 2019, we had received Capital Commitments totaling $2,688.5 million ($1,326.5 million remaining undrawn), of which $65.0 million ($31.9 million remaining undrawn) are from affiliated entities of the Adviser.
Distributions and Dividend Reinvestment

The following table summarizes our distributions declared and payable for the nine months ended September 30, 2019 (dollar amounts in thousands, unless otherwise noted):

Date Declared Record Date Payment Date Per Share Amount Total Amount DRIP Shares Value DRIP Shares Issued
January 22, 2019 January 23, 2019 May 15, 2019 $ 0.1239    $ 1,192    $ —    —   
February 28, 2019 March 27, 2019 May 15, 2019 0.3536    5,406    469    18,566   
March 26, 2019 March 31, 2019 May 15, 2019 0.0225    565    50    2,039   
June 26, 2019 June 26, 2019 August 14, 2019 0.4780    12,010    1,743    67,986   
June 26, 2019 June 30, 2019 August 14, 2019 0.0220    827    5    178   
August 8, 2019 (1)
August 8, 2019 November 14, 2019 0.2120    7,967   
September 24, 2019 (1)
September 24, 2019 November 14, 2019 0.2554    9,973   
September 24, 2019 (1)
September 30, 2019 November 14, 2019 0.0326    1,752   
Total distributions    $ 1.5000    $ 39,692    $ 2,267    88,769   
(1)The number of shares issued under the DRIP for this distribution will be determined on each respective distribution payment date.
With respect to distributions, we have adopted an “opt out” dividend reinvestment plan for shareholders. As a result, in the event of a declared cash distribution or other distribution, each shareholder that has not “opted out” of the dividend reinvestment plan will have their dividends or distributions automatically reinvested in additional shares rather than receiving cash distributions. Shareholders who receive distributions in the form of shares will be subject to the same U.S. federal, state and local tax consequences as if they received cash distributions.
Borrowings
Our outstanding debt obligations were as follows (dollar amounts in thousands):
September 30, 2019
Aggregate
Principal
Committed 		Outstanding
Principal 		Carrying
Value
Unused
Portion (1)
Amount
Available (2)
Subscription Facility $ 400,000    $ —    $ —    $ 400,000    $ 274,442   
JPM SPV Facility(3)
600,000    250,033    250,033    349,967    39,982   
BNP SPV Facility 875,000    527,336    527,336    347,664    61,415   
Total $ 1,875,000    $ 777,369    $ 777,369    $ 1,097,631    $ 375,839   

December 31, 2018
Aggregate
Principal
Committed 		Outstanding
Principal 		Carrying
Value
Unused
Portion (1)
Amount
Available (2)
Subscription Facility $ 200,000    $ —    $ —    $ 200,000    $ 174,032   
JPM SPV Facility 300,000    120,000    120,000    180,000    22,966   
BNP SPV Facility 400,000    65,000    65,000    335,000    5,183   
Total $ 900,000    $ 185,000    $ 185,000    $ 715,000    $ 202,181   

(1)The unused portion is the amount upon which commitment fees, if any, are based.
(2)The amount available reflects any limitations related to each respective credit facility's borrowing base.
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(3)Under the JPM SPV Facility, we may borrow in U.S. dollars or certain other permitted currencies. As of September 30, 2019, we had borrowings denominated in Euros (EUR) of EUR 23.9 million. As of December 31, 2018, all borrowings outstanding were in USD.
For the three and nine months ended September 30, 2019, the weighted average interest rate on all borrowings outstanding was 4.48% and 4.59% (including unused fees), respectively, and the average principal debt outstanding was $731.7 million and $580.3 million, respectively
For additional information on our debt obligations see “Item 1. Consolidated Financial Statements—Notes to Consolidated Financial Statements—Note 6. Borrowings."
Off-Balance Sheet Arrangements
Portfolio Company Commitments
Our investment portfolio contains and is expected to continue to contain debt investments which are in the form of lines of credit or delayed draw commitments, which require us to provide funding when requested by portfolio companies in accordance with underlying loan agreements.  As of September 30, 2019 and December 31, 2018, we had delayed draw term loans with an aggregate of $102.1 million and $54.7 million of unfunded commitments, respectively.
Warehousing Transactions
We entered into two Warehousing Transactions whereby we agreed, subject to certain conditions, to purchase certain assets from parties unaffiliated with the Adviser. Such Warehousing Transactions were designed to assist us in deploying capital upon receipt of drawdown proceeds. The Middle Market Warehouse related primarily to originated or anchor investments in middle market loans.  The Syndicated Warehouse related primarily to broadly syndicated loans prior to the acquisition of the equity interests of the Syndicated Warehouse by us and merger of the Syndicated Warehouse with our wholly-owned subsidiary, as described below. See—“Item 1A.—Risk Factors — Risks Related to an Investment in the Shares — Risks related to the Warehousing Transactions” in our annual report on Form 10-K for the year ended December 31, 2018.
For additional information on our Warehousing Transactions see “Item 1. Consolidated Financial Statements—Notes to Consolidated Financial Statements—Note 7. Commitments and Contingencies."
Other Commitments and Contingencies
From time to time, we may become a party to certain legal proceedings incidental to the normal course of its business. At September 30, 2019, management is not aware of any pending or threatened litigation.
Contractual Obligations
A summary of our contractual payment obligations under our credit facilities and our forward purchase obligation as of September 30, 2019, is as follows (dollar amounts in thousands):
  Payments Due by Period
  Total Less than
1 year 		1-3 years 3-5 years After 5 years
Subscription Facility $ —    $ —    $ —    $ —    $ —   
JPM SPV Facility 250,033    —    —    250,033    —   
BNP SPV Facility 527,336    —    —    527,336    —   
Total Contractual Obligations $ 777,369    $ —    $ —    $ 777,369    $ —   


Related-Party Transactions
We have entered into a number of business relationships with affiliated or related parties, including the following:
•the Investment Advisory Agreement;
•the Administration Agreement;
•the Middle Market Warehouse; and
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•Expense Support and Conditional Reimbursement Agreement.
In addition to the aforementioned agreements, we, our Adviser and certain of our Adviser’s affiliates have been granted exemptive relief by the SEC to co-invest with other funds managed by our Adviser or its affiliates in a manner consistent with our investment objective, positions, policies, strategies and restrictions as well as regulatory requirements and other pertinent factors. See “Item 1. Consolidated Financial Statements—Notes to Consolidated Financial Statements—Note 3. Agreements and Related Party Transactions.”
Recent Developments
From October 1, 2019 through November 12, 2019, we made new investment commitments of approximately $1,004 million, of which approximately $893 million had been funded.
Critical Accounting Policies
The preparation of our consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. Changes in the economic environment, financial markets, and any other parameters used in determining such estimates could cause actual results to differ.  Our critical accounting policies, including those relating to the valuation of our investment portfolio, are described in our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 18, 2019, and elsewhere in our filings with the SEC. There have been no significant changes in our critical accounting policies and practices.

Item 3. Quantitative and Qualitative Disclosures About Market Risk.
We are subject to financial market risks, including valuation risk and interest rate risk.
Valuation Risk
We have invested, and plan to continue to invest, primarily in illiquid debt and equity securities of private companies. Most of our investments will not have a readily available market price, and we value these investments at fair value as determined in good faith by our Board, based on, among other things, the input of the Adviser, our Audit Committee and independent third-party valuation firms engaged at the direction of the Board, and in accordance with our valuation policy. There is no single standard for determining fair value. As a result, determining fair value requires that judgment be applied to the specific facts and circumstances of each portfolio investment while employing a consistently applied valuation process for the types of investments we make. If we were required to liquidate a portfolio investment in a forced or liquidation sale, we may realize amounts that are different from the amounts presented and such differences could be material.
Interest Rate Risk
Interest rate sensitivity refers to the change in earnings that may result from changes in the level of interest rates. We intend to fund portions of our investments with borrowings, and at such time, our net investment income will be affected by the difference between the rate at which we invest and the rate at which we borrow. Accordingly, we cannot assure shareholders that a significant change in market interest rates will not have a material adverse effect on our net investment income.
As of September 30, 2019, 100% of our debt investments at fair value were at floating rates. Based on our Consolidated Statements of Assets and Liabilities as of September 30, 2019, the following table shows the annualized impact on net income of hypothetical base rate changes in interest rates (considering base rate floors and ceilings for floating rate instruments assuming no changes in our investment and borrowing structure) (dollar amounts in thousands):
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  Interest
Income 		Interest
Expense 		Net
Income
Up 300 basis points $ 61,684    $ (23,321)   $ 38,363   
Up 200 basis points 41,122    (15,547)   25,575   
Up 100 basis points 20,561    (7,774)   12,787   
Down 100 basis points (20,561)   7,774    (12,787)  
Down 200 basis points (20,972)   15,547    (5,425)  
Down 300 basis points (20,972)   15,703    (5,269)  

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Item 4. Controls and Procedures.
(a) Evaluation of Disclosure Controls and Procedures
In accordance with Rules 13a-15(b) and 15d-15(b) of the Securities Exchange Act of 1934, as amended, we, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, carried out an evaluation of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) and Rule 15d-15(e) of the Exchange Act) as of the end of the period covered by this Quarterly Report on Form 10-Q and determined that our disclosure controls and procedures are effective as of the end of the period covered by the Quarterly Report on Form 10-Q.
(b) Changes in Internal Controls Over Financial Reporting
There have been no changes in our internal control over financial reporting that occurred during the quarter ended September 30, 2019 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
We are not currently subject to any material legal proceedings, nor, to our knowledge, are any material legal proceeding threatened against us. From time to time, we may be a party to certain legal proceedings in the ordinary course of business, including proceedings relating to the enforcement of our rights under contracts with our portfolio companies. Our business is also subject to extensive regulation, which may result in regulatory proceedings against us. While the outcome of any such future legal or regulatory proceedings cannot be predicted with certainty, we do not expect that any such future proceedings will have a material effect upon our financial condition or results of operations.
Item 1A. Risk Factors.
There have been no material changes to the risk factors previously disclosed under Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2018.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
Refer to "Item 1. Financial Statements—Notes to Consolidated Financial Statements—Note 8. Net Assets" in this Form 10-Q for issuances of our shares during the quarter. Such issuances were part of our Private Offering pursuant to Section 4(a)(2) of the 1933 Act and Regulation D thereunder.

Item 3. Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information.
None.
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Item 6. Exhibits.
Exhibit
Number 		Description of Exhibits
3.1
Third Amended and Restated Agreement and Declaration of Trust (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 19, 2019).
10.1
10.2
10.3
31.1
31.2
32.1
32.2
_________________________
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Blackstone / GSO Secured Lending Fund
     
Date: November 13, 2019 /s/ Brad Marshall
Brad Marshall
  Chief Executive Officer
     
Date: November 13, 2019 /s/ Stephan Kuppenheimer
Stephan Kuppenheimer
  Chief Financial Officer

45
Exhibit 10.1
EXECUTION VERSION
This THIRD AMENDMENT TO THE REVOLVING CREDIT AND SECURITY AGREEMENT (this “Amendment”), dated as of September 27, 2019 (the “Amendment Date”), is entered into by and among BGSL BRECKENRIDGE FUNDING LLC, a Delaware limited liability company, as the borrower (the “Borrower”), the LENDERS party to the Revolving Credit Agreement, BNP PARIBAS, as the administrative agent (the “Administrative Agent”), BLACKSTONE/GSO SECURED LENDING FUND, a Delaware statutory trust, as the equityholder (in such capacity, the “Equityholder”), BLACKSTONE/GSO SECURED LENDING FUND, a Delaware statutory trust, as the servicer (in such capacity, the “Servicer”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (the “Collateral Agent”).
WHEREAS, the Borrower, the lenders from time to time party thereto, the Administrative Agent, the Equityholder, the Servicer and the Collateral Agent are party to the Revolving Credit and Security Agreement, dated as of December 21, 2018 (as amended from time to time prior to the date hereof, the “Revolving Credit Agreement”); and
WHEREAS, the parties hereto desire to amend the Revolving Credit Agreement, in accordance with Section 13.01(b) of the Revolving Credit Agreement subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. Terms used but not defined herein have the respective meanings given to such terms in the Revolving Credit Agreement.
ARTICLE II 
Amendments to Revolving Credit Agreement
SECTION 2.1. As of the Amendment Date, the Revolving Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages attached as Appendix A hereto.
ARTICLE III 
Representations and Warranties


SECTION 3.1. The Borrower and the Equityholder hereby represent and warrant to the Administrative Agent and the Lender that, as of the Amendment Date, (i) no Default, Event of Default, Potential Servicer Removal Event or Servicer Removal Event has occurred and is continuing and (ii) the representations and warranties of the Borrower, the Servicer and the Equityholder contained in Sections 4.01, 4.02 and 4.03 of the Revolving Credit Agreement are true and correct in all material respects on and as of the Amendment Date (other than any representation and warranty that is made as of a specific date).
ARTICLE IV 
Conditions Precedent
SECTION 4.1. This Amendment will be effective upon the satisfaction of each of the following conditions:
(a) the Administrative Agent has received satisfactory evidence that the Borrower has obtained all required consents and approvals of all Persons to the execution, delivery and performance of this Amendment and the consummation of the transactions contemplated hereby;
(b) all fees due and owing to the Administrative Agent on or prior to the Amendment Date have been paid; and
(c) the Administrative Agent has received a legal opinion of Dechert LLP, counsel to the Borrower, acceptable to the Administrative Agent covering such matters as the Administrative Agent has reasonably requested.
ARTICLE V 
Miscellaneous
SECTION 5.1. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.2. Severability Clause. In case any provision in this Amendment deemed to be invalid, illegal or unenforceable, the remaining provisions of this Amendment remain in full force and effect.
SECTION 5.3. Ratification. Except as expressly amended hereby, the Revolving Credit Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof will remain in full force and effect. When effective, this Amendment will form a part of the Revolving Credit Agreement for all purposes.
SECTION 5.4. Counterparts. The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together constitute one and the same agreement.
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Delivery of an executed signature page of this Amendment by facsimile or email transmission is effective as delivery of a manually executed counterpart hereof.
SECTION 5.5. Headings. The headings of the Articles and Sections in this Amendment are for convenience of reference only and are not deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 5.6. Direction to Execute. The Administrative Agent hereby authorizes and directs the Collateral Agent to execute this Amendment.
[Signature Pages Follow]
3

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the Amendment Date.
BORROWER:
BGSL BRECKENRIDGE FUNDING LLC
By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Title: Authorized Signatory



[Signature Page to Third Amendment to Revolving Credit and Security Agreement]

EQUITYHOLDER:
BLACKSTONE/GSO SECURED LENDING FUND,
as Equityholder

By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Title: Authorized Signatory


SERVICER:
BLACKSTONE/GSO SECURED LENDING FUND,
as Servicer

By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Title: Authorized Signatory


[Signature Page to Third Amendment to Revolving Credit and Security Agreement]

ADMINISTRATIVE AGENT:
BNP PARIBAS,
as Administrative Agent

By: /s/ Adnan A. Zuberi
Name: Adnan A. Zuberi
Title: Managing Director
By: /s/ David N. Morin
Name: David N. Morin
Title: Managing Director

LENDER:
BNP PARIBAS,
as Lender


By: /s/ Adnan A. Zuberi
Name: Adnan A. Zuberi
Title: Managing Director
By: /s/ David N. Morin
Name: David N. Morin
Title: Managing Director


[Signature Page to Third Amendment to Revolving Credit and Security Agreement]


LENDER:
SUMITOMO MITSUI TRUST BANK, NEW YORK BRANCH
By: /s/ Tommy Constantinou
Name: Tommy Constantinou
Title: Vice President
[Signature Page to Third Amendment to Revolving Credit and Security Agreement]

COLLATERAL AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION

By: /s/ Rupinder Suri
Name: Rupinder Suri
Title: Vice President


[Signature Page to Third Amendment to Revolving Credit and Security Agreement]
EXECUTION VERSION
Conformed through Third Amendment, dated September 27, 2019
REVOLVING CREDIT AND SECURITY AGREEMENT
among
BGSL BRECKENRIDGE FUNDING LLC,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BNP PARIBAS,
as Administrative Agent,
BLACKSTONE/GSO SECURED LENDING FUND,
as Equityholder,
BLACKSTONE/GSO SECURED LENDING FUND, as Servicer,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Collateral Agent
Dated as of December 21, 2018

[Signature Page to Third Amendment to Revolving Credit and Security Agreement]

TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
Section 1.01 Definitions 1
Section 1.02 Rules of Construction 49
Section 1.03 Computation of Time Periods 49
Section 1.04 Collateral Value Calculation Procedures 50
ARTICLE II
ADVANCES
Section 2.01 Revolving Credit Facility 51
Section 2.02 Requests for Collateral Loan Approval 52
Section 2.03 Making of the Advances 54
Section 2.04 Evidence of Indebtedness 55
Section 2.05 Payment of Principal and Interest 55
Section 2.06 Prepayment of Advances 56
Section 2.07 Changes of Commitments 56
Section 2.08 Maximum Lawful Rate 57
Section 2.09 Several Obligations 57
Section 2.10 Increased Costs 57
Section 2.11 Compensation; Breakage Payments 59
Section 2.12 Illegality; Inability to Determine Rates 59
Section 2.13 Rescission or Return of Payment 59
Section 2.14 Post-Default Interest 59
Section 2.15 Payments Generally 59
Section 2.16 Extension of Commitment Termination Date 60
Section 2.17 Defaulting Lenders 61
Section 2.18 LIBOR Discontinuation 62
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Initial Advance 63
Section 3.02 Conditions Precedent to Each Borrowing 65
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower 66
Section 4.02 Representations and Warranties of the Servicer 70
Section 4.03 Representations and Warranties of the Equityholder 73
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower 75
Section 5.02 Covenants of the Servicer 79
Section 5.03 Negative Covenants of the Borrower 82
Section 5.04 Covenants of the Equityholder 84
Section 5.05 Certain Undertakings Relating to Separateness 85
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default 87
Section 6.02 OC Ratio Posting Payments 91
ARTICLE VII
PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
Section 7.01 Grant of Security 91
Section 7.02 Release of Security Interest 92
Section 7.03 Rights and Remedies 92
Section 7.04 Remedies Cumulative 95
Section 7.05 Related Documents 95
Section 7.06 Borrower Remains Liable 96
Section 7.07 Protection of Collateral 96
ARTICLE VIII
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 8.01 Collection of Money 97
Section 8.02 Collateral Account and Collection Account 97
Section 8.03 Payment Account 98
Section 8.04 The Revolving Reserve Account; Fundings 98
Section 8.05 [Reserved] 99
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Section 8.06 Reinvestment of Funds in Covered Accounts; Reports by Collateral Agent 99
Section 8.07 Accountings 100
Section 8.08 Release of Collateral 102
Section 8.09 Reports by Independent Accountants 103
ARTICLE IX
APPLICATION OF MONIES
Section 9.01 Disbursements of Monies from Payment Account 104
ARTICLE X
SALE OF COLLATERAL LOANS;
PURCHASE OF ADDITIONAL COLLATERAL LOANS
Section 10.01 Sales of Collateral Loans 108
Section 10.02 Purchase of Additional Collateral Loans 109
Section 10.03 Conditions Applicable to All Sale and Purchase Transactions 109
Section 10.04 Additional Equity Contributions 110
ARTICLE XI
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 11.01 Appointment and Designation of the Servicer 110
Section 11.02 Duties of the Servicer 112
Section 11.03 Authorization of the Servicer 114
Section 11.04 Collection Efforts, Modification of Collateral 114
Section 11.05 Servicer Compensation 115
Section 11.06 The Servicer Not to Resign 115
ARTICLE XII
THE AGENTS
Section 12.01 Authorization and Action 115
Section 12.02 Delegation of Duties 116
Section 12.03 Agents’ Reliance, Etc. 117
Section 12.04 Indemnification 119
Section 12.05 Successor Agents 119
Section 12.06 The Collateral Agent 120
-iii-

ARTICLE XIII
MISCELLANEOUS
Section 13.01 No Waiver; Modifications in Writing 122
Section 13.02 Notices, Etc. 123
Section 13.03 Taxes 123
Section 13.04 Costs and Expenses; Indemnification 127
Section 13.05 Execution in Counterparts 129
Section 13.06 Assignability 129
Section 13.07 Governing Law 131
Section 13.08 Severability of Provisions 131
Section 13.09 Confidentiality 131
Section 13.10 Merger 132
Section 13.11 Survival 132
Section 13.12 Submission to Jurisdiction; Waivers; Etc. 132
Section 13.13 Waiver of Jury Trial 133
Section 13.14 Right of Setoff; Payments Pro Rata 134
Section 13.15 PATRIOT Act Notice 134
Section 13.16 Legal Holidays 135
Section 13.17 Non-Petition 135
Section 13.18 Waiver of Setoff 135
Section 13.19 Collateral Agent Execution and Delivery 135
Section 13.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 136
Section 13.21 WAIVER OF SOVEREIGN IMMUNITY 136
Section 13.22 Risk Retention 136
Section 13.23 EU Due Diligence Requirements. 137
Section 13.24 Compliance with the Securitisation Regulation 138
Section 13.25 Adequacy of Monetary Damages Against the Lenders 138

SCHEDULES
Schedule 1 Commitments and Percentages
Schedule 2 S&P Industry Classifications
Schedule 3 Initial Collateral Loans
Schedule 4 Moody’s Industry Classifications
Schedule 5 Notice Information
Schedule 6 Authorized Signatories
Schedule 7 Diversity Score
Schedule 8 Moody’s RiskCalc
Schedule 9 Initial Asset List
EXHIBITS
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Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing (with attached form of Borrowing Base Calculation Statement)
Exhibit C Form of Notice of Prepayment
Exhibit D Form of Assignment and Acceptance
Exhibit E [Reserved]
Exhibit F Agreed-Upon Procedures
Exhibit G Form of Extension Request
Exhibit H Form of Data Report
Exhibit I Form of Approval Request


-v-

REVOLVING CREDIT AND SECURITY AGREEMENT
REVOLVING CREDIT AND SECURITY AGREEMENT, dated as of December 21, 2018, as amended on the First Amendment Date, the Second Amendment Date and the Third Amendment Date, among BGSL BRECKENRIDGE FUNDING LLC, a Delaware limited liability company, as borrower (the “Borrower”), the LENDERS from time to time party hereto, BNP PARIBAS (“BNP”), as administrative agent for the Secured Parties (as hereinafter defined) (in such capacity, the “Administrative Agent”), BLACKSTONE/GSO SECURED LENDING FUND, a Delaware statutory trust (in such capacity, the “Equityholder”), BLACKSTONE/GSO SECURED LENDING FUND, a Delaware statutory trust, as servicer (in such capacity, the “Servicer”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as collateral agent for the Secured Parties (as hereinafter defined) (in such capacity, the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower desires that the Lenders make advances on a revolving basis to the Borrower on the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, each Lender is willing to make such advances to the Borrower on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE VI 
DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
SECTION 6.1. Definitions. As used in this Agreement, the following terms shall have the meanings indicated:
“Account Control Agreement” means that certain Account Control Agreement, dated as of the Closing Date, among the Borrower, the Servicer, the Collateral Agent and Wells Fargo Bank, National Association, as Securities Intermediary, which agreement relates to the Covered Accounts.
“Adjusted Principal Balance” means, for any Eligible Collateral Loan, as of any date of determination, an amount equal to the Loan Value of such Eligible Collateral Loan as of such date multiplied by the Principal Balance of such Eligible Collateral Loan as of such date; provided that, the parties hereby agree that the Adjusted Principal Balance of any Collateral Loan that is not an Eligible Collateral Loan as of such date of determination shall be zero.


“Administrative Agent” has the meaning assigned to such term in the introduction to this Agreement.
“Administrative Expense Cap” means, for any Payment Date, an amount not to exceed $200,000 for any twelve (12) month period.
“Administrative Expenses” means the fees and expenses (including indemnities) and other amounts of the Borrower due or accrued with respect to any Payment Date and payable in the following order:
(a) first, to the Collateral Agent, the Custodian and the Securities Intermediary, any amounts and indemnities payable to such entities pursuant to the Facility Documents; and
(b) second, on a pro rata basis, to:
(i) the Independent Accountants, agents (other than the Servicer) and outside counsel of the Borrower for fees and expenses related to the Collateral and the Facility Documents and to the Independent Manager of the Borrower for its fees and expenses incurred in acting in such capacity; and
(ii) to any rating agency for fees and expenses in connection with the rating of (or provision of credit estimates in respect of) any Collateral Loan.
“Advance” means each loan advanced by the Lenders to the Borrower on a Borrowing Date pursuant to Article II.
“Advance Rate” means, with respect to any Collateral Loan, the corresponding percentage for the loan type set forth below:
Loan Type Sub-Category Advance Rate
First Lien BSLs
75  %
Second Lien BSLs
45  %
First Lien Middle Market Loans
whose Obligors have an EBITDA of greater than $25,000,000 (as of the date such Collateral Loan is acquired) 70  %
First Lien Middle Market Loans
whose Obligors have an EBITDA of less than or equal to $25,000,000 (as of the date such Collateral Loan is acquired) 65  %
First Lien Last Out Loans
First Lien Last Out Category A Loans 60  %
First Lien Last Out Loans
First Lien Last Out Category B Loans 50  %
First Lien Last Out Loans
First Lien Last Out Category C Loans 45  %
Notwithstanding anything to the contrary set forth in the table above, the portion of First Lien Middle Market Loans with a Paid Senior Net Leverage Ratio up to 5.0x will be
-2-

assigned an Advance Rate of 70% or 65% (as applicable pursuant to the above chart) and portions above 5.0x will be assigned an Advance Rate of 45%.
“Affected Person” means (a) the Administrative Agent, each Lender and each of their respective Affiliates and (b) any assignee or participant of any Lender (unless the benefit of any particular provision hereof to any such Affected Person is otherwise expressly excluded herein).
“Affiliate” means, in respect of a referenced Person at any time, another Person Controlling, Controlled by or under common Control with such referenced Person but which shall not, with respect to the Borrower, include the obligors under any Collateral Loan; provided that (a) an obligor will not be considered an “Affiliate” of any other obligor solely due to the fact that each such obligor is under the control of the same financial sponsor and (b) obligors in respect of Collateral Obligations shall be deemed not to be “Affiliates” if they have distinct corporate family ratings and/or distinct issuer credit ratings. The Borrower will be deemed to have no “Affiliates.”
“Agents” means, collectively, the Administrative Agent and the Collateral Agent.
“Aggregate Adjusted Collateral Balance” means, as of any date of determination, an amount equal to the sum of the Adjusted Principal Balances of all Collateral Loans in the Collateral (including each potential Collateral Loan that the Borrower has entered into a binding commitment to purchase that has not yet settled) on such date, after giving effect to all Collateral Loans added to and removed from the Collateral on such date.
“Aggregate Funded Spread” means, as of any date, the sum of:
(a) in the case of each Floating Rate Loan (excluding any Floor Loan) that bears interest at a spread over an index (including any London interbank offered rate based index), (i) the excess of the sum of such spread and such index over LIBOR as then in effect (which spread or excess may be expressed as a negative percentage) multiplied by (ii) the Principal Balance of such Collateral Loan; and
(b) in the case of each Floor Loan, (i) the excess of the interest rate on such Floor Loan as of such date over LIBOR as then in effect (which spread or excess may be expressed as a negative percentage) multiplied by (ii) the Principal Balance of each such Collateral Loan.
“Aggregate Net Collateral Balance” means, as of any date of determination, the Aggregate Adjusted Collateral Balance minus the Excess Concentration Amount, in each case, as of such date of determination.
“Aggregate Principal Balance” means, when used with respect to all or a portion of the Collateral Loans, the sum of the Principal Balances of all or of such portion of such Collateral Loans.
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“Aggregate Tranche A Net Collateral Balance” means, as of any date of determination, an amount equal to the portion of the Aggregate Net Collateral Balance allocable to Tranche A Collateral Loans as of such date of determination (including each potential Tranche A Collateral Loan that the Borrower has entered into a binding commitment to purchase that has not yet settled).
“Aggregate Tranche B Net Collateral Balance” means, as of any date of determination, an amount equal to the portion of the Aggregate Net Collateral Balance allocable to Tranche B Collateral Loans as of such date of determination (including each potential Tranche B Collateral Loan that the Borrower has entered into a binding commitment to purchase that has not yet settled).
“Aggregate Tranche C Net Collateral Balance” means, as of any date of determination, an amount equal to the portion of the Aggregate Net Collateral Balance allocable to Tranche C Collateral Loans as of such date of determination (including each potential Tranche C Collateral Loan that the Borrower has entered into a binding commitment to purchase that has not yet settled).
“Agreement” means this Revolving Credit and Security Agreement.
“Applicable Law” means, for any Person, any Law of any Governmental Authority, including all federal and state banking or securities laws, to which the Person in question is subject or by which it or any of its assets or properties are bound.
“Applicable Margin” has the meaning assigned to such term in the Lender Fee Letter.
“Appraisal” means an appraisal of a Collateral Loan that is conducted by an Approved Appraisal Firm, which may be in the form of an update or reaffirmation by an Approved Appraisal Firm of an appraisal previously performed by such Approved Appraisal Firm or another Approved Appraisal Firm.
“Approval Request” has the meaning specified in Section 2.02 hereof.
“Approved Appraisal Firm” means Lincoln International LLC (f/k/a Lincoln Partners LLC), Valuation Research Corporation, Alvarez & Marsal, Duff & Phelps, Houlihan Lokey, Murray Devine, FTI Consulting and any appraisal or valuation firm providing such service to Blackstone/GSO Secured Lending Fund; provided that any independent appraisal firm or independent financial advisor recognized as being experienced in conducting valuations of secured loans may be added as an “Approved Appraisal Firm” with the consent of the Administrative Agent (such consent not the be unreasonably withheld, delayed or conditioned).
“Approved List” has the meaning specified in Section 2.02 hereof.
“Asset Information” means, with respect to any Obligor, in each case to the extent available to the Borrower and subject to any redactions required by the Servicer’s internal
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policies and procedures (it being understood that to the extent any of the information described in any of the following is contained in the Servicer’s internal credit memo described in clause (d) below, such information need not be separately represented by any document or file and shall for all purposes of this Agreement be deemed delivered upon delivery of such internal credit memo): (a) the legal name of such Obligor, (b) the jurisdiction in which such Obligor is domiciled, (c) 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), (d) the Servicer’s internal credit memo with respect to such Obligor and the related Collateral Loan, (e) the informational memorandum, offering memorandum or similar document, if any, issued by the bookrunner or the administrative agent for such Obligor and relating to such Collateral Loan, (f) a company forecast of such Obligor including plans related to capital expenditures, (g) the business model, company strategy and names of known peers of such Obligor, (h) the shareholding pattern and details of the management team of such Obligor, (i) details of any banking facilities and the debt maturity schedule of such Obligor, (j) the Moody’s RiskCalc rating output for the related Collateral Loan and (k) a copy of the related credit agreement (which may be a draft) specifying the terms and governing the repayment of such Collateral Loan.
“Assignment and Acceptance” means an Assignment and Acceptance in substantially the form of Exhibit D, entered into by a Lender, an assignee, the Administrative Agent and, if applicable, the Borrower.
“AUP Report Date” has the meaning assigned to such term in Section 8.09.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union (as amended or re-enacted) establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. For the purposes of this definition, a reference to “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation.
“Bankruptcy Code” means the United States Bankruptcy Code, Title 11, United States Code §§101 et seq., or foreign bankruptcy, insolvency, receivership or similar law from time to time in effect and affecting the rights of creditors generally.
“Base Rate” means, on any date, a fluctuating interest rate per annum equal to the highest of (a) the Prime Rate or (b) the Federal Funds Rate plus 0.50%. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer of any Agent or any Lender. Interest calculated pursuant to clause (a) above will be
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determined based on a year of 365 or 366 days, as applicable, and actual days elapsed. Interest calculated pursuant to clause (b) above will be determined based on a year of 360 days and actual days elapsed. If the calculation of the Base Rate results in a Base Rate of less than zero (0), the Base Rate shall be deemed to be zero (0) for all purposes hereunder.
“BNP” has the meaning assigned to such term in the introduction to this Agreement.
“BNP Lender Fee Letter” means that certain fee letter, dated as of August 2, 2019, by and among BNP, the Borrower and the Servicer.
“Borrower” has the meaning assigned to such term in the introduction to this Agreement.
“Borrowing” has the meaning assigned to such term in Section 2.01.
“Borrowing Base” means, at any time, an amount equal to the sum of (i) the amounts in the Principal Collection Subaccount, (ii) the product of (x) the Weighted Average Advance Rate (excluding the Sale Settlement Pending Collateral from the calculation of the Weighted Average Advance Rate) as of such date, (y) the Portfolio Advance Rate Adjustment as of such date and (z) the Aggregate Net Collateral Balance as of such date (excluding the Sale Settlement Pending Collateral from the calculation of the Aggregate Net Collateral Balance) and (iii) the aggregate sale price (expressed in Dollars) of the Sale Settlement Pending Collateral.
“Borrowing Base Calculation Statement” means a statement in substantially the form attached to the form of Notice of Borrowing attached hereto as Exhibit B, as such form of Borrowing Base Calculation Statement may be modified as mutually agreed by the Administrative Agent and the Borrower from time to time.
“Borrowing Date” means the date of a Borrowing.
“Broadly Syndicated Loan” means a Collateral Loan that (a) is a syndicated commercial loan, (b) has an Initial Tranche Size of $250,000,000 or greater (without consideration of reductions thereon from scheduled amortization payments), and (c) is rated (or will be rated) by S&P or Moody’s (or the related Obligor for such Collateral Loan is rated by S&P or Moody’s).
“Business Day” means any day of the year except: (a) a Saturday, Sunday or other day on which commercial banks in New York City or the city in which the offices of the Collateral Agent are located are authorized or required by law to close; and (b) if such day relates to any interest rate setting as to an Advance determined by reference to LIBOR, any day on which banks are not open for dealings in Dollars in the London interbank market.
“Cash” means Dollars immediately available on the day in question.
“Cash Interest Coverage Ratio” means, with respect to any Collateral Loan for any Relevant Test Period, the meaning of “Cash Interest Coverage Ratio,” “Pro Forma Cash
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Interest Coverage Ratio” or any comparable term in the Related Documents for such Collateral Loan, and in any case that “Cash Interest Coverage Ratio,” “Pro Forma Cash Interest Coverage Ratio” or such comparable term is not defined in such Related Documents, the ratio, for such Collateral Loan, of (a) EBITDA for the Relevant Test Period, to (b) interest for the Relevant Test Period, in each case, as calculated by the Servicer in accordance with the Servicing Standard.
“Certificated Security” has the meaning specified in Section 8-102(a)(4) of the UCC.
“Change in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.10(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” hereunder regardless of the date of effectiveness.
“Change of Control” means an event or series of events by which (A) the Equityholder or its Affiliates, collectively, (i) shall cease to possess, directly or indirectly, the right to elect or appoint (through contract, ownership of voting securities, or otherwise) managers that at all times have a majority of the votes of the board of managers (or similar governing body) of the Borrower or to direct the management policies and decisions of the Borrower or (ii) shall cease, directly or indirectly, to own and control legally and beneficially all of the equity interests of the Borrower or (B) GSO Asset Management LLC or its Affiliates shall cease to be the investment advisor of the Equityholder.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
“Clearing Corporation” means each entity included within the meaning of “clearing corporation” under Section 8-102(a)(5) of the UCC.
“Clearing Corporation Security” means securities which are in the custody of or maintained on the books of a Clearing Corporation or a nominee subject to the control of a Clearing Corporation and, if they are Certificated Securities in registered form, properly endorsed to or registered in the name of the Clearing Corporation or such nominee.
“CLO Securities” means notes or similar securities secured principally by a portfolio of collateral that includes all or a material portion of the Collateral.
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“CLO Takeout Date” means the day on which the Borrower (A) issues (or co-issues) CLO Securities or (B) with the prior written consent of the Administrative Agent, sells all or a material portion of the Collateral to a Person that issues (or co-issues) or intends to issue (or co-issue), CLO Securities; provided that, in either case, the date of such CLO Takeout will be confirmed in writing to the Borrower, the Lenders, the Equityholder and the Servicer by the Administrative Agent.
“Closing Date” means December 21, 2018.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning assigned to such term in Section 7.01(a).
“Collateral Account” has the meaning assigned to such term in Section 8.02(a)(i).
“Collateral Agent” has the meaning assigned to such term in the introduction to this Agreement.
“Collateral Agent Fee Letter” means the fee letter between the Collateral Agent and the Borrower setting forth the fees and other amounts payable by the Borrower to the Collateral Agent under the Facility Documents, in connection with the transactions contemplated by this Agreement.
“Collateral Interest Amount” means, as of any date of determination, without duplication, the sum of (a) the aggregate amount of Interest Proceeds that has been received or that is expected to be received (other than Interest Proceeds expected to be received from Defaulted Collateral Loans and Ineligible Collateral Loans) and (b) the aggregate amount of Interest Proceeds that the Servicer has determined, in accordance with the Servicing Standard, are likely to be received from Defaulted Collateral Loans and Ineligible Collateral Loans, in each case, during the Collection Period (and, if such Collection Period does not end on a Business Day, the next succeeding Business Day) in which such date of determination occurs.
“Collateral Loan” means a loan, debt obligation, debt security or participation therein acquired by the Borrower. For the avoidance of doubt, any loan, debt obligation, debt security or participation therein acquired by the Borrower by operation of a Macomb Merger shall be a Collateral Loan.
“Collateral Loan Buy Confirmation” means with respect to any Collateral Loan, documentation evidencing, in reasonable detail, the Borrower’s acquisition of such Collateral Loan, and which shall identify at least the obligor, price and the Principal Balance of such Collateral Loan.
“Collection Account” has the meaning assigned to such term in Section 8.02(a)(ii) and includes the Principal Collection Subaccount and the Interest Collection Subaccount.
“Collection Date” means the date on which the aggregate outstanding principal amount of the Advances have been repaid in full and all Interest and fees and all other
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Obligations (other than contingent indemnification and reimbursement obligations which are unknown, unmatured and/or for which no claim giving rise thereto has been asserted) have been paid in full, and the Borrower shall have no further right to request any additional Advances.
“Collection Period” means, with respect to any Payment Date, the quarterly period from and including the date on which the first Advance is made hereunder to but excluding the first Collection Period Start Date following the date of such Advance and each successive quarterly period from and including a Collection Period Start Date to but excluding the immediately succeeding Collection Period Start Date or, in the case of the Collection Period immediately preceding the Final Maturity Date or the Collection Period immediately preceding an optional prepayment in whole of the Advances, ending on the day preceding the Final Maturity Date or the date of such prepayment, respectively.
“Collection Period Start Date” means the first calendar day of March, June, September and December of each year (or, if any such date is not a Business Day, the immediately succeeding Business Day), commencing in June 2019.
“Collections” means all cash collections, distributions, payments or other amounts received, or to be received, by the Borrower from any Person in respect of any Collateral Loan constituting Collateral, including all principal, interest, fees, distributions and redemption and withdrawal proceeds payable to the Borrower under or in connection with any such Collateral Loans and all Proceeds from any sale or disposition of any such Collateral Loans.
“Commitment” means, as to each Lender, the obligation of such Lender to make, on and subject to the terms and conditions hereof, Advances to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding for such Lender up to but not exceeding the amount set forth opposite the name of such Lender on Schedule 1 or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable, as such amount may be reduced from time to time pursuant to Section 2.07 or increased or reduced from time to time pursuant to assignments effected in accordance with Section 13.06(a).
“Commitment Excess” means, as to each Lender, the amount, as of any date of determination, by which (x) the aggregate principal amount of Advances of such Lender that remains outstanding exceeds (y) such Lender’s Commitment as of such date.
“Commitment Fees” has the meaning assigned to such term in the Lender Fee Letter.
“Commitment Reduction Fee” has the meaning assigned to such term in the Lender Fee Letter.
“Commitment Termination Date” means the last day of the Reinvestment Period.
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“Concentration Calculation Amount” means the greater of (a) 50% of the Maximum Portfolio Amount and (b) the Aggregate Adjusted Collateral Balance (after giving effect to any proposed purchase of Collateral Loans).
“Concentration Limitations” means, as of any date of determination, the following limitations (calculated without duplication) as applied to the Eligible Collateral Loans owned (or, in relation to a proposed purchase of a Collateral Loan, proposed to be owned, with respect to which, if such purchase results in noncompliance with the limitations, the relevant requirements must be maintained or improved after giving effect to the purchase) by the Borrower, unless a waiver is provided in writing by the Administrative Agent specifying the agreed treatment of such Collateral Loan or Concentration Limitation:
(a) not more than 45.00% of the Concentration Calculation Amount may consist of First Lien Last Out Category B Loans, First Lien Last Out Category C Loans and Second Lien BSLs;
(b) not more than 20.00% of the Concentration Calculation Amount may consist of Second Lien BSLs;
(c) not more than 20.00% of the Concentration Calculation Amount may consist of Cov-Lite Loans that are not First Lien BSLs;
(d) not less than 90.00% of the Concentration Calculation Amount may consist of Collateral Loans denominated in Dollars;
(e) not less than 90.00% of the Concentration Calculation Amount may consist of Collateral Loans whose Obligors have a principal place of business in or are organized or incorporated in the United States;
(f) not more than 35.00% of the Concentration Calculation Amount may consist of Collateral Loans whose Obligors have a Paid Senor Net Leverage Ratio at origination that is greater than 6.0x;
(g) not more than 5.00% of the Maximum Portfolio Amount may consist of Collateral Loans that are issued to any Obligor and its Affiliates, except that up to 7.00% of the Maximum Portfolio Amount may consist of Collateral Loans that are issued to the three largest Obligors and their respective Affiliates;
(h) not more than 15.00% of the Maximum Portfolio Amount may consist of Collateral Loans that are issued by Obligors and their Affiliates that belong to any single S&P Industry Classification, except that (i) up to 30.00% may consist of Collateral Loans with Obligors and their Affiliates in the largest S&P Industry Classification, (ii) up to 20.00% may consist of Collateral Loans with Obligors and their Affiliates in the second largest S&P Industry Classification and (iii) up to 10.00% may consist of Collateral Loans with Obligors and their Affiliates in the S&P Industry Classification of “Oil, Gas & Consumable Fuels”;
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(i) not more than 10.00% of the Concentration Calculation Amount may consist of Fixed Rate Loans; and
(j) not more than 10.00% of the Maximum Portfolio Amount may consist of Collateral Loans where the majority owner of the related Obligor is an Affiliate of the Servicer or the Equityholder.
“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, in respect of any Person, the certificate or articles of formation or organization, the limited liability company agreement, operating agreement, partnership agreement, joint venture agreement or other applicable agreement of formation or organization (or equivalent or comparable constituent documents) and other organizational documents and by-laws and any certificate of incorporation, certificate of formation, certificate of limited partnership and other agreement, similar instrument filed or made in connection with its formation or organization, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Control” means the direct or indirect possession of the power to vote 50% or more of the voting securities of such Person or the power to direct or cause the direction of the management or policies of a Person, whether through ownership, by contract, arrangement or understanding, or otherwise. “Controlled” and “Controlling” have the meaning correlative thereto.
“Cov-Lite Loan” means a Collateral Loan that does not (I) contain any financial covenants or (II) require the related Obligor of such Collateral Loan to comply with any maintenance covenant; provided that a Collateral Loan described in clause (I) or (II) above which either (i) contains a cross-default provision to, or (ii) is pari passu with, another loan of the Obligor that requires the Obligor to comply with a maintenance covenant will be deemed not to be a Cov-Lite Loan.
“Coverage Test” means each of (a) the Minimum OC Coverage Test and (b) the Interest Coverage Ratio Test.
“Covered Account” means each of the Collection Accounts (including the Interest Collection Subaccount and Principal Collection Subaccount therein), the Payment Account, the Collateral Account and the Revolving Reserve Account.
“Custodian” means Wells Fargo, and any successor thereto under the Custodian Agreement.
“Custodian Agreement” means that certain Custodian Agreement, dated as of the Closing Date, among the Custodian, the Borrower and the Collateral Agent.
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“Data File” has the meaning assigned to such term in Section 8.07(a).
“Default” means any event which, with the passage of time, the giving of notice, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.
“Defaulted Collateral Loan” means any Collateral Loan as to which at any time:
(a) a default as to all or any portion of one or more payments of principal and/or interest (including a failure of a selling institution to pay amounts due and payable to the Borrower with respect to the related participation) has occurred after the earlier of (i) any grace period applicable thereto and (ii) five (5) Business Days, in each case, past the applicable due date;
(b) a default (other than a default described in clause (a) of this definition) has occurred under the applicable Related Documents and for which the Borrower (or the agent or required lenders pursuant to the applicable Related Documents, as applicable) has elected to exercise any of its rights or remedies under the applicable Related Documents (including acceleration, foreclosing on collateral or the imposition of default pricing);
(c) any portion of principal and/or interest payable thereunder has been waived or forgiven by the holders of such obligation; or
(d) a Revaluation Event under clauses (b) or (f) of the definition thereof has occurred.
“Defaulting Lender” means, at any time, any Lender that (a) has failed for three (3) or more Business Days after a Borrowing Date to fund its portion of an Advance required pursuant to the terms of this Agreement (other than failures to fund as a result of a bona fide dispute as to whether the conditions to borrowing were satisfied on the relevant Borrowing Date), (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under the Bankruptcy Code or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdiction, (ii) had appointed for it a receiver, custodian, conservator, trustee,
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administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgment or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) shall be conclusive and binding absent manifest error.
“Delayed Drawdown Collateral Loan” means a Collateral Loan that (a) requires the Borrower to make one or more future advances to the Obligor under the applicable Related Documents, (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 Loan will be a Delayed Drawdown Collateral Loan only to the extent of undrawn commitments and solely until all commitments by the Borrower to make advances on such Collateral Loan to the Obligor under the Related Documents expire or are terminated or are reduced to zero.
“Deliver” or “Delivered” or “Delivery” means the taking of the following steps:
(a) in the case of each Instrument, causing the Securities Intermediary to maintain continuous possession of such Instrument;
(b) in the case of each Certificated Security (other than a Clearing Corporation Security):
(i) causing the delivery of such Certificated Security to the Securities Intermediary by registering the same in the name of the Securities Intermediary or its affiliated nominee or by endorsing the same to the Securities Intermediary in blank;
(ii) causing the Securities Intermediary to indicate continuously on its books and records that such Certificated Security is credited to the applicable Covered Account; and
(iii) causing the Securities Intermediary to maintain continuous possession of such Certificated Security;
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(c) in the case of each Uncertificated Security (other than a Clearing Corporation Security):
(i) causing such Uncertificated Security to be continuously registered on the books of the issuer thereof to the Securities Intermediary; and
(ii) causing the Securities Intermediary to continuously indicate on its books and records that such Uncertificated Security is credited to the applicable Covered Account;
(d) in the case of each Clearing Corporation Security:
(i) causing the relevant Clearing Corporation to credit such Clearing Corporation Security to the securities account of the Securities Intermediary; and
(ii) causing the Securities Intermediary to continuously indicate on its books and records that such Clearing Corporation Security is credited to the applicable Covered Account;
(e) in the case of each security issued or guaranteed by the United States of America or an agency or instrumentality thereof and that is maintained in book-entry records of a Federal Reserve Bank (“FRB”) (each such security a “Government Security”):
(i) causing the creation of a Security Entitlement to such Government Security by the credit of such Government Security to the securities account of the Securities Intermediary at such FRB; and
(ii) causing the Securities Intermediary to continuously indicate on its books and records that such Government Security is credited to the applicable Covered Account;
(f) in the case of each Security Entitlement not governed by clauses (a) through (e) above:
(i) causing a Securities Intermediary (x) to indicate on its books and records that the underlying Financial Asset has been credited to the appropriate Covered Account, (y) to receive a Financial Asset from a Securities Intermediary or to acquire the underlying Financial Asset from a Securities Intermediary, and in either case, accepting it for credit to the appropriate Covered Account or (z) to become obligated under other law, regulation or rule to credit the underlying Financial Asset to a Securities Intermediary’s securities account;
(ii) causing such Securities Intermediary to make entries on its books and records continuously identifying such Security Entitlement as belonging to the Custodian and continuously indicating on its books and records
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that such Security Entitlement is credited to one of the Covered Accounts, which shall at all times be securities accounts; and
(iii) causing the Securities Intermediary to continuously indicate on its books and records that such Security Entitlement (or all rights and property of the Securities Intermediary representing such Security Entitlement) is credited to the applicable Covered Account;
(g) in the case of Cash or Money:
(i) causing the delivery of such Cash or Money to the Securities Intermediary;
(ii) causing the Securities Intermediary to credit such Cash or Money to a “securities account” (as defined in Section 8-501(a) of the UCC), which may be a subaccount of the applicable Covered Account, in accordance with Article 9 of the UCC, pursuant to agreement by the Securities Intermediary to treat such Cash or Money as a Financial Asset; and
(iii) causing the Securities Intermediary to continuously indicate on its books and records that such Cash or Money so held is credited to the applicable Covered Account;
(h) with respect to such of the Collateral as constitutes an account or a general intangible or is not otherwise described in the foregoing clauses (a) through (g), causing to be filed with the Secretary of State of the State of Delaware a properly completed UCC financing statement that names the Borrower as debtor and the Collateral Agent as secured party and that describes such Collateral (which financing statement may have been previously filed) or any equivalent filing in any applicable jurisdiction; or
(i) in the case of each of clauses (a) through (h) above, such additional or alternative procedures as may hereafter become appropriate to perfect the security interest granted to the Collateral Agent hereunder in such items of the Collateral, consistent with Applicable Law.
In addition, the Servicer on behalf of the Borrower will obtain any and all consents required by the Related Documents relating to any Instruments, accounts or general intangibles for the transfer of ownership and/or pledge hereunder (except to the extent that the requirement for such consent is rendered ineffective under Section 9-406 of the UCC).
“Determination Date” means the last day of each Collection Period.
“Diversity Score” means, as of any day, a single number that indicates collateral concentration in terms of both issuer and industry concentration, calculated as set forth in Schedule 7 hereto, as such Diversity Scores shall be updated at the option of the Administrative Agent in its sole discretion if Moody’s publishes revised criteria.
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“Dollars” and “$” mean lawful money of the United States of America.
“Due Date” means each date on which any payment is due on a Collateral Loan in accordance with its terms.
“EBITDA” means, with respect to any Relevant Test Period and any Collateral Loan, the meaning of the term “Adjusted EBITDA,” the term “EBITDA” or any comparable definition in the Related Documents for such period and Collateral Loan (or, in the case of a Collateral Loan for which the Related Documents have not been executed, as set forth in the relevant marketing materials or financial model in respect of such Collateral Loan) as determined in the good faith discretion of the Servicer, and, in any case that the term “Adjusted EBITDA,” the term “EBITDA” or such comparable definition is not defined in such Related Documents, an amount, for the principal Obligor thereunder and any of its parents or subsidiaries that are obligated as guarantor pursuant to the Related Documents for such Collateral Loan (determined on a consolidated basis without duplication in accordance with GAAP (and also on a pro forma basis as determined in good faith by the Servicer in case of any acquisitions)) equal to earnings from continuing operations for such period plus interest expense, income taxes, depreciation and amortization for such period, other non-cash charges and organization costs, extraordinary, one-time and/or non-recurring losses or charges, any other customary add-backs for similarly situated obligors the Servicer deems to be appropriate and any other item the Servicer and the Administrative Agent mutually deem to be appropriate.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
“Eligible Collateral Loan” means, as of any date of determination, a Collateral Loan that meets each of the following criteria:
(a) is (i) a First Lien BSL, (ii) a First Lien Middle Market Loan, (iii) a Second Lien BSL or (iv) a First Lien Last Out Loan;
(b) for which the related Obligor has a minimum EBITDA of $15,000,000 at origination;
(c) for which the related Obligor has a maximum Paid Senior Net Leverage Ratio at origination of 7.0x;
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(d) was acquired by the Borrower for a price of not less than 80% of its Principal Balance;
(e) is denominated in a Permitted Currency and does not permit the currency or country in which such Collateral Loan is payable to be changed except to another Permitted Currency;
(f) the relevant Obligor’s main place of business and/or incorporation and/or headquarters are in an Eligible Country;
(g) the Related Documents for such Collateral Loan are governed by the laws of the United States or Canada;
(h) is not a Defaulted Collateral Loan at the time of acquisition by the Borrower;
(i) is not a credit linked note or a single purpose real estate loan;
(j) is scheduled to pay interest semi-annually or more frequently, with a minimum cash interest spread (after any withholding taxes levied and any PIK Toggle exercised) of at least 3.5%;
(k) does not constitute Margin Stock and is not by its terms convertible into or exchangeable for an equity security at the option of either the Borrower thereof or the holder, and does not have attached warrants to purchase equity securities;
(l) is not an obligation pursuant to which any future advances or payments to the Obligor may be required to be made by the Borrower, including Revolving Collateral Loans and Delayed Drawdown Collateral Loans, unless such future funding requirements are covered by either cash reserves or available amounts under the Facility Documents;
(m) has an original term to maturity of not more than eight (8.0) years;
(n) has been approved by the Administrative Agent in its sole discretion;
(o) permits the pledge to the Collateral Agent by the Borrower;
(p) provides for payments that do not, at the time the obligation is acquired, subject to the Borrower to withholding tax or other similar taxes, unless the related Obligor is required to make “gross-up” payments that ensure that the net amount actually received by the Borrower (after payment of all taxes, whether imposed on such Obligor or the Borrower) will equal the full amount that the Borrower would have received had no such taxes been imposed;
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(q) it is capable of being sold, assigned or participated to the Borrower, together with any associated security, without any breach of applicable selling restrictions, any contractual provisions or any legal or regulatory requirements and the Borrower does not require any authorizations, consents, approvals or filings (other than such as have been obtained or effected) as a result of or in connection with any such sale, assignment or participation under any Applicable Law;
(r) is not subject to a tender offer from the related Obligor other than (A) a Permitted Offer or (B) an exchange offer in which a security is exchanged for a security that would otherwise qualify for purchase herein;
(s) is not a Structured Finance Obligation, a Zero Coupon Obligation or a Synthetic Security;
(t) is not a corporate rescue loan, PIK Loan, unsecured senior loan or Mezzanine Obligation;
(u) is not a project, shipping/aircraft or infrastructure/construction financings;
(v) for which the relevant the Obligor of such Collateral Loan is not a Governmental Authority;
(w) for which the Obligor of such Collateral Loan is not a commodity trader and producer, oil field services company or other entity highly exposed to commodity price/volume risk;
(x) for which the relevant Obligor is not operating, domiciled or having business in a country subject to Sanctions;
(y) is not a lease; and
(z) will not cause the Borrower or the pool of assets to be required to be registered as an investment company under the Investment Company Act;
provided that the Administrative Agent may agree in writing to specifically waive any of the requirements set forth above with respect to any single Collateral Loan (it being understood that the Administrative Agent shall not be required to provide any such waiver under any circumstances), and upon such waiver, such waived requirements shall be deemed not to be part of the eligibility requirement with respect to such Collateral Loan.
“Eligible Country” means (a) the United States or (b) OECD countries with a country ceiling for foreign currency bonds of at least “Aa2” by Moody’s and a foreign currency issuer credit rating of at least “AA” by S&P.
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“Eligible Investments” means any Dollar investment that, at the time it is Delivered, is Cash or one or more of the following obligations or securities:
(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, bank deposit products, demand notes of, or bankers’ acceptances issued by any depository institution or trust company organized under the laws of the United States or any State thereof (including any federal or state branch or agency of a foreign depository institution or trust company) and subject to supervision and examination by federal and/or state banking authorities (including, if applicable, the Collateral Agent, the Custodian or the Administrative Agent or any agent thereof acting in its commercial capacity); provided that the short-term unsecured debt obligations of such depository institution or trust company at the time of such investment, or contractual commitment providing for such investment, are rated at least “A-1” by S&P and “P-1” by Moody’s;
(c) commercial paper that (i) is payable in Dollars and (ii) is rated at least “A-1” by S&P and “P-1” by Moody’s; and
(d) units of money market funds having a rating of the Highest Required Investment Category from each of S&P and Moody’s.
No Eligible Investment shall have an “f,” “r,” “p,” “pi,” “q,” “sf” or “t” subscript affixed to its S&P rating. Any such investment may be made or acquired from or through the Collateral Agent or the Administrative Agent or any of their respective Affiliates, or any entity for whom the Collateral Agent, the Administrative Agent, the Custodian 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 Eligible Investment at the time of acquisition) or acts as offeror of; provided that, notwithstanding the foregoing clauses (a) through (d), unless the Borrower and the Servicer 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 Servicer to the Administrative Agent and the Collateral Agent that the advice specified in this definition has been received by the Borrower and the Servicer), Eligible Investments may only include obligations or securities that constitute cash equivalents for purposes of the rights and assets in paragraph (c)(8)(i)(B) of the exclusions from the definition of “covered fund” for purposes of the Volcker Rule. The Collateral Agent and Custodian shall have no obligation to determine or oversee compliance with the foregoing.
“Equity Security” means any stock or similar security, certificate of interest or participation in any profit sharing agreement, reorganization certificate or subscription, transferable share, voting trust certificate or certificate of deposit for an equity security, limited partnership interest, interest in a joint venture, or certificate of interest in a business trust; any security future on any such security; or any security convertible, with or without consideration
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into such a security, or carrying any warrant or right to subscribe to or purchase such a security; or any such warrant or right.
“Equityholder” has the meaning given to such term in the recitals.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the thirty (30) day notice requirement is waived); (b) the failure with respect to any Plan to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA); (c) the filing pursuant to Section 412(c) of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (e) the incurrence by the Borrower or any member of its ERISA Group of any material liability under Title IV of ERISA with respect to the termination of any Plan; (f) (i) the receipt by the Borrower or any member of its ERISA Group from the PBGC of a notice of determination that the PBGC intends to seek termination of any Plan or to have a trustee appointed for any Plan under Section 4041(c) of ERISA, or (ii) the filing by the Borrower or any member of its ERISA Group of a notice of intent to terminate any Plan; (g) the incurrence by the Borrower or any member of its ERISA Group of any material liability (i) with respect to a Plan pursuant to Sections 4063 and 4064 of ERISA, (ii) with respect to a facility closing pursuant to Section 4062(e) of ERISA, or (iii) with respect to the withdrawal or partial withdrawal from any Multiemployer Plan; (h) the receipt by the Borrower or any member of its ERISA Group of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, in endangered status or critical status, within the meaning of Section 432 of the Code or Section 305 of ERISA or is or is expected to be insolvent, within the meaning of Title IV of ERISA; or (i) the failure of the Borrower or any member of its ERISA Group to make any required contribution to a Multiemployer Plan, in each case that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
“ERISA Group” means each controlled group of corporations or trades or businesses (whether or not incorporated) under common control that is treated as a single employer under Section 414(b) or (c) or, for purposes of ERISA Section 302 or Code Section 412, (m) or (o) of the Code with the Borrower.
“Establishment” means an “establishment” for the purposes of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“EU Bail-In Legislation Schedule” means the document described as the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
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“EU Retention Requirements” means Article 6 of the Securitisation Regulation (together with any delegated regulations, applicable guidance, regulatory technical standards, or implementing technical standards made thereunder.
“Euros” or “€” means the lawful currency of the EEA Member Countries that have adopted and retain the single currency in accordance with the treaty establishing the European Community, as amended from time to time.
“Event of Default” means the occurrence of any of the events, acts or circumstances set forth in Section 6.01.
“Excess Concentration Amount” means, as of any date of determination, in respect of which any one or more of the Concentration Limitations are exceeded, the portions (calculated by the Servicer and without duplication) of each Eligible Collateral Loan that cause such Concentration Limitations to be exceeded.
“Excess Interest Proceeds” means, at any time of determination, the excess of (1) amounts then on deposit in the Collateral Accounts representing Interest Proceeds over (2) the projected amount required to be paid pursuant to Section 9.01(a)(i)(A), (B), (C) and (D), on the next Payment Date, any prepayment date or the Final Maturity Date, as applicable, in each case, as determined by the Borrower in good faith and in a commercially reasonable manner.
“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Excluded Amounts” means (a) any amount received in the Collection Account with respect to any Collateral Loan included as part of the Collateral, which amount is attributable to the payment of any Taxes, fees or other charges imposed by any Governmental Authority on such Collateral Loan or on any underlying asset securing such Collateral Loan and (b) any amount received in the Collection Account (or other applicable account) representing (i) any amount representing a reimbursement of insurance premiums and (ii) any escrows relating to Taxes, insurance and other amounts in connection with Collateral Loans which are held in an escrow account for the benefit of the Obligor and the applicable secured party pursuant to escrow arrangements under a Related Document, to the extent such amount is attributable to a time after the effective date of such replacement or sale, in each case of clauses (a) and (b) to the extent paid on behalf of the Borrower from equity contributions.
“Excluded Principal Distributions” means Permitted Distributions of Principal Proceeds designated as “Excluded Principal Distributions” by mutual agreement of the Servicer and Administrative Agent.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Secured Party or required to be withheld or deducted from a payment to a Secured Party: (a) Taxes imposed on or measured by a Secured Party’s net income (however denominated),
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franchise Taxes imposed on a Secured Party, and branch profits Taxes imposed on a Secured Party, in each case, (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such Secured Party is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) in the case of any Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 13.03, 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 Secured Party’s failure to comply with Section 13.03(g), and (d) U.S. federal withholding Taxes imposed under FATCA.
“Expedited Notice of Borrowing” has the meaning assigned to such term in Section 2.03(d).
“Extension Request” means a written request by the Borrower substantially in the form of Exhibit G to extend the Commitment Termination Date for an additional period of not greater than one year.
“Facility Amount” means (a) on or prior to the Commitment Termination Date, an amount equal to the Maximum Facility Amount (as such amount may be reduced from time to time pursuant to Section 2.07) and (b) following the Commitment Termination Date, the outstanding principal balance of all of the Advances.
“Facility Documents” means this Agreement, the Notes, the Account Control Agreement, the Collateral Agent Fee Letter, the Custodian Agreement, the Lender Fee Letter, the BNP Lender Fee Letter, the Loan Sale Agreement and any other security agreements and other instruments entered into or delivered by or on behalf of the Borrower pursuant to Section 5.01(c) to create, perfect or otherwise evidence the Collateral Agent’s security interest in the Collateral.
“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 and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” means, for any period, a fluctuating interest 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 arranged by federal funds brokers, 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 Administrative Agent from three federal funds brokers of recognized standing selected by it; provided that, if at any time a Lender is borrowing overnight funds from a Federal Reserve Bank that day, the Federal Funds Rate for such Lender for such day shall be the average
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rate per annum at which such overnight borrowings are made on that day as promptly reported by such Lender to the Borrower and the Agents in writing. Each determination of the Federal Funds Rate by a Lender pursuant to the foregoing proviso shall be conclusive and binding except in the case of manifest error.
“Fee Basis Amount” means, for any Payment Date, an amount equal to the Aggregate Principal Balance.
“Final Maturity Date” means the earlier to occur of (i) the Business Day 24 months after the last day of the Reinvestment Period and (ii) the date on which the Final Maturity Date is declared pursuant to Section 6.01.
“Final Order” means an order, judgment, decree or ruling the operation or effect of which has not been stayed, reversed or amended and as to which order, judgment, decree or ruling (or any revision, modification or amendment thereof) the time to appeal or to seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was filed or, if filed, remains pending.
“Financial Asset” has the meaning specified in Section 8-102(a)(9) of the UCC.
“First Amendment Date” means June 11, 2019.
“First Lien BSL” means a First Lien Loan that is a Broadly Syndicated Loan.
“First Lien Last Out Category A Loan” means a First Lien Last Out Loan where any tranches of First Lien Loans issued by the related Obligor which, at any time prior to and/or after an event of default under the Related Documents, will be paid prior to the Collateral Loan in accordance with a specified waterfall or other priority of payments as specified in the Related Documents, an agreement among lenders or other applicable agreement are less than or equal to 25% of the aggregate principal amount of all first lien debt of such Obligor.
“First Lien Last Out Category B Loan” means a First Lien Last Out Loan where any tranches of First Lien Loans issued by the related Obligor which, at any time prior to and/or after an event of default under the Related Documents, will be paid prior to the Collateral Loan in accordance with a specified waterfall or other priority of payments as specified in the Related Documents, an agreement among lenders or other applicable agreement are more than 25% of the aggregate principal amount of all first lien debt but less than or equal to 50% of the aggregate principal amount of all first lien debt of such Obligor.
“First Lien Last Out Category C Loan” means a First Lien Last Out Loan where any tranches of First Lien Loans issued by the related Obligor which, at any time prior to and/or after an event of default under the Related Documents, will be paid prior to the Collateral Loan in accordance with a specified waterfall or other priority of payments as specified in the Related Documents, an agreement among lenders or other applicable agreement are greater than 50% of the aggregate principal amount of all first lien debt of such Obligor.
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“First Lien Last Out Loan” means a Collateral Loan which would be a First Lien Loan but for the fact that at any time prior to and/or after an event of default under the Related Documents, such Collateral Loan will be paid after one or more tranches of First Lien Loans issued by the Obligor have been paid in full in accordance with a specified waterfall or other priority of payments as specified in the Related Documents, an agreement among lenders or other applicable agreement.
“First Lien Loan” means any Collateral Loan (for purposes of this definition, a “loan”) that meets the following criteria:
(a) is not (and is not expressly permitted by its terms to become) subordinate to any obligation of the obligor in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings (other than pursuant to a Permitted Working Capital Lien and customary waterfall provisions contained in the applicable loan agreement or indenture);
(b) is secured by a pledge of collateral, which security interest is (i) validly perfected and first priority under Applicable Law (subject to liens permitted under the applicable credit agreement that are reasonable for similar Collateral Loans, and liens accorded priority by law in favor of any Governmental Authority) or (ii)(1) validly perfected and second priority in the accounts, documents, instruments, chattel paper, letter-of-credit rights, supporting obligations, deposit accounts, investments accounts (as such terms are defined in the UCC) and any other assets securing any Working Capital Revolver under Applicable Law and proceeds of any of the foregoing (a first priority lien on such assets, a “Permitted Working Capital Lien”) and (2) validly perfected and first priority (subject to liens permitted under the related underlying instruments that are reasonable and customary for similar Collateral Loans) in all other collateral under Applicable Law;
(c) the Servicer determines in good faith that the value of the collateral for such Collateral Loan (including based on enterprise value) on or about the time of acquisition equals or exceeds the outstanding principal balance of the Collateral Loan plus the aggregate outstanding balances of all other Collateral Loans of equal or higher seniority secured by a first priority Lien over the same collateral; and
(d) for which the Obligor of such loan and its Affiliates has been designated on the date such Collateral Loan was acquired by the Borrower as a “First Lien Loan” by the Administrative Agent.
“First Lien Middle Market Loan” means a First Lien Loan that is not a Broadly Syndicated Loan.
“Fixed Rate Loan” means any Collateral Loan that bears a fixed rate of interest.
“Floating Rate Loan” means any Collateral Loan that bears a floating rate of interest.
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“Floor Loan” means, as of any date:
(a) a Floating Rate Loan (i) for which the Related Documents provide for a Libor option and that such Libor is calculated as the greater of a specified “floor” rate per annum and the London interbank offered rate for the applicable interest period and (ii) that, as of such date, bears interest based on such Libor option, but only if as of such date the London interbank offered rate for the applicable interest period is less than such floor rate; and
(b) a Floating Rate Loan (i) for which the Related Documents provide for a base or prime rate option and such base or prime rate is calculated as the greater of a specified “floor” rate per annum and the base or prime rate for the applicable interest period and (ii) that, as of such date, bears interest based on such base or prime rate option, but only if as of such date the base or prime rate for the applicable interest period is less than such floor rate.
“Foreign Lender” means a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“FRB” has the meaning specified in the definition of Deliver.
“Fundamental Amendment” means any amendment, modification, waiver or supplement of or to this Agreement that would (a) increase or extend the term of the Commitments or change the Final Maturity Date (other than an increase of the Commitment of a particular Lender or the addition of a new Lender agreed to by the relevant Lender), (b) extend the date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (c) reduce the amount of any such payment of principal, (d) reduce the rate at which Interest is payable thereon or any fee is payable hereunder (other than in connection with the appointment of a LIBOR Successor Rate), (e) release any material portion of the Collateral, except in connection with dispositions permitted hereunder, (f) alter the terms of Section 9.01 or Section 13.01(b), (g) modify the definition of the terms “Majority Lenders,” “Required Lenders,” “Maximum Available Amount,” “Advance Rate,” “Borrowing Base,” “Minimum OC Coverage Test,” “Interest Coverage Ratio Test,” “Collateral Loan,” “Eligible Collateral Loan,” “Eligible Country,” “Minimum Equity Amount,” “Collateral Quality Test,” “Tranche A Borrowing Base,” “Tranche B Borrowing Base,” “Tranche C Borrowing Base,” “Tranche A Minimum OC Coverage Test,” “Tranche B Minimum OC Coverage Test,” “Tranche C Minimum OC Coverage Test,” “Tranche A Collateral Loan,” “Tranche B Collateral Loan,” “Tranche C Collateral Loan,” or any Collateral Quality Test set forth therein or component thereof defined therein; (h) 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 or (i) extend the Reinvestment Period.
“GAAP” means generally accepted accounting principles in effect from time to time in the United States.
“Government Security” has the meaning specified in the definition of Deliver.
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“Governmental Authority” means, with respect to any Person, any nation or government, any supranational, state or other political or subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator, in each case, having jurisdiction or authority over such Person.
“Governmental Authorizations” means all franchises, permits, licenses, approvals, consents and other authorizations of all Governmental Authorities.
“Governmental Filings” means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated with such filings with all Governmental Authorities.
“Highest Required Investment Category” means (a) with respect to ratings assigned by Moody’s, “Aa2” or “P-1” for one month instruments, “Aa2” and “P-1” for three month instruments, “Aa3” and “P-1” for six month instruments and “Aa2” and “P-1” for instruments with a term in excess of six months and (b) with respect to rating assigned by S&P, “A-1” for short-term instruments and “A” for long-term instruments.
“Indemnified Party” has the meaning assigned to such term in Section 13.04(b).
“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 Facility Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Independent Accountants” has the meaning assigned to such term in Section 8.09(a).
“Independent Manager” means a natural person who, (A) for the five-year period prior to his or her appointment as Independent Manager, has not been, and during the continuation of his or her service as Independent Manager is not: (i) an employee, director, stockholder, member, manager, partner or officer of the Borrower or any of its Affiliates (other than his or her service as an Independent Manager of the Borrower or other Affiliates that are structured to be “bankruptcy remote”); (ii) a customer or supplier of the Borrower or any of its Affiliates (other than his or her service as an Independent Manager of the Borrower or any such Affiliate); (iii) a Person controlling or under common control with any partner, shareholder, member, manager, Affiliate or supplier of the Borrower or any Affiliate of the Borrower or (iv) any member of the immediate family of a person described in clauses (i), (ii) or (iii); provided that an independent manager may serve in similar capacities for other special purpose entities established from time to time by Affiliates of the Borrower and (B) has (i) prior experience as an Independent Manager for a corporation or limited liability company whose charter documents required the unanimous consent of all Independent Managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses,
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advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
“Ineligible Collateral Loan” means, at any time, a Collateral Loan or any portion thereof, that fails to satisfy any criteria of the definition of Eligible Collateral Loan as of the date when such criteria are applicable; it being understood that such criteria in the definition of Eligible Collateral Loan that is specified to be applicable only as of the date of acquisition of such Collateral Loan shall not be applicable after the date of acquisition of such Collateral Loan.
“Initial AUP Report Date” has the meaning assigned to such term in Section 8.09(a).
“Initial Tranche Size” means, with respect to any Collateral Loan, an amount equal to (a) if any delayed draw loan or incremental term loan issuance has been issued under the same credit document that has the same interest spread, maturity and seniority (such issuance an “Additional Tranche”), the sum of the principal amounts on the issuance date of the most recently issued Additional Tranche of (i) the aggregate tranche of such Collateral Loan plus (ii) the aggregate tranches of any Additional Tranches, and (b) if no Additional Tranche has been issued, the principal amount of the aggregate tranche of such Collateral Loan as of its original issuance date.
“Insolvency Event” means, with respect to a specified Person, (a) the filing 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 the Bankruptcy Code or any other applicable insolvency 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, and such decree or order shall remain unstayed and in effect for a period of sixty (60) consecutive days; or (b) the commencement by such Person of a voluntary case under the Bankruptcy Code or any other applicable insolvency 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 the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.
“Instrument” has the meaning specified in Section 9-102(a)(47) of the UCC.
“Interest” means, for any day during an Interest Accrual Period with respect to each Tranche of Advances, the sum of the products (for each day elapsed during such Interest Accrual Period) of:
BNPAMENDMENTIMAGE11.GIF
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where:
IR = the Interest Rate for such Tranche for such Interest Accrual Period;
P = the principal amount of the Advances for such Tranche outstanding on such day; and
D = 360 days.
“Interest Accrual Period” means (a) with respect to the first Payment Date, the period from and including the Closing Date to and including the last Business Day of the calendar month preceding the month in which such Payment Date occurs and (b) with respect to any subsequent Payment Date, the period beginning on (and including) the day immediately following the last day of the prior Interest Accrual Period and ending on (but excluding) the last Business Day of the calendar month preceding  the month in which such Payment Date occurs.
“Interest Collection Subaccount” has the meaning assigned to such term in Section 8.02(a).
“Interest Coverage Ratio” means, on any Determination Date, the percentage equal to:
(a) (i) an amount equal to the Collateral Interest Amount at such time minus (ii) the amount payable on the Payment Date immediately following such date of determination pursuant to Sections 9.01(a)(i)(A), (B) and (D); divided by
(b) the amount payable on the Payment Date immediately following such date of determination pursuant to Section 9.01(a)(i)(C).
“Interest Coverage Ratio Test” means a test that is satisfied at any time if the Interest Coverage Ratio is greater than or equal to 150%; provided that the Interest Coverage Ratio Test shall be deemed to be satisfied on any date prior to the initial Advance hereunder.
“Interest Proceeds” means, with respect to any Collection Period or the related Determination Date, without duplication, the sum of:
(a) all payments of interest and other income received in cash by the Borrower during such Collection Period on the Collateral Loans (including interest purchased with Principal Proceeds, interest and other income received in cash on Ineligible Collateral Loans and the accrued interest received in cash in connection with a sale of any such Collateral Loan during such Collection Period);
(b) all principal and interest payments received by the Borrower during such Collection Period on Eligible Investments purchased with Interest Proceeds and all interest payments received by the Borrower during such Collection Period on Eligible Investments purchased with amounts credited to the Revolving Reserve Account;
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(c) all amendment and waiver fees, late payment fees (including compensation for delayed settlement or trades), and all protection fees and other fees and commissions received by the Borrower during such Collection Period unless the Servicer has determined in its sole discretion that such payments are to be treated as Principal Proceeds; and
(d) commitment fees, facility fees, anniversary fees, ticking fees and other similar fees received by the Borrower during such Collection Period unless the Servicer has determined in its sole discretion that such payments are to be treated as Principal Proceeds;
provided that:
(1) as to any Defaulted Collateral Loan (and only so long as it remains a Defaulted Collateral Loan), any amounts received in respect thereof will constitute Principal Proceeds (and not Interest Proceeds) until the aggregate of all Collections in respect thereof since it became a Defaulted Collateral Loan equals the Principal Balance of such Defaulted Collateral Loan at the time as of which it became a Defaulted Collateral Loan and all amounts received in excess thereof will constitute Interest Proceeds; and
(2) any amounts received in respect of any Equity Security that was received in exchange for a Defaulted Collateral Loan will constitute Principal Proceeds (and not Interest Proceeds) until the aggregate of all collections in respect of such Equity Security equals the outstanding Principal Balance of the related Collateral Loan, at the time it became a Defaulted Collateral Loan, for which such Equity Security was received in exchange.
“Interest Rate” means, for any Tranche for any Interest Accrual Period, an interest rate per annum equal to LIBOR (or, if at any time LIBOR cannot be determined, the Base Rate) plus the Applicable Margin, .
“Interim Order” means an order, judgment, decree or ruling entered after notice and a hearing conducted in accordance with Bankruptcy Rule 4001(c) granting interim authorization, the operation or effect of which has not been stayed, reversed or amended.
“Investment Company Act” means the Investment Company Act of 1940 and the rules and regulations promulgated thereunder.
“Law” means any action, code, consent decree, constitution, decree, directive, enactment, finding, guideline, law, injunction, interpretation, judgment, order, ordinance, policy statement, proclamation, promulgation, regulation, requirement, rule, rule of law, treaty, rule of public policy, settlement agreement, statute, or writ, of any Governmental Authority, or any particular section, part or provision thereof.
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“Lender” means each Person listed on Schedule 1 and any other Person that shall have become a party hereto in accordance with the terms hereof pursuant to an Assignment and Acceptance, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Lender Fee Letter” means that certain fee letter, dated as of the Closing Date, by and among the Lenders, the Borrower and the Servicer.
“Liabilities” means all liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses (including reasonable and documented out-of-pocket outside attorneys’ fees and expenses) and disbursements of any kind or nature whatsoever.
“LIBOR” means, for any Interest Accrual Period, the ICE Benchmark Administration Limited London interbank offered rate per annum for deposits in the relevant currency for a period equal to the Interest Accrual Period as displayed in the Bloomberg Financial Markets System (or such other page on that service or such other service designated by the ICE Benchmark Limited for the display of such administration’s London interbank offered rate for deposits in the relevant currency) as of 11:00 a.m., London time on the day that is two Business Days prior to the first day of the Interest Accrual Period (the “Screen Rate”); provided that if the Administrative Agent determines that the relevant foregoing sources are unavailable for the relevant Interest Accrual Period, LIBOR shall mean the rate of interest determined by the Administrative Agent to be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at which deposits in the relevant currency are offered to the Administrative Agent two (2) Business Days preceding the first day of such Interest Accrual Period by four leading banks (selected by the Administrative Agent after consultation with the Borrower) in the London or other offshore interbank market for the relevant currency as of 11:00 a.m. for delivery on the first day of such Interest Accrual Period, for the number of days comprised therein and in an amount comparable to the amount of the Administrative Agent’s portion of the relevant Advance; provided, if such rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“LIBOR Successor Rate” has the meaning given to such term in Section 2.18(a).
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Interest Rate, Interest Accrual Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent reasonably determines).
“Lien” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien or security interest (statutory or other), or preference, priority or other security agreement,
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charge or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing authorized by the Borrower of any financing statement under the UCC or comparable law of any jurisdiction).
“Listed Collateral Loan” means, at any time, a Collateral Loan for which three or more bids are quoted and available from Loan Pricing Corporation, Mark-it Partners (formerly known as Loan X), Interactive Data Corporation or another nationally recognized broker-dealer or nationally recognized quotation service requested by the Servicer and approved from time to time by the Administrative Agent and the Required Lenders.
“Listed Value” means, for any Listed Collateral Loan at any time, the bid price for such Collateral Loan most recently quoted by Loan Pricing Corporation, Mark-it Partners (formerly known as Loan X) or Interactive Data Corporation and obtained by the Servicer, or quoted by another nationally recognized broker-dealer or nationally recognized quotation service as may be approved from time to time by the Administrative Agent if so requested by the Borrower or the Servicer; provided that, if the Servicer reasonably believes that the price quoted by any such source is based on less than three bona fide bids, then the Servicer, by notice to the Administrative Agent, may determine the Listed Value in accordance with clause (b) of the definition of Loan Value.
“LLC Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement, dated as of December 21, 2018, of the Borrower.
“Loan Sale Agreement” means that certain Loan Sale and Contribution Agreement.
“Loan Value” means, with respect to each Collateral Loan, as of any date of determination and expressed as a percentage of the Principal Balance of such Eligible Collateral Loan, a percentage equal to:
(a) if a Revaluation Event has not occurred with respect to such Collateral Loan, the purchase price of such Collateral Loan (excluding any original issue discount of 3% or less);
(b) if a Revaluation Event has occurred with respect to such Collateral Loan and such Collateral Loan is not a Defaulted Collateral Loan:
(i) if such loan is a Listed Collateral Loan as of such date, the lesser of (x) the Listed Value of such loan as at such date and (y) the purchase price of such Collateral Loan; and
(ii) if such loan is not a Listed Collateral Loan as of such date:
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(A) and the Servicer provides three bona fide bids that are acceptable to the Administrative Agent (in its sole discretion), the average of such bona fide bids; otherwise
(B) the fair market value of such Collateral Loan as determined by the Administrative Agent in its sole discretion; and
(c) if a Revaluation Event has occurred with respect to such Collateral Loan and such Collateral Loan is a Defaulted Collateral Loan, the fair market value of such Collateral Loan as determined by the Administrative Agent in its sole discretion.
If the Borrower disagrees with the Loan Value assigned by the Administrative Agent to a Collateral Loan pursuant to clauses (b)(ii) or (c) above (an “Agent Valuation”), then the Borrower may at its own expense and within sixty (60) days from the date on which the Administrative Agent assigned the Agent Valuation (the “Dispute Period”) obtain an Appraisal (the “New Valuation”) from an Approved Appraisal Firm or a valuation firm selected by the Borrower with the consent of the Administrative Agent (such process, a “Valuation Agent Dispute”). If a New Valuation is obtained during the Dispute Period, then the New Valuation shall be treated as the amended Loan Value, otherwise the Agent Valuation shall be treated as the amended Loan Value. During the Dispute Period, the Loan Value shall be the Agent Valuation. The Administrative Agent may, in its sole discretion, further amend the Loan Value in respect of such Collateral Loan on any subsequent date, subject to the valuation procedures and dispute mechanics set forth above, and such further determination shall constitute the Loan Value.
“Macomb Credit Agreement” means that certain Credit Agreement, dated as of August 21, 2018, by and among BNP Paribas, as a lender, the other lenders party thereto, Macomb Park CLO, Ltd., as borrower, BNP Paribas, as administrative agent, GSO / Blackstone Debt Funds Management LLC, as collateral manager, and SENTE Master Fund, L.P., as preferred investor.
“Macomb Merger” means a transaction wherein the Borrower acquires the outstanding equity of Macomb Park CLO, Ltd., repays the loans outstanding under the Macomb Credit Agreement and merges with Macomb Park CLO, Ltd., with the Borrower being the surviving entity.
“Majority Lenders” means, as of any date of determination, the Administrative Agent and Lenders having aggregate Percentages greater than 50%; provided, however, that if any Lender shall be a Defaulting Lender at such time, then Advances owing to such Defaulting Lender and such Defaulting Lender’s unfunded Commitments shall be excluded from the determination of Majority Lenders.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial condition or operations of the Borrower or the Servicer either individually or taken as a whole, (b) the validity or enforceability of this Agreement or any other Facility
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Document or the validity, enforceability or collectability of the Collateral Loans or the Related Documents generally or any material portion of the Collateral Loans or the Related Documents, (c) the rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties with respect to matters arising under this Agreement or any other Facility Document, (d) the ability of each of the Borrower or the Servicer to perform its obligations under any Facility Document to which it is a party, or (e) the status, existence, perfection, priority or enforceability of the Collateral Agent’s Lien on the Collateral.
“Material Modification” means, with respect to any Collateral Loan, any amendment, waiver, consent or modification of, or supplement to or inaction with, a Related Document with respect thereto (it being understood that a release document or similar instrument executed or delivered in connection with a disposition that is otherwise permitted under the applicable Related Documents shall not constitute an amendment or modification to such Related Document) executed or effected after the date on which such Collateral Loan is acquired by the Borrower, that:
(a) reduces, defers or forgives any principal amount of such Collateral Loan;
(b) reduces or forgives one or more interest payments which reduces the spread or coupon by more than 50 basis points or permits any interest due with respect to such Collateral Loan in cash to be deferred or capitalized and added to the principal amount of such Collateral Loan (other than any deferral or capitalization already expressly permitted by the terms of its Related Documents or pursuant to the application of a pricing grid, in each case, as of the date such Collateral Loan was acquired by the Borrower);
(c) extends, delays or waives any date fixed for any scheduled payment (including at maturity) or mandatory prepayment of principal on such Collateral Loan;
(d) in the case of a First Lien Last Out Loan, a First Lien BSL or a First Lien Middle Market Loan, contractually or structurally subordinates such Collateral Loan by operation of a priority of payments, turnover provisions or the transfer of assets in order to limit recourse to the related Obligor (other than as permitted by the terms of the Related Documents on the date such Collateral Loan was acquired);
(e) substitutes, alters, releases or terminates any material portion of the underlying assets securing such Collateral Loan (other than as expressly permitted by the Related Documents as of the date such Collateral Loan was acquired by the Borrower) or releases any material guarantor or co-Obligor from its obligations with respect thereto, and each such substitution, alteration, release or termination materially and adversely affects the value of such Collateral Loan (as determined in the commercially reasonable discretion of the Administrative Agent);
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(f) modifies any term or provision of the Related Documents of such Collateral Loan that impacts the calculation of any financial covenant, the definition of “Permitted Liens” (or any analogous definition), or the determination of any default or event of default with respect to the related Collateral Loan;
(g) results in change of currency of the Collateral Loan; or
(h) any other modification which is material and adverse to the value of such Collateral Loan.
“Maximum Available Amount” means, on any date of determination, an amount equal to the lesser of:
(a) the Maximum Facility Amount at such time; and
(b) the Borrowing Base (calculated after giving effect to the deposit or investment of such borrowed funds on the borrowing date).
“Maximum Facility Amount” means (a) on any date of determination on or after the Third Amendment Date to but excluding the earlier to occur of (x) the CLO Takeout Date and (y) the date occurring twelve (12) months after the Third Amendment Date, $875,000,000 and (b) on any other date of determination, $575,000,000; provided that it is understood that the loan facility established under this Agreement is an uncommitted facility and there is no express or implied commitment on the part of the Administrative Agent or any Lender to provide any Advance except that, in the case of Collateral Loans approved by means of an Approval Request or Approved List, the Lenders shall have committed to fund the related Advances (up to the amount(s) specified in the related Approval Request or Approved List) provided that the related conditions precedent set forth in Article III are satisfied.
“Maximum Portfolio Amount” means, on any date of determination, the sum of (i) (x) $200,000,000 or (y) on any date after the first to occur of (a) the date on which the Borrower waives its ability to reduce the Maximum Facility Amount pursuant to Section 2.07(b) and (b) March 31, 2019, the Maximum Facility Amount and (ii) the aggregate amount of all contributions by the Equityholder to the Borrower (other than contributions made to cure a Default or an Event of Default) less any principal distributions to the Equityholder other than Excluded Principal Distributions.
“Measurement Date” means (a) the Closing Date, (b) each Borrowing Date, (c) each Monthly Report Determination Date, (d) each Payment Date Report Determination Date and (e) each other date reasonably requested by the Administrative Agent.
“Mezzanine Obligations” means unsecured obligations that are contractually subordinated in right of payment to other debt of the same issuer.
“Minimum Equity Amount” means, at any time, the product of (a) 10% and (b) the Maximum Facility Amount.
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“Minimum OC Coverage Test” means a test that shall be satisfied if the OC Ratio is equal to or greater than 100%.
“Money” has the meaning specified in Section 1-201(24) of the UCC.
“Monthly Report” has the meaning assigned to such term in Section 8.07(a).
“Monthly Report Determination Date” has the meaning assigned to such term in Section 8.07(a).
“Monthly Reporting Date” has the meaning assigned to such term in Section 8.07(a).
“Moody’s” means Moody’s Investors Service, Inc., together with its successors.
“Moody’s Industry Classification” means the industry classifications set forth in Schedule 4 hereto, as such industry classifications shall be updated at the option of the Servicer if Moody’s publishes revised industry classifications. The determination of which Moody’s Industry Classification to which an Obligor belongs shall be made in good faith by the Servicer.
“Moody’s RiskCalc” has the meaning specified in Schedule 8 hereto.
“Multiemployer Plan” means an employee pension benefit plan within the meaning of Section 4001 (a)(3) of ERISA that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions or has any liability.
“Note” means each promissory note, if any, issued by the Borrower to a Lender in accordance with the provisions of Section 2.04, substantially in the form of Exhibit A.
“Notice of Borrowing” has the meaning assigned to such term in Section 2.03(a).
“Notice of Prepayment” has the meaning assigned to such term in Section 2.06(a).
“Obligations” means all indebtedness, whether absolute, fixed or contingent, at any time or from time to time owing by the Borrower to any Secured Party or any Affected Person under or in connection with this Agreement, the Notes or any other Facility Document, including all amounts payable by the Borrower in respect of the Advances, with interest thereon, and all other amounts payable hereunder or thereunder by the Borrower.
“Obligor” means, in respect of any Collateral Loan, each Person obligated to pay Collections in respect of such Collateral Loan, including any applicable guarantors; provided that for purposes of determining the domicile of an Obligor for purposes of the definitions of Concentration Limitations and Eligible Collateral Loan, the term “Obligor” shall only include the Person in respect of which the Collateral Loan was principally underwritten.
“OC Ratio” means, as of any Business Day,
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(a) the Borrowing Base; divided by
(b) the sum of (x) the outstanding principal balance of the Facility and (y) the aggregate purchase price of all potential Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled.
“OC Ratio Breach” means, on any Business Day, a failure of the Minimum OC Coverage Test.
“OC Ratio Posting Payment” has the meaning assigned to such term in Section 6.02.
“OFAC” means the U.S. Office of Foreign Assets Control.
“Other Connection Taxes” means, in the case of any Secured Party, any Taxes imposed as a result of a present or former connection between such Secured Party and the jurisdiction imposing such Tax (other than connections arising from such Secured Party having executed, delivered, become a party to, performed obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement, the Notes or any other Facility Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to any Facility Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 13.03(h)).
“Paid Senior Net Leverage Ratio” means, with respect to any Collateral Loan, the Senior Net Leverage Ratio multiplied by the purchase price of such Collateral Loan.
“Partial PIK Loan” means a Collateral Loan that requires the Obligor to pay only a portion of the accrued and unpaid interest in Cash on a current basis, the remainder of which is or can be deferred and paid later; provided that (x) the portion of such interest required to be paid in Cash pursuant to the terms of the applicable Related Documents carries a current Cash pay interest rate paid at a fixed rate of not less than 3.5% per annum, (y) the terms of the applicable Related Documents do not permit the amount of current Cash pay interest to be less than 25% of the ordinary specified interest at any time and (z) the terms of the applicable Related Documents do not permit any accrued and unpaid interest to be deferred for more than 12 months or paid later than the date that is 12 months after the initial due date for such interest.
“Participant” means any bank or other Person to whom a participation is sold as permitted by Section 13.06(c).
“Participant Register” has the meaning assigned to such term in Section 13.06(c)(ii).
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“PATRIOT Act” has the meaning assigned to such term in Section 13.15.
“Payment Account” has the meaning assigned to such term in Section 8.03.
“Payment Date” means the 20th day of each March, June, September and December, commencing with June 20, 2019; provided that, if any such day is not a Business Day, then such Payment Date shall be the next succeeding Business Day.
“Payment Date Report” has the meaning assigned to such term in Section 8.07(b).
“Payment Date Report Determination Date” has the meaning assigned to such term in Section 8.07(b).
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor agency or entity performing substantially the same functions.
“Percentage” of any Lender means, (a) with respect to any Lender party listed on Schedule 1, the percentage set forth opposite such Lender’s name on Schedule 1, as such amount is reduced by any Assignment and Acceptance entered into by such Lender with an assignee or increased by any Assignment and Acceptance entered into by such Lender with an assignor, or (b) with respect to a Lender not listed on Schedule 1 that has become a party hereto pursuant to an Assignment and Acceptance, the percentage set forth therein as such Lender’s Percentage, as such amount is reduced by an Assignment and Acceptance entered into between such Lender and an assignee or increased by any Assignment and Acceptance entered into by such Lender with an assignor.
“Permitted Assignee” means (a) a Lender or any of its Affiliates or (b) any Person managed by a Lender or any of its Affiliates.
“Permitted Currencies” means Pounds Sterling, Euro, Dollars and Canadian Dollars.
“Permitted Distribution” means, on any Business Day, distributions of (x) Interest Proceeds so long as immediately after giving effect to such Permitted Distribution, sufficient Interest Proceeds remain to pay all amounts payable on the immediately following Payment Date pursuant to Section 9.01(a)(i) as determined by the Servicer in good faith and/or (y) prior to the last day of the Reinvestment Period, Principal Proceeds; provided that amounts may be distributed pursuant to this definition so long as (i) no Event of Default has occurred and is continuing (or would occur after giving effect to such Permitted Distribution) and (ii) the OC Ratio would be at least 107.5% immediately after giving effect to such Permitted Distribution.
“Permitted Liens” means any of the following: (a) Liens for Taxes if such Taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person; (b) Liens imposed by law, such as materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s and repairmen’s
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Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith; (c) Liens granted pursuant to or by the Facility Documents, (d) judgement Liens not constituting an Event of Default hereunder, (e) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by such Person, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management, operating account arrangements and netting arrangements, (f) with respect to collateral underlying any Collateral Loan, the Lien in favor of the Borrower herein and Liens permitted under the underlying instruments related to such Collateral Loan, (g) as to any agented Collateral Loan, Liens in favor of the agent on behalf of all the lenders to the related obligor and (h) Liens of clearing agencies, broker-dealers and similar Liens incurred in the ordinary course of business, provided that such Liens (x) attach only to the securities (or proceeds) being purchased or sold and (y) secure only obligations incurred in connection with such purchase or sale, and not any obligation in connection with financing.
“Permitted Offer” means a tender offer pursuant to the terms of which the offeror offers to acquire a debt obligation (including a Collateral Loan) in exchange for consideration consisting of (x) Cash in an amount equal to or greater than the full face amount of the debt obligation being exchanged plus any accrued and unpaid interest or (y) other debt obligations that rank pari passu or senior to the debt obligation being exchanged which have a face amount equal to or greater than the full face amount of the debt obligation being exchanged and are eligible to be Collateral Loans plus any accrued and unpaid interest in Cash.
“Permitted RIC Distribution” means distributions to the Equityholder (from the Collection Account or otherwise) to the extent required to allow the Equityholdert 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 (A) 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, (B) after the occurrence and during the continuance of an Event of Default, the amount of Permitted RIC Distributions made in any calendar quarter shall not exceed U.S.$1,500,000 (or such greater amount consented to by the Administrative Agent in its sole discretion) and (C) amounts may be distributed pursuant to this definition only to the extent of available Excess Interest Proceeds
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and/or Principal Proceeds and only so long as (x) the Coverage Tests are satisfied immediately prior to and immediately after giving effect to such Permitted RIC Distribution (unless otherwise consented to by the Administrative Agent in its sole discretion), (y) the Borrower certifies the above in a RIC Distribution Notice to the Administrative Agent at least two (2) Business Days prior to the applicable distribution and (z) the Borrower provides at least two (2) Business Days’ prior written notice thereof to the Administrative Agent, the Collateral Agent and the Collateral Administrator.
“Permitted Working Capital Lien” has the meaning assigned to such term in the definition of “First Lien Loan”.
“Person” means an individual or a corporation (including a business trust), partnership, trust, incorporated or unincorporated association, joint stock company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind.
“PIK Loan” means a Collateral Loan (other than a Partial PIK Loan) that permits the Obligor thereon to defer or capitalize any portion of the accrued interest thereon.
“Plan” means an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions or has any liability.
“Plan Asset Rule” has the meaning assigned to such term in Section 4.01(m).
“Portfolio Advance Rate Adjustment” means, as of any date of determination, the highest applicable percentage set forth on the table below:
Diversity Score Advance Rate Adjustment
Less than 4
40  %
Greater than or equal to 4, but less than 7
60  %
Greater than or equal to 7, but less than 10
80  %
Greater than or equal to 10
100  %
“Post-Default Rate” means a rate per annum equal to the rate of interest otherwise in effect pursuant to this Agreement (or, if no such rate is specified, the Base Rate) plus 2.00% per annum.
“Potential Servicer Removal Event” means any event which, with the passage of time, the giving of notice, or both, would (if not cured or otherwise remedied during such time) constitute a Servicer Removal Event.
“Pounds Sterling” and “₤” means the lawful currency of the United Kingdom.
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“Prime Rate” means the rate announced by BNP from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by BNP in connection with extensions of credit to debtors.
“Principal Balance” means, with respect to any loan, as of any date of determination, the outstanding principal amount of such loan, excluding any capitalized interest.
“Principal Collection Subaccount” has the meaning assigned to such term in Section 8.02(a).
“Principal Proceeds” means, with respect to any Collection Period or the related Determination Date, all amounts received by the Borrower during such Collection Period that do not constitute Interest Proceeds, including unapplied proceeds of the Advances and any amounts received by the Borrower as equity contributions (howsoever designated).
“Priority of Payments” has the meaning assigned to such term in Section 9.01(a).
“Private Authorizations” means all franchises, permits, licenses, approvals, consents and other authorizations of all Persons (other than Governmental Authorities).
“Proceeds” has, with reference to any asset or property, the meaning assigned to it under Section 9-102(a)(64) of the UCC and, in any event, shall include any and all amounts from time to time paid or payable under or in connection with such asset or property.
“QIB” has the meaning assigned to such term in Section 13.06(e).
“Qualified Institution” means a depository institution or trust company organized under the laws of the United States of America or any one of the States thereof or the District of Columbia (or any domestic branch of a foreign bank), (a)(i) that has either (A) a long-term unsecured debt rating of “A” or better by S&P and “A2” or better by Moody’s or (B) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or better by S&P or “P-1” or better by Moody’s, (ii) the parent corporation of which has either (A) a long-term unsecured debt rating of “A” or better by S&P and “A2” or better by Moody’s or (B) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or better by S&P and “P-1” or better by Moody’s or (iii) is otherwise acceptable to the Administrative Agent and (b) the deposits of which are insured by the Federal Deposit Insurance Corporation.
“Qualified Purchaser” has the meaning assigned to such term in Section 13.06(e).
“Recipient” means the Administrative Agent, each Lender and each Secured Party.
“Register” has the meaning assigned to such term in Section 13.06(d).
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“Regulation T,” “Regulation U” and “Regulation X” mean Regulation T, U and X, respectively, of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Reinvestment Period” means the period from and including the Closing Date to and including the earlier of (a) the date that is the third anniversary of the Closing Date (or such later date as may be agreed by the Borrower, the Administrative Agent and each Lender pursuant to Section 2.16) and (b) the date of the termination of the Commitments pursuant to Section 6.01.
“Related Documents” means, with respect to any Collateral Loan, (i) the loan or credit agreement evidencing such Collateral Loan, (ii) the principal security agreement, and (iii) if the same can be obtained without undue expense or effort, all other documents evidencing, securing, guarantying, governing or giving rise to such Collateral Loan.
“Relevant Test Period” means, with respect to any Collateral Loan, the relevant test period for the calculation of EBITDA, Cash Interest Coverage Ratio or Total Net Leverage Ratio, as applicable, for such Collateral Loan in the applicable Related Documents or, if no such period is provided for therein, for Obligors delivering monthly financial statements, each period of the last twelve consecutive reported calendar months, and for Obligors delivering quarterly financial statements, each period of the last four consecutive reported fiscal quarters of the principal Obligor on such Collateral Loan; provided that, with respect to any Collateral Loan for which the relevant test period is not provided for in the applicable Related Documents, if an Obligor is a newly-formed entity as to which twelve consecutive calendar months have not yet elapsed, “Relevant Test Period” shall initially include the period from the date of formation of such Obligor or closing date of the applicable Collateral Loan to the end of the twelfth calendar month or fourth fiscal quarter (as the case may be) from the date of formation or closing, as applicable, and shall subsequently include each period of the last twelve consecutive reported calendar months or four consecutive reported fiscal quarters (as the case may be) of such Obligor.
“Replacement Servicer” has the meaning assigned to such term in Section 11.01(c).
“Requested Amount” has the meaning assigned to such term in Section 2.03.
“Required Lenders” means, as of any date of determination, the Administrative Agent and Lenders having aggregate Percentages greater than or equal to 66 2/3%; provided, however, that if any Lender shall be a Defaulting Lender at such time, then Advances owing to such Defaulting Lender and such Defaulting Lender’s unfunded Commitments shall be excluded from the determination of Required Lenders.
“Responsible Officer” means (a) in the case of (i) a corporation or (ii) a partnership or limited liability company that, in each case, pursuant to its Constituent Documents, has officers, any chief executive officer, chief financial officer, chief administrative officer, managing director, president, senior vice president, vice president, assistant vice president, treasurer, director or manager, and, in any case where two Responsible Officers are
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acting on behalf of such entity, the second such Responsible Officer may be a secretary or assistant secretary (provided that a director or manager of the Borrower shall be a Responsible Officer regardless of whether its Constituent Documents provide for officers), (b) without limitation of clause (a)(ii), in the case of a limited partnership, the Responsible Officer of the general partner, acting on behalf of such general partner in its capacity as general partner, (c) without limitation of clause (a)(ii), in the case of a limited liability company, any Responsible Officer of the sole member or managing member, acting on behalf of the sole member or managing member in its capacity as sole member or managing member, (d) in the case of a trust, the Responsible Officer of the trustee, acting on behalf of such trustee in its capacity as trustee, (e) an “authorized signatory” or “authorized officer” that has been so authorized pursuant to customary corporate proceedings, limited partnership proceedings, limited liability company proceedings or trust proceedings, as the case may be, and that has responsibilities commensurate with the matter for which it is acting as a Responsible Officer: the initial “authorized signatories” of the parties hereto are set forth on Schedule 6 (as such Schedule 6 may be modified from time to time by written notice), and (f) in the case of the Custodian, the Securities Intermediary, the Collateral Agent or Administrative Agent, an officer of the Custodian, the Securities Intermediary, the Collateral Agent or Administrative Agent, as applicable, having direct responsibility for the administration of this Agreement.
“Retention Basis Amount” means the nominal value of all Collateral Loans held by the Borrower from time to time.
“Revaluation Event” means, with respect to any Collateral Loan as of any date of determination, the occurrence of any one or more of the following events (any of which, for the avoidance of doubt, may occur more than once):
(a) (i) the trailing 12-month (or such lesser time if the most recent 12-month is not available) EBITDA (based on the most recently reported information of the related Obligor) of such Collateral Loan decreases by more than 25.0% from either (x) the trailing 12-month (or such lesser time if the most recent 12-month is not available) EBITDA of the Obligor measured for the period ending 12 months (or such lesser time elapsed from the closing date of such Collateral Loan) prior or (y) the trailing 12-month (or such lesser time if the most recent 12-month is not available) EBITDA calculated on the date the Borrower acquired such Collateral Loan or (ii) the Total Net Leverage Ratio for the current period of the related Obligor with respect to such Collateral Loan increases by more than 1.25x from the ratio calculated on the date the Borrower acquired such Collateral Loan;
(b) an Insolvency Event occurs with respect to the Obligor;
(c) an Obligor default in the payment of principal or interest on revolving loan facilities (giving effect to any applicable grace period under the Related Documents, but not to exceed five days) with respect to such Collateral Loan or any other debt obligation of such Obligor secured by the same collateral and which is senior or pari passu to such Collateral Loan or the occurrence of any other default with respect to such Collateral Loan, in each case, together with the election by any agent or lender (including
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the Borrower) to accelerate such Collateral Loan or to enforce any other respective secured creditor rights or remedies;
(d) the Servicer grades such Collateral Loan “5” or lower (or any equivalent rating) on its internal grading scale;
(e) the occurrence of a Material Modification with respect to such Collateral Loan that was not approved by the Administrative Agent (in its sole discretion); or
(f) the related Obligor fails to deliver to the Borrower or the Servicer any financial reporting information (i) as required by the Related Documents of such Collateral Loan (giving effect to any applicable grace period thereunder) and (ii) no less frequently than quarterly (subject to the delivery requirements of the Related Documents).
“Revolving Collateral Loan” means any Collateral Loan (other than a Delayed Drawdown Collateral Loan) that is a loan (including revolving loans, funded and unfunded portions of revolving credit lines and letter of credit facilities, unfunded commitments under specific facilities and other similar loans and investments) that by its terms may require one or more future advances to be made to the related Obligor by the Borrower and which provides that such borrowed money may be repaid and re-borrowed from time to time; provided that any such Collateral Loan will be a Revolving Collateral Loan only until all commitments to make revolving advances to the Obligor expire or are terminated or irrevocably reduced to zero.
“Revolving Exposure” means, at any time, the sum of the aggregate Unfunded Amount of each Collateral Loan (including each Ineligible Collateral Loan and each Defaulted Collateral Loan) at such time.
“Revolving Reserve Account” has the meaning assigned to such term in Section 8.04.
“RIC Distribution Notice” means a written notice setting forth the calculation of the Borrower’s net taxable income (determined as if the Borrower were a domestic corporation for U.S. federal income tax purposes) and of any Permitted RIC Distribution and certifying that the Equityholder remains a “regulated investment company” under Subchapter M of the Code.
“S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services, LLC business.
“S&P Industry Classification” means the industry classifications set forth in Schedule 2 hereto, as such industry classifications shall be updated at the option of the Servicer if S&P publishes revised industry classifications. The determination of which S&P Industry Classification to which an Obligor belongs shall be made in good faith by the Servicer.
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“Sale Settlement Condition” means, with respect to any binding commitment of the Borrower to sell a Collateral Loan, a condition that is beyond the control of the Borrower and/or the Servicer, as certified in writing by the Servicer to the Administrative Agent, which has resulted in the settlement of such sale not occurring within 30 days of the date of the Borrower entering into such binding commitment to sell.
“Sale Settlement Pending Collateral” means, on any date of determination, Collateral Loans that the Borrower, within the immediately preceding 30 days (or if a Sale Settlement Condition applies, within the immediately preceding 45 days), has entered into a binding commitment to sell that has not settled.
“Sanctioned Country” has the meaning given to such term in Section 4.01(r).
“Sanctioned Person” has the meaning given to such term in Section 4.01(r).
“Sanctions” means any economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, the French Republic, Her Majesty’s Treasury and/or any other relevant sanctions authority.
“Scheduled Distribution” means, with respect to any Collateral Loan, for each Due Date, the scheduled payment of principal and/or interest and/or fees due on such Due Date with respect to such Collateral Loan.
“Scheduled Unavailability Date” has the meaning given to such term in Section 2.18(a)(ii).
“Screen Rate” has the meaning assigned to it in the definition of “LIBOR.”
“Second Amendment Date” means August 2, 2019.
“Second Lien BSL” means any Collateral Loan (for purposes of this definition, a “loan”) that meets the following criteria:
(a) is secured by a pledge of collateral which security interest is validly perfected and second priority (subject to liens permitted under the related underlying instruments that are reasonable and customary for similar Collateral Loans) under Applicable Law (other than a Collateral Loan that is second priority to a Permitted Working Capital Lien);
(b) the Servicer determines in good faith that the value of the collateral securing the Collateral Loan (including based on enterprise value) on or about the time of origination or acquisition by the Borrower equals or exceeds the outstanding principal balance of the Collateral Loan plus the aggregate outstanding balances of all other Collateral Loans of equal or higher seniority secured by the same collateral; and
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(c) is a Broadly Syndicated Loan.
“Secured Parties” means the Administrative Agent, the Collateral Agent, the Custodian, each Lender, the Servicer (to the extent the Servicer has not been removed), Wells Fargo, in its capacity as Securities Intermediary under the Account Control Agreement, and, if applicable, the Replacement Servicer.
“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder, all as from time to time in effect.
“Securities Intermediary” shall mean Wells Fargo in its capacity as Securities Intermediary under the Account Control Agreement and any other entity as defined in Section 8-102(a)(14) of the UCC.
“Securitisation Regulation” means Regulation (EU) 2017/2402.
“Security Entitlement” has the meaning specified in Section 8-102(a)(17) of the UCC.
“Senior Net Leverage Ratio” means, with respect to any Collateral Loan for any Relevant Test Period, the meaning of “Senior Net Leverage Ratio” or any comparable term defined in the Related Documents for such Loan, and in any case that “Senior Net Leverage Ratio” or such comparable term is not defined in such Related Documents, the ratio of (a) total indebtedness (other than indebtedness of such Obligor that is junior in terms of lien subordination to indebtedness of such Obligor held by the Borrower) minus Unrestricted Cash and cash equivalents to (b) EBITDA as calculated by the Servicer in accordance with the Servicing Standard.
“Servicer” means Blackstone/GSO Secured Lending Fund, in its capacity as servicer hereunder and any successor thereto in accordance herewith.
“Servicer Expense Cap” means, for any Payment Date, an amount not to exceed $75,000 during any twelve (12) month period.
“Servicer Expenses” means the out-of-pocket expenses incurred by the Servicer in connection with the Facility Documents.
“Servicer Fee” means, for any Collection Period, an amount equal to the product of (i) 0.35% per annum multiplied by (ii) the Fee Basis Amount (calculated on the basis of a 360-day year and the actual number of days elapsed in the related Collection Period); provided that, the Servicer Fee is waived so long as Blackstone/GSO Secured Lending Fund is the Servicer.
“Servicer Removal Event” means any one of the following events:
(a) except as set forth in another clause of this definition, the Servicer breaches in any material respect any covenant or agreement applicable to it under this Agreement or any other Facility Document to which it is a party (it being understood that
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failure to meet any Coverage Test or Concentration Limitation is not a breach under this subclause (a)), and, if capable of being cured, is not cured within 30 days of the earlier of (i) a Responsible Officer of the Servicer acquiring actual knowledge of such breach or (ii) its receiving written notice from either Agent of such breach;
(b) the occurrence and continuation of an Event of Default;
(c) an act by the Servicer, or any of its senior investment personnel actively involved in managing the portfolio of the Borrower, that constitutes fraud or criminal activity in the performance of its obligations under the Facility Documents or the Servicer or any of its senior investment personnel actively involved in managing the portfolio of the Borrower being indicted for a criminal offense materially related to its asset management business; provided that the Servicer will be deemed to have cured any event of cause pursuant to this clause (c) if the Servicer terminates or causes the termination of employment of all individuals who engaged in the conduct constituting cause pursuant to this clause (c) and makes the Borrower whole for any actual financial loss that such conduct caused the Borrower;
(d) the failure of any representation, warranty, or certification made or delivered by the Servicer in or pursuant to this Agreement or any other Facility Document to be correct when made that has a Material Adverse Effect on the Borrower or any Secured Party and is either incapable of being cured or is not cured within 30 days of the earlier of (i) a Responsible Officer of the Servicer acquiring actual knowledge of such breach or (ii) its receiving written notice from either Agent of such breach;
(e) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $5,000,000, with respect to the Servicer (in each case, net of amounts covered by insurance), and the Servicer shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within sixty (60) days from the date of entry thereof;
(f) the Servicer shall have made payments to settle any litigation, claim or dispute totaling more than, in the aggregate, $5,000,000;
(g) an Insolvency Event relating to the Servicer occurs;
(h) Blackstone/GSO Secured Lending Fund, GSO Asset Management LLC or an Affiliate thereof ceases to be the Servicer;
(i) any failure by the Servicer to deliver any required reporting under the Facility Documents on or before the date occurring five (5) Business Days after the date such report is required to be made;
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(j) any failure by the Servicer to deposit or credit, or to deliver for deposit, in the Covered Accounts any amount required hereunder to be so deposited, credited or delivered by it, or to make any distributions therefrom required by it, in each case on or before the date occurring three (3) Business Days after the date such deposit or distribution is required to be made by the Servicer; or
(k) a Change of Control occurs.
“Servicer Removal Notice” shall have the meaning assigned to such term in Section 11.01(b).
“Servicing Standard” has the meaning assigned to such term in Section 11.02(d).
“Solvent” means, as to any Person, such Person is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code or Section 271 of the Debtor and Creditor Law of the State of New York.
“Special Amortization Period” means the period commencing on and including the date occurring twelve (12) months following the Third Amendment Date, and ending on but excluding the date on which the aggregate outstanding amount of the Advances does not exceed the Maximum Facility Amount as of such date; provided that, if, upon the date occurring twelve (12) months following the Third Amendment Date, the aggregate outstanding amount of the Advances does not exceed the Maximum Facility Amount as of such date, then no Special Amortization Period shall be in effect.
“Specified Eligible Investment” means an Eligible Investment meeting the requirements of Section 8.06(a) and that is available to the Collateral Agent, specified by the Servicer to the Collateral Agent (with a copy to the Administrative Agent) on or prior to the initial Borrowing Date; provided that, so long as no Event of Default shall have occurred and then be continuing, at any time with not less than five Business Days’ notice to the Collateral Agent (with a copy to the Administrative Agent) the Servicer may (and, if the then Specified Eligible Investment is no longer available to the Collateral Agent, shall) designate another Eligible Investment that meets the requirements of Section 8.06(a) and that is available to the Collateral Agent to be the Specified Eligible Investment for purposes hereof. After the occurrence and continuation of an Event of Default, a Specified Eligible Investment shall mean an Eligible Investment meeting the requirements of Section 8.06(a) and which has been selected by the Administrative Agent and specified to the Collateral Agent.
“Structured Finance Obligation” means any debt obligation owing by a finance vehicle that is secured directly and primarily by, primarily referenced to, and/or primarily representing ownership of, a pool of receivables or a pool of other assets, including collateralized debt obligations, residential mortgage-backed securities, commercial mortgage-backed securities, other asset-backed securities, “future flow” receivable transactions and other similar obligations; provided that loans to financial service companies, factoring businesses, health care providers and other genuine operating businesses do not constitute Structured Finance Obligations.
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“Synthetic Security” means a security or swap transaction (excluding, for purposes of this Agreement, a participation interest) that has payments associated with either payments of interest and/or principal on a reference obligation or the credit performance of a reference obligation.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Third Amendment Date” means September 27, 2019.
“Total Net Leverage Ratio” means, with respect to any Collateral Loan for any Relevant Test Period, the meaning of “Total Leverage Ratio,” “Total Net Leverage Ratio” or any comparable term relating to total indebtedness defined in the Related Documents for such Loan, and in any case that “Total Leverage Ratio,” “Total Net Leverage Ratio” or such comparable term is not defined in such Related Documents, the ratio of (a) total indebtedness secured by a lien at such time minus Unrestricted Cash and cash equivalents to (b) EBITDA as calculated by the Servicer in accordance with the Servicing Standard.
“Trade Date” has the meaning assigned to such term in Section 1.04(l).
“Tranche A” means, at any time, all Tranche A Collateral Loans at such time.
“Tranche A Advance” means each Advance allocated to Tranche A pursuant to, and in accordance with, this Agreement.
“Tranche A Borrowing Base” means, at any time, an amount, equal to the lesser of (A) $575,000,000 and (B) the sum of (i) the amounts in the Principal Collection Subaccount, (ii) the product of (x) the Weighted Average Tranche A Advance Rate (excluding the portion of the Sale Settlement Pending Collateral allocable to Tranche A Collateral Loans from the calculation of the Weighted Average Tranche A Advance Rate) as of such date, (y) the Portfolio Advance Rate Adjustment as of such date and (z) the Aggregate Tranche A Net Collateral Balance as of such date (excluding the portion of the Sale Settlement Pending Collateral allocable to the Tranche A Collateral Loans from the calculation of the Aggregate Tranche A Net Collateral Balance) and (iii) the aggregate sale price (expressed in Dollars) of the portion of the Sale Settlement Pending Collateral allocable to Tranche A Collateral Loans.
“Tranche A Collateral Loans” means, at any time, all First Lien BSLs that are Eligible Collateral Loans.
“Tranche A Minimum OC Coverage Test” means a test that shall be satisfied if the Tranche A OC Ratio is equal to or greater than 100%.
“Tranche A OC Ratio” means, as of any Business Day,
(l) the Tranche A Borrowing Base; divided by
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(m) the sum of (x) the aggregate outstanding principal balance of the Tranche A Advances and (y) the aggregate purchase price of all potential Tranche A Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled.
“Tranche B” means, at any time, all Tranche B Collateral Loans at such time.
“Tranche B Advance” means each Advance allocated to Tranche B pursuant to, and in accordance with, this Agreement.
“Tranche B Borrowing Base” means, at any time, an amount equal to the sum of (i) the amounts in the Principal Collection Subaccount, (ii) the product of (x) the Weighted Average Tranche B Advance Rate (excluding the portion of the Sale Settlement Pending Collateral allocable to Tranche B Collateral Loans from the calculation of the Weighted Average Tranche B Advance Rate) as of such date, (y) the Portfolio Advance Rate Adjustment as of such date and (z) the Aggregate Tranche B Net Collateral Balance as of such date (excluding the portion of the Sale Settlement Pending Collateral allocable to Tranche B Collateral Loans from the calculation of the Aggregate Tranche B Net Collateral Balance) and (iii) the aggregate sale price (expressed in Dollars) of the portion of the Sale Settlement Pending Collateral allocable to Tranche B Collateral Loans.
“Tranche B Collateral Loans” means, at any time, all First Lien Middle Market Loans whose Obligors have an EBITDA of greater than $25,000,000 at origination that are Eligible Collateral Loans.
“Tranche B Minimum OC Coverage Test” means a test that shall be satisfied if the Tranche B OC Ratio is equal to or greater than 100%.
“Tranche B OC Ratio” means, as of any Business Day,
(n) the sum of (1) the Tranche A Borrowing Base and (2) the Tranche B Borrowing Base; divided by
(o) the sum of (1) the aggregate outstanding principal balance of the Tranche A Advances, (2) the aggregate purchase price of all potential Tranche A Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled, (3) the aggregate outstanding principal balance of the Tranche B Advances and (4) the aggregate purchase price of all potential Tranche B Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled.
“Tranche C” means, at any time, all Tranche C Collateral Loans at such time.
“Tranche C Advance” means each Advance allocated to Tranche C pursuant to, and in accordance with, this Agreement.
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“Tranche C Borrowing Base” means, at any time, an amount equal to the sum of (i) the amounts in the Principal Collection Subaccount, (ii) the product of (x) the Weighted Average Tranche C Advance Rate (excluding the portion of the Sale Settlement Pending Collateral allocable to Tranche C Collateral Loans from the calculation of the Weighted Average Tranche C Advance Rate) as of such date, (y) the Portfolio Advance Rate Adjustment as of such date and (z) the Aggregate Tranche C Net Collateral Balance as of such date (excluding the portion of the Sale Settlement Pending Collateral allocable to Tranche C Collateral Loans from the calculation of the Aggregate Tranche C Net Collateral Balance) and (iii) the aggregate sale price (expressed in Dollars) of the portion of the Sale Settlement Pending Collateral allocable to Tranche C Collateral Loans.
“Tranche C Collateral Loans” means, at any time, all First Lien Middle Market Loans whose Obligors have an EBITDA of less than or equal to $25,000,000 at origination, First Lien Last Out Loans and Second Lien Loans that are, in each case, Eligible Collateral Loans.
“Tranche C Minimum OC Coverage Test” means a test that shall be satisfied if the Tranche C OC Ratio is equal to or greater than 100%.
“Tranche C OC Ratio” means, as of any Business Day,
(p) the sum of (1) the Tranche A Borrowing Base, (2) the Tranche B Borrowing Base and (3) the Tranche C Borrowing Base; divided by
(q) the sum of (1) the aggregate outstanding principal balance of the Tranche A Advances, (2) the aggregate purchase price of all potential Tranche A Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled, (3) the aggregate outstanding principal balance of the Tranche B Advances, (4) the aggregate purchase price of all potential Tranche B Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled, (5) the aggregate outstanding principal balance of the Tranche C Advances and (6) the aggregate purchase price of all potential Tranche C Collateral Loans for which the Borrower has entered into a binding commitment to purchase that have not yet settled.
“Tranche Minimum OC Coverage Test” means the Tranche A Minimum OC Coverage Test, the Tranche B Minimum OC Coverage Test or the Tranche C Minimum OC Coverage Test, as applicable.
“Tranches” means each of the Tranche A Advances, Tranche B Advances and the Tranche C Advances.
“UCC” means the New York Uniform Commercial Code; provided that if, by reason of any mandatory provisions of law, the perfection, the effect of perfection or non-perfection or priority of the security interests granted to the Collateral Agent pursuant to this Agreement are governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States of America other than the State of New York, then “UCC” means the Uniform
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Commercial Code as in effect from time to time in such other jurisdiction for purposes of such perfection, effect of perfection or non-perfection or priority.
“Uncertificated Security” has the meaning specified in Section 8-102(a)(18) of the UCC.
“Unfunded Amount” means, with respect to any Collateral Loan, as of any date of determination, the unfunded commitment of the Borrower with respect to such Collateral Loan as of such date.
“Unrestricted Cash” has the meaning assigned to the term “Unrestricted Cash” or any comparable term defined in the Related Documents for each Collateral Loan, and in any case that “Unrestricted Cash” or such comparable term is not defined in such Related Documents, all cash available for use for general corporate purposes and not held in any reserve account or legally or contractually restricted for any particular purposes or subject to any lien (other than blanket liens permitted under or granted in accordance with such Related Documents).
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 13.03(g)(iii).
“Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
“Weighted Average Advance Rate” means, as of any date of determination with respect to all Eligible Collateral Loans included in the Aggregate Net Collateral Balance, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each Eligible Collateral Loan by (ii) such Eligible Collateral Loan’s contribution to the Aggregate Net Collateral Balance and dividing such sum by (b) the Aggregate Net Collateral Balance.
“Weighted Average Tranche A Advance Rate” means, as of any date of determination with respect to all Tranche A Collateral Loans included in the Aggregate Tranche A Net Collateral Balance, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each Tranche A Collateral Loan by (ii) such Tranche A Collateral Loan’s contribution to the Aggregate Tranche A Net Collateral Balance and dividing (b) such sum by the Aggregate Tranche A Net Collateral Balance.
“Weighted Average Tranche B Advance Rate” means, as of any date of determination with respect to all Tranche B Collateral Loans included in the Aggregate Tranche B Net Collateral Balance, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each Tranche B Collateral Loan by (ii) such Tranche B Collateral Loan’s contribution to the Aggregate Tranche B Net Collateral Balance and dividing (b) such sum by the Aggregate Tranche B Net Collateral Balance.
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“Weighted Average Tranche C Advance Rate” means, as of any date of determination with respect to all Tranche C Collateral Loans included in the Aggregate Tranche C Net Collateral Balance, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each Tranche C Collateral Loan by (ii) such Tranche C Collateral Loan’s contribution to the Aggregate Tranche C Net Collateral Balance and dividing (b) such sum by the Aggregate Tranche C Net Collateral Balance.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Working Capital Revolver” means a revolving lending facility secured on a first lien basis solely by all or a portion of the current assets of the related obligor, which current assets subject to such security interest do not constitute a material portion of the obligor’s total assets (it being understood that such revolving lending facility may be secured on a junior lien basis by other assets of the related obligor).
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time in relation to any Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described as such in relation to that Bail-in Legislation in the EU Bail-In Legislation Schedule.
“Zero Coupon Obligation” means a Collateral Loan that does not provide for periodic payments of interest in Cash or that pays interest only at its stated maturity.
SECTION 6.2. Rules of Construction. For all purposes of this Agreement and the other Facility Documents, except as otherwise expressly provided or unless the context otherwise requires, (a) singular words shall connote the plural as well as the singular and vice versa (except as indicated), as may be appropriate, (b) the words “herein,” “hereof” and “hereunder” and other words of similar import used in any Facility Document refer to such Facility Document as a whole and not to any particular article, schedule, section, paragraph, clause, exhibit or other subdivision thereof, (c) the headings, subheadings and table of contents set forth in any Facility Document are solely for convenience of reference and shall not constitute a part of such Facility Document nor shall they affect the meaning, construction or effect of any provision hereof, (d) references in any Facility Document to “include” or “including” shall mean include or including, as applicable, without limiting the generality of any description preceding such term, (e) any definition of or reference to any Facility Document, agreement, instrument or other document shall be construed as referring to such Facility Document, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein or any other Facility Document), (f) any reference in any Facility Document, including the introduction and recitals to such Facility Document, to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions set forth herein or in any other applicable agreement), (g) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified, supplemented or replaced from time to time, (h) any Event of
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Default shall be continuing until expressly waived in writing by the requisite Lenders, (i) except as set forth herein, references herein to the knowledge or actual knowledge of a Person shall mean the actual knowledge following due inquiry of such Person, (j) except as otherwise expressly provided for in this Agreement, any use of “material” or “materially” or words of similar meaning in this Agreement shall mean material, as determined by the Administrative Agent in its reasonable discretion and (k) 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 Facility Document, the Borrower and the Administrative Agent shall negotiate in good faith to amend such covenant to preserve the original intent in light of such change; 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) the Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such covenant made before and after giving effect to such change in generally accepted accounting principles.
SECTION 6.3. Computation of Time Periods. Unless otherwise stated in the applicable Facility Document, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including,” the word “through” means “to and including” and the words “to” and “until” both mean “to but excluding.” Periods of days referred to in any Facility Document shall be counted in calendar days unless Business Days are expressly prescribed. Unless otherwise indicated herein, all references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York City on such day.
SECTION 6.4. Collateral Value Calculation Procedures. In connection with all calculations required to be made pursuant to this Agreement with respect to Scheduled Distributions on any Collateral Loan, or any payments on any other assets included in the Collateral, with respect to the sale of and reinvestment in Collateral Loans, and with respect to the income that can be earned on Scheduled Distributions on such Collateral Loans and on any other amounts that may be received for deposit in the Collection Account, the provisions set forth in this Section 1.04 shall be applied. The provisions of this Section 1.04 shall be applicable to any determination or calculation that is covered by this Section 1.04, whether or not reference is specifically made to Section 1.04, unless some other method of calculation or determination is expressly specified in the particular provision.
(a) All calculations with respect to Scheduled Distributions on any Collateral Loan shall be made on the basis of information as to the terms of each such Collateral Loan and upon reports of payments, if any, received on such Collateral Loan that are furnished by or on behalf of the Obligor of such Collateral Loan and, to the extent they are not manifestly in error, such information or reports may be conclusively relied upon in making such calculations.
(b) For purposes of calculating the Coverage Tests, except as otherwise specified in the Coverage Tests, such calculations will not include (i) scheduled interest and principal payments on Defaulted Collateral Loans and Ineligible Collateral Loans unless or until
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such payments are actually made or such payments are determined likely to be received by the Servicer pursuant to the definition of Collateral Interest Amount and (ii) ticking fees and other similar fees in respect of Collateral Loans, unless or until such fees are actually paid.
(c) For each Collection Period and as of any date of determination, the Scheduled Distribution on any Collateral Loan (other than a Defaulted Collateral Loan or an Ineligible Collateral Loan, which, unless such payments are determined likely to be received by the Servicer pursuant to the definition of Collateral Interest Amount and except as otherwise provided herein, shall be assumed to have Scheduled Distributions of zero) shall be the total amount of (i) payments and collections to be received during such Collection Period in respect of such Collateral Loan, (ii) proceeds of the sale of such Collateral Loan received and, in the case of sales which have not yet settled, to be received during such Collection Period that are not reinvested in additional Collateral Loans or retained in a Collection Account for subsequent reinvestment pursuant to Article X, which proceeds, if received as scheduled, will be available in a Collection Account and available for distribution at the end of such Collection Period and (iii) amounts referred to in clause (i) or (ii) above that were received in prior Collection Periods but were not disbursed on a previous Payment Date or retained in a Collection Account for subsequent reinvestment pursuant to Article X.
(d) Each Scheduled Distribution receivable with respect to a Collateral Loan shall be assumed to be received on the applicable Due Date.
(e) References in the Priority of Payments to calculations made on a “pro forma basis” shall mean such calculations after giving effect to all payments, in accordance with the Priority of Payments, that precede (in priority of payment) or include the clause in which such calculation is made.
(f) For purposes of calculating all Concentration Limitations, in both the numerator and the denominator of any component of the Concentration Limitations, Ineligible Collateral Loans will be treated as having a Principal Balance equal to zero.
(g) Determinations of the Collateral Loans, or portions thereof, that constitute Excess Concentration Amounts will be determined in the way that produces the highest Borrowing Base at the time of determination, it being understood that a Collateral Loan (or portion thereof) that falls into more than one category of Collateral Loans will be deemed, solely for purposes of such determinations, to fall only into the category that produces the highest such Borrowing Base at such time (without duplication).
(h) All calculations required to be made hereunder with respect to the Collateral Loans 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 and (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 Loans.
(i) [Reserved.]
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(j) References in this Agreement to the Borrower’s “purchase” or “acquisition” of a Collateral Loan include references to the Borrower’s acquisition of such Collateral Loan by way of a sale and/or contribution from the Equityholder and the Borrower’s making or origination of such Collateral Loan. Portions of the same Collateral Loan acquired by the Borrower on different dates (whether through purchase, receipt by contribution or the making or origination thereof, but excluding subsequent draws under Revolving Collateral Loans or Delayed Drawdown Collateral Loans) will, for purposes of determining the purchase price of such Collateral Loan, be treated as separate purchases on separate dates (and not a weighted average purchase price for any particular Collateral Loan).
(k) For the purposes of calculating compliance with each of the Concentration Limitations all calculations will be rounded to the nearest 0.01%.
(l) For purposes of calculating compliance with any test under this Agreement in connection with the acquisition or disposition of a Collateral Loan or Eligible Investment, the trade date (the “Trade Date”) (and not the settlement date) with respect to any such Collateral Loan or Eligible Investment under consideration for acquisition or disposition shall be used to determine whether such acquisition or disposition is permitted hereunder.
ARTICLE VII 
ADVANCES
SECTION 7.1. Revolving Credit Facility. On the terms and subject to the conditions hereinafter set forth, including Article III, each Lender severally agrees to make available to the Borrower an uncommitted revolving credit facility providing for Advances under each Tranche from time to time in Dollars on any Business Day during the Reinvestment Period (or immediately thereafter pursuant to Section 8.04), on a pro rata basis in each case in an aggregate principal amount at any one time outstanding up to but not exceeding such Lender’s Commitment and, as to all Lenders, in an aggregate principal amount up to but not exceeding the Maximum Available Amount as then in effect; provided that, after making any such Advance, each Tranche’s Tranche Minimum OC Coverage Test shall be satisfied.
Within such limits and subject to the other terms and conditions of this Agreement, the Borrower may borrow (and re-borrow) Advances under this Section 2.01 and prepay Advances under Section 2.06. Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge that this is an uncommitted facility and there is no express or implied commitment on the part of the Administrative Agent or any Lender to provide any Advance except that, in the case of Collateral Loans approved by means of an Approval Request or Approved List, the Lenders shall have committed to fund the related Advances (up to the amount(s) specified in the related Approval Request or Approved List) provided that the related conditions precedent set forth in Article III are satisfied.
SECTION 7.2. Requests for Collateral Loan Approval. (a)  Prior to the Closing Date, the Servicer, on behalf of the Borrower, shall provide to the Administrative Agent (with a
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copy to the Borrower) a list of Collateral Loans (the “Asset List”) that the Borrower is requesting be included in the Approved List (as defined below) and which, subject to such inclusion, may be purchased with, if applicable, funds held in the Principal Collection Subaccount, the proceeds of Advances or Principal Proceeds pursuant to Section 10.02. The Borrower (or the Servicer on its behalf) and the Administrative Agent shall adhere to the following procedures in requesting and approving Collateral Loans for purchase:
(i) For each Collateral Loan on the Asset List sent to the Administrative Agent or for any single Approval Request pursuant to clause (vii) below, the Borrower (or the Servicer on its behalf) may provide a notice by electronic mail that contains the information listed in Exhibit I with respect to each Collateral Loan (which information shall include the amount of the Advance to be requested in order to settle the related purchase) (together with any attachments required in connection therewith, an “Approval Request”).
(ii) The initial Asset List which the Administrative Agent has approved for purchase by the Borrower is attached hereto as Schedule 9 (such list, the “Approved List”), which Approved List may be updated from time to time after the Closing Date by the Borrower with the consent of the Administrative Agent.
(iii) From the time the Administrative Agent has provided the Approved List, the Borrower shall have the ability to commit to purchase and purchase any Collateral Loan on the Approved List without further approval by the Administrative Agent only if the Borrower commits to purchase such Collateral Loan within ten (10) Business Days of approval by the Administrative Agent. On the date occurring ten (10) Business Days after the date of approval by the Administrative Agent, any approved Collateral Loan, if not purchased or committed to be purchased by the Borrower, will be deemed to be removed from the Approved List.
(iv) The Borrower shall have the ability to request (A) an addition to the Approved List by undertaking similar procedure to clause (vii) below, or (B) a removal from the Approved List.
(v) The Administrative Agent, in its sole discretion, may rescind its approval for any Collateral Loan on the Approved List at any time by notice to the Servicer in writing; provided, that such rescission of approval shall not invalidate any commitment to purchase a Collateral Loan entered into by the Borrower (or the Servicer on its behalf), prior to the delivery of such rescission.
(vi) As early as commercially practicable, but no later than 12:00 p.m. New York City time on the Business Day following the day that the Borrower (or the Servicer on its behalf) purchases a Collateral Loan on the Approved List, the Borrower (or the Servicer on its behalf) shall provide by electronic mail to the Administrative Agent (with a copy to the Borrower and the Custodian) a copy of the Collateral Loan Buy Confirmation.
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(vii) With respect to Collateral Loans that are not on the Approved List, the Borrower (or the Servicer on behalf of the Borrower) may send an Approval Request at any time to the Administrative Agent. If the Administrative Agent receives an Approval Request by 12:00 p.m. New York City time on any Business Day, the Administrative Agent shall use commercially reasonable efforts to notify the Servicer and Borrower in writing (including via electronic mail) whether it has approved or rejected such Approval Request by 12:00 p.m. New York City time on or prior to the second Business Day thereafter (it being understood, for the avoidance of doubt, that any Approval Request received by the Administrative Agent after 12:00 p.m. New York City time on any Business Day shall be deemed to have been received on the following Business Day); provided further that the Borrower shall have the ability to commit to purchase any Collateral Loan approved and added to the Approved List pursuant to this clause (vii) without further approval by the Administrative Agent only if the Borrower commits to purchase such Collateral Loan within ten (10) Business Days from the date of such approval by the Administrative Agent. On the date occurring ten (10) Business Days after the date of such approval by the Administrative Agent, any such approved Collateral Loan, if not purchased or committed to be purchased by the Borrower, will be deemed to be removed from the Approved List.
(viii) [Reserved.]
(ix) Notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall have the right, acting in its sole and absolute discretion, to (A) approve or reject any Approval Request or Approved List, (B) determine which Collateral Loans are included in the Approved List, and (C) request additional information reasonably available to the Borrower regarding any proposed Collateral Loan; provided that any rescission of approval shall not invalidate any commitment to purchase a Collateral Loan entered into by the Borrower (or the Servicer on its behalf) prior to the delivery of such rescission, in which case, such Collateral Loan shall be deemed to remain approved until settlement of such purchase.
SECTION 7.3. Making of the Advances. (a)   If the Borrower desires to make a Borrowing under this Agreement with respect to any Tranche to purchase a Collateral Loan for which the Approval Request has been approved or which has been identified on the Approved List pursuant to Section 2.02 or to fund the Macomb Merger, it shall give the Collateral Agent and the Administrative Agent (with a copy to each Lender) a written notice (each, a “Notice of Borrowing”) for such Borrowing (which notice shall be irrevocable and effective upon receipt) not later than 2:00 p.m. at least one (1) Business Day prior to the day of the requested Borrowing.
Each Notice of Borrowing shall be substantially in the form of Exhibit B, dated the date the request for the related Borrowing is being made, signed by a Responsible Officer of the Borrower or the Servicer, as applicable, shall attach a Borrowing Base Calculation Statement (which Borrowing Base Calculation Statement shall give pro forma effect to any Collateral Loans being acquired with the proceeds of such Borrowing on such date or the following
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Business Day), and shall otherwise be appropriately completed. In addition, the Servicer must provide to the Administrative Agent for each Collateral Loan that is not a Broadly Syndicated Loan copies of the Asset Information related to such Collateral Loan and such additional materials related to such Collateral Loan as may be reasonably requested by the Administrative Agent. Each Notice of Borrowing shall specify the Tranches under which the related Borrowing shall be allocated. The proposed Borrowing Date specified in each Notice of Borrowing shall be a Business Day falling on or prior to the Commitment Termination Date, the currency of the Borrowing requested shall be Dollars and the amount of the Borrowing requested in such Notice of Borrowing (the “Requested Amount”) shall be equal to at least $500,000 or an integral multiple of $100,000 in excess thereof (or, if less, the remaining unfunded Commitments hereunder or, in the case of Revolving Collateral Loans and Delayed Drawdown Collateral Loans, such lesser amount required to be funded by the Borrower in respect thereof).
(a) Each Lender shall, not later than 2:00 p.m. on each Borrowing Date in respect of Advances under any Tranche, make its Percentage of the applicable Requested Amount available to the Borrower by disbursing such funds in Dollars to the applicable Principal Collection Subaccount (or in accordance with the wire instructions delivered in connection with the Notice of Borrowing).
(b) [Reserved.].
(c) Notwithstanding anything in this Section 2.03 to the contrary, the Servicer, on behalf of the Borrower, may deliver a Notice of Borrowing to the Collateral Agent and the Administrative Agent (with a copy to each Lender) after 2 p.m. on the first Business Day prior to the proposed Borrowing and prior to 11 a.m. on the date of the proposed Borrowing. (an “Expedited Notice of Borrowing”). Upon receipt of an Expedited Notice of Borrowing, the Lenders shall use commercially reasonable efforts to make such Advance on the proposed funding date set forth in the Expedited Notice of Borrowing subject to the terms and conditions for borrowings otherwise set forth in this Agreement; provided, that if the Lenders are unable to make an Advance pursuant to an Expedited Notice of Borrowing due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Advance subject to the terms and conditions for Advances otherwise set forth in this Agreement as soon as they are reasonably able to do so.
SECTION 7.4. Evidence of Indebtedness. (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to it and resulting from the Advances made by such Lender to the Borrower, from time to time, including the amounts and currencies of principal and interest thereon and paid to it, from time to time hereunder; provided that the failure of any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Advances in accordance with the terms of this Agreement.
(a) Any Lender may request that its Advances to the Borrower be evidenced by a Note. In such event, the Borrower shall promptly prepare, execute and deliver to such Lender a Note payable to such Lender and otherwise appropriately completed. Thereafter, the Advances of such Lender evidenced by such Note and interest thereon shall at all times
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(including after any assignment pursuant to Section 13.06(a)) be represented by a Note payable to such Lender (or registered assigns pursuant to Section 13.06(a)), except to the extent that such Lender (or assignee) subsequently returns any such Note for cancellation and requests that such Advances once again be evidenced as described in clause (a) of this Section 2.04.
SECTION 7.5. Payment of Principal and Interest. The Borrower shall pay principal and Interest on the Advances as follows:
(a) 100% of the outstanding principal amount of each Advance, together with all accrued and unpaid Interest thereon, shall be payable on the Final Maturity Date.
(b) Interest shall accrue on the unpaid principal amount of each Advance from the date of such Advance until such principal amount is paid in full. The Administrative Agent shall determine the unpaid Interest and Commitment Fees payable thereto prior to each Payment Date using the applicable Interest Rate for the related Interest Accrual Period to be paid by the Borrower on each Payment Date for the related Interest Accrual Period and shall advise each Lender, the Collateral Agent and the Servicer thereof and shall send a consolidated invoice of all such Interest and Commitment Fees to the Borrower on the third (3rd) Business Day prior to such Payment Date.
(c) Accrued Interest shall be payable in arrears (i) on each Payment Date, and (ii) in connection with any prepayment of the Advances pursuant to Section 2.06(a); provided that (x) with respect to any prepayment in full of the Advances outstanding, accrued Interest on such amount through the date of prepayment may be payable on such date or as otherwise agreed to between the Lenders and the Borrower and (y) with respect to any partial prepayment of the Advances outstanding, accrued Interest on such amount through the date of prepayment shall be payable on the Payment Date following such prepayment (or on such date of prepayment if requested by the Administrative Agent).
(d) The obligation of the Borrower to pay the Obligations, including the obligation of the Borrower to pay the Lenders the outstanding principal amount of the Advances and accrued interest thereon, shall be absolute and unconditional, and shall be paid strictly in accordance with the terms hereof (including Section 2.15), under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower or any other Person may have or have had against any Secured Party or any other Person except as otherwise provided under the Facility Documents.
SECTION 7.6. Prepayment of Advances.
(a) Optional Prepayments. The Borrower may, from time to time on any Business Day, voluntarily prepay Advances under each Tranche in whole or in part, without penalty or premium; provided that the Borrower shall have delivered to the Collateral Agent, the Lenders and the Administrative Agent written notice of such prepayment (such notice, a “Notice of Prepayment”) in the form of Exhibit C not later than 2:00 p.m. two (2) Business Days prior to the date of such prepayment. The Administrative Agent shall promptly notify the Lenders of such Notice of Prepayment. Each such Notice of Prepayment shall specify the portion of the
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outstanding principal balance under each Tranche that shall be prepaid and be irrevocable and effective upon receipt and shall be dated the date such notice is being given, signed by a Responsible Officer of the Borrower and otherwise appropriately completed. Each prepayment of any Advance by the Borrower pursuant to this Section 2.06(a) shall in each case be in a principal amount of at least $500,000 or, if less, the entire outstanding principal amount of the Advances of the Borrower. If a Notice of Prepayment is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory Prepayments. The Borrower shall prepay the Advances on each Payment Date in the manner and to the extent provided in the Priority of Payments.
(c) Additional Prepayment Provisions. Each prepayment pursuant to this Section 2.06 shall be subject to Sections 2.05(c) and 2.11 and applied to the Advances in accordance with the Lenders’ respective Percentages.
(d) Re-designation of Tranche Advances. The Administrative Agent shall be permitted at any time, upon written notice to the Borrower, each Lender and the Collateral Agent, to re-allocate the aggregate outstanding principal balance under each Tranche so long as after giving effect to such re-allocation, each Tranche’s Tranche Minimum OC Coverage Test is satisfied or, if not satisfied, improved.
SECTION 7.7. Changes of Commitments.
(a) Automatic Reduction and Termination. Subject to the provisions of Section 8.04, the Commitments of all Lenders shall be automatically reduced to zero at 5:00 p.m. on the Commitment Termination Date.
(b) Optional Reductions. Prior to the first anniversary of the Closing Date, the Borrower shall have the right to terminate or reduce the unused amount of the Facility Amount at any time or from time to time concurrently with the payment of any applicable Commitment Reduction Fee payable in connection therewith upon not less than two (2) Business Days’ prior notice to the Collateral Agent, the Lenders and the Administrative Agent of each such termination or reduction, which notice shall specify the effective date of such termination or reduction and the amount of any such reduction; provided that (i) the amount of any such reduction of the Facility Amount shall be equal to at least $500,000 or an integral multiple of $100,000 in excess thereof or, if less, the remaining unused portion thereof, and (ii) no such reduction will reduce the Facility Amount below the sum of (x) the aggregate principal amount of Advances outstanding at such time and (y) the Revolving Exposure at such time. Such notice of termination or reduction shall be irrevocable and effective only upon receipt and shall be applied pro rata to reduce the respective Commitments of each Lender. Except as otherwise set forth herein, upon the occurrence of the Collection Date, this Agreement shall terminate automatically.
(c) Effect of Termination or Reduction. The Commitments of the Lenders once terminated or reduced may not be reinstated. Each reduction of the Facility Amount
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pursuant to this Section 2.07 shall be applied ratably among the Lenders in accordance with their respective Commitments.
SECTION 7.8. Maximum Lawful Rate. It is the intention of the parties hereto that the interest on the Advances shall not exceed the maximum rate permissible under Applicable Law. Accordingly, anything herein or in any Note to the contrary notwithstanding, in the event any interest is charged to, collected from or received from or on behalf of the Borrower by the Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then the excess of such payment over that maximum shall be applied first to the payment of amounts then due and owing by the Borrower to the Secured Parties under this Agreement (other than in respect of principal of and interest on the Advances) and then to the reduction of the outstanding principal amount of the Advances of the Borrower.
SECTION 7.9. Several Obligations. The failure of any Lender to make any Advance to be made by it on the date specified therefor shall not relieve any other Lender of its obligation to make its Advance on such date. Neither Agent shall be responsible for the failure of any Lender to make any Advance, and no Lender shall be responsible for the failure of any other Lender to make an Advance required to be made by such other Lender.
SECTION 7.10. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, compulsory loan, insurance charge, special deposit or similar requirement against assets of, deposits with or for account of, or credit extended by, any Affected Person;
(ii) subject any Affected Person to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Affected Person or the London interbank market any other condition, cost or expense, affecting this Agreement or Advances made by such Affected Person by reference to LIBOR or any participation therein;
and the result of any of the foregoing shall be to increase the cost to such Affected Person of making, continuing, converting into or maintaining any Advance made by reference to LIBOR (or of maintaining its obligation to make any such Advance) or to reduce the amount of any sum received or receivable by such Affected Person hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Affected Person for such additional costs incurred or reduction suffered as specified in a certificate delivered to the Borrower pursuant to clause (c) of this Section 2.10.
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(b) Capital Requirements. If any Affected Person determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Affected Person’s capital or on the capital of such Affected Person’s holding company, if any, as a consequence of this Agreement or the Advances made by such Affected Person to a level below that which such Affected Person or such Affected Person’s holding company could have achieved but for such Change in Law (taking into consideration such Affected Person’s policies and the policies of such Affected Person’s holding company with respect to capital adequacy and liquidity coverage), by an amount deemed to be material by such Affected Person, then from time to time the Borrower will pay to such Affected Person in Dollars, such additional amount or amounts as will compensate such Affected Person or such Affected Person’s holding company for any such reduction suffered or charge imposed; provided that the amounts payable under this Section 2.10(b) shall be without duplication of amounts payable under Section 13.03 and shall not include any Excluded Taxes.
(c) Certificates from Lenders. A certificate of an Affected Person setting forth in reasonable detail the basis for such demand and the amount or amounts, in Dollars, necessary to compensate such Affected Person or its holding company as specified in clause (a) or (b) of this Section 2.10 shall be promptly delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such amount shown as due on any such certificate on the next Payment Date after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section 2.10 shall not constitute a waiver of such Affected Person’s right to demand such compensation; provided that the Borrower shall not be required to compensate an Affected Person pursuant to this Section 2.10 for any costs, reductions, penalties or interest incurred more than nine months prior to the date that such Affected Person notifies the Borrower of the Change in Law giving rise to any increased costs or reductions and of such Affected Person’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Lending Office. Upon the occurrence of any event giving rise to the Borrower’s obligation to pay additional amounts to a Lender pursuant to clauses (a) or (b) of this Section 2.10, such Lender will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate a different lending office if such designation would reduce or obviate the obligations of the Borrower to make future payments of such additional amounts; provided that such designation is made on such terms that such Lender and its lending office suffer no unreimbursed cost or material legal or regulatory disadvantage (as reasonably determined by such Lender), with the object of avoiding future consequence of the event giving rise to the operation of any such provision.
SECTION 7.11. Compensation; Breakage Payments. The Borrower agrees to compensate each Affected Person from time to time, on the Payment Date (or on the applicable date of prepayment) immediately following such Affected Person’s written request (which request shall set forth the basis for requesting such amounts) in accordance with the
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Priority of Payments, for all reasonable and documented actual losses, expenses and liabilities (including any interest paid by such Affected Person to lenders of funds borrowed to make or carry an Advance bearing interest that was computed by reference to LIBOR and any loss sustained by such Affected Person in connection with the re-employment of such funds but excluding loss of anticipated profits), which such Affected Person may sustain: (i) if for any reason (including any failure of a condition precedent set forth in Article III but excluding a default by the applicable Lender) a Borrowing of any Advance bearing interest that was computed by reference to LIBOR by the Borrower does not occur on the Borrowing Date specified therefor in the applicable Notice of Borrowing delivered by the Borrower, and (ii) if any payment or prepayment of any Advance bearing interest that was computed by reference to LIBOR is not made on a Payment Date or pursuant to a Notice of Prepayment given by the Borrower. A certificate as to any amounts payable pursuant to this Section 2.11 submitted to the Borrower by any Lender (with a copy to the Agents, and accompanied by a reasonably detailed calculation of such amounts and a description of the basis for requesting such amounts) shall be conclusive in the absence of manifest error.
SECTION 7.12. Illegality; Inability to Determine Rates. If, prior to the first day of any Interest Accrual Period or prior to the date of any Advance, as applicable, the Administrative Agent determines that for any reason adequate and reasonable means do not exist for determining LIBOR for the applicable Advances, the Administrative Agent will promptly so notify the Borrower, the Collateral Agent and each Lender; provided that each such Lender has made a similar determination with respect to similarly situated borrowers in similar facilities. Thereafter, the obligation of the Lenders to make or maintain Advances shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.
SECTION 7.13. Rescission or Return of Payment. The Borrower agrees that, if at any time (including after the occurrence of the Final Maturity Date) all or any part of any payment theretofore made by it to any Secured Party or any designee of a Secured Party is or must be rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy or reorganization of the Borrower or any of its Affiliates), the obligation of the Borrower to make such payment to such Secured Party shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence and this Agreement and any other applicable Facility Document shall continue to be effective or be reinstated, as the case may be, as to such obligations, all as though such payment had not been made.
SECTION 7.14. Post-Default Interest. The Borrower shall pay interest on all Obligations (other than any Administrative Expenses) that are not paid when due for the period from the due date thereof until the date the same is paid in full at the Post-Default Rate. Interest payable at the Post-Default Rate shall be payable on each Payment Date in accordance with the Priority of Payments.
SECTION 7.15. Payments Generally. (a)  All amounts owing and payable to any Secured Party, any Affected Person or any Indemnified Party, in respect of the Advances and other Obligations, including the principal thereof, interest, fees, indemnities, expenses or
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other amounts payable under this Agreement or any other Facility Document, shall be paid by the Borrower to the applicable recipient in Dollars, in immediately available funds, in accordance with the Priority of Payments, and all without counterclaim, setoff, deduction, defense, abatement, suspension or deferment. Each Lender shall provide wire instructions to the Borrower and the Collateral Agent. All payments made by the Collateral Agent pursuant to a Payment Date Report on any Payment Date shall be wired by the Collateral Agent by 2:00 p.m. on such Payment Date. Prepayments to be made pursuant to Section 2.06 for which the Collateral Agent has received a Notice of Prepayment two (2) Business Days prior to the scheduled date of prepayment shall be wired by the Collateral Agent by 2:00 p.m. on such date. All other payments by the Borrower must be received by the Collateral Agent on or prior to 3:00 p.m. on a Business Day (the Collateral Agent shall then wire such funds to the Lenders by 5:00 p.m. on such Business Day); provided that, payments received by the Collateral Agent after 3:00 p.m. or payments received by the Lenders after 5:00 p.m. on a Business Day will be deemed to have been paid on the next following Business Day. For the avoidance of doubt, for purposes of Section 6.01, amounts paid by the Borrower shall be deemed received upon payment by the Borrower to the Collateral Agent. At no time will the Collateral Agent have any duty (express or implied) to fund (or front or advance) any amount owing by the Borrower hereunder.
(a) Except as otherwise expressly provided herein, all computations of interest, fees and other Obligations shall be made on the basis of a year of 360 days for the actual number of days elapsed in computing interest on any Advance, the date of the making of the Advance shall be included and the date of payment shall be excluded; provided that, if an Advance is repaid on the same day on which it is made, one day’s Interest shall be paid on such Advance. All computations made by the Collateral Agent or the Administrative Agent under this Agreement or any other Facility Document shall be conclusive absent manifest error.
SECTION 7.16. Extension of Commitment Termination Date. The Borrower shall have an option to extend the Commitment Termination Date one time, not longer than one year, subject to the satisfaction of the following conditions precedent:
(a) each of the Lenders and the Administrative Agent consent to the extension in their sole discretion (written notice of such consent to be delivered to Borrower together with the requested extension fee (if applicable) no later than thirty (30) days following receipt of the Extension Request delivered pursuant to clause (e) below; provided that if the Borrower fails to receive such consent from the Administrative Agent or any Lender within such thirty-day period, the Administrative Agent and such Lender, as applicable, shall be deemed to have denied such Extension Request);
(b) as of the effective date of such extension, the representations and warranties of the Borrower, the Equityholder and the Servicer set forth herein and in the other Facility Documents are true and correct in all material respects with the same force and effect as if made on and as of such date (except to the extent that such representations and warranties expressly relate to an earlier date); provided that if a representation or warranty is qualified as to materiality, with respect to such representation or warranty, the foregoing materiality qualifier shall be disregarded for the purposes of this condition;
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(c) the Borrower shall have paid an extension fee to the Administrative Agent, for the account of each Lender, in an amount to be mutually agreed upon by the Borrower and such Lender;
(d) no Default or Event of Default shall have occurred and be continuing on the date on which notice is given in accordance with the following clause (e) or on the Commitment Termination Date then in effect; and
(e) the Borrower shall have delivered an Extension Request with respect to the Commitment Termination Date to Administrative Agent not earlier than one year after the Closing Date and not later than one hundred twenty (120) days prior to the Commitment Termination Date then in effect (which shall be promptly forwarded by Administrative Agent to each Lender).
SECTION 7.17. 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) That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 13.01(d).
(ii) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Event of Default or Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held as cash collateral for future funding obligations of that Defaulting Lender to fund Advances under this Agreement; fourth, to the payment of any amounts owing to other Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Event of Default or Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against that Defaulting Lender as a result of that 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 that 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 that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a
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Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.17 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) For any period during which that Lender is a Defaulting Lender, that Defaulting Lender shall not be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).
(b) If the Administrative Agent and the Borrower agree that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances to be held on a pro rata basis by the Lenders in accordance with their relative Commitments, 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 Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
SECTION 7.18. LIBOR Discontinuation. (a)  Notwithstanding anything to the contrary in this Agreement or any other Facility Documents, if the Administrative Agent determines (which determination shall be made by notice to the Borrower and shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Accrual Period, including, without limitation, because the Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary;
(ii) the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
(iii) syndicated loans being executed in the U.S. at the time, or that include language similar to that contained in this Section 2.18, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;
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then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
(b) If no LIBOR Successor Rate has been determined and the circumstances under clause (a)(i) above exist or the Scheduled Unavailability Date has occurred, as applicable, the Administrative Agent will promptly so notify the Borrower and each Lender. From and after the date of the occurrence of the circumstances described under clause (a)(i) or the occurrence of the Scheduled Unavailability Date (until a LIBOR Successor Rate has been determined in accordance with Section 2.18(a)), (x) the obligation of the Lenders to make or maintain Advances shall be suspended (to the extent of the affected Advances or Interest Accrual Periods), and (y) the LIBOR component shall no longer be utilized in determining the Interest Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of an Advance (to the extent of the affected Advances or Interest Accrual Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Advances based on the Base Rate (subject to the foregoing clause (y)) in the amount specified therein.
(c) Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
ARTICLE VIII 
CONDITIONS PRECEDENT
SECTION 8.1. Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
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(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and
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delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Wickersham & Taft LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
SECTION 8.2. Conditions Precedent to Each Borrowing. The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions described in clauses (d) and (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be satisfied if the proceeds of the Borrowing are used to fund Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to fund the Revolving Reserve Account to the extent required under Section 8.04;:
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(a) subject to Section 2.02, the Administrative Agent must have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.03;
(c) immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(d) each of the representations and warranties of the Borrower, the Servicer and the Equityholder contained in the Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if made on such date);
(e) no Default, Event of Default, Potential Servicer Removal Event or Servicer Removal Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(f) the Reinvestment Period shall not have terminated; and
(g) after giving effect to such Advance, the aggregate outstanding principal balance of the Advances shall not exceed the lesser of (x) the Maximum Facility Amount and (y) the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the aggregate amounts on deposit in the Principal Collection Subaccount constituting Principal Proceeds.
ARTICLE IX 
REPRESENTATIONS AND WARRANTIES
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SECTION 9.1. Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the Secured Parties on and as of each Measurement Date, as follows:
(a) Due Organization. It is a limited liability company duly incorporated and validly existing under the laws of the State of Delaware, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement and the other Facility Documents to which it is a party.
(b) Due Qualification. It is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement, the other Facility Documents to which it is a party and its Constituent Documents, requires such qualification, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. The execution and delivery by it, and the performance of its obligations under, the Facility Documents to which it is a party and the other instruments, certificates and agreements contemplated thereby are within its powers and have been duly authorized by all requisite action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) The Equityholder (i) is not required to register as an investment company under the Investment Company Act, and (ii) has elected to be treated a business development corporation for purposes of the Investment Company Act.
(e) Non-Contravention. None of the execution and delivery by it of this Agreement or the other Facility Documents to which it is a party, the Borrowings or the pledge of the Collateral hereunder, the consummation of the transactions herein or therein contemplated, or compliance by it with the terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or violation of, or constitute a default under its Constituent Documents or (ii) conflict with or contravene in any material respect, and with respect to clause (B), result in the creation of a Lien (other than Permitted Liens) under, (A) any Applicable Law, (B) any indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, including any Related Document, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or properties.
(f) Governmental Authorizations; Private Authorizations; Governmental Filings. It has obtained, maintained and kept in full force and effect all material Governmental Authorizations and material Private Authorizations which are necessary for it to properly carry out its business, and made all material Governmental Filings necessary for the execution and
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delivery by it of the Facility Documents to which it is a party, the Borrowings under this Agreement, the pledge of the Collateral under this Agreement and the performance by it of its obligations under this Agreement and the other Facility Documents to which it is a party.
(g) Compliance with Agreements, Laws, Etc. It has duly observed and complied in all material respects with all Applicable Laws relating to the conduct of its business and its assets. It has preserved and kept in full force and effect its legal existence. It has preserved and kept in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(h) Location. Its office in which it maintains its limited liability company books and records is located at the addresses set forth on Schedule 5. Its registered office and jurisdiction of organization is the jurisdiction referred to in Section 4.01(a).
(i) Investment Company Act. Neither it nor the pool of Collateral is required to register as an “investment company” under the Investment Company Act.
(j) ERISA. Neither it nor any member of the ERISA Group has, or during the past five years had, any liability or obligation with respect to any Plan or Multiemployer Plan that would reasonably be expected to result in a Material Adverse Effect.
(k) Taxes. It is a disregarded entity for U.S. federal income tax purposes. It has filed all income tax returns and all other material tax returns which are required to be filed by it, if any, and has paid all income taxes and all other material taxes shown to be due and payable on such returns, if any, or pursuant to any assessment received by any such Person other than any such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and for which appropriate reserves in accordance with GAAP have been established.
(l) Filings and Stamp Taxes. This Agreement is in proper legal form under the applicable law of the jurisdiction of incorporation or formation of the Borrower for the enforcement hereof or thereof against the Borrower, and to ensure legality, validity, enforceability, priority or admissibility in evidence of this Agreement it is not necessary that (i) this Agreement, or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction of incorporation or formation of the Borrower or (ii) that any registration charge or stamp or similar tax be paid in any jurisdiction on or in respect of this Agreement or any other document.
(m) Plan Assets. Its assets are not treated and during the term of this Agreement will not be treated as “plan assets” for purposes of 29 C.F.R. Section 2510.3-101 and Section 3(42) of ERISA (the “Plan Asset Rule”) and the Collateral is not and during the term of this Agreement will not be deemed to be “plan assets” for purposes of the Plan Asset Rule.
(n) Solvency. After giving effect to each Advance hereunder, and the disbursement of the proceeds of such Advance, it is and will be Solvent.
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(o) Representations Relating to the Collateral. (i) It owns and has good and marketable legal and beneficial title to all Collateral Loans and other Collateral free and clear of any Lien or claim of any Person, other than Permitted Liens;
(i) Except for Permitted Liens or as contemplated by the Facility Documents, it has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral. It has not authorized the filing of and is not aware of any financing statements or any equivalent filing in any applicable jurisdiction against it that include a description of collateral covering the Collateral other than any financing statement or any equivalent filing in any applicable jurisdiction relating to the security interest granted to the Collateral Agent hereunder or that has been terminated; and it is not aware of any judgment, PBGC liens or tax lien filings against it or any of its assets;
(ii) the Collateral constitutes Money, Cash, accounts (as defined in Section 9-102(a)(2) of the UCC), Instruments, general intangibles (as defined in Section 9-102(a)(42) of the UCC), Uncertificated Securities, Certificated Securities or Security Entitlements to Financial Assets resulting from the crediting of Financial Assets to a “securities account” (as defined in Section 8-501(a) of the UCC);
(iii) all Covered Accounts constitute “securities accounts” under Section 8-501(a) of the UCC;
(iv) this Agreement creates a valid, continuing and, upon Delivery of Collateral, filing of the financing statements referred to in clause (viii) below and execution of the Account Control Agreement, perfected security interest (as defined in Section 1-201(37) of the UCC) in the Collateral in favor of the Collateral Agent, for the benefit and security of the Secured Parties, which security interest is prior to all other Liens (other than Permitted Liens) and claims and is enforceable as such against creditors of and purchasers from it, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(v) it has received all consents and approvals required by the terms of the Related Documents in respect of such Collateral to the pledge hereunder to the Collateral Agent of its interest and rights in such Collateral;
(vi) with respect to the Collateral that constitutes Security Entitlements, all such Collateral has been and will have been credited to the applicable Covered Account and the Securities Intermediary for each Covered Account has agreed to treat all assets credited to such Covered Account as Financial Assets;
(vii) with respect to Collateral that constitutes accounts or general intangibles (as defined in Section 9-102(a)(42) of the UCC), it has caused or will have caused, on or prior to the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order
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to perfect the security interest in the Collateral granted to the Collateral Agent, for the benefit and security of the Secured Parties, hereunder (which it hereby agrees may be an “all assets” filing);
(viii) it has taken all steps necessary to enable the Collateral Agent to obtain “control” (within the meaning of the UCC) with respect to each Covered Account;
(ix) the Covered Accounts are in its name and not in the name of any other Person. It has not instructed the Securities Intermediary of any Covered Account 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, it and the Servicer may cause Cash in the Covered Accounts to be invested in Eligible Investments, and the proceeds thereof to be paid and distributed in accordance with this Agreement; and
(x) all Covered Accounts constitute “securities accounts” as defined in Section 8-501(a) of the UCC.
(p) Eligibility. (i) The information contained in each Notice of Borrowing delivered pursuant to Section 2.03, is an accurate and complete listing of all Collateral Loans included in the Collateral as of the related Borrowing Date and the information contained therein with respect to the identity of such Collateral Loan and the amounts owing thereunder is true, correct and complete as of the related Borrowing Date and (ii) with respect to each Collateral Loan included in any calculation of the Borrowing Base or OC Ratio, such Collateral Loan is an Eligible Collateral Loan at such time; provided that, notwithstanding anything to contrary contained herein, to the extent any such Collateral Loan is repurchased or otherwise removed from the Borrowing Base pursuant to the Loan Sale Agreement, then no such breach of the foregoing clause (ii) shall constitute an Event of Default or other breach of this Agreement.
(q) Anti-Corruption Laws and Anti-Terrorism Laws. None of the Borrower, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Borrower, their respective agents or employees or its Affiliates, has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction and the Borrower and its Affiliates have instituted and maintain policies and procedures designed to prevent violation of such laws, regulations and rules.
(r) Sanctions. None of the Borrower, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Borrower, their respective agents or employees or its Affiliates, is a Person that is, or is owned or controlled by Persons that are: (i) the target of any Sanctions (a “Sanctioned Person”) or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory (a “Sanctioned Country”).
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(s) No Default. Neither it nor any of its subsidiaries is in default under or with respect to any contractual obligation or restriction that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) No Proceedings. There is no litigation, proceeding or investigation pending or, to its knowledge, threatened against it before any Governmental Authority (i) asserting the invalidity of any Facility Document to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any Facility Document to which it is a party or (iii) that could reasonably be expected to have a Material Adverse Effect.
(u) Information. All information heretofore or hereafter furnished by it or on its behalf to any Secured Party in connection with the Facility Documents or any transaction contemplated hereby or thereby is and will be (when taken as a whole) true, complete and correct in all material respects as of the date such information is stated or certified and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading; provided that solely with respect to information furnished by the Borrower which was provided to the Borrower from an Obligor with respect to a Collateral Loan, such information shall only need to be true, complete and correct to the actual knowledge of the Borrower; provided further that, with respect to projected financial information, the Borrower represents only that such information represents the Borrower’s good faith estimates as of the date of preparation thereof, based upon methods and data the Borrower believes to be reasonable and accurate, but actual results during the periods covered by such projections may differ materially from such projections.
(v) Procedures. In selecting and disposing of the Collateral, no selection procedures were employed which are intended to be adverse to the interests of any Secured Party.
SECTION 9.2. Representations and Warranties of the Servicer. The Servicer represents and warrants to each of the other Secured Parties on and as of each Measurement Date, as follows:
(a) Due Organization. It is a statutory trust formed and validly existing under the laws of Delaware, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement and the other Facility Documents to which it is a party.
(b) Due Qualification. It is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement, the other Facility Documents to which it is a party and its Constituent Documents, requires such qualification, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. The execution and delivery by it, and the performance of its obligations under
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the Facility Documents to which it is a party and the other instruments, certificates and agreements contemplated thereby are within its powers and have been duly authorized by all requisite action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) [Reserved].
(e) Non-Contravention. None of the execution and delivery by it of this Agreement or the other Facility Documents to which it is a party, the consummation of the transactions herein or therein contemplated, or compliance by it with the terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or violation of, or constitute a default under its Constituent Documents or (ii) conflict with or contravene in any material respect, and with respect to clause (B), result in the creation of a Lien (other than Permitted Liens) under, (A) any Applicable Law, (B) any indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, including any Related Document, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or properties, except, in the case of clauses (A), (B) and (C) above, where such conflict, contravention, breach, violation or default could not reasonably be expected to have a Material Adverse Effect.
(f) Governmental Authorizations; Private Authorizations; Governmental Filings. It has obtained, maintained and kept in full force and effect all material Governmental Authorizations and material Private Authorizations which are necessary for it to properly carry out its business, and made all material Governmental Filings necessary for the execution and delivery by it of the Facility Documents to which it is a party and the performance by it of its obligations under this Agreement and the other Facility Documents to which it is a party.
(g) Compliance with Agreements, Laws, Etc. It has duly observed and complied in all material respects with all Applicable Laws relating to the conduct of its business and its assets. It has preserved and kept in full force and effect its legal existence. It has preserved and kept in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so world not reasonably be expected to result in a Material Adverse Effect.
(h) [Reserved].
(i) Taxes. It has filed all income tax returns and all other material tax returns which are required to be filed by it, if any, and has paid all income taxes and all other material taxes shown to be due and payable on such returns, if any, or pursuant to any assessment received by any such Person other than any such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and for which appropriate reserves in accordance with GAAP have been established.
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(j) [Reserved].
(k) Anti-Corruption Laws and Anti-Terrorism Laws. None of the Servicer, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Servicer, their respective agents or employees or its Affiliates, has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction and the Servicer and its Affiliates have instituted and maintain policies and procedures designed to prevent violation of such laws, regulations and rules.
(l) Sanctions. None of the Servicer, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Servicer, their respective agents or employees or its Affiliates, is a Person that is, or is owned or controlled by Persons that are: (i) a Sanctioned Person or (ii) located, organized or resident in a Sanctioned Country.
(m) [Reserved].
(n) No Proceedings. There is no litigation, proceeding or investigation pending or, to its knowledge, threatened against it before any Governmental Authority (i) asserting the invalidity of any Facility Document to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any Facility Document to which it is a party or (iii) that could reasonably be expected to have a Material Adverse Effect.
(o) Information. All information heretofore or hereafter furnished by it or on its behalf to any Secured Party in connection with the Facility Documents or any transaction contemplated hereby or thereby is and will be (when taken as a whole) true, complete and correct in all material respects as of the date such information is stated or certified and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading; provided that solely with respect to information furnished by the Servicer which was provided to the Servicer from an Obligor with respect to a Collateral Loan, such information shall only need to be true, complete and correct to the actual knowledge of the Servicer; provided further that, with respect to projected financial information, the Servicer represents only that such information represents the Servicer’s good faith estimates as of the date of preparation thereof, based upon methods and data the Servicer believes to be reasonable and accurate, but actual results during the periods covered by such projections may differ materially from such projections.
(p) Procedures. In selecting and disposing of the Collateral, no selection procedures were employed which are intended to be adverse to the interests of any Secured Party.
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SECTION 9.3. Representations and Warranties of the Equityholder. The Equityholder represents and warrants to each of the other Secured Parties on and as of each Measurement Date, as follows:
(a) Due Organization. It is a statutory trust duly established and validly existing under the laws of Delaware, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement and the other Facility Documents to which it is a party.
(b) Due Qualification. It is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of its business, assets and properties, including the performance of its obligations under this Agreement, the other Facility Documents to which it is a party and its Constituent Documents, requires such qualification, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability. The execution and delivery by it, and the performance of its obligations under the Facility Documents to which it is a party and the other instruments, certificates and agreements contemplated thereby are within its powers and have been duly authorized by all requisite action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) [Reserved].
(e) Non-Contravention. None of the execution and delivery by it of this Agreement or the other Facility Documents to which it is a party, the consummation of the transactions herein or therein contemplated, or compliance by it with the terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or violation of, or constitute a default under its Constituent Documents or (ii) conflict with or contravene in any material respect, and with respect to clause (B), result in the creation of a Lien (other than Permitted Liens) under, (A) any Applicable Law, (B) any indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, including any Related Document, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or properties, except, in the case of clauses (A), (B) and (C) above, where such conflict, contravention, breach, violation or default could not reasonably be expected to have a Material Adverse Effect.
(f) Governmental Authorizations; Private Authorizations; Governmental Filings. It has obtained, maintained and kept in full force and effect all material Governmental Authorizations and material Private Authorizations which are necessary for it to properly carry out its business, and made all material Governmental Filings necessary for the execution and
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delivery by it of the Facility Documents to which it is a party and the performance by it of its obligations under this Agreement and the other Facility Documents to which it is a party.
(g) Compliance with Agreements, Laws, Etc. It has duly observed and complied in all material respects with all Applicable Laws relating to the conduct of its business and its assets. It has preserved and kept in full force and effect its legal existence. It has preserved and kept in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(h) [Reserved].
(i) Taxes. It has filed all income tax returns and all other material tax returns which are required to be filed by it, if any, and has paid all income taxes and all other material taxes shown to be due and payable on such returns, if any, or pursuant to any assessment received by any such Person other than any such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and for which appropriate reserves in accordance with GAAP have been established.
(j) Anti-Corruption Laws and Anti-Terrorism Laws. None of the Equityholder, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Equityholder, their respective agents or employees or its Affiliates, has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction and the Equityholder and its Affiliates have instituted and maintain policies and procedures designed to prevent violation of such laws, regulations and rules.
(k) Sanctions. None of the Equityholder, its subsidiaries, their respective directors or officers, or, to the best knowledge of the Equityholder, their respective agents or employees or its Affiliates, is a Person that is, or is owned or controlled by Persons that are: (i) a Sanctioned Person or (ii) located, organized or resident in a Sanctioned Country.
(l) [Reserved].
(m) No Proceedings. There is no litigation, proceeding or investigation pending or, to its knowledge, threatened against it before any Governmental Authority (i) asserting the invalidity of any Facility Document to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any Facility Document to which it is a party or (iii) that could reasonably be expected to have a Material Adverse Effect.
(n) Information. All information heretofore or hereafter furnished by it or on its behalf to any Secured Party in connection with the Facility Documents or any transaction contemplated hereby or thereby is and will be (when taken as a whole) true, complete and correct in all material respects as of the date such information is stated or certified and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
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ARTICLE X 
COVENANTS
SECTION 10.1. Affirmative Covenants of the Borrower. The Borrower covenants and agrees that, until the Collection Date:
(a) Compliance with Agreements, Laws, Etc. It shall (i) duly observe and comply in all material respects with all Applicable Laws relative to the conduct of its business or to its assets, (ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, (iv) comply with the terms and conditions of each Facility Document to which it is a party, its Constituent Documents and each Related Document to which it is a party and (v) obtain, maintain and keep in full force and effect all Governmental Authorizations, Private Authorizations and Governmental Filings which are necessary to properly carry out its business and the transactions contemplated to be performed by it under the Facility Documents to which it is a party, its Constituent Documents and the Related Documents to which it is a party, except, in the case of this clause (v), where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) Enforcement.
(i) It shall not take any action that would release any Obligor from any of such Obligor’s material covenants or obligations under any instrument or agreement included in the Collateral, except in the case of (A) repayment of Collateral Loans, (B) subject to the terms of this Agreement, (1) amendments to Collateral Loans in accordance with the Servicing Standard and (2) actions taken in connection with the work out or restructuring of any Collateral Loan in accordance with the provisions hereof, and (C) other actions by the Servicer required hereby or otherwise to the extent not prohibited by, or in conflict with, this Agreement.
(ii) It will perform, and use commercially reasonable efforts to cause the Servicer to perform, all of their obligations and agreements contained in this Agreement or any other Facility Document to which such Person is a party.
(c) Further Assurances. It shall promptly upon the reasonable request of either Agent or the Required Lenders (through the Administrative Agent), at its expense, execute and deliver such further instruments and take such further action in order to maintain and protect the Collateral Agent’s first-priority perfected security interest in the Collateral pledged by the Borrower for the benefit of the Secured Parties free and clear of any Liens (other than Permitted Liens). At the request of either Agent or the Required Lenders (through the Administrative Agent), it shall promptly take, at the Borrower’s expense, such further action in order to establish and protect the rights, interests and remedies created or intended to be created under this Agreement in favor of the Secured Parties in the Collateral, including all actions which are necessary to (x) enable the Secured Parties to enforce their rights and remedies under this
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Agreement and the other Facility Documents, and (y) effectuate the intent and purpose of, and to carry out the terms of, the Facility Documents.
(d) Financial Statements; Other Information. It shall provide to the Administrative Agent or cause to be provided to the Administrative Agent (with enough additional copies for each Lender):
(i) within 120 days after the end of each fiscal year of the Equityholder, a copy of the audited consolidated balance sheet of the Equityholder and its consolidated subsidiaries as at the end of such year, the related consolidated statements of income for such year and the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year; provided, that the financial statements required to be delivered pursuant to this clause (i) which are made available via EDGAR, or any successor system of the Securities Exchange Commission, in the Equityholder’s annual report on Form 10-K, shall be deemed delivered to the Administrative Agent on the date such documents are made so available;
(ii) within 45 days after the end of each fiscal quarter of each fiscal year (other than the last fiscal quarter of each fiscal year), an unaudited consolidated balance sheet of the Equityholder and its consolidated subsidiaries as of the end of such fiscal quarter and including the prior comparable period (if any), and the unaudited consolidated statements of income of the Equityholder 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, and the unaudited consolidated statements of cash flows of the Equityholder and its consolidated subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to be delivered pursuant to this clause (ii) which are made available via EDGAR, or any successor system of the Securities Exchange Commission, in Equityholder’s quarterly report on Form 10-Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available;
(iii) within two Business Days after a Responsible Officer of the Borrower obtains actual knowledge of the occurrence and continuance of any (A) Default, (B) Event of Default, (C) event or occurrence that has resulted or could reasonably be expected to result in a Material Adverse Effect, (D) Revaluation Event, (E) receipt of notice from the agent on a Collateral Loan that the related Obligor has defaulted (beyond applicable grace periods) in the payment of principal or interest or (F) Collateral Loan that ceases to be an Eligible Collateral Loan, a certificate of a Responsible Officer setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(iv) from time to time such additional information regarding the Borrower’s financial position or business and the Collateral (including reasonably detailed calculations of each Coverage Test) as the Administrative Agent or the Required Lenders
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(through the Administrative Agent) may reasonably request if reasonably available without undue burden or expense;
(v) promptly after the occurrence of any ERISA Event, notice of such ERISA Event and copies of any communications with all Governmental Authorities or any Multiemployer Plan with respect to such ERISA Event;
(vi) promptly following any reasonable request by the Administrative Agent or any Lender, all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer,” anti-money laundering and sanctions rules and regulations, including the PATRIOT Act;
(vii) within two Business Days after a Responsible Officer of the Borrower obtains actual knowledge thereof, provide notice to the Administrative 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, directly affecting in any material respect the Collateral (taken as a whole), the Facility Documents, or any Secured Party’s interest in the Collateral; and
(viii) with respect to each Obligor of a Collateral Loan that is not a Broadly Syndicated Loan: (1) within ten (10) Business Days of the completion of the Servicer’s portfolio review of such Obligor (which, for each Obligor shall occur no less frequently than four (4) times per calendar year) (I) the most recent financial reporting packages that correspond to such portfolio review with respect to such Obligor and with respect to each related Collateral Loan (including any attached or included information, statements and calculations) received as of the date of the Servicer’s most recent portfolio review and (II) the internal monitoring report prepared by the Servicer with respect to each Obligor and (2) upon demand by the Administrative Agent, such other information as the Administrative Agent may reasonably request with respect to any Collateral Loan or Obligor (to the extent reasonably available to the Servicer).
(e) Access to Records and Documents. It shall permit the Administrative Agent (or any Person designated by the Administrative Agent as its agent or representative, subject to delivery of standard confidentiality agreements) to, upon reasonable advance notice and during normal business hours, visit and inspect and make copies thereof at reasonable intervals: (i) its books, records and accounts relating to its business, financial condition, operations, assets and its performance under the Facility Documents and the Related Documents and to discuss the foregoing with its and such Person’s officers, partners, employees and accountants, and (ii) the Related Documents with respect to the Collateral; provided that, so long as no Event of Default has occurred, the Borrower shall be responsible for all costs and expenses for only one such visit per fiscal year by the Lenders and the Administrative Agent. The Administrative Agent shall be permitted to schedule such visits on behalf of the Lenders and
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shall (1) coordinate in good faith with the Lenders to determine dates which are acceptable to a majority of the Lenders and whenever possible occur on one such date as a single group and (2) provide 10 days’ prior notice to the Lenders of any such visit and any Lender shall be permitted to accompany the Administrative Agent in such visit.
(f) Use of Proceeds. It shall use the proceeds of each Advance made hereunder solely:
(i) to fund or pay the purchase price of Collateral Loans or Eligible Investments acquired by the Borrower in accordance with the terms and conditions set forth herein (it being understood that the Borrower may request a Borrowing to fund the applicable Advance Rate of one or more Collateral Loans either on the date of acquisition or at a later time during the Reinvestment Period pursuant to Article II) including pursuant to the Macomb Merger;
(ii) to fund additional extensions of credit under Revolving Collateral Loans and Delayed Drawdown Collateral Loans purchased in accordance with the terms of this Agreement;
(iii) to fund the Revolving Reserve Account on or prior to the Commitment Termination Date to the extent the Revolving Reserve Account is required to be funded pursuant to Section 8.04 (and the Borrower shall submit a Notice of Borrowing requesting a Borrowing of Advances for a Borrowing Date falling no more than five and no less than one Business Day prior to the Commitment Termination Date with a Requested Amount sufficient to fully fund the Revolving Reserve Account under Section 8.04); and
(iv) to make Permitted Distributions or Permitted RIC Distributions.
Without limiting the foregoing, it shall use the proceeds of each Advance in a manner that does not, directly or indirectly, violate any provision of its Constituent Documents or any Applicable Law, including Regulation T, Regulation U and Regulation X.
(g) Information and Reports. Each Notice of Borrowing, each Monthly Report and all other written information, reports, certificates and statements furnished by or on behalf of it to any Secured Party for purposes of or in connection with this Agreement, the other Facility Documents or the transactions contemplated hereby or thereby shall be true, complete and correct in all material respects as of the date such information is stated or certified; provided that solely with respect to information furnished by the Borrower which was provided to the Borrower from an Obligor with respect to a Collateral Loan, such information shall only need to be true, complete and correct to the actual knowledge of the Borrower; provided further that, with respect to projected financial information, the Borrower represents only that such information represents the Borrower’s good faith estimates as of the date of preparation thereof, based upon methods and data the Borrower believes to be reasonable and accurate, but actual results during the periods covered by such projections may differ materially from such projections.
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(h) Opinions as to Collateral. On or before each five year anniversary of the Closing Date, at the request of the Administrative Agent, it shall furnish to the Agents an opinion of counsel addressed to the Agents and the Borrower relating to the continued perfection of the security interest granted by the Borrower to the Collateral Agent hereunder.
(i) No Other Business. It shall not engage in any business or activity other than borrowing Advances pursuant to this Agreement, funding, acquiring, owning, holding, administering, selling, enforcing, lending, exchanging, redeeming, pledging, contracting for the management of and otherwise dealing with Collateral Loans, Eligible Investments and the Collateral in connection therewith and entering into and performing its obligations under the Facility Documents, any applicable Related Documents and any other agreement contemplated by this Agreement.
(j) Tax Matters. It shall remain a disregarded entity for U.S. federal income tax purposes.
(k) Compliance with Legal Opinions. The Borrower shall take all other actions necessary to maintain the accuracy of the factual assumptions set forth in the legal opinions of Dechert LLP, as special counsel to the Borrower, issued on the Closing Date and relating to the issues of substantive consolidation.
SECTION 10.2. Covenants of the Servicer. The Servicer covenants and agrees that, until the Collection Date:
(a) Compliance with Agreements, Laws, Etc. It shall (i) duly observe and comply in all material respects with all Applicable Laws relative to the conduct of its business or to its assets, (ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, (iv) comply with the terms and conditions of each Facility Document to which it is a party and its Constituent Documents and (v) obtain, maintain and keep in full force and effect all Governmental Authorizations, Private Authorizations and Governmental Filings which are necessary to properly carry out its business and the transactions contemplated to be performed by it under the Facility Documents to which it is a party and its Constituent Documents, except, in the case of this clause (v), where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) Enforcement. It shall not take any action that would release any Obligor from any of such Obligor’s covenants or obligations under any instrument or agreement included in the Collateral, except in the case of (A) repayment of Collateral Loans, (B) subject to the terms of this Agreement, (1) amendments to Collateral Loans in accordance with the Servicing Standard and (2) actions taken in connection with the work out or restructuring of any Collateral Loan in accordance with the provisions hereof, and (C) other actions by the Servicer required hereby or otherwise to the extent not prohibited by, or in conflict with, this Agreement.
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(c) Further Assurances. It shall promptly upon the request of either Agent or the Required Lenders (through the Administrative Agent), at its expense, execute and deliver such further instruments and take such further action in order to maintain and protect the Collateral Agent’s first-priority perfected security interest in the Collateral pledged by the Borrower for the benefit of the Secured Parties free and clear of any Liens (other than Permitted Liens). At the request of either Agent or the Required Lenders (through the Administrative Agent), it shall promptly take, at the Borrower’s expense, such further action in order to establish and protect the rights, interests and remedies created or intended to be created under this Agreement in favor of the Secured Parties in the Collateral, including all actions which are necessary to (x) enable the Secured Parties to enforce their rights and remedies under this Agreement and the other Facility Documents, and (y) effectuate the intent and purpose of, and to carry out the terms of, the Facility Documents.
(d) Other Information. It shall provide to the Administrative Agent or cause to be provided to the Administrative Agent:
(i) within two (2) Business Days after a Responsible Officer of the Servicer obtains actual knowledge of the occurrence and continuance of any (A) Default, (B) Event of Default, (C) Potential Servicer Removal Event, (D) Servicer Removal Event, (E) event or occurrence that has resulted or could reasonably be expected to result in a Material Adverse Effect, (F) Revaluation Event, (G) receipt of notice from the agent on a Collateral Loan that the related Obligor has defaulted (beyond applicable grace periods) in the payment of principal or interest or (H) Collateral Loan that ceases to be an Eligible Collateral Loan, a certificate of a Responsible Officer setting forth the details thereof and the action which the Servicer is taking or proposes to take with respect thereto;
(ii) from time to time such additional information regarding the Collateral (including reasonably detailed calculations of each Coverage Test) as the Administrative Agent or the Required Lenders (through the Administrative Agent) may reasonably request if reasonably available without undue burden or expense;
(iii) a Borrowing Base Calculation Statement on (A) each date on which the Servicer sells or substitutes (or commits to sell or substitute, as the case may be) any Collateral Loan and (B) the date on which the Servicer obtains knowledge of any Material Modification or Revaluation Event to a Collateral Loan or that a Collateral Loan has become a Defaulted Collateral Loan;
(iv) promptly following any reasonable request by the Administrative Agent or any Lender, all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer,” anti-money laundering and sanctions rules and regulations, including the PATRIOT Act; and
(v) within two (2) Business Days after a Responsible Officer of the Servicer obtains actual knowledge thereof, provide notice to the Administrative Agent of
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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, directly and adversely affecting the in any material respect the Collateral (taken as a whole), the Facility Documents, or any Secured Party’s interest in the Collateral.
(e) Access to Records and Documents. It shall permit the Administrative Agent (or any Person designated by the Administrative Agent as its agent or representative, subject to delivery of standard confidentiality agreements) to, upon reasonable advance notice and during normal business hours, visit and inspect and make copies thereof at reasonable intervals its books, records and accounts relating to the Collateral, the Borrower, the Facility Documents and the performance of the Servicer under the Facility Documents and to discuss the foregoing with its and such Person’s officers, partners, employees and accountants; provided that so long as no Event of Default has occurred the Borrower shall be responsible for all costs and expenses for only one such visit per fiscal year by the Lenders and the Administrative Agent. The Administrative Agent shall be permitted to schedule such visits on behalf of the Lenders and shall (1) coordinate in good faith with the Lenders to determine dates which are acceptable to a majority of the Lenders and whenever possible occur on one such date as a single group and (2) provide 10 days’ prior notice to the Lenders of any such visit and any Lender shall be permitted to accompany the Administrative Agent in such visit.
(f) Information and Reports. Each Notice of Borrowing, each Monthly Report and all other written information, reports, certificates and statements furnished by or on behalf of it to any other Secured Party for purposes of or in connection with this Agreement, the other Facility Documents or the transactions contemplated hereby or thereby shall be true, complete and correct in all material respects as of the date such information is stated or certified; provided that solely with respect to information furnished by the Servicer which was provided to the Servicer from an Obligor with respect to a Collateral Loan, such information shall only need to be true, complete and correct to the actual knowledge of the Servicer; provided further that, with respect to projected financial information, the Servicer represents only that such information represents the Servicer’s good faith estimates as of the date of preparation thereof, based upon methods and data the Servicer believes to be reasonable and accurate, but actual results during the periods covered by such projections may differ materially from such projections.
(g) Collections. It shall direct any agent or administrative agent for any Collateral Loan to remit all payments and collections with respect to such Collateral Loan and, if applicable, to direct the Obligor with respect to such Collateral Loan to remit all such payments and collections with respect to such Collateral Loan directly to the Collection Account.
(h) Priority of Payments. It shall instruct the Collateral Agent to apply all Interest Proceeds and Principal Proceeds solely in accordance with the Priority of Payments and the other provisions of this Agreement.
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(i) Anti-Corruption Laws and Sanctions. The Servicer shall maintain and shall ensure that its Affiliates maintain policies and procedures designed to prevent violation of any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction. The Servicer shall not, directly or indirectly, use the proceeds of the loan hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, sister company, joint venture partner or any other Person (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions, any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction by any Person (including any Person participating in the loan hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
SECTION 10.3. Negative Covenants of the Borrower. The Borrower covenants and agrees that, until the Collection Date:
(a) Restrictive Agreements. It shall not enter into or suffer to exist or permit to become effective any agreement that prohibits, limits or imposes any condition upon its ability to create, incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or revenues constituting Collateral, whether now owned or hereafter acquired, to secure its obligations under the Facility Documents other than this Agreement and the other Facility Documents.
(b) Liquidation; Merger; Sale of Collateral. It shall not consummate any plan of liquidation, dissolution, partial liquidation, merger or consolidation (or suffer any liquidation, dissolution or partial liquidation) nor sell, transfer, exchange or otherwise dispose of any of its assets, or enter into an agreement or commitment to do so or enter into or engage in any business with respect to any part of its assets, except as expressly permitted by this Agreement and the other Facility Documents (including in connection with the repayment in full of the Obligations). Notwithstanding anything to the contrary herein, after the date hereof the Borrower may merge with Macomb Park CLO, Ltd., so long as the Borrower is the surviving entity.
(c) Amendments to Constituent Documents, Etc. Without the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), (i) it shall not amend, modify or take any action inconsistent with its Constituent Documents and (ii) it will not amend, modify or waive in any material respect any term or provision in any Facility Document (other than in accordance with any provision thereof requiring the consent of the Administrative Agent or all or a specified percentage of the Lenders).
(d) ERISA. It shall not establish or incur any liability or obligation with respect to any Plan or Multiemployer Plan and no member of the ERISA Group shall establish or incur any liability or obligation with respect to any Plan or Multiemployer Plan that in each case would reasonably be expected to result in a Material Adverse Effect.
(e) Liens. It shall not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any of its assets now owned or
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hereafter acquired by it at any time, except for Permitted Liens or as otherwise expressly permitted by this Agreement and the other Facility Documents.
(f) Margin Requirements; Covered Transactions. It shall not (i) extend credit to others for the purpose of buying or carrying any Margin Stock in such a manner as to violate Regulation T or Regulation U or (ii) use all or any part of the proceeds of any Advance, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that violates the provisions of the Regulations of the Board of Governors, including, to the extent applicable, Regulation U and Regulation X.
(g) Changes to Filing Information; Change of Location of Underlying Instruments. It shall not change its name or its jurisdiction of organization from that referred to in Section 4.01(a), unless it gives thirty (30) days’ prior written notice to the Agents and takes all actions that the Administrative Agent or the Required Lenders (through the Administrative Agent) reasonably request and determine to be necessary to protect and perfect the Collateral Agent’s perfected security interest in the Collateral. It shall not, without the prior consent of the Administrative Agent, consent to the Collateral Agent moving any Certificated Securities or Instruments, unless the Borrower has given at least ten (10) days’ written notice to the Administrative Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to ensure that the Collateral Agent’s first priority perfected security interest (subject to Permitted Liens) continues in full effect.
(h) Transactions with Affiliates. It shall not sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, the Servicer, the Equityholder and/or any of their Affiliates (including sales of Defaulted Collateral Loans and other Collateral Loans), unless (x) such transaction is upon terms no less favorable to the Borrower than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate (it being agreed that any purchase or sale at par shall be deemed to comply with this provision) or (y) the Borrower has received the prior written consent of the Administrative Agent with respect to such transaction. Notwithstanding the foregoing or anything to the contrary contained herein, nothing shall prohibit Borrower from (i) transferring or distributing the Collateral Loans to the Equityholder or an Affiliate of the Equityholder, as applicable, in accordance with Article X, (ii) making Permitted Distributions(in accordance with the definition thereof) or (iii) Permitted RIC Distributions (in accordance with the definition thereof) to the Equityholder.
(i) Investment Company Restriction. It shall not and shall not permit the pool of Collateral to become required to register as an “investment company” under the Investment Company Act.
(j) Anti-Corruption and Sanctions. The Borrower shall maintain and shall ensure that its Affiliates maintain policies and procedures designed to prevent violation of any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction. The Borrower shall not, directly or indirectly, use the proceeds of the loan hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, sister company, joint venture partner or any other Person (i) to fund any activities
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or business of or with any Person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions, any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction by any Person (including any Person participating in the loan hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
(k) [Reserved].
(l) Indebtedness; Guarantees; Securities; Other Assets. It shall not incur or assume or guarantee any indebtedness, obligations (including contingent obligations) or other liabilities, or issue any additional securities, whether debt or equity, in each case other than (i) pursuant to or as expressly permitted by this Agreement and the other Facility Documents, including expenses payable in the ordinary course of business, (ii) obligations under its Constituent Documents or (iii) pursuant to customary indemnification, expense reimbursement and similar provisions under the Related Documents. It shall not acquire any Collateral Loan or other property other than as expressly permitted under the Facility Documents, it being understood and agreed that the Borrower shall be permitted to acquire Collateral Loans from the Servicer, the Equityholder and/or their Affiliates and from unaffiliated third parties. The Borrower shall not accept equity contributions from the Equityholder or OC Ratio Posting Payments in excess of $600,000,000 in the aggregate.
(m) Validity of this Agreement. It shall not (i) take any action or omit to take any action, the result of which would permit the validity or effectiveness of any Facility Document or any grant of Collateral under this Agreement to be impaired, or permit the Lien of this Agreement to be amended, hypothecated, subordinated, terminated or discharged, or take any action or omit to take any action, the result of which would permit any Person to be released from any covenant or obligation with respect to this Agreement and (ii) except as permitted by any Facility Document, take any action that would permit the Lien of this Agreement not to constitute a valid first priority perfected security interest in the Collateral (subject to Permitted Liens).
(n) Subsidiaries. It shall not have or permit the formation of any subsidiaries, except in connection with the receipt of equity securities pursuant to an exercise of remedies with respect to a Collateral Loan or any work-out or restructuring of a Collateral Loan.
(o) Name. It shall not conduct business under any name other than its own.
(p) Employees. It shall not have any employees.
(q) Non-Petition. It shall not be party to any agreements under which it has any material obligation or liability (direct or contingent) without using commercially reasonable efforts to include customary “non-petition” and “limited recourse” provisions therein (and shall not amend or eliminate such provisions in any agreement to which it is party), except for loan agreements, related loan documents, any agreements related to the purchase and sale of any Collateral Loan which contain customary (as determined by the Servicer) purchase or sale terms
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or which are documented using customary (as determined by the Servicer) loan trading documentation in connection with the Collateral Loans and any agreement that does not impose a material obligation on the Borrower and that is of a type that customarily does not include “non-petition” or “limited recourse” provisions (including customary service contracts and engagement letters entered into with third party service providers (including independent accountants and providers of independent managers)).
(r) Certificated Securities. It shall not acquire or hold any Certificated Securities in bearer form in a manner that does not satisfy the requirements of United States Treasury Regulations section 1.165-12(c) (as determined by the Servicer).
SECTION 10.4. Covenants of the Equityholder. The Equityholder covenants and agrees that, until the Collection Date:
(a) Compliance with Agreements, Laws, Etc. It shall (i) duly observe and comply in all material respects with all Applicable Laws relative to the conduct of its business or to its assets, (ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, (iv) comply with the terms and conditions of each Facility Document to which it is a party and its Constituent Documents and (v) obtain, maintain and keep in full force and effect all Governmental Authorizations, Private Authorizations and Governmental Filings which are necessary to properly carry out its business and the transactions contemplated to be performed by it under the Facility Documents to which it is a party and its Constituent Documents, except, in the case of clause (v), where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) Other Information. It shall provide to the Administrative Agent or cause to be provided to the Administrative Agent (with enough additional copies for each Lender) promptly following any reasonable request by the Administrative Agent or any Lender, all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer,” anti-money laundering and sanctions rules and regulations, including the PATRIOT Act.
(c) Anti-Corruption Laws and Sanctions. The Equityholder shall maintain and shall ensure that its Affiliates maintain policies and procedures designed to prevent violation of any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction. The Equityholder shall not, directly or indirectly, use the proceeds of the loan hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, sister company, joint venture partner or any other Person (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions, any applicable anti-bribery, anti-corruption, anti-terrorism or anti-money laundering laws, regulations or rules in any applicable jurisdiction by any Person (including any Person participating in the loan hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
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(d) Separateness. The Equityholder shall not take any action that causes, or omit to take any action that results in, the Borrower to fail to comply with any of its covenants in Section 5.05 and the Equityholder shall take all other actions necessary to maintain the accuracy of the factual assumptions set forth in the legal opinions of Dechert LLP, as special counsel to the Borrower, issued on the Closing Date and relating to the issues of substantive consolidation.
(e) Liens. The Equityholder shall neither pledge (nor permit to be pledged) the equity interests in the Borrower nor otherwise permit any equity interests of the Borrower to be subject to a Lien other than Permitted Liens.
SECTION 10.5. Certain Undertakings Relating to Separateness. Without limiting any, and subject to all, other covenants of the Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Equityholder and any of their Affiliates) and in furtherance of the foregoing:
(a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other documents separate from those of any other Person; provided that the Borrower may be consolidated into the Equityholder solely for tax and accounting purposes.
(b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any of their Affiliates or any other Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents.
(c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder).
(d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone/GSO Secured Lending Fund may from time to time advance expenses of the Borrower for which Blackstone/GSO Secured Lending Fund is later reimbursed pursuant to the Priority of Payments.
(e) The Borrower has observed, and shall observe, all (A) corporate formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its operating agreement in a manner that
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would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents).
(f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person, except as permitted by or pursuant to the Facility Documents.
(g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated for accounting purposes and included in consolidated financial statements of the Equityholder as required by GAAP or applicable law.
(h) The Borrower shall not identify itself as a division of any other Person.
(i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person.
(j) Except as may be provided in the Facility Documents, any transaction between the Borrower and any of the Servicer, the Equityholder and their Affiliates shall be on arm’s length terms.
(k) Except as permitted by, or pursuant to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties).
(l) The Borrower shall not acquire any securities or debt instruments of the Equityholder, the Servicer, any Affiliates of the foregoing or any other Person (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan).
(m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents.
(n) The Borrower shall make no transfer of its Collateral Loans, except as permitted by or pursuant to the Facility Documents.
(o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns
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under Applicable Law or is not permitted to file its own tax returns separate from those of any other Person.
(p) The Borrower shall, to the extent used in its business, use separate stationery, invoices and checks.
(q) The Borrower shall correct any known misunderstanding regarding its separate identity.
(r) The Borrower shall maintain adequate capital in light of its contemplated business operations.
(s) The Borrower shall at all times be organized as a single-purpose entity with Constituent Documents substantially similar to those in effect on the Closing Date.
(t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion delivered in connection with the Facility Documents will continue to be true and correct in all material respects.
ARTICLE XI 
EVENTS OF DEFAULT
SECTION 11.1. Events of Default. “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) a default in the payment, when due and payable, of (x) any principal in respect of the Advances or (y) any other payment required to be made pursuant to this Agreement or any other Facility Document and if such date is not the Final Maturity Date, such default, solely in the case of this clause (y), has not been cured within three (3) Business Days after written notice thereof by the Administrative Agent; provided, that, solely in the case of clause (y) on a date other than on the Final Maturity Date resulting solely from an administrative error or omission by the Administrative Agent, the Securities Intermediary or any paying agent, such default continues for a period of five Business Days after the Administrative Agent or the Securities Intermediary receives written notice or a Responsible Officer of such party has actual knowledge of such administrative error or omission;
(b) any failure by the Borrower to deposit or credit, or to deliver for deposit, in the Covered Accounts any amount required hereunder to be so deposited credited or delivered by it, on or before the date occurring three (3) Business Days after the date such deposit or distribution is required to be made by the Servicer;
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(c) the Borrower or the pool of Collateral becomes an investment company required to be registered under the Investment Company Act;
(d) except as otherwise provided in this Section 6.01, a default in the performance, or breach, of any covenant or agreement of the Borrower or Equityholder under this Agreement or the other Facility Documents to which it is a party (it being understood, without limiting the generality of the foregoing, that any failure to meet any Concentration Limitation or Coverage Test is not an Event of Default under this clause (d)), or the failure of any representation or warranty of the Borrower or the Equityholder made in this Agreement or in any other Facility Document to be correct, in each case, in all material respects when the same shall have been made, and the continuation of such default, breach or failure for a period of thirty (30) days after the earlier of (i) written notice to the Borrower and the Servicer (which may be by e-mail) by either Agent, and (ii) a Responsible Officer of the Borrower or the Servicer has acquired actual knowledge thereof; provided that if such default, breach or failure cannot be cured, such Event of Default shall occur immediately after receipt by the Borrower of such written notice from the Administrative Agent;
(e) the Borrower ceases to have a valid ownership interest in all of the Collateral (subject to Permitted Liens);
(f) the Borrower assigns any of its rights, obligations, or duties under the Facility Documents without the prior written consent of each Lender;
(g) [Reserved];
(h) (i) any Facility Document or any material provision thereof shall (except in accordance with its terms) terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Equityholder or the Servicer, (ii) the Borrower, the Equityholder, the Servicer or any Governmental Authority shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Facility Document or any Lien purported to be created thereunder, or (iii) any Lien securing any obligation under any Facility Document shall, in whole or in part, cease to be a first priority perfected security interest of the Collateral Agent, except as otherwise permitted in accordance with the Facility Documents (subject to Permitted Liens);
(i) an Insolvency Event relating to the Borrower or the Equityholder;
(j) failure to reduce the Advances to $0 by the Final Maturity Date;
(k) on any Monthly Report Determination Date, the Interest Coverage Ratio Test is not satisfied and such failure shall continue for three (3) Business Days;
(l) the occurrence of an OC Ratio Breach and such OC Ratio Breach remains unremedied for a period of 10 consecutive Business Days without being cured;
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(m) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $100,000, with respect to the Borrower (net of amounts covered by insurance), or $1,000,000, with respect to the Equityholder (net of amounts covered by insurance), and the Borrower or Equityholder, as applicable, shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within sixty (60) days from the date of entry thereof;
(n) the Borrower fails to have at least one Independent Manager; provided that the resignation of an Independent Manager or the removal of an Independent Manager for “cause” shall not affect this clause (n) unless the Borrower fails to appoint a new Independent Manager within ten (10) Business Days of the effective date of such removal or resignation;
(o) any Monthly Report or Payment Date Report shall fail to be delivered when due and such failure shall continue for three (3) Business Days after receipt of written notice thereof;
(p) a Servicer Removal Event occurs;
(q) (i) the Internal Revenue Service shall file notice of a Lien pursuant to Section 6321 of the Code with regard to any asset of the Borrower and such Lien shall not have been released within five (5) Business Days or (ii) the PBGC shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any asset of the Borrower and such Lien shall not have been released within five (5) Business Days;
(r) the failure of the Borrower or the Equityholder or any of their subsidiaries to make any payment when due (after giving effect to any related grace period set forth in the related agreements) under one or more agreements for borrowed money to which it is a party in an amount in excess of $100,000, with respect to the Borrower, or $1,000,000, with respect to the Equityholder, whether or not such failure is waived pursuant to the related agreement;
(s) the Borrower or Equityholder shall have made payments to settle any litigation, claim or dispute totaling more than, in the aggregate, $100,000, with respect to the Borrower, or $1,000,000, with respect to the Equityholder; or
(t) the Borrower shall fail to qualify as a bankruptcy-remote entity based on customary criteria such that Borrower’s special counsel or any other reputable counsel could no longer render a substantive non-consolidation opinion with respect to the Borrower.
Upon a Responsible Officer of the Borrower or the Servicer obtaining actual knowledge of the occurrence of an Event of Default, each of the Borrower and the Servicer shall promptly (and in any event within two (2) Business Days) notify each other and the Agents, specifying each specific Event of Default that has then occurred as well as all other Events of Default that are then known to be continuing. Upon the occurrence of an Event of Default
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actually known to a Responsible Officer of the Collateral Agent, the Collateral Agent shall promptly notify the Administrative Agent (which will notify the Lenders promptly) of such Event of Default in writing.
Upon the occurrence and during the continuance of any Event of Default, in addition to all rights and remedies specified in this Agreement and the other Facility Documents, including Article VII, and the rights and remedies of a secured party under Applicable Law, including the UCC, the Administrative Agent shall, at the request of, or may with the consent of, the Majority Lenders, by notice to the Borrower (with a copy to the Collateral Agent), do any one or more of the following: (1) declare the Commitments to be terminated, whereupon the Commitments shall be terminated, and (2) declare the principal of and the accrued Interest on the Advances and all other Obligations whatsoever payable by the Borrower hereunder to be forthwith due and payable, whereupon such amounts shall be immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived by the Borrower; provided that, upon the occurrence of any Event of Default described in clause (i) of this Section 6.01, the Commitments shall automatically terminate and the Advances and all such other amounts shall automatically become due and payable, without any further action by any party.
In addition, upon the occurrence and during the continuation of an Event of Default (and with respect to the remedy provided in clause (w) below, upon the occurrence and during the continuation of an Event of Default described in clause (p) above), following written notice by the Administrative Agent (provided in its sole discretion or at the direction of the Required Lenders) to the Servicer of the exercise of control rights with respect to the Collateral, the Administrative Agent may exercise such rights, including: (v) the exercise of the Servicer’s rights and obligations under the Facility Documents, including its unilateral power to (A) consent to modifications to Collateral Loans, (B) take any discretionary action with respect to Collateral Loans and (C) direct the acquisition, sales and other dispositions of Collateral Loans to be immediately terminated; (w) subject to delivery of a Servicer Removal Notice, remove the Servicer and transfer of the Servicer’s rights and obligations under the Facility Documents to a Replacement Servicer; (x) if the Servicer is not terminated or otherwise replaced, to require the Servicer to obtain the consent of the Administrative Agent before agreeing to any modification of any Collateral Loan, taking any discretionary action with respect to any Collateral Loan or causing the Borrower to sell or otherwise dispose of any Collateral Loan; (y) if the Servicer is not terminated or otherwise replaced, to require the Servicer to cause the Borrower to sell or otherwise dispose of any Collateral Loan as directed by the Administrative Agent pursuant to Section 7.03, and (z) with respect to any specific Collateral Loan, to require the Servicer to take such discretionary action with respect to such Collateral Loan as directed by the Administrative Agent.
SECTION 11.2. OC Ratio Posting Payments. Notwithstanding anything to the contrary in this Agreement, if an OC Ratio Breach has occurred, within 10 Business Days of the occurrence of such OC Ratio Breach, the Equityholder may, but shall not be required to, cure such condition by making a cash payment into the Principal Collection Subaccount in an amount (which shall be in increments of $500,000) that would cause such OC Ratio Breach to be cured
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after giving effect to such payment into the Principal Collection Subaccount (any such payment, an “OC Ratio Posting Payment”); provided that the aggregate amount of OC Ratio Posting Payments made by the Equityholder, measured cumulatively from the Closing Date onward, and equity contributions and deemed capital contributions made by the Equityholder may not exceed $350,000,000.
ARTICLE XII 
PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
SECTION 12.1. Grant of Security. (a)  The Borrower hereby grants, pledges, transfers and collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, as collateral security for all Obligations, a continuing security interest in, and a Lien upon, all of the Borrower’s right, title and interest in, to and under, the following property, in each case whether tangible or intangible, wheresoever located, and whether now owned by the Borrower or hereafter acquired and whether now existing or hereafter coming into existence (in each case excluding the Excluded Amounts) (all of the property described in this Section 7.01(a) being collectively referred to herein as the “Collateral”):
(i) all Collateral Loans and Related Documents (including those listed, as of the Closing Date, in Schedule 3), both now and hereafter owned, including all Collections and other Proceeds thereon or with respect thereto;
(ii) each Covered Account and all Money and all investment property (including all securities, all security entitlements with respect to such Covered Account and all financial assets carried in such Covered Account) from time to time on deposit in or credited to each Covered Account;
(iii) all interest, dividends, distributions and other Money or property of any kind distributed in respect of the Collateral Loans of the Borrower, which the Borrower is entitled to receive, including all Collections in respect of its Collateral Loans;
(iv) each Facility Document and all rights, remedies, powers, privileges and claims under or in respect thereto (whether arising pursuant to the terms thereof or otherwise available to the Borrower at law or equity), including the right to enforce each such Facility Document and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect thereto, to the same extent as the Borrower could but for the assignment and security interest granted to the Collateral Agent under this Agreement;
(v) all Cash or Money;
(vi) all securities, loans and investments and, in each case as defined in the UCC, accounts, chattel paper, deposit accounts, instruments, financial assets, investment property, general intangibles, letter-of-credit rights, and supporting obligations of the Borrower, and all other property of any type or nature in which the Borrower has an
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interest (including the equity interests of each subsidiary of the Borrower), and all property of the Borrower which is delivered to the Collateral Agent by or on behalf of the Borrower (whether or not constituting Collateral Loans or Eligible Investments);
(vii) all Liens, property, guaranties, supporting obligations, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of the assets, investments and properties described above; and
(viii) all Proceeds of any and all of the foregoing.
(b) All terms used in this Section 7.01 but not defined in Section 1.01 shall have the respective meanings assigned to such terms in the UCC as applicable.
SECTION 12.2. Release of Security Interest. Upon the Collection Date or pursuant to Section 8.08, the Collateral Agent, on behalf of the Secured Parties, shall, at the expense of the Borrower, promptly execute, deliver and file or authorize for filing such instruments as the Borrower shall reasonably request in order to reassign, release or terminate the Secured Parties’ security interest in the Collateral. The Secured Parties acknowledge and agree that upon the sale or disposition of any Collateral by the Borrower in compliance with the terms and conditions of this Agreement, the security interest of the Secured Parties in such Collateral shall immediately terminate and the Collateral Agent, on behalf of the Secured Parties, shall, at the expense of the Borrower, execute, deliver and file or authorize for filing such instrument as the Borrower shall reasonably request to reflect or evidence such termination. Any and all actions under this Article VII in respect of the Collateral shall be without any recourse to, or representation or warranty by any Secured Party and shall be at the sole cost and expense of the Borrower.
SECTION 12.3. Rights and Remedies. The Collateral Agent (for itself and on behalf of the other Secured Parties) shall have all of the rights and remedies of a secured party under the UCC and other Applicable Law. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent or its designees shall, at the written direction of the Administrative Agent or the Required Lenders acting through the Administrative Agent, (a) instruct the Borrower to deliver any or all of the Collateral, the Related Documents and any other document relating to the Collateral to the Collateral Agent or its designees and otherwise give all instructions for the Borrower regarding the Collateral; (b) sell or otherwise dispose of the Collateral in a commercially reasonable manner, all without judicial process or proceedings; (c) take control of the Proceeds of any such Collateral; (d) subject to the provisions of the applicable Related Documents, exercise any consensual or voting rights in respect of the Collateral; (e) release, make extensions, discharges, exchanges or substitutions for, or surrender all or any part of the Collateral; (f) enforce the Borrower’s rights and remedies with respect to the Collateral; (g) institute and prosecute legal and equitable proceedings to enforce collection of, or realize upon, any of the Collateral; (h) require that the Borrower immediately take all actions necessary to cause the liquidation of the Collateral in order to pay all amounts due and payable in respect of the Obligations, in accordance with the terms of the Related Documents; (i) redeem any asset of the Borrower to pay amounts due and payable in respect of the Obligations; (j) make copies of all books, records and documents relating to the Collateral; and
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(k) endorse the name of the Borrower upon any items of payment relating to the Collateral or upon any proof of claim in bankruptcy against an account debtor. To the extent permitted by applicable law, each of the Borrower, the Servicer and the Equityholder waive all claims, damages and demands it may acquire against the Administrative Agent, the Collateral Agent and the Secured Parties arising out of the exercise by the Administrative Agent or the Collateral Agent of any of their rights hereunder, except for any claims, damages and demands it may have against the Administrative Agent or the Collateral Agent arising from the willful misconduct or gross negligence of the Administrative Agent or the Collateral Agent or their affiliates, or any agents or employees of the foregoing.
The Borrower hereby agrees that, upon the occurrence and during the continuance of an Event of Default, at the request of either Agent or the Required Lenders (acting through the Administrative Agent), it shall execute all documents and agreements which are necessary or appropriate to have the Collateral to be assigned to the Collateral Agent or its designee. For purposes of taking the actions described in clauses (a) through (k) of this Section 7.03 the Borrower hereby irrevocably appoints the Collateral Agent as its attorney-in-fact (which appointment being coupled with an interest and is irrevocable while any of the Obligations remain unpaid), with power of substitution, in the name of the Collateral Agent or in the name of the Borrower or otherwise, for the use and benefit of the Collateral Agent, but at the cost and expense of the Borrower and, except as expressly required by Applicable Law, without notice to the Borrower.
Each of the Borrower, the Servicer and the Equityholder recognizes that the Administrative Agent may be unable to effect a public sale of any or all of the Collateral, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such item of Collateral for their own account for investment and not with a view to the distribution or resale thereof. Each of the Borrower, the Servicer and the Equityholder acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the Administrative Agent on behalf of the Secured Parties than if such sale were a public sale and, notwithstanding such circumstances, agree that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of being a private sale.
Each of the Borrower, the Servicer and the Equityholder further agrees that a breach of any of their covenants contained in this Section 7.03 will cause irreparable injury to the Administrative Agent and the Secured Parties, that the Administrative Agent and the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 7.03 shall be specifically enforceable against the Borrower, the Servicer and the Equityholder, and each of the Borrower, the Servicer and the Equityholder hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under this Agreement or any defense relating to the Administrative Agent’s willful misconduct or gross negligence.
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Pursuant to the UCC, each of the Borrower, the Servicer and the Equityholder hereby specifically agrees (x) that it shall not raise any objection to any Secured Party’s purchase of the Collateral (through bidding on the obligations or otherwise) and (y) that a foreclosure sale conducted in conformity with the principles set forth in the No Action Letters promulgated by the SEC staff (1) shall be considered to be a “public” sale for purposes of the UCC, (2) shall be considered commercially reasonable notwithstanding that the Secured Party has not registered or sought to register the Collateral under the Securities Act, even if the Borrower agrees to pay all costs of the registration process, and (3) shall be considered to be commercially reasonable notwithstanding that the Secured Party purchases the Collateral at such a sale.
Each of the Borrower, the Servicer and the Equityholder agrees that neither the Administrative Agent nor the Collateral Agent shall not have any general duty or obligation to make any effort to obtain or pay any particular price for any Collateral sold by the Administrative Agent or the Collateral Agent pursuant to this Agreement. Each of the Borrower, the Servicer and the Equityholder hereby agrees that the Administrative Agent or the Collateral Agent shall have the right to conduct, and shall not incur any liability as a result of, the sale of any Collateral, or any part thereof, at any sale conducted in a commercially reasonable manner, it being agreed by the parties hereto that some or all of the Collateral is or may be of one or more types that threaten to decline speedily in value. The Borrower, the Servicer and the Equityholder hereby waive any claims against the Administrative Agent and the Collateral Agent arising by reason of the fact that the price at which any of the Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Borrower’s obligations under this Agreement, even if the Administrative Agent or the Collateral Agent accepts the first bid received and does not offer any Collateral to more than one bidder, provided that Administrative Agent or the Collateral Agent has acted in a commercially reasonable manner in conducting such private sale. Without in any way limiting the Administrative Agent’s or the Collateral Agent’s right to conduct a foreclosure sale in any manner which is considered commercially reasonable, each of the Borrower, the Servicer and the Equityholder hereby agrees that any foreclosure sale conducted in accordance with the following provisions shall be considered a commercially reasonable sale, and each of the Borrower, the Servicer and the Equityholder hereby irrevocably waives any right to contest any such sale conducted in accordance with the following provisions:
(1) the Administrative Agent or the Collateral Agent conducts such foreclosure sale in the State of New York;
(2) such foreclosure sale is conducted in accordance with the laws of the State of New York; and
(3) not more than thirty days before, and not less than three Business Days in advance of such foreclosure sale, the Administrative Agent or the Collateral Agent notifies the Borrower, the Servicer and the Equityholder at the address set forth herein of the time and place of such foreclosure sale.
In connection with the sale of the Collateral following the acceleration of the Obligations, the Equityholder, the Servicer and their respective Affiliates shall have the right to
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purchase any or all of the Collateral, in each case by paying to the Collateral Agent in immediately available funds, an amount equal to all outstanding Obligations. If the Equityholder, the Servicer and their respective Affiliates fail to exercise this purchase right within ten (10) days following such acceleration of the Obligations, then such contractual rights shall be irrevocably forfeited by the Equityholder, the Servicer and all Affiliates thereof, but nothing herein shall prevent the Equityholder, the Servicer or their respective Affiliates from bidding at any sale of such Collateral.
Notwithstanding anything in this Section 7.03 to the contrary, the Collateral Agent shall be under no duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement unless and to the extent expressly so directed by the Administrative Agent, the Required Lenders or the Majority Lenders, as applicable; provided that the Collateral Agent shall not be required to take any action hereunder at the direction of the Administrative Agent or any Secured Party if such action would, in the reasonable determination of the Collateral Agent (x) be in violation of or contrary to applicable law or any provisions of this Agreement or other Facility Document or (y) expose the Collateral Agent to liability unless it has received reasonably satisfactory indemnity with respect thereto.
All sums paid or advanced by the Collateral Agent in connection with the foregoing and all out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred in connection therewith, together with interest thereon at the Post-Default Rate from the date of payment until repaid in full, shall be paid by the Borrower to the Collateral Agent from time to time on demand in accordance with the Priority of Payments and shall constitute and become a part of the Obligations secured hereby.
SECTION 12.4. Remedies Cumulative. Each right, power, and remedy of the Agents and the other Secured Parties, or any of them, as provided for in this Agreement or in the other Facility Documents or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement or in the other Facility Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by either of the Agents or any other Secured Party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such Persons of any or all such other rights, powers, or remedies.
SECTION 12.5. Related Documents. (a)  Each of the Borrower and the Servicer hereby agrees that, to the extent not expressly prohibited by the terms of the Related Documents, after the occurrence and during the continuance of an Event of Default, it shall (i) upon the written request of either Agent, promptly forward to such Person all material information and notices which it receives under or in connection with the Related Documents relating to the Collateral, (ii) upon the written request of the Administrative Agent, promptly forward to the Administrative Agent any reasonably requested information relating to any specified Collateral Loans and (iii) upon the written request of either Agent, act and refrain from acting in respect of any request, act, decision or vote under or in connection with the Related
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Documents relating to the Collateral only in accordance with the direction of the Administrative Agent (in its reasonable discretion).
(a) The Borrower agrees that, to the extent the same shall be in the Borrower’s possession, it will hold all Related Documents relating to the Collateral in trust for the Collateral Agent on behalf of the Secured Parties, and upon request of either Agent following the occurrence and during the continuance of an Event of Default or as otherwise provided herein, promptly deliver the same to the Collateral Agent or its designee. In addition, in accordance with the Custodian Agreement, promptly (and in any event, within five (5) Business Days) following its acquisition of any Collateral Loan, the Borrower shall deliver to the Custodian, to the extent applicable, copies of the Related Documents.
SECTION 12.6. Borrower Remains Liable. (a)  Notwithstanding anything herein to the contrary, (i) the Borrower shall remain liable under the contracts and agreements included in and relating to the Collateral (including the Related Documents) to the extent set forth therein, and shall perform all of its duties and obligations under such contracts and agreements to the same extent as if this Agreement had not been executed, and (ii) the exercise by any Secured Party of any of its rights hereunder shall not release the Borrower from any of its duties or obligations under any such contracts or agreements included in the Collateral.
(a) No obligation or liability of the Borrower is intended to be assumed by the Administrative Agent or any other Secured Party under or as a result of this Agreement or the other Facility Documents, or the transactions contemplated hereby or thereby, including under any Related Document or any other agreement or document that relates to Collateral and, to the maximum extent permitted under provisions of Law, the Administrative Agent and the other Secured Parties expressly disclaim any such assumption.
SECTION 12.7. Protection of Collateral. The Borrower shall from time to time execute, deliver, file and/or authorize the filing of all UCC-1 financing statements and continuation statements and the equivalent thereof in any applicable foreign jurisdiction, if applicable, instruments of further assurance and other instruments, and shall take such other action as may be necessary or advisable to secure the rights and remedies of the Secured Parties hereunder and to:
(a) grant security more effectively on all or any portion of the Collateral;
(b) maintain, preserve and perfect any grant of security made or to be made by this Agreement including the first priority nature of the Lien granted hereunder or to carry out more effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of any grant made or to be made by this Agreement (including any and all actions necessary as a result of changes in Law);
(d) enforce any of the Collateral or other instruments or property included in the Collateral;
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(e) preserve and defend title to the Collateral and the rights therein of the Collateral Agent and the Secured Parties in the Collateral against the claims of all third parties; and
(f) pay or cause to be paid any and all taxes levied or assessed upon all or any part of the Collateral.
The Borrower hereby designates the Collateral Agent as its agent and attorney in fact to prepare and file any UCC-1 financing statement and continuation statement and the equivalent thereof in any applicable foreign jurisdiction, if applicable, and all other instruments, and take all other actions, required pursuant to this Section 7.07 if the Borrower fails to take any such action within ten (10) Business Days after either Agent’s request therefor. Such designation shall not impose upon the Collateral Agent or the Administrative Agent or any other Secured Party, or release or diminish, the Borrower’s obligations under this Section 7.07. The Borrower further authorizes the Collateral Agent to file UCC-1 financing statements or the equivalent thereof in any foreign jurisdiction, if applicable, that name the Borrower as debtor and the Collateral Agent as secured party and that describes “all assets in which the debtor now or hereafter has rights” as the Collateral in which the Collateral Agent has a grant of security hereunder.
ARTICLE XIII 
ACCOUNTS, ACCOUNTINGS AND RELEASES
SECTION 13.1. Collection of Money. Except as otherwise expressly provided herein, the Collateral Agent may demand payment or delivery of, and shall collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all Money and other property payable to or receivable by the Collateral Agent pursuant to this Agreement, including all payments due on the Collateral, in accordance with the terms and conditions of such Collateral. The Collateral Agent shall segregate and hold all such Money and property received by it in trust for the Secured Parties and shall apply it as provided in this Agreement. Each Covered Account shall be established and maintained under the Account Control Agreement with a Qualified Institution. Any Covered Account may contain any number of subaccounts for the convenience of the Collateral Agent or as required by the Servicer for convenience in administering the Covered Account or the Collateral.
SECTION 13.2. Collateral Account and Collection Account. (a)  In accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date, establish at the Securities Intermediary (i) the “Collateral Account,” which shall be maintained with the Securities Intermediary in accordance with the Account Control Agreement and which shall be subject to the Lien of the Collateral Agent, and (ii) the “Collection Account” which shall be maintained with the Securities Intermediary in accordance with the Account Control Agreement, which shall be subject to the Lien of the Collateral Agent and which shall consist of two segregated subaccounts, one of which will be designated the “Interest Collection Subaccount” and one of which will be designated the “Principal Collection
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Subaccount.” The Collateral Agent shall from time to time deposit into the Interest Collection Subaccount, in addition to the deposits required pursuant to Section 8.06(a), promptly upon receipt thereof, all Interest Proceeds received by the Collateral Agent. The Collateral Agent shall deposit promptly upon receipt thereof all other amounts remitted to the Collection Account into the Principal Collection Subaccount including, in addition to the deposits required pursuant to Section 8.06(a), all Principal Proceeds (unless simultaneously reinvested in additional Collateral Loans in accordance with Article X or in Eligible Investments or required to be deposited in the Revolving Reserve Account pursuant to Section 8.04) received by the Collateral Agent. All Monies deposited from time to time in the Collection Account pursuant to this Agreement shall be held by the Collateral Agent as part of the Collateral and shall be applied to the purposes herein provided. Subject to Section 8.02(c), amounts in the Collection Account shall be reinvested pursuant to Section 8.06(a). Other than as expressly set forth herein, the Collateral Agent shall from time to time deposit into the Collateral Account any Collateral that is capable of being delivered to and held by the Securities Intermediary and credited to an account in accordance with the terms of this Agreement and the Account Control Agreement.
(a) At any time when reinvestment is permitted pursuant to Article X, the Servicer on behalf of the Borrower (subject to compliance with Article X) may, by delivery of a certificate or an email instruction of a Responsible Officer of the Servicer or a trade ticket, direct the Collateral Agent to, and upon receipt of such certificate, email or trade ticket, as applicable, the Collateral Agent shall, withdraw funds on deposit in the Principal Collection Subaccount representing Principal Proceeds (together with accrued interest received with regard to any Collateral Loan and Interest Proceeds but only to the extent used to pay for accrued interest on an additional Collateral Loan) and reinvest such funds in additional Collateral Loans or make a Permitted Distribution or Permitted RIC Distribution in accordance with such certificate, email or trade ticket. At any time as of which sufficient funds are not on deposit in the Revolving Reserve Account, the Servicer on behalf of the Borrower may, by delivery of a certificate of a Responsible Officer of the Servicer, direct the Collateral Agent to, and upon receipt of such certificate the Collateral Agent shall, withdraw funds on deposit in the Principal Collection Subaccount representing Principal Proceeds and remit such funds as so directed by the Servicer to meet the Borrower’s funding obligations in respect of Delayed Drawdown Collateral Loans or Revolving Collateral Loans.
(b) The Collateral Agent shall transfer to the Payment Account, from the Collection Account for application pursuant to Section 9.01(a), on the Business Day prior to each Payment Date, the amount set forth to be so transferred in the Payment Date Report for such Payment Date.
SECTION 13.3. Payment Account. In accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date, establish at the Securities Intermediary a single, segregated trust account in the name “BGSL Breckenridge Funding LLC Payment Account, subject to the Lien of the Collateral Agent,” which shall be designated as the “Payment Account,” which shall be maintained by the Borrower with the Securities Intermediary in accordance with the Account Control Agreement and which shall be subject to the Lien of the Collateral Agent. Except as provided in Section 9.01, the only
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permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Payment Account shall be to pay amounts due and payable under the Priority of Payments on the Payment Dates in accordance with their terms and the provisions of this Agreement. The Borrower shall not have any legal, equitable or beneficial interest in the Payment Account other than in accordance with this Agreement and the Priority of Payments. Amounts on deposit in the Payment Account will not be invested.
SECTION 13.4. The Revolving Reserve Account; Fundings. In accordance with this Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing Date, establish at the Securities Intermediary a single, segregated trust account in the name “BGSL Breckenridge Funding LLC Revolving Reserve Account, subject to the Lien of the Collateral Agent,” which shall be designated as the “Revolving Reserve Account,” which shall be maintained by the Borrower with the Securities Intermediary in accordance with the Account Control Agreement and which shall be subject to the Lien of the Collateral Agent. The only permitted deposits to or withdrawals from the Revolving Reserve Account shall be in accordance with the provisions of this Agreement. The Borrower shall not have any legal, equitable or beneficial interest in the Revolving Reserve Account other than in accordance with this Agreement and the Priority of Payments.
During the Reinvestment Period, fundings of Delayed Drawdown Collateral Loans and Revolving Collateral Loans shall be made using, first, amounts on deposit in the Revolving Reserve Account, then available Principal Proceeds on deposit in the Collection Account and finally, available Borrowings. On the last day of the Reinvestment Period, to the extent the amount of funds on deposit in the Revolving Reserve Account are less than the Revolving Exposure, (x) the Borrower shall request a final Borrowing in an amount sufficient to fund the Revolving Reserve Account in an amount equal to the Revolving Exposure; provided that after giving effect to such Borrowing, the aggregate principal amount of the Advances then outstanding shall not exceed the Maximum Available Amount, and/or (y) the Borrower shall deposit other available funds into the Revolving Reserve Account in an amount sufficient to fund the Revolving Reserve Account in an amount equal to the Revolving Exposure. After the Commitment Termination Date, fundings of Delayed Drawdown Collateral Loans and Revolving Collateral Loans shall be made using, first, amounts on deposit in the Revolving Reserve Account, then available Principal Proceeds on deposit in the Collection Account. In addition, after the Commitment Termination Date, all Principal Proceeds received with respect to Revolving Collateral Loans shall be deposited into the Revolving Reserve Account to the extent such proceeds may be re-borrowed by the related Obligors.
Amounts on deposit in the Revolving Reserve Account will be invested in overnight funds that are Eligible Investments selected by the Servicer pursuant to Section 8.06 and earnings from all such investments will be deposited in the Interest Collection Subaccount as Interest Proceeds. Funds in the Revolving Reserve Account (other than earnings from Eligible Investments therein) will be available solely to cover drawdowns on the Delayed Drawdown Collateral Loans and Revolving Collateral Loans and settle purchases of Collateral Loans committed to be acquired by the Borrower prior to the end of the Reinvestment Period; provided that, to the extent that the aggregate amount of funds on deposit therein at any time exceeds an
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amount equal to the Revolving Exposure, the Collateral Agent, at the direction of the Borrower (or the Servicer on its behalf) shall remit such excess to the Principal Collection Subaccount. In addition, following the occurrence of an Event of Default, funds in the Revolving Reserve Account may be withdrawn by the Collateral Agent and deposited into the Principal Collection Subaccount pursuant to and at the direction of the Administrative Agent.
SECTION 13.5. [Reserved].
SECTION 13.6. Reinvestment of Funds in Covered Accounts; Reports by Collateral Agent. (a)  By delivery of a certificate of a Responsible Officer (which may be in the form of standing instructions), the Borrower (or the Servicer on behalf of the Borrower) shall at all times direct the Collateral Agent to, and, upon receipt of such certificate, the Collateral Agent shall, invest all funds on deposit in the Collection Account and the Revolving Reserve Account in Eligible Investments having stated maturities no later than the Business Day preceding the next Payment Date (or such shorter maturities expressly provided herein, including Section 8.04 above). If, prior to the occurrence of an Event of Default, the Servicer shall not have given any such investment directions, such funds shall remain uninvested. After the occurrence and during the continuance of an Event of Default, the Collateral Agent shall invest and reinvest such Monies as fully as practicable in Specified Eligible Investments selected by the Administrative Agent in accordance with the definition of Specified Eligible Investment (and if no Specified Eligible Investment has been specified, such funds shall be invested in the Specified Eligible Investment selected by the Servicer or held uninvested if none has been selected). Except to the extent expressly provided otherwise herein, all interest, gain, loss and other income from such investments shall be deposited, credited or charged (as applicable) in and to the Interest Collection Subaccount. Absent its timely receipt of such instruction from the Servicer in accordance with the foregoing, the Collateral Agent shall not be under an obligation to invest (or pay interest on) funds held hereunder. The Collateral Agent shall in no way be liable for any insufficiency in a Covered Account resulting from any loss relating to any such investment.
(a) The Collateral Agent agrees to give the Borrower prompt notice if any Covered Account or any funds on deposit in any Covered Account, or otherwise to the credit of a Covered Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. All Covered Accounts shall remain at all times with the Securities Intermediary.
(b) The Collateral Agent shall supply, in a timely fashion, to the Borrower and the Servicer any information regularly maintained by the Collateral Agent that the Borrower or the Servicer may from time to time reasonably request with respect to the Collateral, the Covered Accounts and the other Collateral and provide any other requested information reasonably available to the Collateral Agent and required to be provided by Section 8.07 or to permit the Servicer to perform its obligations hereunder or the Borrower’s obligations hereunder that have been delegated to the Servicer. The Collateral Agent shall promptly forward to the Servicer copies of notices and other writings received by it from the Obligor of any Collateral Loan or from any Clearing Agency with respect to any Collateral Loan which notices or writings advise the holders of such Collateral Loan of any rights that the holders might have with respect thereto
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(including requests to vote with respect to amendments or waivers and notices of prepayments and redemptions) as well as all periodic financial reports received from such Obligor and Clearing Agency with respect to such Obligor.
SECTION 13.7. Accountings.
(a) Monthly. Not later than two (2) Business Days prior to the 15th calendar day of each calendar month, beginning with February 2019 (other than March, June, September and December in each year) (such date, the “Monthly Reporting Date”), the Servicer shall compile and provide to the Agents and the Lenders, a monthly report for the prior calendar month (each, a “Monthly Report”) in accordance with this Section 8.07. The Servicer shall compile and provide to the Collateral Agent and the Administrative Agent a loan data file (the “Data File”) in the form of Exhibit H for the previous monthly period ending on the Monthly Report Determination Date (containing such information agreed upon by the Servicer, the Collateral Agent and the Administrative Agent). The Servicer shall provide (or cause to be provided) the Data File to the Collateral Agent at least three (3) Business Days prior to the Monthly Reporting Date and, with respect to a Payment Date Report, at least three (3) Business Days prior to the Payment Date. The Collateral Agent shall use commercially reasonable efforts to review and, based solely on the Data File provided by the Borrower (or Servicer on its behalf), re-calculate the calculations in clauses (i) through (xvi) below made by the Servicer in any such Monthly Report or Payment Date Report, as applicable, for such calendar month, within two (2) Business Days of the receipt thereof and notify the Servicer and the Administrative Agent in the event of any discrepancy between the Collateral Agent’s calculations and the Monthly Report and Payment Date Report. The Collateral Agent shall re-calculate pursuant to the preceding sentence: (i) Aggregate Net Collateral Balance, (ii) Borrowing Base, (iii) Excess Concentration Amount, (iv) Maximum Available Amount, (v) Tranche A Borrowing Base, (vi) Tranche B Borrowing Base, (vii) Tranche C Borrowing Base, (viii) Tranche A OC Ratio, (ix) Tranche B OC Ratio, (x) Tranche C OC Ratio, (xi) each Tranche Minimum OC Coverage Test, (xii) each Coverage Test, (xiii) for any Payment Date Report, completion of Priority of Payments pursuant to Section 9.01(a), (xiv) balances for each of the Covered Accounts and (xv) such other calculations as may be mutually agreed upon by the Collateral Agent, the Servicer and the Administrative Agent. Upon receipt of such notice reporting and showing discrepancies, if any, from the Collateral Agent and in any event by no later than the Monthly Reporting Date, the Servicer shall compile and provide (or cause to be compiled and provided) to the Agents and the Lenders the Monthly Report. As used herein, the “Monthly Report Determination Date” with respect to any calendar month in which a Payment Date does not occur (or, if such day is not a Business Day, the next Business Day) will be the last day of such calendar month. The Monthly Report for a calendar month shall contain the information with respect to the Collateral Loans and Eligible Investments included in the Collateral that is agreed to by the Servicer, the Administrative Agent and the Collateral Agent from time to time, and shall be determined as of the Monthly Report Determination Date for such calendar month.
In addition, the Borrower shall provide (or cause to be provided) in each Monthly Report a statement setting forth in reasonable detail each amendment, modification or waiver under any Related Document for each Collateral Loan that constitutes a Material Modification
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that became effective since the immediately preceding Monthly Report (or, in respect of the first Monthly Report, from the Closing Date).
(b) Payment Date Accounting. The Borrower shall render (or cause to be rendered) an accounting (each, a “Payment Date Report”), determined as of the close of business on each Determination Date preceding a Payment Date (such Determination Date, a “Payment Date Report Determination Date”), and shall deliver such Payment Date Report to the Agents, the Servicer and each Lender not later than the second Business Day preceding the related Payment Date. The Payment Date Report shall contain the information that is agreed to by the Servicer, the Administrative Agent and the Collateral Agent from time to time.
(c) Daily Accounting. For each Business Day, the Collateral Agent shall render to the Borrower (with a copy to the Administrative Agent and the Servicer) a daily report of (i) all deposits to and withdrawals from the Covered Accounts for such Business Day and the outstanding balance of the Covered Accounts as of the end of such Business Day, (ii) all settled trades of securities for such Business Day, (iii) the Adjusted Principal Balance of each Collateral Loan as of the end of such Business Day, (iv) the OC Ratio as of the end of such Business Day, (v) the Borrower’s compliance with the Concentration Limitations, (vi) the Loan Value of each Collateral Loan, (vii) the S&P rating and Moody’s rating of each Collateral Loan and/or the Obligor thereunder (if applicable), (viii) all principal and interest payments made or to be made on each Collateral Loan on such Business Day, (ix) the applicable interest rates, interest rate resets, interest accrual periods and libor floors, if any, of each Collateral Loan, (x) the portion of the Principal Balance of any Delayed Drawdown Collateral Loan that is unfunded, (xi) the amount of Interest Proceeds received from Collateral Loans and Eligible Investments, (xii) the Collateral Loans that are Defaulted Collateral Loans and (xiii) such other items as may be agreed upon from time to time by the Collateral Agent and the Borrower. “Loan Value” shall be determined in accordance with the definition herein and provided to the Collateral Agent. For purposes of calculating the Adjusted Principal Balance of each Collateral Loan, the Collateral Agent shall begin including each Collateral Loan in the report as of its trade date.
(d) Failure to Provide Accounting. If the Collateral Agent shall not have received any accounting provided for in this Section 8.07 on the first Business Day after the date on which such accounting is due to the Collateral Agent, the Collateral Agent shall notify the Servicer who shall use reasonable efforts to obtain such accounting by the applicable Monthly Reporting Date or Payment Date, as applicable. The Collateral Agent shall in no event have any liability for the actions or omissions of the Servicer, the Borrower 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 Servicer, the Borrower or another Person (other than claims relating to the Collateral Agent’s gross negligence or willful misconduct).
SECTION 13.8. Release of Collateral. (a)  The Borrower may, by delivery of a certificate of a Responsible Officer of the Servicer (with the written consent of the Administrative Agent if the Administrative Agent has notified the Collateral Agent in writing, following the occurrence of or during the continuation of an Event of Default, to only permit
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releases with the written consent of the Administrative Agent) delivered to the Collateral Agent and Custodian, as applicable, at least one (1) Business Day prior to the settlement date for any sale of any item of Collateral certifying that the sale of such loan is being made in accordance with Section 10.01 and such sale complies with all applicable requirements of Section 10.01, direct the Collateral Agent to release or cause to be released such item from the Lien of this Agreement and, upon receipt of such certificate, the Collateral Agent (or Custodian, as applicable) shall deliver any such item, if in physical form, duly endorsed to the broker or purchaser designated in such certificate or, if such item is a Clearing Corporation Security, cause an appropriate transfer thereof to be made, in each case against receipt of the sales price therefor as specified by the Servicer in such certificate; provided that the Collateral Agent may deliver any such item in physical form for examination in accordance with street delivery custom.
(a) Subject to the terms of this Agreement, the Collateral Agent (or Custodian, as applicable) shall, upon the receipt of a certificate of a Responsible Officer of the Servicer, deliver any Collateral in accordance with such certificate, and execute such documents or instruments as are delivered by or on behalf of the Borrower and reasonably necessary to release or cause to be released such security from the Lien of this Agreement, which is set for any mandatory call or redemption or payment in full to the appropriate paying agent on or before the date set for such call, redemption or payment, in each case against receipt of the call or redemption price or payment in full thereof.
(b) As provided in Section 8.02(a), the Collateral Agent shall deposit any proceeds received by it from the disposition of any Collateral in the applicable subaccount of the Collection Account, unless simultaneously applied to the purchase of additional Collateral Loans or Eligible Investments as permitted under and in accordance with the requirements of this Article VIII and Article X.
(c) The Collateral Agent shall, upon receipt of a certificate of a Responsible Officer of the Borrower certifying that there are no Commitments outstanding and all Obligations of the Borrower hereunder and under the other Facility Documents have been satisfied, execute such documents or instruments as are delivered by or on behalf of the Borrower and reasonably necessary to release any remaining Collateral from the Lien of this Agreement.
(d) Any Collateral Loan or amounts that are released pursuant to Section 8.08(a) or (b) shall be automatically released from the Lien of this Agreement.
SECTION 13.9. Reports by Independent Accountants. (a)  The Servicer will cause Protiviti Inc. or any other firm of nationally recognized independent public accountants (who may also render other services to the Servicer) consented to by the Administrative Agent (the “Independent Accountants”) to furnish to the Administrative Agent, each Lender and the Collateral Agent (i) on or prior to December, 2019 (the “Initial AUP Report Date”), a report relating to one Monthly Report and one Payment Date Report (in each case, as selected by the Administrative Agent), each delivered prior to the Initial AUP Report Date, and (ii) on or prior to each one-year anniversary of the Initial AUP Report Date (each such anniversary, an “AUP Report Date”), a report relating to one Monthly Report and one Payment
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Date Report (in each case, as selected by the Administrative Agent), each delivered during the twelve (12) months immediately preceding such AUP Report Date, in each case, to the effect that such accountants have applied certain agreed-upon procedures (a copy of which procedures are attached hereto as Exhibit F, it being understood that the Servicer and the Administrative Agent will provide an updated Exhibit F reflecting any further amendments to such Exhibit F prior to the issuance of the first such agreed-upon procedures report, a copy of which shall replace the then existing Exhibit F) to certain documents and records relating to the Collateral under any Facility Document, compare the information contained in selected Monthly Reports and Payment Date Reports (and all calculations therein) delivered during the period covered by such report with such documents and records and that no matters came to the attention of such accountants that caused them to believe that such servicing was not conducted in compliance with this Agreement, except for such exceptions as such accountants shall believe to be immaterial and such other exceptions as shall be set forth in such statement.
(a) In the event the Independent Accountants appointed pursuant to clause (a) above require the Collateral Agent to agree to the procedures performed by such Independent Accountants with respect to any of the reports, statements or certificates of such Independent Accountants, or sign any agreement in connection therewith, Borrower hereby directs the Collateral Agent to agree to the terms and conditions requested by such Independent Accountants as a condition to receiving documentation required by this Agreement; it being understood and agreed that the Collateral Agent shall deliver such agreement in conclusive reliance on the foregoing direction and shall make no inquiry or investigation as to, and shall have no obligation or responsibility in respect of, the terms of the engagement of such Independent Accountants by the Borrower or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. The Borrower hereby authorizes and directs the Collateral Agent, without liability on its part, to execute and deliver any such agreement with such Independent Accountants in the form presented to it by the Borrower (or the Servicer on behalf of the Borrower), which agreement, to the extent so directed by the Borrower (or the Servicer on behalf of the Borrower), may include, amongst other things, (i) an acknowledgement that the Borrower (or the Servicer on behalf of the Borrower) has agreed that the procedures by such Independent Accountants are sufficient for the relevant purposes, (ii) releases by the Collateral Agent of any claims, liabilities and expenses arising out of or relating to such Independent Accountant’s engagement, agreed-upon procedures or any report, statement or certificate issued by such Independent Accountants under any such engagement and acknowledgement of other limitations of liability in favor of such Independent Accountants and (iii) restrictions or prohibitions on the disclosure of any such reports, statements, certificates or other information or documents provided to it by such Independent Accountants.
ARTICLE XIV 
APPLICATION OF MONIES
SECTION 14.1. Disbursements of Monies from Payment Account. (a)  Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on each Payment Date, the Collateral Agent shall disburse amounts
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transferred from the Collection Account to the Payment Account pursuant to Section 8.02 in accordance with the Payment Date Report and the following priorities (the “Priority of Payments”):
(i) On each Payment Date prior to the occurrence and continuance of an Event of Default, Interest Proceeds on deposit in the Interest Collection Subaccount, to the extent received on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred into the Payment Account, to be applied in the following order of priority:
(A) to pay registration, registered office and filing fees, if any, of the Borrower, subject to a cap of $15,000 per annum;
(B) to pay Administrative Expenses; provided that the amounts in this clause (B) shall not exceed the Administrative Expense Cap;
(C) to each Lender, pro rata, based on amounts owed, to pay accrued and unpaid Interest on the Advances and Commitment Fees due to each such Lender and amounts payable to each such Lender under Section 2.11;
(D) to the Administrative Agent to pay all fees and expenses of the Administrative Agent under the Facility Documents;
(E) (1) first, to the Servicer to pay the Servicer Fee, plus any Servicer Fee that remains due and unpaid in respect of any prior Payment Dates as a result of insufficient funds and (2) second, to pay Servicer Expenses; provided that the amounts in this clause (2) shall not exceed the Servicer Expense Cap for such Payment Date;
(F) (1) on the Payment Date occurring after the 12-month anniversary of the Commitment Termination Date, pro rata to the Lenders to reduce the outstanding principal amount to not more than 75% of the outstanding principal amount as of the Commitment Termination Date (calculated after giving effect to any paydown on such Payment Date pursuant to Section 9.01(a)(ii)) and (2) on the Payment Date occurring after the 18-month anniversary of the Commitment Termination Date, pro rata to the Lenders to reduce the outstanding principal amount to not more than 50% of the outstanding principal amount as of the Commitment Termination Date (calculated after giving effect to any paydown on such Payment Date pursuant to Section 9.01(a)(ii));
(G) if the Coverage Tests are not satisfied as of the relevant Determination Date, to pay principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Coverage Tests are satisfied (on a pro forma basis as at such Determination Date); provided that the Borrower shall be permitted to allocate such principal payments among the Tranches on each Payment Date so long as, after giving effect to such allocation of payments on
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such Payment Date, each Tranche’s Tranche Minimum OC Coverage Test is satisfied; provided, further, that, if the Borrower would be unable to cause each Tranche’s Tranche Minimum OC Coverage Test to be satisfied on any Payment Date after allocating such payments, the Administrative Agent shall allocate such payments in its sole discretion;
(H) (i) during the Reinvestment Period, at the discretion of the Servicer, for deposit into the Revolving Reserve Account until the amount on deposit therein equals the Revolving Exposure and (ii) after the Reinvestment Period, for deposit into the Revolving Reserve Account until the amount on deposit therein equals the Revolving Exposure;
(I) to pay, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.10 and 13.04, all unpaid Commitment Reduction Fees and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties;
(J) (1) first, to the payment or application of amounts referred to in clause (B) above (in the same order of priority specified therein), to the extent not paid in full pursuant to applications under such clause, (2) second, to the payment or application of amounts referred to in clause (D) above to the extent not paid in full pursuant to such clause, and (3) third, to the payment or application of amounts referred to in clause (E) above to the extent not paid in full pursuant to such clause; and
(K) (1) if a Default has occurred and is continuing, to remain in the Interest Collection Subaccount (other than any Permitted RIC Distribution) or (2) otherwise, any remaining amount shall be released to the Equityholder or its designee (or, at the direction of the Servicer, deposited into the Principal Collection Subaccount for investment in Collateral Loans).
(ii) On each Payment Date prior to the occurrence and continuance of an Event of Default, except for any Principal Proceeds that will be used to settle binding commitments entered into prior to the related Determination Date for the purchase of Collateral Loans, Principal Proceeds on deposit in the Principal Collection Subaccount to the extent received on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred to the Payment Account to be applied in the following order of priority:
(A) to the payment of unpaid amounts under clauses (A) through (E) in clause (i) above (in the same order of priority specified therein), to the extent not paid in full thereunder, but subject to any caps specified therein;
(B) during the Special Amortization Period, to pay principal of the Advances of each Lender (pro rata, based on the amount of each Lender’s Commitment Excess) until the aggregate outstanding principal amount of the
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Advances of each such Lender is no greater than such Lender’s Commitment as of such date;
(C) during the Reinvestment Period, (i) if the Coverage Tests are not satisfied as of the relevant Determination Date, to pay principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until such Coverage Tests are satisfied (on a pro forma basis as at such Determination Date) and (ii) to the Principal Collection Subaccount for the purchase of additional Collateral Loans (including funding Revolving Collateral Loans and Delayed Drawdown Collateral Loans) and/or for the making of any Permitted Distribution or Permitted RIC Distribution;
(D) after the Reinvestment Period, to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Advances are paid in full; provided that the Borrower shall be permitted to allocate such principal payments among the Tranches on each Payment Date so long as, after giving effect to such allocation of payments on such Payment Date, each Tranche’s Tranche Minimum OC Coverage Test is satisfied; provided, further, that, if the Borrower would be unable to cause each Tranche’s Tranche Minimum OC Coverage Test to be satisfied on any Payment Date after allocating such payments, the Administrative Agent shall allocate such payments in its sole discretion;
(E) to the payment of amounts referred to in clauses (I) and (J) of clause (i) above (in the same order of priority specified therein), to the extent not paid in full thereunder; and
(F) (1) if a Default has occurred and is continuing, to remain in the Principal Collection Subaccount (other than any Permitted RIC Distribution) or (2) otherwise, any remaining amount shall be released to the Equityholder or its designee (or, at the direction of the Servicer, deposited into the Principal Collection Subaccount for investment in Collateral Loans).
(iii) On each Payment Date following the occurrence and continuance of an Event of Default, all Interest Proceeds in the Interest Collection Subaccount and all Principal Proceeds in the Principal Collection Subaccount, except for any Principal Proceeds that will be used to settle binding commitments entered into prior to the related Determination Date for the purchase of Collateral Loans, in each case, to the extent received on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred to the Payment Account to be applied in the following order of priority:
(A) to pay registration, registered office and filing fees, if any, of the Borrower, subject to a cap of $15,000 per annum;
(B) (1) first, to pay Administrative Expenses as provided in Section 9.01(a)(i)(B) subject to the Administrative Expense Cap and (2) second,
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to the Administrative Agent to pay all fees and expenses of the Administrative Agent under the Facility Documents;
(C) to each Lender, pro rata, based on amounts owed, to pay accrued and unpaid Interest on the Advances and Commitment Fees due to each such Lender and amounts payable to each such Lender under Section 2.11;
(D) (1) first, to the Servicer to pay the Servicer Fee, plus any Servicer Fee that remains due and unpaid in respect of any prior Payment Dates as a result of insufficient funds and (2) second, to pay Servicer Expenses in accordance with the priorities specified in the definition thereof, provided that the amounts in this clause (D)(2) shall not exceed the Servicer Expense Cap;
(E) to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until paid in full; provided that the Administrative Agent shall allocate such principal payments among the Tranches in its sole discretion;
(F) to pay, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.10 and 13.04, all unpaid Commitment Reduction Fees and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties;
(G) (1) first, to the payment of amounts referred to in clause (B) and (2) second, to the payment of amounts referred to in clause (D)(2) above, in each case to the extent not paid in full pursuant to such clause; and
(H) any remaining amount shall be released to the Equityholder or its designee.
(b) If on any Payment Date the amount available in the Payment Account is insufficient to make the full amount of the disbursements required by the Payment Date Report, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.
ARTICLE XV 
SALE OF COLLATERAL LOANS;
PURCHASE OF ADDITIONAL COLLATERAL LOANS
SECTION 15.1. Sales of Collateral Loans.
(a) Discretionary Sales of Collateral Loans. Subject to the satisfaction of the conditions specified in Section 10.03, the Borrower (or the Servicer on behalf of the Borrower) may, but will not be required to, direct the Collateral Agent to sell, and the Collateral Agent shall sell in the manner directed by the Servicer, any Collateral Loan if such sale meets the
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requirements set forth below (as shown in the Borrowing Base Calculation Statement delivered with respect thereto in accordance with Section 5.02(d)(iii)):
(i) no Default or Event of Default exists or would result upon giving effect thereto; provided that the Borrower (or the Servicer on behalf of the Borrower) may sell one or more Collateral Loans if after giving effect thereto and the application of the proceeds thereof any existing Default or Event of Default would be cured;
(ii) upon giving effect thereto and the application of the proceeds thereof, the Minimum OC Coverage Test is satisfied;
(iii) such sale is not to the Equityholder, the Servicer or a Person that is an Affiliate of the Borrower, the Equityholder or the Servicer unless it complies with Section 5.03(h) and Section 10.03; and
(iv) if the sale is after the Reinvestment Period, after giving effect to such sale or disposition, the OC Ratio would not (A) be decreased and (b) be less than 125% without the prior written consent of the Administrative Agent;
provided that the restriction in clause (iii) above in this Section 10.01(a) shall not apply to sales of Defaulted Collateral Loans or Ineligible Collateral Loans.
Notwithstanding anything above that would otherwise prohibit the sale of a Collateral Loan after the occurrence or during the continuance of a Default or an Event of Default, if the Borrower entered into an agreement to sell any such Collateral prior to the occurrence of such Default or an Event of Default, but such sale did not settle prior to the occurrence of such Default or an Event of Default, then the Borrower shall be permitted to consummate such sale notwithstanding the occurrence of such Default or an Event of Default; provided that the settlement for such sale occurs within the customary settlement period for similar trades.
(b) Ineligible Collateral Loans. Notwithstanding Section 10.01(a), if on any day a Collateral Loan is no longer an Eligible Collateral Loan, the Borrower shall either make a deposit of the funds and/or deliver one or more replacement Collateral Loans for such ineligible Collateral Loan, in each case pursuant to the Loan Sale Agreement and in accordance with Section 10.03. Upon confirmation of the deposit of the amount described above into the Collection Account or the delivery to the Borrower of the replacement Collateral Loans, such ineligible Collateral Loan shall be removed from the Collateral and the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower, without recourse, representation or warranty, all the right, title and interest and any Lien of the Collateral Agent, for the benefit of the Secured Parties in, to and under such ineligible Collateral Loan.
(c) Sales of Equity Securities. The Borrower (or the Servicer on behalf of the Borrower) may sell any Equity Security at any time without restriction, and shall use its commercially reasonable efforts to effect the sale of any Equity Security, regardless of price,
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within forty-five (45) days of receipt if such Equity Security constitutes Margin Stock, unless such sale is prohibited by Applicable Law or contract, in which case such Equity Security should be sold as soon as such sale is permitted by Applicable Law or contract.
SECTION 15.2. Purchase of Additional Collateral Loans. (a)  On any date during the Reinvestment Period, if no Event of Default has occurred and is continuing and the Special Amortization Period is not then in effect, the Borrower (or the Servicer on behalf of the Borrower) may, if each of the conditions specified in this Section 10.02 and Section 10.04 are met, invest Principal Proceeds (and accrued interest received with respect to any Collateral Loan to the extent used to pay for accrued interest on additional Collateral Loans and other amounts on deposit in the Principal Collection Subaccount) in additional Collateral Loans on the current Approved List or subject to an Approval Request; provided that no Collateral Loan may be purchased unless each of the following conditions are satisfied as of the date the Servicer commits on behalf of the Borrower to make such purchase and after giving effect to such purchase and all other sales or purchases previously or simultaneously committed to:
(i) the Borrower shall have delivered and the Administrative Agent shall have approved an Approval Request with respect to the Collateral Loan pursuant to the terms of Section 2.02;
(ii) such obligation is an Eligible Collateral Loan; and
(iii) each Coverage Test is satisfied (or, if not satisfied immediately prior to such investment, compliance with such Coverage Test is maintained or improved).
SECTION 15.3. Conditions Applicable to All Sale and Purchase Transactions. (a)  Any transaction effected under this Article X (other than sales required by Section 10.01(c)) or in connection with the acquisition of additional Collateral Loans shall be for fair market value and, if effected with a Person that is the Equityholder or an Affiliate thereof, shall be (i) in compliance with Section 5.03(h), (ii) effected in accordance with all Applicable Laws, (iii) during the 12-month period most recently ended prior to the relevant date of determination (or such lesser number of months as shall have elapsed since the Closing Date), and after giving pro forma effect to such transaction, the value of Collateral Loans substituted or sold by the Borrower to Affiliates of the Servicer may not exceed 20% of the highest Aggregate Principal Balance of Collateral Loans of the Borrower during such 12-month period (or such higher percentage as agreed to by the Administrative Agent), and (iv) during the 12-month period most recently ended prior to the relevant date of determination (or such lesser number of months as shall have elapsed since the Closing Date), and after giving pro forma effect to such transaction, the value of Defaulted Collateral Loans substituted or sold by the Borrower to Affiliates of the Servicer may not exceed 10% of the highest Aggregate Principal Balance of Collateral Loans of the Borrower during such 12-month period.
(a) Upon each acquisition by the Borrower of a Collateral Loan (i) all of the Borrower’s right, title and interest to such Collateral Loan shall be subject to the Lien granted to the Collateral Agent pursuant to this Agreement and (ii) such Collateral Loan shall be Delivered to the Collateral Agent.
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SECTION 15.4. Additional Equity Contributions. (a)  The Equityholder may, but shall have no obligation to, at any time or from time to time make a capital contribution to the Borrower for any purpose, including for the purpose of curing any Default, satisfying any Coverage Test, enabling the acquisition or sale of any Collateral Loan or satisfying any conditions under Section 3.02. Each contribution shall either be made (a) in Cash (in which event such contributions shall be made by deposit into the Collection Account), (b) by assignment and contribution of an Eligible Investment and/or (c) by assignment of a Collateral Loan that is an Eligible Collateral Loan. In connection with any contribution described in this Section 10.04, the Servicer shall provide written instruction to the Collateral Agent identifying (a) the subclause under which such contribution is being made (the “Contribution Notice”) and (b)(i) in the case of contributions made in Cash, (A) the timing of such contribution and (B) the amount of such contribution and (ii) in the case of contributions made by assignment and contribution of an Eligible Investment and/or by assignment of a Collateral Loan that is an Eligible Collateral Loan, (A) the name of such Eligible Investment and/or Collateral Loan and (B) attaching the accompanying assignment forms. All Cash contributed to the Borrower shall be treated as Principal Proceeds, except to the extent that the Servicer specifies in the Contribution Notice that such Cash shall constitute Interest Proceeds and shall be deposited into a Collection Account in accordance with Section 8.02 as designated by the Servicer.
ARTICLE XVI 
ADMINISTRATION AND SERVICING OF CONTRACTS
SECTION 16.1. Appointment and Designation of the Servicer.
(a) Initial Servicer. The Borrower hereby appoints Blackstone/GSO Secured Lending Fund, pursuant to the terms and conditions of this Agreement, as Servicer, with the authority to service, administer and exercise rights and remedies, on behalf of the Borrower, in respect of the Collateral. Blackstone/GSO Secured Lending Fund hereby accepts such appointment and agrees to perform the duties and responsibilities of the Servicer pursuant to the terms hereof. The Servicer and the Borrower hereby acknowledge that the Administrative Agent and the Secured Parties are third party beneficiaries of the obligations undertaken by the Servicer hereunder.
(b) Servicer Removal Notice. The Borrower, the Servicer, each Lender and the Administrative Agent hereby agree that, upon the occurrence of a Servicer Removal Event, the Administrative Agent may provide a removal notice to the Servicer (with a copy to the Collateral Agent) (a “Servicer Removal Notice”) and terminate all of the rights, obligations, power and authority of the Servicer under this Agreement. On and after the receipt by the Servicer of a Servicer Removal Notice pursuant to this Section 11.01(b), the Servicer shall continue to perform all servicing functions under this Agreement until the date specified in the Servicer Removal Notice or otherwise specified by the Administrative Agent in writing or, if no such date is specified in such Servicer Removal Notice or otherwise specified by the Administrative Agent, until a date mutually agreed upon by the Servicer and the Administrative Agent and shall be entitled to receive the Servicer Fee therefor accrued until such date. After
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such date, the Servicer agrees that it will terminate its activities as Servicer hereunder in a manner that the Administrative Agent believes will facilitate the transition of the performance of such activities to the Replacement Servicer, and except as provided herein the Replacement Servicer shall assume each and all of the Servicer’s obligations to service and administer the Collateral, on the terms and subject to the conditions herein set forth, and the Servicer shall use its commercially reasonable efforts to assist the Replacement Servicer in assuming such obligations.
(c) Appointment of Replacement Servicer. At any time following the delivery of a Servicer Removal Notice, the Administrative Agent may appoint a successor servicer (the “Replacement Servicer”), which appointment shall take effect upon the Replacement Servicer accepting such appointment by a written assumption in a form satisfactory to the Administrative Agent in its sole discretion. Upon the appointment of a Replacement Servicer, the initial Servicer shall have no liability with respect to any action performed by the Replacement Servicer on or after the date that the Replacement Servicer assumes the servicing duties of the Servicer.
(d) Liabilities and Obligations of Replacement Servicer. Upon its appointment, the Replacement Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Replacement Servicer; provided that the Replacement Servicer shall have (i) no liability with respect to any action performed by the terminated Servicer prior to the date that the Replacement Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any advancing or any repurchase obligations, if any, of the Servicer unless it elects to in its sole discretion, (iii) no obligation to pay any Taxes required to be paid by the Servicer (provided that the Replacement Servicer shall pay any income Taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Replacement Servicer, upon becoming a Replacement Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Replacement Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Section 4.02. Any other provision in this Agreement notwithstanding, if a Replacement Servicer is appointed, it shall perform its obligations hereunder in good faith and with reasonable care, exercising a degree of skill and attention no less than what it exercises to service similar assets for itself and for others, such standard of care to be the “Servicing Standard” applicable to it.
(e) Subcontracts. The Servicer may, without the consent of any party but with prior written notice to the Administrative Agent, subcontract with any other Person for servicing, administering or collecting the Collateral; provided that (i) the Servicer shall select any such Person with reasonable care and shall be solely responsible for the fees and expenses payable to
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any such Person, (ii) the Servicer shall not be relieved of, and shall remain liable for, the performance of the duties and obligations of the Servicer pursuant to the terms hereof without regard to any subcontracting arrangement and (iii) any such subcontract shall be terminable upon the occurrence of a Servicer Removal Event.
SECTION 16.2. Duties of the Servicer.
(a) Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral from time to time, all in accordance with Applicable Law and the Servicing Standard. Prior to the delivery of a Servicer Removal Notice, but subject to the terms of this Agreement (including Section 11.04 and Article VI), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate servicing records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(iv) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, Custodian or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense;
(v) identifying each Collateral Loan in its internal servicing records to reflect the ownership of such Collateral Loan by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (A) that is or is threatened to be asserted by an Obligor with respect to any Loan (or portion thereof) of
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which it has actual knowledge or has received notice; or (B) that could reasonably be expected to have a Material Adverse Effect;
(vii) maintaining the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral;
(viii) directing the Collateral Agent to make payments pursuant to the terms of the Payment Date Report;
(ix) assisting the Borrower with respect to the purchase and sale of and payment for the Collateral Loans and Eligible Investments;
(x) instructing the Obligors and the administrative agents on the Collateral Loans to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xi) delivering assignments and promissory notes to the Custodian;
(xii) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement; and
(xiii) assisting in the acquisition and sale of Collateral Loans and other Collateral in accordance with Article X and the Servicing Standard.
It is acknowledged and agreed that in circumstances in which a Person other than the Borrower or the Servicer acts as lead agent with respect to any Collateral Loan, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the applicable Related Documents has the right to do so.
(b) Notwithstanding anything to the contrary contained herein, the exercise by the Administrative Agent, the Collateral Agent and the Secured Parties of their rights hereunder shall not release the Servicer (unless replaced by a Replacement Servicer) or the Borrower from any of their duties or responsibilities with respect to the Collateral. The Secured Parties, the Administrative Agent, each Lender and the Collateral Agent shall not have any obligation or liability with respect to any Collateral, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder, unless one of them becomes a Replacement Servicer hereunder.
(c) Any payment by an Obligor in respect of any indebtedness owed by it to the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Administrative Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due, provided such obligation is not on non-accrual) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
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(d) The Servicer agrees to supervise and assist in the investment and reinvestment of the Collateral, and shall perform on behalf of the Borrower the duties that have been expressly delegated to the Servicer in this Agreement and any other Facility Document (and the Servicer shall have no obligation to perform any other duties hereunder or otherwise) and, to the extent necessary or appropriate to perform such duties, the Servicer shall have the power to execute and deliver all necessary and appropriate documents and instruments on behalf of the Borrower with respect thereto. The Servicer shall comply with the terms and conditions hereof and any other Facility Document expressly applicable to it, in its capacity as the Servicer, or otherwise affecting the duties and functions that have been delegated to it thereunder and hereunder as the Servicer and shall perform its obligations hereunder and thereunder in good faith and with reasonable care, using a degree of skill and attention no less than the Servicer and its Affiliates exercises with respect to comparable assets that it services for itself and for others having similar investment objectives and restrictions substantially in accordance with its existing practices and procedures relating to assets of the nature and character of the Collateral Loans (such standard of care, the “Servicing Standard”).
SECTION 16.3. Authorization of the Servicer. (a)  Each of the Borrower, the Administrative Agent and each Lender hereby authorizes the Servicer (including any successor thereto) to take any and all reasonable steps in its name and on its behalf necessary or desirable in the determination of the Servicer and not inconsistent with the grant by the Borrower to the Collateral Agent on behalf of the Secured Parties hereunder, to collect all amounts due under any and all Collateral, including, endorsing any of their names on checks and other instruments representing Collections, executing and delivering any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Collateral and, after the delinquency of any Collateral and to the extent permitted under and in compliance with Applicable Law, to commence proceedings with respect to enforcing payment thereof. The Borrower and the Collateral Agent on behalf of the Secured Parties shall furnish the Servicer (and any successors thereto) with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. In case any reasonable question arises as to its duties hereunder, the Collateral Agent may request instructions from the Administrative Agent and shall be entitled at all times to refrain from taking any actions unless it has received instruction from the Administrative Agent. In no event shall the Servicer be entitled to make any Secured Party a party to any litigation without such party’s express prior written consent, or to make the Borrower a party to any litigation (other than any routine foreclosure or similar collection procedure) without the Administrative Agent’s consent.
(a) The Administrative Agent may, at any time that an Event of Default has occurred and is continuing, notify any Obligor with respect to any Collateral of the assignment of such Collateral to the Collateral Agent on behalf of the Secured Parties and direct that payments of all amounts due or to become due be made directly to the Administrative Agent or any servicer, collection agent or account designated by the Administrative Agent and, upon such notification and at the expense of the Borrower, the Administrative Agent may enforce collection of any such Collateral, and adjust, settle or compromise the amount or payment thereof.
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SECTION 16.4. Collection Efforts, Modification of Collateral. (a)  The Servicer will use commercially reasonable efforts to collect, or cause to be collected, all payments called for under the terms and provisions of the Collateral Loans included in the Collateral as and when the same become due, all in accordance with the Servicing Standard.
(a) In the performance of its obligations hereunder, the Borrower (or the Servicer on its behalf) may enter into any amendment or waiver of or supplement to any Related Document; provided that the prior written consent of the Required Lenders shall be required if an Event of Default has occurred and is continuing or an Event of Default or Default would result from such amendment, waiver or supplement. For the avoidance of doubt, any Collateral Loan that, as a result of any amendment or supplement thereto, ceases to qualify as an Eligible Collateral Loan shall not be included in the Borrowing Base.
SECTION 16.5. Servicer Compensation. As compensation for its activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the Servicer Fee and reimbursed its expenses as provided in the Priority of Payments.
SECTION 16.6. The Servicer Not to Resign. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the Servicer’s determination that (a) the performance of its duties hereunder is or becomes impermissible under Applicable Law and (b) there is no reasonable action that the Servicer could take to make the performance of its duties hereunder permissible under Applicable Law. Any such determination permitting the resignation of the Servicer shall be evidenced as to clause (a) above by an opinion of counsel to such effect delivered to the Administrative Agent and each Lender. No such resignation shall become effective until a Replacement Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section 11.01(c).
ARTICLE XVII 
THE AGENTS
SECTION 17.1. Authorization and Action. (a)  Each Lender hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and, to the extent applicable, the other Facility Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, subject to the terms hereof. No Agent shall have any duties or responsibilities, except those expressly set forth herein or in the other Facility Documents to which it is a party or any fiduciary relationship with any Secured Party and no implied covenants, functions, responsibilities, duties or obligations or liabilities on the part of such Agent shall be read into this Agreement or any other Facility Document to which such Agent is a party (if any) as duties on its part to be performed or observed. No Agent shall have or be construed to have any other duties or responsibilities in respect of this Agreement or any other Facility Document and the transactions contemplated hereby or thereby. As to any matters not expressly provided for by this Agreement or the other Facility Documents, no Agent shall be required to exercise any discretion or take any action, but
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shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Majority Lenders (or, with respect to the Collateral Agent, the Administrative Agent); provided that such Agent shall not be required to take any action which exposes such Agent, in its judgment, to personal liability, cost or expense or which is contrary to this Agreement, the other Facility Documents or Applicable Law, or would be, in its judgment, contrary to its duties hereunder, under any other Facility Document or under Applicable Law. Each Lender agrees that in any instance in which the Facility Documents provide that an Agent’s consent may not be unreasonably withheld, provide for the exercise of such Agent’s reasonable discretion, or provide to a similar effect, it shall not in its instructions (or by refusing to provide instruction) to such Agent withhold its consent or exercise its discretion in an unreasonable manner.
(a) If the Collateral Agent has been requested or directed by the Majority Lenders or the Required Lenders, as applicable, (or by the Administrative Agent acting at the direction of the Majority Lenders or the Required Lenders) to take any action pursuant to any provision of this Agreement or any other Facility Document, the Collateral Agent shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement or such Facility Document in the manner so requested unless it shall have been provided indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred by it in compliance with or in performing such request or direction. No provision of this Agreement or any other Facility Document shall otherwise be construed to require the Collateral Agent to expend or risk its own funds or to take any action that could in its judgment cause it to incur any cost, expenses or liability, unless it is provided indemnity acceptable to it against any such expenditure, risk, costs, expense or liability. For the avoidance of doubt, the Collateral Agent shall not have any duty or obligation to take any action to exercise or enforce any power, right or remedy available to it under this Agreement or any other Facility Document or any Related Document unless and until directed by the Majority Lenders or the Required Lenders, as applicable (or the Administrative Agent on their behalf).
(b) Neither the Collateral Agent nor any officer, agent or representative thereof shall be personally liable for any action taken by any such Person in accordance with any notice given by the Majority Lenders or the Required Lenders, as applicable, (or by the Administrative Agent acting at the direction of the Majority Lenders or the Required Lenders) pursuant to the terms of this Agreement or any other Facility Document even if, at the time such action is taken by any such Person, the Majority Lenders or the Required Lenders, as applicable, or Persons purporting to be the Majority Lenders or the Required Lenders, as applicable, are not entitled to give such notice, except where the Responsible Officer of the Collateral Agent has actual knowledge (without any duty of inquiry or investigation on its part) that the Majority Lenders or the Required Lenders, as applicable, or Persons purporting to be the Majority Lenders or the Required Lenders, as applicable, are not entitled to give such notice. If any dispute or disagreement shall arise as to the allocation of any sum of money received by the Collateral Agent hereunder or under any Facility Document, the Collateral Agent shall have the right to deliver such sum to a court of competent jurisdiction and therein commence an action for interpleader.
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(c) If in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, it may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within five (5) 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 five (5) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions.
SECTION 17.2. Delegation of Duties. Each Agent may execute any of its duties under this Agreement and each other Facility Document by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care other than any Affiliates of such Agent.
SECTION 17.3. Agents’ Reliance, Etc. (a)  Neither Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any of the other Facility Documents, except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, each Agent: (i) may consult with legal counsel (including counsel for the Borrower or the Servicer or any of their Affiliates) and independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Secured Party or any other Person and shall not be responsible to any Secured Party or any Person for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or the other Facility Documents; (iii) shall not have any duty to monitor, ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, the other Facility Documents or any Related Document on the part of the Borrower, the Servicer or any other Person or to inspect the property (including the books and records) of the Borrower or the Servicer; (iv) shall not be responsible to any Secured Party or any other Person for the due execution, legality, validity, enforceability, perfection, genuineness, sufficiency or value of any Collateral (or the validity, perfection, priority or enforceability of the Liens on the Collateral), this Agreement, the other Facility Documents, any Related Document or any other instrument or document furnished pursuant hereto or thereto; and (v) shall incur no liability under or in respect of this Agreement or any other Facility Document by relying on, acting upon (or by refraining from action in reliance on) any notice, consent, certificate (including, for the avoidance of doubt, the Borrowing Base Calculation Statement), instruction or waiver, report, statement, opinion, direction or other instrument or writing (which may be delivered by telecopier, email, cable or telex, if acceptable to it) reasonably believed by it to be genuine and believed by it to be signed or sent by the proper party or parties. No Agent shall have any liability to the Borrower or any Lender or any other Person for the Borrower’s, the Servicer’s, any Lender’s or any other Person’s, as the case may be, performance of, or failure to perform, any of their respective obligations and duties under this Agreement or any other Facility Document.
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(a) No Agent shall be liable for the actions or omissions of any other Agent (including concerning the application of funds), or under any duty to monitor or investigate compliance on the part of any other Agent with the terms or requirements of this Agreement, any Facility Document or any Related Document, or their duties hereunder or thereunder. Each Agent shall be entitled to assume the due authority of any signatory and genuineness of any signature appearing on any instrument or document it may receive (including each Notice of Borrowing received hereunder) in the absence of its own gross negligence or willful misconduct. No Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of the Required Lenders to provide, written instruction to exercise such discretion or grant such consent from the Required Lenders, as applicable). No Agent shall be liable for any error of judgment made in good faith unless it shall be proven by a court of competent jurisdiction that such Agent was grossly negligent in ascertaining the relevant facts. Nothing herein or in any Facility Document or Related Document shall obligate any Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not adequately indemnified. No Agent shall be liable for any indirect, special, punitive or consequential damages (including lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. No Agent shall be charged with knowledge or notice of any matter unless actually known to a Responsible Officer of such Agent, or unless and to the extent written notice of such matter is received by such Agent at its address in accordance with Section 13.02. Any permissive grant of power to an Agent hereunder shall not be construed to be a duty to act. Each Agent shall have only the duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against any Agent. Before acting hereunder, an Agent shall be entitled to request, receive and rely upon such certificates and opinions as it may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action. Neither Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. Neither Agent 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 grossly negligent performance or omission of its duties.
(b) No Agent shall be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, computer viruses, power failures, loss or malfunction of utilities, communications or computers (software and hardware) services, earthquakes or other disasters.
(c) The delivery of reports and other documents and information to the Collateral Agent hereunder or under any other Facility Document is for informational purposes
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only and the Collateral Agent’s receipt of such documents and information shall not constitute constructive notice of any information contained therein or determinable from information contained therein. The Collateral Agent is hereby authorized and directed to execute and deliver the other Facility Documents to which it is a party. Whether or not expressly stated in such Facility Documents, in performing (or refraining from acting) thereunder, the Collateral Agent shall have all of the rights, benefits, protections and indemnities which are afforded to it in this Agreement.
(d) Each Lender acknowledges that, except as expressly set forth in this Agreement, neither Agent has made any representation or warranty to it, and that no act by either Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Borrower, shall be deemed to constitute any representation or warranty by such Agent to any Secured Party as to any matter. Each Lender represents to each Agent that it has, independently and without reliance upon such Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the Servicer, and made its own decision to enter into this Agreement and the other Facility Documents to which it is a party. Each Lender also represents that it will, independently and without reliance upon either Agent or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the Facility Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the Servicer. Neither Agent shall have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of the Borrower or Servicer which may come into the possession of such Agent.
SECTION 17.4. Indemnification. Each of the Lenders agrees to indemnify and hold the Agents harmless (to the extent not reimbursed by or on behalf of the Borrower pursuant to Section 13.04 or otherwise) from and against any and all Liabilities which may be imposed on, incurred by, or asserted against the Agents in any way relating to or arising out of this Agreement or any other Facility Document or any Related Document or any action taken or omitted by the Agents under this Agreement or any other Facility Document or any Related Document; provided that no Lender shall be liable to any Agent for any portion of such Liabilities resulting from such Agent’s gross negligence or willful misconduct; and provided, further, that no Lender shall be liable to the Collateral Agent for any portion of such Liabilities unless such Liabilities are imposed on, incurred by, or asserted against the Collateral Agent as a result of any action taken, or not taken, by the Collateral Agent by the express terms of this Agreement or at the direction of the Administrative Agent or such Lender or Lenders, as the case may be, in accordance with the terms and conditions set forth in this Agreement (it being understood and agreed that the Collateral Agent shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Agreement at the request or direction of the Administrative Agent or any of the Lenders (or other Persons authorized or permitted under the terms hereof to make such request or give such direction) pursuant to this Agreement or any of
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the other Facility Document, unless the Administrative Agent or such Lenders shall have provided to the Collateral Agent security or indemnity reasonably satisfactory to it against the costs, expenses (including reasonable and documented attorney’s fees and expenses) and Liabilities which might reasonably be incurred by it in compliance with such request or direction, whether such indemnity is provided under this Section 12.04 or otherwise). The rights of the Agents and obligations of the Lenders under or pursuant to this Section 12.04 shall survive the termination of this Agreement, and the earlier removal or resignation of any Agent hereunder.
SECTION 17.5. Successor Agents. (a)  Subject to the terms of this Section 12.05, each Agent may, upon thirty (30) days’ notice to the Lenders and the Borrower, resign as Administrative Agent or Collateral Agent, as applicable. If an Agent shall resign, then the Required Lenders shall appoint a successor agent. If for any reason a successor agent is not so appointed and does not accept such appointment within thirty (30) days of notice of resignation, such Agent may appoint a successor agent. The appointment of any successor Agent shall be subject to the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed); provided that the consent of the Borrower to any such appointment shall not be required if (i) a Default or Event of Default shall have occurred and is continuing or (ii) if such successor agent is a Lender or an Affiliate of such Agent or any Lender. Any resignation of an Agent shall be effective upon the appointment of a successor agent pursuant to this Section 12.05. After the effectiveness of any retiring Agent’s resignation hereunder as Agent, the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Facility Documents and the provisions of this Article XII shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while it was Agent under this Agreement and under the other Facility Documents. If no successor Collateral Agent shall have been appointed and an instrument of acceptance by a successor Collateral Agent shall not have been delivered to the Collateral Agent within sixty days after giving of notice of resignation by the Collateral Agent, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent.
(a) 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 corporate trust properties and assets of the Collateral Agent substantially as a whole, shall be the successor to the Collateral Agent under this Agreement without further act of any of the parties to this Agreement.
SECTION 17.6. The Collateral Agent. (a)  The Collateral Agent shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(a) It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the other parties hereto or any portion of the Collateral.
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(b) The Collateral Agent shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(c) The Collateral Agent shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower. In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith (except in its capacity as obligor thereunder, if applicable), or for any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(d) The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral 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.
(e) 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. It is expressly acknowledged by the Borrower, the Servicer, the Lenders and the Administrative Agent that performance by the Collateral Agent of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, 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 item of Collateral, from time to time.
(f) The Collateral Agent shall have no duty to determine or inquire into the happening or occurrence of any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(g) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
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(h) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral or responsibility for ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters or taking any steps to preserve rights against prior parties or other rights pertaining to any Collateral.
(i) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Collateral Agent to comply with such requirements.
(j) If Wells Fargo or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to Wells Fargo or the Collateral Agent pursuant to this Article XII shall also be afforded to Wells Fargo or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which Wells Fargo or the Collateral Agent in such capacity is a party.
(k) The Collateral Agent shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan.
ARTICLE XVIII 
MISCELLANEOUS
SECTION 18.1. No Waiver; Modifications in Writing. (a)  No failure or delay on the part of any Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver of any provision of this Agreement or any other Facility Document, and any consent to any departure by any party to this Agreement or any other Facility Document from the terms of any provision of this Agreement or such other Facility Document, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
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(a) No amendment, modification, supplement or waiver of this Agreement shall be effective unless signed by the Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement or waiver shall amend, modify or otherwise affect the rights or duties of any Agent hereunder without the prior written consent of such Agent.
(b) Notwithstanding anything to the contrary herein, in connection with the increase of the Commitments hereunder, only the consent of the Lender increasing its Commitment (or providing a new Commitment) shall be required for any amendment that effects such increase in Commitments.
(c) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
SECTION 18.2. Notices, Etc. Except where telephonic instructions are authorized herein to be given, all notices, demands, instructions and other communications required or permitted to be given to or made upon any party hereto shall be in writing and shall be personally delivered or sent by registered, certified or express mail, postage prepaid, or by facsimile transmission, or by prepaid courier service, or by electronic mail (if the recipient has provided an email address in Schedule 5), and shall be deemed to be given for purposes of this Agreement on the day that such writing is received by the intended recipient thereof in accordance with the provisions of this Section 13.02. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of this Section 13.02, notices, demands, instructions and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses (or to their respective facsimile numbers or email addresses) indicated in Schedule 5, and, in the case of telephonic instructions or notices, by calling the telephone number or numbers indicated for such party in Schedule 5.
Wells Fargo agrees to accept and act upon instructions or directions pursuant to this Agreement, any other Facility Document, or any Related Document or any document executed in connection herewith or therewith sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided, however, that any person providing such instructions or directions shall provide to Wells Fargo an incumbency certificate listing persons designated to provide such instructions or directions as such incumbency certificate may be
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supplemented from time to time. If any person elects to give Wells Fargo email or facsimile instructions (or instructions by a similar electronic method) and Wells Fargo in its discretion elects to act upon such instructions, Wells Fargo’s reasonable understanding of such instructions shall be deemed controlling. Wells Fargo shall not be liable for any losses, costs or expenses arising directly or indirectly from Wells Fargo’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
SECTION 18.3. Taxes. (a)  Any and all payments by or on account of any obligation of the Borrower under any Facility Document shall be made without deduction or withholding for any and all Taxes with respect thereto, unless required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of the Borrower or the Administrative Agent) requires the deduction or withholding of any Tax from any such payment by the Borrower or the Administrative Agent, then the Borrower or the Administrative Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as may be necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 13.03) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(a) The Borrower agrees to timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(b) The Borrower agrees to indemnify each Recipient, within 10 days after demand therefor, for (i) the full amount of any Indemnified Taxes (including any Indemnified Taxes imposed or asserted by any jurisdiction on or attributable to amounts payable under this Section 13.03) payable or paid by any Recipient or required to be withheld or deducted from a payment to such Recipient and (ii) any reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of another Recipient, shall be conclusive absent manifest error.
(c) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any
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Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06(c)(ii) 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 Administrative Agent in connection with any Facility Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Facility Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 13.03(d).
(d) As soon as practicable after the date of any payment of Taxes by the Borrower to Governmental Authority pursuant to this Section 13.03, the Borrower will furnish to the Administrative Agent the original or a certified copy of a receipt issued by the relevant Governmental Authority evidencing payment thereof, a copy of the return reporting such payment, or other evidence of payment as may be reasonably satisfactory to the Administrative Agent.
(e) If any Recipient in its sole discretion, but acting in good faith, determines that it has received a refund of any Taxes with respect to which it has been indemnified pursuant to this Section 13.03 (including by the payment of additional amounts pursuant to Section 13.03(a)), such Recipient shall reimburse the Borrower (or the Servicer, as applicable) such amount of any refund received (net of reasonable out-of-pocket expenses incurred), but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), as such Secured Party shall determine in its sole discretion, but acting in good faith, to be attributable to the relevant Indemnified Taxes; provided that in the event that such Secured Party is required to repay such refund to the relevant taxing authority, the Borrower agrees to return the refund to such Secured Party. Notwithstanding anything to the contrary in this Section 13.03(f), in no event will any Secured Party be required to pay any amount to an indemnifying party pursuant to this Section 13.03(f) the payment of which would place such Secured Party in a less favorable net after-Tax position than such Secured Party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. Unless required by Applicable Law, at no time shall any Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender, as the case may be. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(f) (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Facility Document shall deliver to the
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Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 13.03(g)(ii), (iii) and (v) 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.
(i) Without limiting the generality of Section 13.03(g)(i), each Lender that is a U.S. Person shall, 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 any Agent), deliver to the Borrower and each Agent, two accurate, complete and signed copies of U.S. Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
(ii) Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and each Agent, 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 any Agent), two accurate, complete and signed copies of whichever of the following is applicable:
(A) 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 Facility Document, executed copies of U.S. Internal Revenue Service Form W-8BEN-E (or W-8BEN, 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 Facility Document, U.S. Internal Revenue Service Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executed copies of U.S. Internal Revenue Service Form W-8ECI;
(C) 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 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
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corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of U.S. Internal Revenue Service Form W-8BEN-E (or W-8BEN, as applicable); or
(D) to the extent a Foreign Lender is not the beneficial owner, executed copies of U.S. Internal Revenue Service Form W-8IMY, accompanied by IRS Form W-ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate, 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 on behalf of each such direct and indirect partner.
(iii) Each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agents (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 any 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 Agents to determine the withholding or deduction required to be made.
(iv) If a payment made to a Recipient under any Facility 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 Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 13.03(v), “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 Administrative Agent in writing of its legal inability to do so.
(g) If any Lender requires the Borrower to pay any Indemnified Taxes or additional amount to such Lender or any Governmental Authority for the account of such Lender
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pursuant to this Section 13.03, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if such Lender determines, in its sole discretion that such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 13.03 in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(h) Each party’s obligations under this Section 13.03 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Facility Document.
SECTION 18.4. Costs and Expenses; Indemnification. (a)  The Borrower agrees to promptly pay on demand all reasonable and documented out-of-pocket costs and expenses of the Agents and the Lenders in connection with the preparation, review, negotiation, reproduction, execution and delivery of this Agreement and the other Facility Documents, including the reasonable and documented fees and disbursements of one outside counsel for the Administrative Agent and one outside counsel for the Collateral Agent, costs and expenses of creating, perfecting, releasing or enforcing the Collateral Agent’s security interests in the Collateral, including filing and recording fees, expenses, search fees, UCC filing fees and the equivalent thereof in any foreign jurisdiction, if applicable, and all other related fees and expenses in connection therewith; and in connection with the administration and any waiver, consent, modification or amendment or similar agreement in respect of this Agreement, the Notes or any other Facility Document and advising the Agents and Lenders as to their respective rights, remedies and responsibilities. The Borrower agrees to promptly pay on demand all reasonable and documented costs and expenses of each of the Secured Parties in connection with the enforcement of this Agreement, the Notes or any other Facility Document, including all reasonable and documented out-of-pocket costs and expenses incurred by the Collateral Agent in connection with the preservation, collection, foreclosure or enforcement of the Collateral subject to the Facility Documents or any interest, right, power or remedy of the Collateral Agent and the Replacement Servicer (including in its capacity as Replacement Servicer) or in connection with the collection or enforcement of any of the Obligations or the proof, protection, administration or resolution of any claim based upon the Obligations in any insolvency proceeding, including all reasonable fees and disbursements of outside attorneys, accountants, auditors, consultants, appraisers and other professionals engaged by the Collateral Agent; provided that, in each case, there shall be one primary outside attorney and one local counsel representing such Secured Parties (other than the Collateral Agent, who shall have one primary outside attorney and one local counsel) unless any conflict of interest arises. Without prejudice to its rights hereunder, the expenses and the compensation for the services of the Secured Parties are intended to constitute expenses of administration under any applicable bankruptcy law. For the avoidance of doubt, this Section 13.04(a) shall not apply to Taxes, other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, which shall be covered by Section 13.03.
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(a) The Borrower agrees to indemnify and hold harmless each Secured Party and each of their Affiliates and the respective officers, directors, employees, agents, managers of, and any Person controlling any of, the foregoing (each, an “Indemnified Party”) from and against any and all Liabilities that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of the execution, delivery, enforcement, performance, administration of or otherwise arising out of or incurred in connection with this Agreement, any other Facility Document, any Related Document or any transaction contemplated hereby or thereby (and regardless of whether or not any such transactions are consummated); except that the Borrower shall not be liable to the extent any such Liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that any payment hereunder which relates to taxes, levies, imposes, deductions, charges and withholdings, and all liabilities (including penalties, interest and expenses) with respect thereto, or additional sums described in Sections 2.10, 2.11 or 13.03, shall not be covered by this Section 13.04(b).
(b) Subject to the Lender Fee Letter, the Servicer agrees to indemnify and hold harmless each Indemnified Party from and against any and all Liabilities that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of any one or more of the following: (i) any breach by the Servicer of any covenant or any of its obligations under any Facility Document, (ii) the failure of any of the representations or warranties of the Servicer set forth in any Facility Document or in any certificate, statement or report delivered in connection therewith to be true when made or when deemed made or repeated and (iii) by reason of any gross negligence, bad faith or willful misconduct (as determined by the final non-appealable judgment of a court of competent jurisdiction) on the part of the Servicer in its capacity as Servicer; except the Servicer shall not be liable to the extent any such Liability (x) results from the performance or non-performance of the Collateral Loans or (y) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that any payment hereunder which relates to taxes, levies, imposes, deductions, charges and withholdings, and all liabilities (including penalties, interest and expenses) with respect thereto, or additional sums described in Sections 2.10, 2.11 or 13.03, shall not be covered by this Section 13.04(c). The Servicer shall not have any liability hereunder to any Indemnified Party to the extent an Indemnified Party affects any settlement of a matter that is (or could be) subject to indemnification hereunder without the prior written consent of the Servicer (which consent shall not be unreasonably withheld or delayed). In no event shall the Servicer be liable for any special, indirect, consequential or punitive damages.
(c) The Equityholder agrees to indemnify and hold harmless each Indemnified Party from and against any and all Liabilities that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of any breach of the Equityholder of any covenant or any of its obligations set forth in Section 13.22.
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SECTION 18.5. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 18.6. Assignability. (a)  Each Lender may, with the consent of the Administrative Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its outstanding Advances or interests therein owned by it, together with ratable portions of its Commitment); provided that:
(i) each of the Borrower’s and the Administrative Agent’s consent to any such assignment (A) shall not be unreasonably withheld or delayed and (B) shall not be required if the assignee is a Permitted Assignee with respect to such assignor; and
(ii) the Borrower’s consent to any such assignment pursuant to this Section 13.06(a) shall not be required if (x) a Default or an Event of Default shall have occurred (and not been waived by the Lenders in accordance with Section 13.01) or (y) such assignment is required by any Change in Law.
The parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms required by Section 13.03(g). Notwithstanding any other provision of this Section 13.06, no assignment by any Lender to the Borrower or any of its Affiliates shall be permitted.
(b) The Borrower may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Agents and the Lenders.
(c) (i) Any Lender may, without the consent of, but with notice to, the Borrower, sell participations to Participants in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) such Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (D) each Participant shall have agreed to be bound by this Section 13.06(c), Section 13.06(d), Section 13.06(e) and Section 13.17. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any Fundamental Amendment. Sections 2.10, 2.11, and 13.03 shall apply to each Participant as if it were a Lender and had acquired its interest by assignment pursuant to clause (a) of this Section 13.06 (subject to the requirements and limitations set forth in Section 13.03, including the requirements under Section 13.03(g)); provided that (A) such Participant agrees to be subject to the provisions of
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Section 13.03(g) as if it were an assignee under clause (a) of this Section 13.06 and (B) no Participant shall be entitled to any amount under Section 2.10, 2.11, or 13.03 which is greater than the amount the related Lender would have been entitled to under any such Sections or provisions if the applicable participation had not occurred, except to the extent such entitlement to receive a greater amount results from a Change in Law that occurs after the Participant acquired the applicable participation.
(i) In the event that any Lender sells participations in any portion of its rights and obligations hereunder, such Lender as nonfiduciary agent for the Borrower shall maintain a register on which it enters the name and address of all participants in the Advances held by it and the principal amount (and stated interest thereon) of the portion of the Advance which is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Facility Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in such Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) The Administrative Agent, on behalf of and acting solely for this purpose as the nonfiduciary agent of the Borrower, shall maintain at its address specified in Section 13.02 or such other address as the Administrative Agent shall designate in writing to the Lenders, a copy of this Agreement and each signature page hereto and each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the aggregate outstanding principal amount of the outstanding Advances maintained by each Lender under this Agreement (and any stated interest thereon). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The 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. An Advance (and a Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Note, if any, shall expressly so provide) and compliance with this Section 13.06. The Administrative Agent shall update and furnish to the Collateral Agent and the Borrower from time to time at the request of the Collateral Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of the Commitments.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility Document, each Lender hereunder, and each Participant, must at all times be a “qualified purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified
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institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by being a signatory hereto or by entering into an Assignment and Acceptance) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations in, any of its Advances or its Commitment to any Person unless such Person is a Qualified Purchaser and a QIB.
(f) Notwithstanding any other provision of this Section 13.06, any Lender may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of principal and interest) under this Agreement to secure obligations of such Lender, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Administrative Agent; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto.
SECTION 18.7. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT (EXCEPT, AS TO ANY OTHER FACILITY DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
SECTION 18.8. Severability of Provisions. Any provision of this Agreement or any other Facility Document 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 hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 18.9. Confidentiality. The parties hereto agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed by any party (a) to its Affiliates, directors, officers, members, principals and employees, and to its agents, counsel and other advisors that have a need for such information relative to this facility (collectively, the “Related Parties”) (it being understood that, in each case, the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and the disclosing party shall be responsible for any breach by its Related Parties under this Section 13.09); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), it being understood that the Persons to whom such disclosure is made shall be informed of the confidential nature of such Information; (c) to the extent required by Applicable Law or by any subpoena or similar legal process; provided that with respect to disclosures of Information pursuant to a subpoena or similar legal process, (A) prior to any
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disclosure under this clause (c) the disclosing party agrees to provide the Borrower with prior written notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior written notice to the Borrower pursuant to the terms of the subpoena or other legal process and (B) any disclosure under this clause (c) shall be limited to the portion of the Information as may be required by such Governmental Authority pursuant to such subpoena or other legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Facility Document or any action or proceeding relating to this Agreement or any other Facility Document or the enforcement of rights hereunder or thereunder; (f) solely with respect to the Administrative Agent or any Lender, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights and obligations under this Agreement; provided that such assignee or participant (or prospective assignee or participant) has agreed to maintain confidentiality pursuant to this Section 13.09 or another non-disclosure agreement substantially similar hereto, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder that has agreed to maintain confidentiality pursuant to this Section 13.09; or (iii) any rating agency or (g) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section by such party, or (y) becomes available to such party or any of their respective Affiliates on a nonconfidential basis from a source other than a party to this Agreement. For purposes of this Section 13.09, “Information” means all information received from a party to this Agreement, the terms and substance of this Agreement and each other Facility Document and any term sheet.
SECTION 18.10. Merger. This Agreement and the other Facility Documents executed by the Administrative Agent or the Lenders taken as a whole incorporate the entire agreement between the parties hereto and thereto concerning the subject matter hereof and thereof and this Agreement and such other Facility Documents supersede any prior agreements among the parties relating to the subject matter thereof.
SECTION 18.11. Survival. All representations and warranties made hereunder, in the other Facility Documents and in any certificate delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery of this Agreement and the making of the Advances hereunder. The agreements in Sections 2.10, 2.11, 2.13, 12.04, 13.03, 13.04, 13.09, 13.15 and 13.17 and this Section 13.11 shall survive the termination of this Agreement in whole or in part, the payment in full of the principal of and interest on the Advances, any foreclosure under, or modification, release or discharge of, any or all of the Related Documents and the resignation or replacement of any Agent.
SECTION 18.12. Submission to Jurisdiction; Waivers; Etc. Each party hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement or the other Facility Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the
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courts of the State of New York in the Borough of Manhattan, the courts of the United States of America for the Southern District of New York, and the appellate courts of any of them;
(b) consents that any such action or proceeding may be brought in any court described in Section 13.12(a) and waives to the fullest extent permitted by Applicable Law any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) solely in the case of each party hereto (other than the Borrower, Servicer and Equityholder) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at its address set forth in Section 13.02 or at such other address as may be permitted thereunder;
(d) EACH OF THE BORROWER, SERVICER AND EQUITYHOLDER IRREVOCABLY APPOINTS INTERTRUST CORPORATE SERVICES DELAWARE LTD. (THE “PROCESS AGENT”) WITH AN OFFICE ON THE DATE HEREOF AT 200 BELLEVUE PARKWAY, SUITE 210, WILMINGTON, NEW CASTLE COUNTY, DELAWARE 29809, AS ITS AGENT TO RECEIVE ON ITS BEHALF AND PROPERTY SERVICE OF COPIES OF ANY SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE ACCOUNT PARTY IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT’S ABOVE ADDRESS, AND THE ACCOUNT PARTY HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH OF THE BORROWER, SERVICER AND EQUITYHOLDER ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS SET FORTH IN SECTION 13.02 IN THE MANNER DESCRIBED ABOVE. EACH OF THE BORROWER, SERVICER AND EQUITYHOLDER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PERMITTED BY LAW. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHTS OF ANY OTHER PARTY HERETO RIGHTS TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT SUCH PARTY’S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE ACCOUNT PARTY OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding against any Secured Party arising out of or relating to this Agreement or any other Facility Document any special, exemplary, punitive or consequential damages.
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SECTION 18.13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT OR FOR ANY COUNTERCLAIM HEREIN OR THEREIN OR RELATING HERETO OR THERETO.
SECTION 18.14. Right of Setoff; Payments Pro Rata. (a)  Subject to Section 9.01(a), if an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Facility Document to such Lender or their respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Facility Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(a) Each of the Lenders agrees that, if it should receive any amount under this Agreement (whether by voluntary payments, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Facility Documents, or otherwise) which is applicable to the payment of the principal of, or interest on, the Advances or fees, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations to such other Lenders in such amount as shall result in a proportional participation by all of the Lenders in such disproportionate sum received; provided that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
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SECTION 18.15. PATRIOT Act Notice. Each Agent and Lender hereby notifies the Borrower that, pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Agent or Lender to identify the Borrower in accordance with the PATRIOT Act. The Borrower shall provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by any Lender or Agent in order to assist such Lender or Agent, as applicable, in maintaining compliance with the PATRIOT Act.
SECTION 18.16. Legal Holidays. In the event that the date of prepayment of Advances or the Final Maturity Date shall not be a Business Day, then notwithstanding any other provision of this Agreement or any other Facility Document, payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of any such date of prepayment or Final Maturity Date, as the case may be, and interest shall accrue on such payment for the period from and after any such nominal date to but excluding such next succeeding Business Day.
SECTION 18.17. Non-Petition. Each of the Servicer and each Secured Party hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Borrower any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other proceeding under federal or state bankruptcy or similar laws until at least one year and one day, or, if longer, the applicable preference period then in effect plus one day, after the payment in full of all outstanding Obligations and the termination of all Commitments; provided that nothing in this Section 13.17 shall preclude, or be deemed to prevent, any Secured Party (a) from taking any action prior to the expiration of the aforementioned one year and one day period, or, if longer, the applicable preference period then in effect, in (i) any case or proceeding voluntarily filed or commenced by the Borrower or (ii) any involuntary insolvency proceeding filed or commenced against the Borrower by a Person other than any such Secured Party, or (b) from commencing against the Borrower or any properties of the Borrower any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other proceeding under federal or state bankruptcy or similar laws. The provisions of this paragraph shall survive the termination of this Agreement. The provisions of this Section 13.17 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 13.17 and the Administrative 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.
SECTION 18.18. Waiver of Setoff. Each of the Borrower and the Servicer hereby waives any right of setoff it may have or to which it may be entitled under this
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Agreement or under any Applicable Law from time to time against the Administrative Agent, any Lender or its respective assets.
SECTION 18.19. Collateral Agent Execution and Delivery. By executing this Agreement, each Lender hereby consents to the terms of this Agreement, directs the Collateral Agent to execute and deliver this Agreement, and acknowledges and agrees that the Collateral Agent shall be fully protected in relying upon the foregoing consent and direction and hereby releases the Collateral Agent and its respective officers, directors, agents, employees and shareholders, as applicable, from any liability for complying with such direction, except as a result of gross negligence or willful misconduct of the Collateral Agent.
SECTION 18.20. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Facility Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges and accepts that any liability of any EEA Financial Institution arising under or in connection with any Facility Document, to the extent such liability is unsecured, may be subject to Bail-in Action by the relevant EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest), or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Facility Document; or
(iii) the variation of the terms of any Finance Document to the extent necessary to give effect to any Bail-in Action in relation to such liability.
SECTION 18.21. WAIVER OF SOVEREIGN IMMUNITY. To the extent that any of the Borrower, Servicer or Equityholder may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Facility Document, to claim for itself or its revenues, assets or properties any immunity from suit, the jurisdiction of any court, attachment prior to judgment, attachment in aid of execution of a judgment, set-off, execution of a judgment or any other legal process, and to the extent that in any such jurisdiction there may be attributed such immunity (whether or not claimed), each of
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the Borrower, the Servicer and the Equityholder irrevocably agrees not to claim and hereby irrevocably waives such immunity to the fullest extent permitted by the laws of such jurisdiction and hereby agrees that the foregoing waiver shall be enforced to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America, as amended, and is intended to be irrevocable for the purpose of such act.
SECTION 18.22. Risk Retention. The Equityholder hereby covenants, for the benefit of the Administrative Agent, the Lenders, the Collateral Agent and, in respect of paragraphs (d) and (e) below only, the Servicer that, for so long as any Advance remains outstanding:
(a) it will retain, as originator, on an ongoing basis, a material net economic interest in the form specified in paragraph (d) of Article 6(3) of the Securitisation Regulation, being retention of the first loss tranche and, if necessary, other tranches having the same or a more severe risk profile than those transferred or sold to investors and not maturing any earlier than those transferred or sold to investors, through maintaining funding to the Borrower under the LLC Agreement, in an amount equal to not less than 5% of the Retention Basis Amount (such net economic interest being the “Retention”);
(b) neither it nor any of its Affiliates will sell, hedge or otherwise mitigate its credit risk under or associated with the Retention where to do so would cause the transaction contemplated by the Facility Documents to cease to be compliant with the EU Retention Requirements;
(c) it will take such further action, provide such information as is in its possession (provided that the provision of such information would not contravene any applicable contract, law or regulation or duties of confidentiality binding on the Equityholder) and enter into such other agreements, in each case, as may reasonably be required by the Borrower, a Lender or the Administrative Agent to satisfy the EU Retention Requirements;
(d) it will confirm to each of the Borrower, the Administrative Agent, the Servicer, each Lender and the Collateral Agent, its continued compliance with the covenants set out at paragraphs (a) and (b) above in each Monthly Report;
(e) it will promptly notify the Borrower, the Administrative Agent, the Servicer, each Lender and the Collateral Agent in writing if for any reason it fails to comply with either of the covenants set out in paragraphs (a) or (b) above in any way; and
(f) it will notify each of its Affiliates of the contents of paragraph (b) above and shall use reasonable endeavours to procure that each of its Affiliates complies with the terms of paragraph (b) as if it were a party thereto.
Notwithstanding anything to the contrary contained herein, neither the Equityholder nor the Borrower makes any representation as to compliance of the transaction or any of the parties hereto with respect to Securitisation Regulation. Any Person accepting the benefits of this Section 13.22 and/or Section 13.23 below (including any related definitions or provisions), shall
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be deemed to have agreed to the terms set forth in this paragraph and each Lender hereby represents that is not relying on any of the Borrower, the Servicer or the Equityholder or any of their respective Affiliates, for any financial, tax, legal, accounting, or regulatory advise in connection with the matters set forth in this Section 13.22 and/or Section 13.23 below.
SECTION 18.23. EU Due Diligence Requirements.
(a) The Retention holder agrees to make available (or will cause the Servicer or the Borrower to make available), promptly upon written request by the Administrative Agent on behalf of any Lender from time to time, the documents, reports and information necessary to enable compliance by any Lender with Article 5 of the Securitisation Regulation; provided that, notwithstanding the foregoing, the Borrower shall be obligated to do so only if such documents, reports or information is: (1) not subject to a duty of confidentiality; and (2)(a) in the Borrower’s or the Retention holder’s possession, or (b) not in the Borrower’s or the Retention holder’s possession but the Retention holder or Borrower can obtain such documents, reports or information using commercially reasonably efforts without material expense (provided further that, if obtaining such documents, reports or information would involve material expense but the requesting Lender agrees to pay it, then the Borrower shall obtain the same).
SECTION 18.24. Compliance with the Securitisation Regulation. Each of the parties hereto acknowledges that none of the Administrative Agent, the Lenders, the Custodian, the Securities Intermediary and the Collateral Agent shall be responsible for and shall have no obligation to assist any other party hereto in connection with compliance with any requirement of the Securitisation Regulation applicable to them.
SECTION 18.25. Adequacy of Monetary Damages Against the Lenders. Each of the Borrower, the Servicer and the Equityholder hereby acknowledges and agrees that (i) any and all claims, damages and demands against the Administrative Agent or the Lenders arising out of, or in connection with, the exercise by the Administrative Agent or the Lenders of any Administrative Agent or any of the Lenders’ rights or remedies pursuant to this Agreement can be sufficiently and adequately remedied by monetary damages, (ii) no irreparable injury will be caused to the Borrower, the Servicer or the Equityholder as a result of, or in connection with, any such claims, damages or demands, and (iii) no equitable or injunctive relief shall be sought by the Borrower, the Servicer or the Equityholder as a result of, or in connection with, any such claims, damages or demands; provided that this Section 13.25 shall not constitute a waiver of any rights of the Borrower, the Servicer or the Equityholder to seek injunctive relief to enforce its rights under Section 13.09.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BGSL BRECKENRIDGE FUNDING LLC, as Borrower
By:  
Name:
Title:
BLACKSTONE/GSO SECURED LENDING FUND, as Equityholder
By:  
Name:
Title:
BLACKSTONE/GSO SECURED LENDING FUND, as Servicer
By:  
Name:
Title:
BNP PARIBAS, as Administrative Agent and a Lender
By:  
Name:
Title:
By:  
Name:
Title:


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent
By:  
Name:
Title:


SCHEDULE 1
COMMITMENTS AND PERCENTAGES
(conformed through the Third Amendment, dated September 27, 2019)
Lender Commitment Percentage of Commitments
BNP Paribas
(A) On any date of determination on or after the Third Amendment Date to but excluding the earlier to occur of (1) the CLO Takeout Date and (2) the date occurring twelve (12) months after the Third Amendment Date, $825,000,000;
(B) on any other date of determination, $525,000,000;
provided that, following the Commitment Termination Date, such Lender’s Commitment will equal the aggregate outstanding amount of all Advances made by such Lender.
(A) On any date of determination on or after the Third Amendment Date to but excluding the earlier to occur of (1) the CLO Takeout Date and (2) the date occurring twelve (12) months after the Third Amendment Date, a percentage equal to 825 divided by 875; and
(B) on any other date of determination, a percentage equal to 525 divided by 575.
Sumitomo Mistui Trust Bank, New York Branch $50,000,000   
(A) On any date of determination on or after the Third Amendment Date to but excluding the earlier to occur of (1) the CLO Takeout Date and (2) the date occurring twelve (12) months after the Third Amendment Date, a percentage equal to 50 divided by 875; and
(B) on any other date of determination, a percentage equal to 50 divided by 575.





3
USActive 54144740.4

SCHEDULE 2

S&P INDUSTRY CLASSIFICATIONS

Industry Code Description Industry Code Description
1020000 Energy Equipment & Services 5110000 Beverages
1030000 Oil, Gas & Consumable Fuels 5120000 Food Products
2020000 Chemicals 5130000 Tobacco
2030000 Construction Materials 5210000 Household Products
2040000 Containers & Packaging 5220000 Personal Products
2050000 Metals & Mining 6020000 Health Care Equipment & Supplies
2060000 Paper & Forest Products 6030000 Health Care Providers & Services
3020000 Aerospace & Defense 9551729 Health Care Technology
3030000 Building Products 6110000 Biotechnology
3040000 Construction & Engineering 6120000 Pharmaceuticals
3050000 Electrical Equipment 9551727 Life Sciences Tools & Services
3060000 Industrial Conglomerates 7011000 Banks
3070000 Machinery 7020000 Thrifts & Mortgage Finance
3080000 Trading Companies & Distributors 7110000 Diversified Financial Services
3110000 Commercial Services & Supplies 7120000 Consumer Finance
9612010 Professional Services 7130000 Capital Markets
3210000 Air Freight & Logistics 7210000 Insurance
3220000 Airlines 7311000 Real Estate Investment Trusts (REITs)
3230000 Marine 7310000 Real Estate Management & Development
3240000 Road & Rail 8020000 Internet Software & Services
3250000 Transportation Infrastructure 8030000 IT Services
4011000 Auto Components 8040000 Software
4020000 Automobiles 8110000 Communications Equipment
4110000 Household Durables 8120000 Technology Hardware, Storage & Peripherals
4120000 Leisure Products 8130000 Electronic Equipment, Instruments & Components
4130000 Textiles, Apparel & Luxury Goods 8210000 Semiconductors & Semiconductor Equipment
4210000 Hotels, Restaurants & Leisure 9020000 Diversified Telecommunication Services
9551701 Diversified Consumer Services 9030000 Wireless Telecommunication Services
Sch. 2-1
USActive 54144740.4

Industry Code Description Industry Code Description
4310000 Media 9520000 Electric Utilities
4410000 Distributors 9530000 Gas Utilities
4420000 Internet and Catalog Retail 9540000 Multi-Utilities
4430000 Multiline Retail 9550000 Water Utilities
4440000 Specialty Retail 9551702 Independent Power and Renewable Electricity Producers
5020000 Food & Staples Retailing



Sch. 2-2
USActive 54144740.4

SCHEDULE 3
INITIAL COLLATERAL LOANS
Asset Primary ID Asset ID Name Currency Type
Identifier 		Portfolio
Name 		Issuer Name Asset Name Asset
Security
ID 		Position
ID 		Par
Amount 		Units Market
Value 		Cost
Price 		Cost
Amount 		Mark
Price
Mark
Price 		Unrealized
Gain 		Quantity
Sch. 3-1


Asset Primary ID Asset ID Name Currency Type
Identifier 		Portfolio
Name 		Issuer Name Asset Name Asset
Security
ID 		Position
ID 		Par
Amount 		Units Market
Value 		Cost
Price 		Cost
Amount 		Mark
Price
Mark
Price 		Unrealized
Gain 		Quantity



Sch. 3-2


SCHEDULE 4
MOODY’S INDUSTRY CLASSIFICATIONS
1. Aerospace & Defense
2. Automotive
3. Banking, Finance, Insurance & Real Estate
4. Beverage, Food & Tobacco
5. Capital Equipment
6. Chemicals, Plastics & Rubber
7. Construction & Building
8. Consumer goods: Durable
9. Consumer goods: Non-durable
10. Containers, Packaging & Glass
11. Energy: Electricity
12. Energy: Oil & Gas
13. Environmental Industries
14. Forest Products & Paper
15. Healthcare & Pharmaceuticals
16. High Tech Industries
17. Hotel, Gaming & Leisure
18. Media: Advertising, Printing & Publishing
19. Media: Broadcasting & Subscription
20. Media: Diversified & Production
21. Metals & Mining
22. Retail
23. Services: Business
Sch. 4-1
USActive 54144740.4

24. Services: Consumer
25. Sovereign & Public Finance
26. Telecommunications
27. Transportation: Cargo
28. Transportation: Consumer
29. Utilities: Electric
30. Utilities: Oil & Gas
31. Utilities: Water
32. Wholesale


Sch. 4-2
USActive 54144740.4

SCHEDULE 5
NOTICE INFORMATION
Borrower
BGSL Breckenridge Funding LLC
c/o Blackstone/GSO Secured Lending Fund
345 Park Avenue
New York, NY 10154

With a copy to:
Dechert LLP
100 North Tryon Street, Suite 4000
Charlotte NC, 28202

Equityholder and Servicer

Blackstone/GSO Secured Lending Fund
345 Park Avenue
New York, New York 10154

With a copy to:
Dechert LLP
100 North Tryon Street, Suite 4000
Charlotte NC, 28202

Administrative Agent

BNP Paribas
Solutions Portfolio Management
787 7th Avenue
New York, New York 10019
Telephone No.: 917-472-4841
Facsimile No.: 212-841-2140
E-mail: dl.bnpp.gso.acquisition@us.bnpparibas.com
Attention: Mary D. Dierdorff

Lender

BNP Paribas
Loan Servicing
525 Washington Blvd, 8th Floor
Jersey City, New Jersey 07310
Attention: NYLS FIG Support
Facsimile no.: 201-850-4014
Sch. 5-1
USActive 54144740.4

E-mail: nyls.fig.support@us.bnpparibas.com

Collateral Agent

Wells Fargo Bank, National Association
Corporate Trust Services Division
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: CDO Trust Services CDO Dept. – BGSL Breckenridge Funding LLC


Sch. 5-2
USActive 54144740.4

SCHEDULE 6

AUTHORIZED SIGNATORIES


Borrower
[Name] [Title]
[Name] [Title]
[Name] [Title]

Equityholder and Servicer
[Name] [Title]
[Name] [Title]
[Name] [Title]

Sch. 6-1
USActive 54144740.4

SCHEDULE 7
DIVERSITY SCORE
“Diversity Score” is calculated by summing each of the Industry Diversity Scores which are calculated as follows and rounding the result up to the nearest whole number (provided that no Defaulted Collateral Loans shall be included in the calculation of the Industry Diversity Score or any component thereof):
(a) “Average Principal Balance” is calculated by summing the Obligor Principal Balances and dividing by the sum of the aggregate number of Obligors;
(b) “Obligor Principal Balance” is calculated for each Obligor represented in the Collateral Loans by summing the Principal Balances of all Collateral Loans (excluding Defaulted Collateral Loans) issued by such Obligor;
(c) “Equivalent Unit Score” is calculated for each Obligor by taking the lesser of (i) one and (ii) the Obligor Principal Balance for such Obligor divided by the Average Principal Balance;
(d) “Aggregate Industry Equivalent Unit Score” is then calculated for each of the 32 Moody’s industrial classification groups set out in Schedule 4 by summing the equivalent unit scores for each Obligor in the industry (or such other industrial classification groups and equivalent unit scores as are published by Moody’s from time to time); and
(e) “Industry Diversity Score” is then established by reference to the diversity score table shown below (or such other diversity score table as is published by Moody’s from time to time) (the “Diversity Score Table”) for the related Aggregate Industry Equivalent Unit Score. If the Aggregate Industry Equivalent Unit Score falls between any two such scores shown in the Diversity Score Table, then the Industry Diversity Score is the lower of the two Industry Diversity Scores in the Diversity Score Table.
For purposes of calculating the Diversity Scores, any Obligors that are Affiliates will be considered to be one Obligor.
Diversity Score Table

Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score
0.0000 0.0000 5.0500 2.7000 10.1500 4.0200 15.2500 4.5300
0.0500 0.1000 5.1500 2.7333 10.2500 4.0300 15.3500 4.5400
0.1500 0.2000 5.2500 2.7667 10.3500 4.0400 15.4500 4.5500
0.2500 0.3000 5.3500 2.8000 10.4500 4.0500 15.5500 4.5600
0.3500 0.4000 5.4500 2.8333 10.5500 4.0600 15.6500 4.5700
Sch. 7-1
USActive 54144740.4

Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score
0.4500 0.5000 5.5500 2.8667 10.6500 4.0700 15.7500 4.5800
0.5500 0.6000 5.6500 2.9000 10.7500 4.0800 15.8500 4.5900
0.6500 0.7000 5.7500 2.9333 10.8500 4.0900 15.9500 4.6000
0.7500 0.8000 5.8500 2.9667 10.9500 4.1000 16.0500 4.6100
0.8500 0.9000 5.9500 3.0000 11.0500 4.1100 16.1500 4.6200
0.9500 1.0000 6.0500 3.0250 11.1500 4.1200 16.2500 4.6300
1.0500 1.0500 6.1500 3.0500 11.2500 4.1300 16.3500 4.6400
1.1500 1.1000 6.2500 3.0750 11.3500 4.1400 16.4500 4.6500
1.2500 1.1500 6.3500 3.1000 11.4500 4.1500 16.5500 4.6600
1.3500 1.2000 6.4500 3.1250 11.5500 4.1600 16.6500 4.6700
1.4500 1.2500 6.5500 3.1500 11.6500 4.1700 16.7500 4.6800
1.5500 1.3000 6.6500 3.1750 11.7500 4.1800 16.8500 4.6900
1.6500 1.3500 6.7500 3.2000 11.8500 4.1900 16.9500 4.7000
1.7500 1.4000 6.8500 3.2250 11.9500 4.2000 17.0500 4.7100
1.8500 1.4500 6.9500 3.2500 12.0500 4.2100 17.1500 4.7200
1.9500 1.5000 7.0500 3.2750 12.1500 4.2200 17.2500 4.7300
2.0500 1.5500 7.1500 3.3000 12.2500 4.2300 17.3500 4.7400
2.1500 1.6000 7.2500 3.3250 12.3500 4.2400 17.4500 4.7500
2.2500 1.6500 7.3500 3.3500 12.4500 4.2500 17.5500 4.7600
2.3500 1.7000 7.4500 3.3750 12.5500 4.2600 17.6500 4.7700
2.4500 1.7500 7.5500 3.4000 12.6500 4.2700 17.7500 4.7800
2.5500 1.8000 7.6500 3.4250 12.7500 4.2800 17.8500 4.7900
2.6500 1.8500 7.7500 3.4500 12.8500 4.2900 17.9500 4.8000
2.7500 1.9000 7.8500 3.4750 12.9500 4.3000 18.0500 4.8100
2.8500 1.9500 7.9500 3.5000 13.0500 4.3100 18.1500 4.8200
2.9500 2.0000 8.0500 3.5250 13.1500 4.3200 18.2500 4.8300
3.0500 2.0333 8.1500 3.5500 13.2500 4.3300 18.3500 4.8400
3.1500 2.0667 8.2500 3.5750 13.3500 4.3400 18.4500 4.8500
3.2500 2.1000 8.3500 3.6000 13.4500 4.3500 18.5500 4.8600
3.3500 2.1333 8.4500 3.6250 13.5500 4.3600 18.6500 4.8700
3.4500 2.1667 8.5500 3.6500 13.6500 4.3700 18.7500 4.8800
3.5500 2.2000 8.6500 3.6750 13.7500 4.3800 18.8500 4.8900
3.6500 2.2333 8.7500 3.7000 13.8500 4.3900 18.9500 4.9000
3.7500 2.2667 8.8500 3.7250 13.9500 4.4000 19.0500 4.9100
3.8500 2.3000 8.9500 3.7500 14.0500 4.4100 19.1500 4.9200
3.9500 2.3333 9.0500 3.7750 14.1500 4.4200 19.2500 4.9300
4.0500 2.3667 9.1500 3.8000 14.2500 4.4300 19.3500 4.9400
4.1500 2.4000 9.2500 3.8250 14.3500 4.4400 19.4500 4.9500
4.2500 2.4333 9.3500 3.8500 14.4500 4.4500 19.5500 4.9600
4.3500 2.4667 9.4500 3.8750 14.5500 4.4600 19.6500 4.9700
4.4500 2.5000 9.5500 3.9000 14.6500 4.4700 19.7500 4.9800
4.5500 2.5333 9.6500 3.9250 14.7500 4.4800 19.8500 4.9900
4.6500 2.5667 9.7500 3.9500 14.8500 4.4900 19.9500 5.0000
4.7500 2.6000 9.8500 3.9750 14.9500 4.5000
4.8500 2.6333 9.9500 4.0000 15.0500 4.5100
Sch. 7-2
USActive 54144740.4

Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score Aggregate Industry Equivalent Unit Score Industry Diversity Score
4.9500 2.6667 10.0500 4.0100 15.1500 4.5200


Sch. 7-3
USActive 54144740.4

SCHEDULE 8
MOODY’S RISKCALC
“.EDF” means, with respect to any Collateral Loan, the weakest of (A) the lowest of the current year and each of the four previous years’ default frequencies for such Collateral Loan as determined by running Version 3.1 or later of Moody’s RiskCalc in the Credit Cycle Adjusted (“CCA”) mode and (B) the current year default frequency for such Collateral Loan as determined by running Version 3.1 or later version of Moody’s RiskCalc in the Financial Statement Only (“FSO”) mode.
“Pre-Qualifying Conditions” means, with respect to any Collateral Loan, conditions that will be satisfied if the Obligor with respect to the applicable Collateral Loan satisfies the following criteria (or as otherwise approved by the Administrative Agent, in its sole discretion):
1. the independent accountants of such Obligor shall have issued a signed, unqualified audit opinion with respect to the most recent fiscal year financial statements, including no explanatory paragraph addressing “going concern” or other issues or such Collateral Loan is subject to a quality of earnings report satisfactory to the Servicer;
2. the Obligor’s EBITDA is equal to or greater than $[4,000,000];
3. the Obligor’s annual sales are equal to or greater than $[10,000,000];
4. the Obligor’s book assets are equal to or greater than $[10,000,000]; and
5. the Obligor is a private company with no public rating from Moody’s.
The Servicer shall calculate the .EDF for each of the Collateral Loans to be rated pursuant to this Schedule 8. The Servicer shall also provide Moody’s with the .EDF and the information necessary to calculate such .EDF upon request from Moody’s. Moody’s shall have the right (in its commercially reasonable judgment) to (i) amend or modify any of the information utilized to calculate the .EDF and recalculate the .EDF based upon such revised information, in which case such .EDF shall be determined using the table in the paragraph below in order to determine the applicable Moody’s rating, or (ii) have a Moody’s credit analyst provide a rating estimate for any Collateral Loan rated pursuant to this Schedule 8, in which case such rating estimate provided by such credit analyst shall be the applicable Moody’s rating.
The Moody’s rating for each Collateral Loan that satisfies the Pre-Qualifying Conditions shall be the rating based on the .EDF for such Collateral Loan, as determined in accordance with the table below:
Sch. 8-1
USActive 54144740.4

Lowest .EDF
Moody’s rating
less than or equal to .baa
Ba3
.ba1
B2
.ba2, .ba3 or .b1
B2
.b2 or .b3
B3
.caa
Caa1
The Borrower shall refresh Moody’s RiskCalc (a) at least annually and (b) promptly upon the occurrence of a Revaluation Event with respect to such Collateral Loan.



USActive 54144740.4

USActive 54144740.4

SCHEDULE 9
INITIAL ASSET LIST


Sch. 8-1
USActive 54144740.4
Exhibit 10.2
Execution Copy
Commitment Increase Request and Second Amendment to Loan and Security Agreement
September 20, 2019
JPMorgan Chase Bank, National Association,
as Administrative Agent
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Newark, Delaware 19713
Attention: Ryan Hanks
JPMorgan Chase Bank, National Association,
as Administrative Agent
383 Madison Avenue
New York, New York 10179
Attention: Louis Cerrotta
Email:  louis.cerrotta@jpmorgan.com
ruchira.patel@jpmorgan.com
ct.financing.requests@jpmorgan.com
de_custom_business@jpmorgan.com
CAS_Financing@jpmorgan.com

JPMorgan Chase Bank, National Association,
as Lender
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Newark, Delaware 19713
Attention: Robert Nichols
cc: Citibank, N.A., as Collateral Agent and Securities Intermediary
Virtus Group, LP, as Collateral Administrator
Blackstone/GSO Secured Lending Fund, as Portfolio Manager

Ladies and Gentlemen:
Reference is hereby made to the Loan and Security Agreement, dated as of November 16, 2018 (as amended by the First Amendment to Loan and Security Agreement dated as of February 6, 2019, the "Agreement"), among BGSL Jackson Hole Funding LLC, as borrower (the "Company"), JPMorgan Chase Bank, National Association, as administrative agent (the "Administrative Agent"), Blackstone/GSO Secured Lending Fund, as portfolio manager (the "Portfolio Manager"), the financing providers party thereto, and the collateral agent, collateral administrator and securities intermediary party thereto. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given such terms in the Agreement.
(A) Pursuant to the Agreement, you are hereby notified of the following:
(1) The Company hereby makes a Commitment Increase Request (this "Commitment Increase Request") and requests an increase of the Financing Commitments by an amount equal


to $300,000,000.00 on September 20, 2019 (which such date shall constitute a "Commitment Increase Date" under the Agreement).
(2) The Company hereby certifies that no Event of Default has occurred and is continuing and no Market Value Event has occurred.
(B) The Agreement is hereby amended in accordance with Section 10.05 thereof to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages of the Agreement attached as Exhibit A hereto. Exhibit A hereto constitutes a conformed copy of the Agreement including amendments made pursuant to this Commitment Increase Request and Second Amendment to Loan and Security Agreement.
(C) Except as expressly set forth in the immediately preceding paragraph, the Administrative Agent (in its own capacity and in its capacity as agent of the Lenders) reserves all of its rights, privileges, powers and remedies under the Agreement and the other Loan Documents, as well as under applicable law (whether determined at law or in equity). Except as specifically provided herein, the Agreement shall remain in full force and effect and the execution of this Commitment Increase Request and Second Amendment to Loan and Security Agreement shall not operate as a waiver of any violation of, or any right, privilege, power or remedy of any party under, the Agreement or any other Loan Document; all such rights, privileges, powers and remedies are expressly reserved.  The Administrative Agent's or any Lender's exercise or failure to exercise any rights, privileges, powers and remedies under any of the foregoing in a particular instance shall not operate as a waiver of its right to exercise the same or different rights, privileges, powers and/or remedies in any other instance or instances.
(D) THIS COMMITMENT INCREASE REQUEST AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(E) This Commitment Increase Request and Second Amendment to Loan and Security Agreement may be executed in any number of counterparts by facsimile or other written form of communication, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.
(F) The Collateral Agent, the Collateral Administrator and the Securities Intermediary assume no responsibility for the correctness of the recitals contained herein, and the Collateral Agent, the Collateral Administrator and the Securities Intermediary shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of this Commitment Increase Request and Second Amendment to Loan and Security Agreement and makes no representation with respect thereto. In entering into this Commitment Increase Request and Second Amendment to Loan and Security Agreement, the Collateral Agent, the Collateral Administrator and the Securities Intermediary shall be entitled to the benefit of every provision of the Agreement relating to the conduct or affecting the liability of or affording protection to the Collateral Agent, the Collateral Administrator and the Securities Intermediary, including their right to be compensated, reimbursed and indemnified in accordance with the terms thereof. The Administrative Agent, by its signature hereto, authorizes and directs the Collateral Agent, the Collateral Administrator and the Securities Intermediary to execute this Commitment Increase Request and Second Amendment to Loan and Security Agreement.




Very truly yours,
BGSL JACKSON HOLE FUNDING LLC, as Company
By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Authorized Signatory
The Administrative Agent hereby approves the Commitment Increase Request and Second Amendment to Loan and Security Agreement in accordance with the terms of the Agreement and the Administrative Agent and the Lender agree to the modifications of the Agreement set forth in this Commitment Increase Request and Amendment above.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender
By: /s/ James Greenfield
Name: James Greenfield
Executive Director



Acknowledged and agreed as of the first date set forth above for purposes of the modifications of the Agreement set forth in this Commitment Increase Request and Second Amendment to Loan and Security Agreement above:

BLACKSTONE/GSO SECURED LENDING FUND, as Portfolio Manager
By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Authorized Signatory

CITIBANK, N.A., as Collateral Agent
By: /s/ Thomas Varcados
Name: Thomas Varcados
Senior Trust Officer
CITIBANK, N.A., as Securities Intermediary
By: /s/ Thomas Varcados
Name: Thomas Varcados
Senior Trust Officer

VIRTUS GROUP, LP, as Collateral Administrator
By: __________________________________
By: /s/ Joseph U. Elston
Name: Joseph U. Elston
Partner


Execution Copy
Conformed through Commitment Increase Request and Second Amendment to Loan and Security Agreement dated as of September 20, 2019

LOAN AND SECURITY AGREEMENT
dated as of 
November 16, 2018 
among
BGSL JACKSON HOLE FUNDING LLC
The Lenders Party Hereto
The Collateral Administrator, Collateral Agent and Securities Intermediary Party Hereto

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
BLACKSTONE/GSO SECURED LENDING FUND,
as Portfolio Manager






Table of Contents

ARTICLE I
THE PORTFOLIO INVESTMENTS
SECTION 1.01. Purchases of Portfolio Investments 26
SECTION 1.02. Procedures for Purchases and Related Advances 26
SECTION 1.03. Conditions to Purchases and Substitutions 27
SECTION 1.04. Sales of Portfolio Investments 27
SECTION 1.05. Additional Equity Contributions 30
SECTION 1.06. Substitutions; Limitations on Sales and Substitutions 30
SECTION 1.07. Certain Assumptions relating to Portfolio Investments 30
SECTION 1.08. Currency Equivalents Generally. 30
ARTICLE II
THE ADVANCES
SECTION 2.01. Financing Commitments 31
SECTION 2.02. [Reserved] 31
SECTION 2.03. Advances; Use of Proceeds 31
SECTION 2.04. Conditions to Effective Date 32
SECTION 2.05. Conditions to Advances 33
SECTION 2.06. Commitment Increase Request 34
ARTICLE III
ADDITIONAL TERMS APPLICABLE TO THE ADVANCES
SECTION 3.01. The Advances 35
SECTION 3.02. [Reserved] 38
SECTION 3.03. Taxes 38
SECTION 3.04. Mitigation Obligations. 42
ARTICLE IV
COLLECTIONS AND PAYMENTS
SECTION 4.01. Interest Proceeds 42
SECTION 4.02. Principal Proceeds 43
SECTION 4.03. Principal and Interest Payments; Prepayments; Commitment Fee 44
SECTION 4.04. MV Cure Account 45
SECTION 4.05. Priority of Payments 45
SECTION 4.06. Payments Generally 47
SECTION 4.07. Termination or Reduction of Financing Commitments 47
ARTICLE V
THE PORTFOLIO MANAGER
SECTION 5.01. Appointment and Duties of the Portfolio Manager 48
SECTION 5.02. Portfolio Manager Representations as to Eligibility Criteria; Etc 49



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SECTION 5.03. Indemnification 49
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 6.01. Representations and Warranties 49
SECTION 6.02. Covenants of the Company and the Portfolio Manager 53
SECTION 6.03. Amendments of Portfolio Investments, Etc 59
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
COLLATERAL ACCOUNTS; NON-USD OBLIGATION ACCOUNTS AND COLLATERAL SECURITY
SECTION 8.01. The Collateral Accounts; Agreement as to Control 61
SECTION 8.02. Collateral Security; Pledge; Delivery 63
ARTICLE IX
THE AGENTS
SECTION 9.01. Appointment of Administrative Agent and Collateral Agent 66
SECTION 9.02. Additional Provisions Relating to the Collateral Agent and the Collateral Administrator 69
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Non-Petition; Limited Recourse 72
SECTION 10.02. Notices 73
SECTION 10.03. No Waiver 73
SECTION 10.04. Expenses; Indemnity; Damage Waiver; Right of Setoff 73
SECTION 10.05. Amendments 74
SECTION 10.06. Successors; Assignments 75
SECTION 10.07. Confidentiality 77
SECTION 10.08. Governing Law; Submission to Jurisdiction; Etc 77
SECTION 10.09. Interest Rate Limitation 78
SECTION 10.10. PATRIOT Act 78
SECTION 10.11. Counterparts 78
SECTION 10.12. Headings 78
SECTION 10.13. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 78

Schedules
Schedule 1 Transaction Schedule
Schedule 2 Contents of Notice of Acquisition


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Schedule 3 Eligibility Criteria
Schedule 4 Concentration Limitations
Schedule 5 Initial Portfolio Investments
Schedule 6 Moody's Industry Classifications

Exhibits
Exhibit A Form of Request for Advance




LOAN AND SECURITY AGREEMENT dated as of November 16, 2018 (this "Agreement") among BGSL JACKSON HOLE FUNDING LLC, as borrower (the "Company"); BLACKSTONE/GSO SECURED LENDING FUND, as portfolio manager (in such capacity, the "Portfolio Manager"); the Lenders party hereto; CITIBANK, N.A., in its capacities as collateral agent (in such capacity, the "Collateral Agent") and securities intermediary (in such capacity, the "Securities Intermediary"); VIRTUS GROUP, LP, in its capacity as collateral administrator (in such capacity, the "Collateral Administrator"); and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders hereunder (in such capacity, the "Administrative Agent").
The Portfolio Manager and the Company wish for the Company to acquire and finance certain corporate loans and other corporate debt securities (the "Portfolio Investments"), all on and subject to the terms and conditions set forth herein.
Furthermore, the Company intends to enter into a Loan Sale and Contribution Agreement (the "Sale Agreement"), dated on or about the date hereof, between the Company and the Parent (in such capacity, the "Seller"), pursuant to which the Company shall from time to time acquire Portfolio Investments from the Seller.
On and subject to the terms and conditions set forth herein, JPMorgan Chase Bank, National Association ("JPMCB") and its respective successors and permitted assigns (together with JPMCB, the "Lenders") have agreed to make advances to the Company ("Advances") hereunder to the extent specified on the transaction schedule attached as Schedule 1 hereto (the "Transaction Schedule").
Accordingly, the parties hereto agree as follows:
Certain Defined Terms
"Account Control Agreement" means the Securities Account Control Agreement, dated as of November 16, 2018, among the Company, the Administrative Agent, the Collateral Agent and the Securities Intermediary.
        "Additional Distribution Date" has the meaning set forth in Section 4.05.
        "Adjusted Applicable Margin" means the stated Applicable Margin for Advances set forth on the Transaction Schedule plus 2% per annum.
        "Administrative Agent" has the meaning set forth in the introductory section of this Agreement.
        "Advances" has the meaning set forth in the introductory section of this Agreement.
        "Adverse Proceeding" means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Company) at law or in equity, or before or by any Governmental Authority, whether pending, active or, to the Company's or the Portfolio Manager's knowledge, threatened against or affecting the Company or the Portfolio Manager or their respective property that would reasonably be expected to result in a Material Adverse Effect.



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        "Affiliate" means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such former Person but, which shall not, with respect to the Company, include the obligors under any Portfolio Investment. For the purposes of this definition, control of a Person shall mean the power, direct or indirect, (i) to vote more than 50% of the securities having ordinary voting power for the election of directors of any such Person or (ii) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
        "Agent" has the meaning set forth in Section 9.01.
        "Agent Business Day" means any day on which commercial banks settle payments in each of New York City and the city in which the corporate trust office of the Collateral Agent is located (which shall initially be New York City).
        "Agreement" has the meaning set forth in the introductory paragraph hereto.
        "Amendment" has the meaning set forth in Section 6.03.
        "Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Company from time to time concerning or relating to bribery or corruption.
        "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 Governmental Authority applicable to such Person and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.
        "Base Rate" means, for any day,(i) with respect to USD denominated Advances, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.5% , (ii) with respect to CAD denominated Advances, the Canadian Prime Rate and (iii) with respect to any EUR or GBP denominated Advances, the annual rate of interest announced from time to time by the Administrative Agent (or an affiliate thereof) as being its reference rate then in effect for determining interest rates on commercial loans made by it in the United Kingdom (with respect to Advances denominated in GBP) or the Euro Zone (with respect to Advances denominated in EUR). Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, the Canadian Prime Rate or a rate specified in clause (iii) above shall be effective from and including the effective date of such change. In the event that that any applicable Base Rate is below zero percent at any time during the term of this Agreement, it shall be deemed to be zero percent until it exceeds zero percent again.
        "Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
        "Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
        "Bond" means a debt security that is not a Loan.


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"Borrowing Base Test" means a test that will be satisfied on any date of determination if the following is true:
Where:
AR = 62%.
"Broadly Syndicated Portfolio Investment" means, as of any date of determination, (a) a Senior Secured Loan or a Second Lien Loan for which at least two bids can be obtained through LoanX/Markit Group Limited or (b) a debt security of which at least $2,000,000 in aggregate principal amount has been traded on TRACE in the thirty (30) calendar days immediately preceding such date of determination.
        "Business Day" means any day on which commercial banks are open in each of New York City and the city in which the corporate trust office of the Collateral Agent is located; provided that (i) with respect to any LIBO Rate related provisions herein or the payment or conversion of amounts denominated in GBP, "Business Day" shall be deemed to exclude any day on which banks are required or authorized to be closed in London, England, (ii) with respect to any provisions herein relating to the setting of EURIBOR or the calculation or conversion of amounts denominated in EUR, Business Day shall be deemed to exclude any day on which banks are required or authorized to be closed in London, England or which is not a TARGET2 Settlement Day and (iii) with respect to any provisions herein relating to the calculation or conversion of amounts denominated in CAD, Business Day shall be deemed to exclude any day on which banks are required or authorized to be closed in Toronto, Canada.
        "CAD" and "C$" mean Canadian dollars.
        "CAD Collection Account" means an account, if any, established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "CAD Collection Account".
        "CAD Unfunded Exposure Account" means, solely to the extent that any Delayed Funding Term Loan is denominated in CAD, an account, if any, established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "CAD Unfunded Exposure Account".
        "Calculation Period" means the quarterly period from and including the date on which the first Advance is made hereunder to but excluding the first Calculation Period Start Date following the date of such Advance and each successive quarterly period from and including a Calculation Period Start Date to but excluding the immediately succeeding Calculation Period Start Date (or, in the case of the last Calculation Period, if the last Calculation Period does not end on the last calendar day of March, June, September or December, the period from and including the related Calculation Period Start Date to but excluding the Maturity Date).


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        "Calculation Period Start Date" means the first calendar day of March, June, September and December of each year (or, if any such date is not a Business Day, the immediately succeeding Business Day), commencing in June 2019.
        "Canadian Prime Rate" means, on any day, the rate determined by the Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN Index rate published by Bloomberg Financial Markets Commodities News (or any successor to or substitute for such service, providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time) at 10:15 a.m. Toronto time on such day and (ii) the CDOR Rate, plus 1% per annum. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index or the CDOR Rate shall be effective from and including the effective date of such change in the PRIMCAN Index or CDOR Rate, respectively.
        "Cap" has the meaning set forth in Section 4.05(a).
        "Cash Equivalents" means, any of the following, denominated in USD or, following the establishment of the Non-USD Custodial Account, a Permitted Non-USD Currency for which Non-USD Obligation Accounts have been established: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by (x) the United States Government or (y) in the case of Cash Equivalents credited to any Non-USD Obligation Account, the government of another Eligible Jurisdiction (other than Bermuda or the Cayman Islands) having, at the time of the acquisition thereof, a sovereign debt rating (or its equivalent) of at least "A-1" (short term) or "A+" (long term) from S&P Global Ratings ("S&P") or at least "P-1" (short term) or "A1" (long term) from Moody's Investors Service ("Moody's") or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least "A-1" from S&P or at least "P-1" from Moody's; (iii) commercial paper maturing no more than three months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least "A-1" from S&P or at least "P-1" from Moody's; (iv) certificates of deposit or bankers' acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia or, in the case of Cash Equivalents credited to any Non-USD Obligation Account, the laws of the jurisdiction or any constituent jurisdiction of another Eligible Jurisdiction (other than Bermuda or the Cayman Islands) that (a) is at least "adequately capitalized" (as defined in the regulations of its primary banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from either S&P or Moody's.
        "CDOR Rate" means, on any day and for any period, an annual rate of interest equal to the average rate applicable to CAD bankers’ acceptances for a three month period (or, for purposes of the definition of the term "Canadian Prime Rate", a thirty day period) that appears on the


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Reuters Screen CDOR Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time), rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:15 a.m. Toronto time on such day, or if such day is not a Business Day, then on the immediately preceding Business Day (the "Screen Rate"); provided that if such Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
        "Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) shall be deemed to have occurred after the date of this Agreement for purposes of this definition, regardless of the date adopted, issued, promulgated or implemented.
        "Change of Control" means an event or series of events by which (A) the Parent or its Affiliates, collectively, (i) shall cease to possess, directly or indirectly, the right to elect or appoint (through contract, ownership of voting securities, or otherwise) managers that at all times have a majority of the votes of the board of managers (or similar governing body) of the Company or to direct the management policies and decisions of the Company or (ii) shall cease, directly or indirectly, to own and control legally and beneficially all of the equity interests of the Company or (B) GSO Asset Management LLC or its Affiliates shall cease to be the investment advisor of the Parent.
        "Charges" has the meaning set forth in Section 10.09.
        "Code" means the Internal Revenue Code of 1986, as amended.
        "Collateral" has the meaning set forth in Section 8.02(a).
        "Collateral Accounts" has the meaning set forth in Section 8.01(a).
        "Collateral Administrator" has the meaning set forth in the introductory section of this Agreement.
        "Collateral Agent" has the meaning set forth in the introductory section of this Agreement.
        "Collateral Principal Amount" means on any date of determination (A) the aggregate principal balance of the Portfolio, including the funded and unfunded balance on any Delayed Funding Term Loan, as of such date plus (B) the amounts on deposit in the Collateral Accounts and the


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Non-USD Obligation Accounts (including cash and Eligible Investments) representing Principal Proceeds as of such date minus (C) the aggregate principal balance of all Ineligible Investments as of such date.
        "Collection Account" means the account(s) established by the Securities Intermediary and set forth on the Transaction Schedule and any successor accounts established in connection with the resignation or removal of the Securities Intermediary.
        "Commitment Fee" has the meaning set forth in Section 4.03(d).
        "Commitment Increase Date" means the effective date (which shall be a Business Day) of an increase of the Financing Commitments in accordance with Section 2.06 pursuant to a Commitment Increase Request which the Administrative Agent (in its sole discretion) approves in writing (which may be by email).
        "Commitment Increase Request" means, on any date during the Reinvestment Period, the request of the Company in writing (which may be by email) to the Administrative Agent and the Lenders for an increase of the Financing Commitments pursuant to Section 2.06.
        "Company" has the meaning set forth in the introductory section of this Agreement.
        "Concentration Limitation Excess" means, on any date of determination, without duplication, all or the portion of the principal amount of any Portfolio Investment (other than any Ineligible Investment) that exceeds any Concentration Limitation as of such date; provided that the Portfolio Manager (on behalf of the Company) shall select in its sole discretion which Portfolio Investment(s) constitute part of the Concentration Limitation Excess; provided further that with respect to any Delayed Funding Term Loan, the Portfolio Manager shall select any term Portfolio Investment from the same obligor and/or any funded portion of the aggregate commitment amount of such Delayed Funding Term Loan before selecting any unfunded portion of such aggregate commitment amount; provided further that if the Portfolio Manager does not so select any Portfolio Investment(s), the applicable portion of the Portfolio Investment(s) resulting with the greatest degree of compliance with the Borrowing Base Test (in the reasonable determination of the Administrative Agent) shall make up the Concentration Limitation Excess.
        "Concentration Limitations" has the meaning set forth in Schedule 4.
        "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.
        "Credit Risk Party" has the meaning set forth in Article VII.
        "Currency" means USD and any Permitted Non-USD Currency.
        "Currency Amendment" has the meaning set forth in Section 10.05.
        "Currency Shortfall" has the meaning specified in Section 4.06(b).


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        "Custodial Account" means the account(s) established by the Securities Intermediary and set forth on the Transaction Schedule and any successor accounts established in connection with the resignation or removal of the Securities Intermediary.
        "Default" has the meaning set forth in Section 1.03.
        "Delayed Funding Term Loan" means any Loan that (a) requires the holder thereof to make one or more future advances to the obligor under the underlying instruments relating thereto, (b) specifies a maximum amount that can be borrowed on or prior to one or more fixed dates, and (c) does not permit the re-borrowing of any amount previously repaid by the obligor thereunder; but, for the avoidance of doubt, any such Loan will be a Delayed Funding Term Loan only until all commitments by the holders thereof to make such future advances to the obligor thereon expire or are terminated or reduced to zero.
"Deliver" (and its correlative forms) means the taking of the following steps by the Company or the Portfolio Manager:
(1) except as provided in clauses (3) or (4) below, in the case of Portfolio Investments and Eligible Investments and amounts on deposit in the Collateral Accounts, by (x) causing the Securities Intermediary to indicate by book entry that a financial asset comprised thereof has been credited to the applicable Collateral Account and (y) causing the Securities Intermediary to agree, pursuant to the Account Control Agreement, that it will comply with entitlement orders originated by the Collateral Agent with respect to each such security entitlement without further consent by the Company;
(2)  in the case of each general intangible, by notifying the obligor thereunder of the security interest of the Collateral Agent (except to the extent that the requirement for consent by any person to the pledge hereunder or transfer thereof to the Collateral Agent or the Administrative Agent is rendered ineffective under Section 9-406 of the UCC, no such requirement for consent exists in the underlying documents or such consent has otherwise been obtained);
(3) in the case of Portfolio Investments consisting of money or instruments (the "New York Collateral") that do not constitute a financial asset forming the basis of a security entitlement delivered to the Collateral Agent pursuant to clause (1) above, by causing (x) the Collateral Agent to obtain possession of such New York Collateral in the State of New York, or (y) a Person other than the Company and a securities intermediary (A)(I) to obtain possession of such New York Collateral in the State of New York, and (II) to then authenticate a record acknowledging that it holds possession of such New York Collateral for the benefit of the Collateral Agent or (B)(I) to authenticate a record acknowledging that it will take possession of such New York Collateral for the benefit of the Collateral Agent and (II) to then acquire possession of such New York Collateral in the State of New York;
(4) in the case of any account which constitutes a "deposit account" under Article 9 of the UCC, by causing the Securities Intermediary to continuously identify in its books and records the security interest of the Collateral Agent in such account and, except as may be expressly provided herein to the contrary, establishing dominion and control over such account in favor of the Collateral Agent; and


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        (5) in all cases, by filing or causing the filing of a financing statement with respect to such Collateral with the Delaware Secretary of State.
        Notwithstanding clauses (1), (3) and (4) above, in the case of all Non-USD Obligations and Eligible Investments and amounts denominated in a Permitted Non-USD Currency, the Company shall cause all such Non-USD Obligations that constitute certificated securities (including securities represented by a global certificate) or are represented by a loan note or other instrument (if any), and all Eligible Investments denominated in a Permitted Non-USD Currency, to be credited to the Non-USD Custodial Account, and shall cause all such cash amounts to be deposited into the applicable Non-USD Collection Account, in each case, in accordance with this Agreement and the Security Trust Deed.
        "Designated Email Notification Address" means Shaker.choudhury@gsocap.com, provided that, so long as no Event of Default shall have occurred and be continuing and no Market Value Event shall have occurred, the Company may, upon at least five (5) Business Day's written notice to the Administrative Agent, the Collateral Administrator and the Collateral Agent, designate any other email address as the Designated Email Notification Address.
        "Designated Independent Dealer" means J.P. Morgan Securities LLC; provided that, so long as no Market Value Event shall have occurred and no Event of Default shall have occurred and be continuing, the Portfolio Manager may, upon at least five (5) Business Day's written notice to the Administrative Agent, the Collateral Administrator and the Collateral Agent, designate another Independent Dealer as the Designated Independent Dealer.
        "Dollar Equivalent" means, with respect to any Advance denominated in a Permitted Non-USD Currency, the amount of USD that would be required to purchase the amount of such Permitted Non-USD Currency of such Advance using the reciprocal foreign exchange rates obtained as described in the definition of the term Spot Rate.
        "Effective Date" has the meaning set forth in Section 2.04.
        "Effective Date Letter" means that certain letter agreement, dated as of the Effective Date, between the Company and the Administrative Agent.
        "Eligibility Criteria" has the meaning set forth in Section 1.03.
        "Eligible Assignee" means at the time of any relevant assignment pursuant to Section 10.06, (i) an Affiliate of the related assignor, (ii) a bank, (iii) an insurance company or (iv) any Person, other than, in the case of this clause (iv), (a) any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural 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 Company or the Portfolio Manager, or any Affiliate thereof that is an investment advisor, (b) any Person controlled by, or controlling, or under common control with, or which


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is a sponsor of, 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.
        "Eligible Investments" has the meaning set forth in Section 4.01.
        "EMU Legislation" means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
        "ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended.
        "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Company or the Parent, as applicable, within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412, 430 or 431 of the Code).
        "ERISA Event" means that (1) any of the Company or the Parent has underlying assets which constitute "plan assets" within the meaning of the Plan Asset Rules or (2) any of the Company, the Parent or any ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to or has any material liability with respect to any Plan.
        "EUR", "Euros" and "€" mean the lawful currency of each state so described in any EMU Legislation introduced in accordance with the EMU Legislation.
        "EURIBOR" means, for each Calculation Period relating to an Advance in EUR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) displayed on Reuters Screen EURIBOR01 on the Bloomberg Financial Markets Commodities News (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in the EUR in the Euro Zone) at approximately 11:00 a.m., Brussels time, two (2) Business Days prior to the commencement of such Calculation Period, as the rate for EUR deposits with a maturity of three months. If such rate is not available at such time for any reason, then EURIBOR for such Calculation Period shall be the rate (which shall not be less than zero) at which EUR deposits in an amount corresponding to the amount of such Advance and for the applicable maturity are offered by the principal Brussels office of the Administrative Agent in immediately available funds in the Euro Zone interbank market at approximately 11:00 a.m., Brussels time, two (2) Business Days prior to the commencement of such Calculation Period. Notwithstanding anything in the foregoing to the contrary, if EURIBOR as calculated for any purpose under this Agreement is below zero percent, EURIBOR will be deemed to be zero percent for such purpose until such time as it exceeds zero percent again.
        "Euro Collection Account" means the account established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "Euro Collection Account" with the account number specified in the Transaction Schedule.


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        "Euro Unfunded Exposure Account" means, solely to the extent that any Delayed Funding Term Loan is denominated in Euros, an account, if any, established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "Euro Unfunded Exposure Account".
        "Event of Default" has the meaning set forth in Article VII.
        "Excess Funded Amount" has the meaning set forth in Section 4.03(c)(i).
        "Excess Interest Proceeds" means, at any time of determination, the excess of (1) amounts then on deposit in the Collateral Accounts and the Non-USD Obligation Accounts representing Interest Proceeds over (2) the projected amount required to be paid pursuant to Section 4.05(a) and (b) on the next Interest Payment Date, the next Additional Distribution Date or the Maturity Date, as applicable, in each case, as determined by the Company in good faith and in a commercially reasonable manner.
        "Excluded Taxes" means any of the following Taxes imposed on or with respect to a Secured Party or required to be withheld or deducted from a payment to a Secured Party, (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 Secured Party 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 a Financing Commitment or Advance pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Financing Commitment or Advance or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.03, 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 Secured Party's failure to comply with Section 3.03(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
        "FATCA" means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and intergovernmental agreements thereunder, similar or related non-U.S. law that correspond to Sections 1471 to 1474 of the Code, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any U.S. or non-U.S. fiscal or regulatory law, legislation, rules, guidance, notes or practices adopted pursuant to such intergovernmental agreement.
        "Federal Funds Effective Rate" means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time, and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the effective federal funds rate, provided that if the Federal Funds


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Effective Rate as so determined would be less than zero percent, such rate shall be deemed to zero percent for the purposes of this Agreement.
        "Financing Commitment" means, with respect to each Lender, the commitment of such Lender to provide Advances to the Company hereunder in an amount up to but not exceeding the amount set forth opposite such Lender's name on the Transaction Schedule.
        "First Amendment Date" means February 6, 2019.
        "Foreign Lender" means a Lender that is not a U.S. Person.
        "GAAP" means generally accepted accounting principles in effect from time to time in the United States, as applied from time to time by the Company.
        "GBP" and "£" mean British Pounds.
        "GBP Collection Account" means an account, if any, established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "GBP Collection Account".
        "GBP Unfunded Exposure Account" means, solely to the extent that any Delayed Funding Term Loan is denominated in GBP, an account, if any, established by the UK Account Bank in accordance with this Agreement and the Security Trust Deed and designated as the "GBP Unfunded Exposure Account".
        "Governmental Authority" means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
        "Indebtedness" as applied to any Person, means, without duplication, as determined in accordance with GAAP, (i) all indebtedness 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 and accrued expenses arising in the ordinary course of business; (iv) that portion of obligations with respect to capital leases that is properly classified as a liability of such Person on a balance sheet; (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, lease obligations or similar obligations to repay money of others guaranteed by such Person or for which such Person acts as contractual surety 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. Notwithstanding the foregoing, "Indebtedness" shall not


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include a commitment arising in the ordinary course of business to purchase a future Portfolio Investment in accordance with the terms of this Agreement.
        "Indemnified Person" has the meaning specified in Section 5.03.
        "Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company under this Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
        "Indemnitee" has the meaning set forth in Section 10.04(b).
        "Independent Dealer" means any of the following (as such list may be revised from time to time by mutual agreement of the Company and the Administrative Agent): (a) JPMorgan Securities, Deutsche Bank Securities Inc., Citigroup Global Markets Inc., Goldman Sachs & Co., Société Générale Securities Services, Morgan Stanley Smith Barney LLC, Bank of America Merrill Lynch, BNP Paribas Securities Corp, Barclays Capital Inc., Credit Suisse Securities (UA) LLC, UBS Financial Services Inc., Wells Fargo Clearing Services, LLC, Jefferies LLC or RBC Capital Markets LLC or (b) any banking or securities Affiliate of any Person specified in clause (a), but in no event including the Company or any Affiliate of the Company.
        "Ineligible Investment" means any Portfolio Investment that fails, at any time, to satisfy the Eligibility Criteria; provided that with respect to any Portfolio Investment for which the Administrative Agent has waived one or more of the criteria set forth on Schedule 3, the Eligibility Criteria in respect of such Portfolio Investment shall be deemed not to include such waived criteria at any time after such waiver and such Portfolio Investment shall not be considered an "Ineligible Investment" by reason of its failure to meet such waived criteria; provided further that any Portfolio Investment (other than an Initial Portfolio Investment) which has not been approved by the Administrative Agent pursuant to Section 1.02 on or prior to its Trade Date will be deemed to be an Ineligible Investment until such later date (if any) on which such Portfolio Investment is so approved; provided further that (x) any Participation Interest granted under the Sale Agreement on the Effective Date that has not been elevated to an absolute assignment on or prior to the 45th calendar day following the Effective Date (or, if the Company (or the Portfolio Manager on its behalf) has used commercially reasonable efforts to effect such elevation within such 45 calendar day period and has been unable to do so, the 90th calendar day following the Effective Date) and (y) any other Participation Interest that has not been elevated to an absolute assignment on or prior to the 45th calendar day following the Trade Date for such Participation Interest, in each case, shall constitute an Ineligible Investment until the date on which such elevation has occurred.
        "Information" means (i) the Loan Documents and the details of the provisions thereof and (ii) all information received from the Company or any Affiliate thereof relating to the Company or its business or any obligor in respect of any Portfolio Investment in connection with the transactions contemplated by this Agreement.
        "Initial Portfolio Investments" means the Portfolio Investments listed in Schedule 5.


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        "Interest Payment Date" has the meaning set forth in Section 4.03(b).
        "Interest Proceeds" means all payments of interest received in respect of the Portfolio Investments and Eligible Investments acquired with the proceeds of Portfolio Investments (in each case other than accrued interest purchased using Principal Proceeds, but including proceeds received from the sale of interest accrued after the date on which the Company acquired the related Portfolio Investment), all other payments on the Eligible Investments acquired with the proceeds of Portfolio Investments (for the avoidance of doubt, such other payments shall not include principal payments (including, without limitation, prepayments, repayments or sale proceeds) with respect to Eligible Investments acquired with Principal Proceeds) and all payments of fees, dividends and other similar amounts received in respect of the Portfolio Investments or deposited into any of the Collateral Accounts or the Non-USD Obligation Accounts (including closing fees, commitment fees, facility fees, late payment fees, amendment fees, waiver fees, prepayment fees and premiums, ticking fees, delayed compensation, customary syndication or other up-front fees and customary administrative agency or similar fees); provided, however, that for the avoidance of doubt, Interest Proceeds shall not include amounts or Eligible Investments in the MV Cure Account, the Unfunded Exposure Account or any Non-USD Unfunded Exposure Account or any proceeds therefrom.
        "Investment" means (a) the purchase of any debt or equity security of any other Person, (b) the making of any Loan or advance to any other Person, or (c) becoming obligated with respect to a contingent obligation in respect of obligations of any other Person.
        "IRS" means the United States Internal Revenue Service.
        "JPMCB" has the meaning set forth in the introductory section of this Agreement.
        "Lender Participant" has the meaning set forth in Section 10.06(c).
        "Lenders" has the meaning set forth in the introductory section of this Agreement.
        "Liabilities" has the meaning set forth in Section 5.03.
        "LIBO Rate" means, for each Calculation Period relating to an Advance denominated in USD or GBP, the rate appearing on the Reuters Screen LIBOR 01 Page (or, in the case of a GBP denominated Advance, the Reuters Screen LIBOR 02 Page) on the Bloomberg Financial Markets Commodities News (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in the applicable Currency in the London interbank market) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Calculation Period, as the rate for U.S. Dollar deposits (or, in the case of a GBP denominated Advance, deposits in GBP) with a maturity of three months. If such rate is not available at such time for any reason, then the LIBO Rate for such Calculation Period shall be the rate (which shall not be less than


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zero) at which U.S. Dollar deposits (or, in the case of a GBP denominated Advance, deposits in GBP) in an amount corresponding to the amount of such Advance and for the applicable maturity are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Calculation Period. Notwithstanding anything in the foregoing to the contrary, if the LIBO Rate as calculated for any purpose under this Agreement is below zero percent, the LIBO Rate will be deemed to be zero percent for such purpose until such time as it exceeds zero percent again.
        "Lien" means any security interest, lien, charge, pledge, preference or encumbrance of any kind, in each case securing the payment of obligations, including tax liens, mechanics' liens and any liens that attach by operation of law.
        "Loan" means any obligation for the payment or repayment of borrowed money that is documented by a term and/or revolving loan agreement or other similar credit agreement.
        "Loan Documents" means this Agreement, the Sale Agreement, the Account Control Agreement, each Non-USD Obligation Security Document and such other agreements and documents, and any amendments or supplements thereto or modifications thereof, in each case executed or delivered by the Company or any Affiliate thereof with or in favor of the Administrative Agent and/or the Lenders pursuant to the terms of this Agreement or any of the other Loan Documents and any additional documents delivered by the Company or any Affiliate thereof to or in favor of the Administrative Agent and/or the Lenders in connection with any such amendment, supplement or modification.
        "Margin Stock" has the meaning provided such term in Regulation U of the Board of Governors of the Federal Reserve Board.
        "Market Value" means, on any date of determination, (i) with respect to any Portfolio Investment (other than a Mezzanine Obligation), the average indicative bid-side price (expressed as a percentage) determined by LoanX/Markit Group Limited or TRACE (or, if the Administrative Agent determines in good faith that such bid price is not available or is not indicative of the actual current market value, the market value of such Senior Secured Loan or Second Lien Loan as determined by the Administrative Agent in good faith and in a commercially reasonable manner) and (ii) with respect to any Mezzanine Obligation, the market value of such Portfolio Investment as determined by the Administrative Agent in good faith and in a commercially reasonable manner, in each case, expressed as a percentage of par.
So long as no Market Value Event has occurred or Event of Default has occurred and is continuing, the Portfolio Manager shall have the right to initiate a dispute of the Market Value of certain Portfolio Investments as set forth below; provided that the Portfolio Manager (x) in the case of a dispute using written executable bid(s), provides the Administrative Agent the executable bid(s) set forth below no later than 12:00 p.m. New York City time on the second Business Day following the related date of determination and (y) in the case of a dispute using a valuation from a Nationally Recognized Valuation Provider, provides the Administrative Agent with written notice (including via email) of its intention to initiate such dispute no later than 12:00 p.m. New York City time on the fifth Business Day following the related date of determination and provides the valuation set forth below no later than 12:00 p.m. New


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York City time on the fifteenth Business Day following the related date of determination (and, in the case of both clause (x) and clause (y), if such dispute occurs after a Market Value Trigger Event, provides the executable bid(s) or valuation, as applicable, to the Administrative Agent not later than the last day of the related Market Value Cure Period).
If the Portfolio Manager disputes the determination of Market Value with respect to any Broadly Syndicated Portfolio Investment, the Portfolio Manager may, at the expense of the Company, obtain written executable bids from two Independent Dealers (or, if two such bids are not available, one such written executable bid) for a principal amount of such Portfolio Investment at least equal to the greater of (x) 10% of the aggregate principal amount of such Portfolio Investment and (y) $10,000,000 (or such lower amount consented to by the Administrative Agent in its sole discretion) and submit evidence of such bid(s) to the Administrative Agent. If two such executable bids are obtained and provided to the Administrative Agent, the average of such bids will be the Market Value of such Portfolio Investment in accordance with the second succeeding paragraph. If only one such executable bid is obtained and provided to the Administrative Agent, the average of such bid and the Market Value provided by the Administrative Agent in accordance with the first paragraph of this definition shall be the Market Value of such Portfolio Investment in accordance with the second succeeding paragraph.
If the Portfolio Manager disputes the determination of Market Value with respect to any Portfolio Investment other than a Broadly Syndicated Portfolio Investment, the Portfolio Manager may, with respect to up to three such Portfolio Investments in each calendar quarter, engage a Nationally Recognized Valuation Provider, at the expense of the Company, to provide a valuation of the applicable Portfolio Investments and submit evidence of such valuation to the Administrative Agent. Such valuation shall be the Market Value of such Portfolio Investment in accordance with the immediately succeeding paragraph.
The market value of any Portfolio Investment determined in accordance with the immediately preceding paragraph and the second preceding paragraph will be the Market Value for the applicable Portfolio Investment from and after the Business Day following receipt of notice of the executable bid(s) or valuation, as applicable, by the Administrative Agent until the Administrative Agent has made a good faith and commercially reasonable determination that the Market Value of such Portfolio Investment has changed, in which case the Administrative Agent may determine another Market Value (in accordance with the definition of Market Value).
Notwithstanding anything to the contrary herein, (A) the Market Value for any Portfolio Investment shall not be greater than the par amount thereof, (B) the Market Value of any Ineligible Investment shall be deemed to be zero, (C) the Administrative Agent shall be entitled to disregard as invalid any bid submitted by the Portfolio Manager from any Independent Dealer if, in the Administrative Agent's good faith judgment: (i) such Independent Dealer is ineligible to accept assignment or transfer of the relevant Portfolio Investment or portion thereof, as applicable, substantially in accordance with the then-current market practice in the principal market for such Portfolio Investment, as reasonably determined by the Administrative Agent; or (ii) such firm bid or such firm offer is not bona fide and (D) no valuation provided by a Nationally Recognized Valuation Provider shall be effective unless it is in form and substance reasonably acceptable to the Administrative Agent in its sole discretion; provided that any such valuation will be deemed reasonably acceptable to the Agent if it gives reference to factors commonly used by market participants in conducting valuation processes, including without limitation (i) industry and comparable company analysis, (ii) market yield assumptions, (iii) credit fundamentals, cyclical nature, and outlook of the business of the Portfolio Investment's obligor; and (iv) historical (but only during the period of time in which the Portfolio Investment’s obligor was controlled by the same


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financial sponsor) material debt-financed acquisitions consummated by the Portfolio Investment's obligor; provided further that any valuation that is materially consistent in form and scope with (x) the valuations delivered to the Administrative Agent by the Company or the Portfolio Manager prior to the Second Amendment Effective Date or (y) any other valuation delivered to the Administrative Agent by the Company or the Portfolio Manager hereunder and used or accepted by the Administrative Agent (in each case of (x) and (y), or as modified to comply with changes in applicable law, market practice or accounting guidelines) shall be deemed to be acceptable to the Administrative Agent for purposes of this clause (D).
The Administrative Agent shall notify the Company, the Portfolio Manager and the Collateral Administrator in writing of the then-current Market Value of each Portfolio Investment in the Portfolio on a monthly basis by the tenth (10th) calendar day of each month or upon the reasonable request of the Portfolio Manager (but no more frequently than 4 requests per calendar month). Any notification from the Administrative Agent to the Company that the events set forth in clause (A)(i) of the definition of the term Market Value Event have occurred and are continuing shall be accompanied by a written statement showing the then-current Market Value of each Portfolio Investment.
        "Market Value Cure" means, on any date of determination, (i) with the consent of the Administrative Agent (not to be unreasonably delayed), the contribution by the Parent of additional Portfolio Investments and the Delivery thereof by the Company to the Collateral Agent pursuant to the terms hereof, (ii) the contribution by the Parent of cash to the Company and the Delivery thereof by the Company to the Collateral Agent pursuant to the terms hereof (which amounts shall be deposited in the MV Cure Account), (iii) the sale by the Company of one or more Portfolio Investments in accordance with the requirements of this Agreement, (iv) the prepayment by the Company of an aggregate principal amount of Advances (together with accrued and unpaid interest thereon) or (v) any combination of the foregoing clauses (i), (ii), (iii) and (iv), in each case during the Market Value Cure Period, at the option of the Portfolio Manager, and in an amount such that immediately after giving effect to all such actions the Net Advances are less than the product of (a) Net Asset Value and (b) the Market Value Cure Trigger; provided that, any Portfolio Investment contributed to the Company in connection with the foregoing must meet all of the applicable Eligibility Criteria (unless otherwise consented to by the Administrative Agent) and the Concentration Limitations shall be satisfied immediately after such contribution.
        In connection with any Market Value Cure under clause (i) above, (x) a Portfolio Investment shall be deemed to have been contributed to the Company if there has been a valid, binding and enforceable contract for the assignment of such Portfolio Investment to the Company and, in the reasonable judgment of the Portfolio Manager, such assignment will settle, in the case of a Loan, within ten (10) Business Days after the related Trade Date and, in the case of any other Portfolio Investment, within three (3) Business Days after the related Trade Date and the Company (or the Portfolio Manager on its behalf) shall use its commercially reasonable efforts to effect any such assignment within such time period and (y) the Administrative Agent shall use commercially reasonable efforts to reply to a request to approve the applicable Portfolio Investment for contribution within one (1) Business Day of the request by the Company (or the Portfolio Manager on its behalf) for such approval.
        "Market Value Cure Failure" means the failure by the Company to effect a Market Value Cure as set forth in the definition of such term.


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        "Market Value Cure Period" means the period commencing on the Business Day on which the Portfolio Manager receives notice from the Administrative Agent (which if received after 2:00 p.m., New York City time, on any Business Day, shall be deemed to have been received on the next succeeding Business Day) of the occurrence of a Market Value Trigger Event and ending at the close of business in New York two (2) Business Days thereafter; provided that the Market Value Cure Period may be extended if (i) the Company has delivered to the Administrative Agent with a copy to the Collateral Agent and the Collateral Administrator an MV Cure Extension Request satisfactory to the Administrative Agent in its sole discretion to extend the Market Value Cure Period by a specified MV Cure Extension Period and (ii) upon request of the Administrative Agent (which request may be a standing request) on each Business Day in such MV Cure Extension Period, the Company has delivered an MV Cure Plan Status Confirmation to the Administrative Agent; provided, further, that, if on any date during the MV Cure Extension Period, the Administrative Agent notifies the Company or the Portfolio Manager that an MV Cure Plan Status Confirmation is not satisfactory to the Administrative Agent, a Market Value Cure Failure will be deemed to have occurred on such date.
        "Market Value Cure Trigger" has the meaning set forth in the Transaction Schedule.
        "Market Value Event" means (A) the occurrence of both of the following events (i) a Market Value Trigger Event and (ii) a Market Value Cure Failure or (B) if in connection with any Market Value Cure, a Portfolio Investment sold, contributed or deemed to have been contributed to the Company shall fail to settle within (i) in the case of a Loan, ten (10) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related Trade Date thereof and (ii) in the case of any other Portfolio Investment, three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related Trade Date thereof.
        "Market Value Trigger" has the meaning set forth in the Transaction Schedule.
        "Market Value Trigger Event" means an event that shall have occurred if the Administrative Agent has determined (which determination shall be binding absent manifest error) and notified the Portfolio Manager in writing as of any date that the Net Advances exceed the product of (a) the Net Asset Value and (b) the Market Value Trigger.
        "Material Adverse Effect" means a material adverse effect on (a) the business, assets, operations or financial condition of the Company, the Seller or the Portfolio Manager, (b) the ability of the Company, the Seller or the Portfolio Manager to perform its obligations under this Agreement or any of the other Loan Documents or (c) the rights of or benefits available to the Agents or the Lenders under this Agreement or any of the other Loan Documents.
        "Material Amendment" means any amendment, modification or supplement to this Agreement that (i) increases the Financing Commitment of any Lender, (ii) reduces the principal amount of any Advance or reduces the rate of interest thereon (other than a waiver of the application of the Adjusted Applicable Margin), or reduces any fees payable to a Lender hereunder, (iii) postpones the scheduled date of payment of the principal amount of any Advance, or any interest thereon, or any other amounts payable hereunder, or reduces the amount of, waives or excuses any such payment (other than a


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waiver of the application of the Adjusted Applicable Margin), or postpones the scheduled date of expiration of any Financing Commitment, (iv) changes any provision in a manner that would alter the pro rata sharing of payments required hereby or (v) changes any of the provisions of this definition or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder.
        "Maturity Date" means the date that is the earliest of (1) the Scheduled Termination Date set forth on the Transaction Schedule, (2) the date on which the Secured Obligations become due and payable upon the occurrence of an Event of Default under Article VII and the acceleration of the Secured Obligations, (3) the date on which the principal amount of the Advances is irrevocably reduced to zero as a result of one or more prepayments and the Financing Commitments are irrevocably terminated and (4) the date after a Market Value Event on which all Portfolio Investments have been sold and the proceeds therefrom have been received by the Company.
        "Maximum Rate" has the meaning set forth in Section 10.09.
        "Mezzanine Obligation" means a Portfolio Investment which is not a Senior Secured Loan or a Second Lien Loan.
        "Minimum Funding Amount" means, on any date of determination, the amount set forth in the table below; provided that, on and after any Commitment Increase Date occurring after the Second Amendment Date, the Minimum Funding Amount shall be the amount set forth in the last row below plus 80% of the increase in the Financing Commitment resulting from the Commitment Increase Request:

Period Start Date Period End Date Minimum Funding Amount (U.S.$)
Second Amendment Date December 19, 2019 250,811,724.77
December 20, 2019 March 19, 2020 390,000,000
March 20, 2020 Last day of the Reinvestment Period 480,000,000

        "MV Cure Account" means the account(s) established by the Securities Intermediary and set forth on the Transaction Schedule and any successor accounts established in connection with the resignation or removal of the Securities Intermediary.
        "MV Cure Extension Period" means a period of up to 10 Business Days requested by the Company in an MV Cure Extension Request.
        "MV Cure Extension Request" means a written request from the Company to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Administrator) satisfactory to the Administrative Agent in its sole discretion requesting to extend the Market Value Cure Period by


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an MV Cure Extension Period and proposing a MV Cure Plan, together with any supporting documentation as may be requested by the Administrative Agent in its reasonable discretion.
        "MV Cure Plan" means a proposal by a senior officer of the Portfolio Manager on behalf of the Company of steps which the Company, the Portfolio Manager and/or the Parent propose to take to effect a Market Value Cure, which plan may include a contribution of capital and/or one or more additional Portfolio Investments from the Parent.
        "MV Cure Plan Status Confirmation" means a status update provided by a senior officer of the Portfolio Manager on behalf of the Company on each Business Day during the MV Cure Extension Period regarding the progress of the stated MV Cure Plan, together with any further information or supporting documentation reasonably requested by the Administrative Agent in connection with achieving a Market Value Cure.
        "Nationally Recognized Valuation Provider" means Lincoln International LLC (f/k/a Lincoln Partners LLC), Valuation Research Corporation, Alvarez & Marsal, Duff & Phelps, Houlihan Lokey, Murray Devine and FTI Consulting; provided that any independent entity providing professional asset valuation services may be added to this definition by the Company (with the consent of the Administrative Agent) or added to this definition by the Administrative Agent from time to time by notice thereof to the Company and the Portfolio Manager; provided, further, that the Administrative Agent may remove any provider from this definition by written notice to the Company and the Portfolio Manager so long as, after giving effect to such removal, there are at least three (or such greater number consented to by the Administrative Agent in its sole discretion) providers designated pursuant to this definition.
        "Net Advances" means the principal amount of the outstanding Advances (inclusive of Advances that have been requested for any outstanding Purchase Commitments which have traded but not settled) minus the amounts then on deposit in the Collateral Accounts and the Non-USD Obligation Accounts (including cash and Eligible Investments) representing Excess Interest Proceeds and Principal Proceeds (other than Principal Proceeds that have been identified for use to settle outstanding Purchase Commitments which have traded but not settled).
        "Net Asset Value" means, on any date of determination, the sum of (A) the sum of the product for each Portfolio Investment, other than, for any Loan, the unfunded commitment amount of a Delayed Funding Term Loan of (x) the Market Value of such Portfolio Investment (both owned and in respect of which there is an outstanding Purchase Commitment that has traded but has not settled) multiplied by (y) the funded principal amount of such Portfolio Investment plus (B) the amounts then on deposit in the Unfunded Exposure Account and each Non-USD Unfunded Exposure Account (including, in each case, cash and Eligible Investments); provided that, for the avoidance of doubt, (1) the Concentration Limitation Excess, (2) any Portfolio Investment which has traded but not settled (x) in the case of a Loan, within ten (10) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related Trade Date thereof and (y) in the case of any other Portfolio Investment, within three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related Trade Date thereof and (3) any Ineligible


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Investments will be excluded from the calculation of the Net Asset Value and assigned a value of zero for such purposes. If the trade date for the sale of a Portfolio Investment (or any portion thereof) by the Company has occurred, the related settlement date has not occurred and the Administrative Agent has received satisfactory evidence that such trade has been entered into (which evidence shall include the sale price), the Market Value of the portion of such Portfolio Investment which has been traded (subject to the proviso in the immediately preceding sentence) shall be deemed to be such sale price for a period of time not exceeding (x) in the case of a Loan, ten (10) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related trade date for such sale and (y) in the case of any other Portfolio Investment, three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after the related Trade Date for such sale.
        "Net Purchased Loan Balance" means, as of any date of determination, an amount equal to (a) the aggregate principal balance of all Portfolio Investments acquired by the Company prior to such date minus (b) the aggregate principal balance of all Portfolio Investments repurchased by the Parent or an Affiliate thereof prior to such date.
        "New York Collateral" has the meaning set forth in the definition of Deliver.
        "Non-Call Period" means the period beginning on, and including, the Effective Date and ending on, but excluding, the earlier of (i) November 16, 2020 and (ii) any Non-Call Termination Date.
        "Non-Call Termination Date" means (i) any date during the Reinvestment Period on which (x) the Company (or the Portfolio Manager on its behalf) has submitted at least ten (10) Notices of Acquisition (including all related information required to be delivered in connection therewith pursuant to Section 1.02) to the Administrative Agent in the immediately preceding twelve month period relating to obligations each of which (A) satisfy all of the Eligibility Criteria and (B) would not cause any of the Concentration Limitations to be exceeded on a pro forma basis immediately after giving effect to their proposed acquisition and (y) the Administrative Agent has failed to approve the Portfolio Investments proposed to be acquired in at least five (5) of such Notices of Acquisition within the time period specified in Section 1.02(c); provided that if the Administrative Agent initially does not approve but then subsequently approves any such Portfolio Investment, it shall be deemed an approval of such Portfolio Investment to the extent that the applicable Portfolio Investment is subsequently purchased by the Company or (ii) any Lender requests compensation under Section 3.01(e) or (f), or the Company is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.03.
        "Non-USD Collection Accounts" means the Euro Collection Account and any GBP Collection Account and/or CAD Collection Account.
        "Non-USD Custodial Account" means an account, if any, established by the UK Custodian in accordance with this Agreement and the Security Trust Deed and designated as the "Non-USD Custodial Account".


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        "Non-USD Obligation" means any Portfolio Investment denominated in a Permitted Non-USD Currency.
        "Non-USD Obligation Accounts" means the Euro Collection Account and, if established in compliance with this Agreement and the Security Trust Deed, any (i) the Non-USD Custodial Account, (ii) the GBP Collection Account, (iii) GBP Unfunded Exposure Account, (iv) any CAD Collection Account, (v) the CAD Unfunded Exposure Account and/or (vi) the Euro Unfunded Exposure Account.
        "Non-USD Obligation Security Documents" means the Security Trust Deed and any other security, account, custody or similar agreement entered into by any of the parties hereto in connection with a Currency Amendment occurring after the First Amendment Date.
        "Non-USD Unfunded Exposure Accounts" means any Euro Unfunded Exposure Account, GBP Unfunded Exposure Account and/or CAD Unfunded Exposure Account.
        "Notice of Acquisition" has the meaning set forth in Section 1.02(a).
        "Other Connection Taxes" means, with respect to any Secured Party, Taxes imposed as a result of a present or former connection between such Secured Party and the jurisdiction imposing such Tax (other than connections arising from such Secured Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance or Loan Document).
        "Other Taxes" means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
        "Parent" means Blackstone/GSO Secured Lending Fund.
        "Participant Register" has the meaning specified in Section 10.06(d).
        "Participation Interest" means a participation interest in a Loan.
        "PATRIOT Act" has the meaning set forth in Section 2.04(f).
        "Permitted Distribution" means, on any Business Day, distributions of (x) Interest Proceeds, (y) prior to the last day of the Reinvestment Period, Principal Proceeds representing proceeds of the initial Advance and/or (z) following the last day of the Ramp-Up Period and prior to the last day of the Reinvestment Period, other Principal Proceeds (in each case, at the discretion of the Company) to the Parent (or other permitted equity holders of the Company); provided that amounts may be distributed pursuant to this definition only to the extent of available Excess Interest Proceeds and/or Principal Proceeds and only so long as (i) no Default or Event of Default has occurred and is continuing


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(or would occur after giving effect to such Permitted Distribution), (ii) no Market Value Event shall have occurred (or would occur after giving effect to such Permitted Distribution), (iii) the Borrowing Base Test is satisfied immediately prior to and immediately after giving effect to such Permitted Distribution, (iv) the Company gives at least two (2) Business Days' prior written notice thereof to the Administrative Agent, (v) not more than five Permitted Distributions are made in any single Calculation Period, (vi) with respect to any Permitted Distribution made using Principal Proceeds during the period from and including the Second Amendment Date to but excluding March 20, 2020, the aggregate outstanding principal amount of the Advances on the date of such Permitted Distribution is equal to or greater than $325,000,000 and (vii) the Company confirms in writing (which may be by email) to the Administrative Agent, and the Administrative Agent confirms in writing (which may be by email and which the Administrative Agent shall provide promptly upon its verification that the conditions to a Permitted Distribution are satisfied) to the Collateral Agent and the Collateral Administrator, that the conditions to a Permitted Distribution set forth herein are satisfied. Nothing in this definition shall limit the right or ability of the Company to make a Permitted RIC Distribution at any time.
        "Permitted Lien" means any of the following: (a) Liens for Taxes if such Taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person, (b) Liens imposed by law, such as materialmen's, warehousemen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith, (c) Liens granted pursuant to or by the Loan Documents, (d) judgement Liens not constituting an Event of Default hereunder, (e) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by such Person, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management, operating account arrangements and netting arrangements, (f) with respect to collateral underlying any Portfolio Investment, the Lien in favor of the Company herein and Liens permitted under the underlying instruments related to such Portfolio Investment, (g) as to any agented Portfolio Investment, Liens in favor of the agent on behalf of all the lenders to the related obligor and (h) Liens of clearing agencies, broker-dealers and similar Liens incurred in the ordinary course of business, provided that such Liens (x) attach only to the securities (or proceeds) being purchased or sold and (y) secure only obligations incurred in connection with such purchase or sale, and not any obligation in connection with financing.
        "Permitted Non-USD Currency" means Euros and, following the establishment of the related Non-USD Obligation Accounts in accordance with this Agreement and the Security Trust Deed and, if required pursuant to Section 10.05, execution and delivery of a related Currency Amendment, CAD and/or GBP.
        "Permitted Non-USD Currency Equivalent" means, with respect to any amount in USD, the amount of any Permitted Non-USD Currency that could be purchased with such amount of USD using the reciprocal foreign exchange rate(s) obtained as described in the definition of the term Spot Rate.


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        "Permitted RIC Distribution" means distributions to the Parent (from the Collection Account or otherwise) to the extent required to allow the Parent 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 Parent in or with respect to any taxable year of the Parent (or any calendar year, as relevant); provided that (A) the amount of any such payments made in or with respect to any such taxable year (or calendar year, as relevant) of the Parent shall not exceed 115% of the amounts that the Company would have been required to distribute to the Parent to: (i) allow the Company to satisfy the minimum distribution requirements that would be imposed by Section 852(a) of the Code (or any successor thereto) to maintain its eligibility to be taxed as a regulated investment company for any such taxable year, (ii) reduce to zero for any such taxable year the Company’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 Company’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 Company had qualified to be taxed as a RIC under the Code, (B) after the occurrence and during the continuance of an Event of Default, the amount of Permitted Tax Distributions made in any calendar quarter shall not exceed U.S.$1,500,000 (or such greater amount consented to by the Administrative Agent in its sole discretion) and (C) amounts may be distributed pursuant to this definition only to the extent of available Excess Interest Proceeds and/or Principal Proceeds and only so long as (x) the Borrowing Base Test is satisfied immediately prior to and immediately after giving effect to such Permitted RIC Distribution (unless otherwise consented to by the Administrative Agent in its sole discretion) and (y) the Company gives at least two (2) Business Days' prior written notice thereof to the Administrative Agent, the Collateral Agent and the Collateral Administrator.
        "Permitted Working Capital Lien" has meaning set forth in the definition of "Senior Secured Loan".
        "Person" means any natural person, corporation, partnership, trust, limited liability company, association, Governmental Authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity.
        "Plan" means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) subject to Section 412 of the Code or Title IV of ERISA established by the Company, the Parent or any ERISA Affiliate.
        "Plan Asset Rules" means the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations, as modified by Section 3(42) of ERISA.
        "Portfolio" means all Portfolio Investments Purchased hereunder and not otherwise sold or liquidated.
        "Portfolio Investments" has the meaning set forth in the introductory section of this Agreement.


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        "Portfolio Manager" has the meaning set forth in the introductory section of this Agreement.
        "Primary Management Fee" means, with respect to any Interest Payment Date, the fee payable to the Portfolio Manager for services rendered during the related Calculation Period hereunder, which shall be equal to one-fourth of the product of (i) the Primary Management Fee Percentage multiplied by (ii) the average of the values of the aggregate principal amount of the Portfolio Investments (other than Ineligible Investments) on the first day and the last day of the related Calculation Period. For the avoidance of doubt, the Portfolio Manager may waive or defer the payment of any Primary Management Fee in its sole discretion.
        "Primary Management Fee Percentage" means 0.30% per annum.
        "Prime Rate" means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
        "Principal Proceeds" means all amounts received with respect to the Portfolio Investments or any other Collateral, and all amounts otherwise on deposit in the Collateral Accounts and the Non-USD Obligation Accounts (including cash contributed by the Company), in each case other than Interest Proceeds or amounts on deposit in the Unfunded Exposure Account, any Non-USD Unfunded Exposure Account or any proceeds thereof.
        "Priority of Payments" has the meaning set forth in Section 4.05.
        "Proceeding" has the meaning set forth in Section 10.08(b).
        "Purchase" means each acquisition of a Portfolio Investment hereunder (other than by Substitution), including, for the avoidance of doubt, by way of a contribution by the Parent to the Company pursuant to the Sale Agreement.
        "Purchase Commitment" has the meaning set forth in Section 1.02(a).
        "Ramp-Up Period" means the period from and including the Effective Date to, but excluding, August 16, 2019.
        "Reference Rate" means (i) with respect to Advances denominated in USD and related calculations, the applicable LIBO Rate, (ii) with respect to Advances denominated in CAD and related calculations, the CDOR Rate, (iii) with respect to Advances denominated in GBP and related calculations, the applicable LIBO Rate and (iv) with respect to Advances denominated in EUR and related calculations, EURIBOR. The Reference Rate shall be determined by the Administrative Agent (and notified to the Collateral Administrator), and such determination shall be conclusive absent manifest error.
        "Register" has the meaning set forth in Section 3.01(c).


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        "Reinvestment Period" means the period beginning on, and including, the Effective Date and ending on, but excluding, the earliest of (i) November 16, 2021, (ii) the date on which a Market Value Event occurs (unless waived by the Administrative Agent in its sole discretion) and (iii) the date on which an Event of Default occurs; provided that, in the case of this clause (iii), with the written consent of the Required Lenders and the Administrative Agent (which consent may be granted or withheld in their respective sole discretion), at the request of the Portfolio Manager, the Reinvestment Period may be reinstated if such Event of Default is waived or is cured prior to any declaration of the Secured Obligations as due and payable pursuant to Article VII as a result of such Event of Default.
        "Related Parties" has the meaning set forth in Section 9.01.
        "Request for Advance" has the meaning set forth in Section 2.03(d).
        "Required Lenders" means Lenders holding 50.1% or more of the sum of (i) the aggregate principal amount of the outstanding Advances plus (ii) the aggregate undrawn amount of the outstanding Financing Commitments.
        "Responsible Officer" means (i) with respect to the Collateral Agent, any officer of the Collateral Agent customarily performing functions with respect to corporate trust matters and, with respect to a particular corporate trust matter under this Agreement, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject in each case, having direct responsibility for the administration of this Agreement, (ii) with respect to the Collateral Administrator, any officer of the Collateral Administrator customarily performing functions with respect to collateral administration matters and, with respect to a particular matter under this Agreement, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject in each case, having direct responsibility for the administration of this Agreement and (iii) with respect to the Company or the Portfolio Manager, any officer thereof (or, in the case of the Company, any officer of the Parent) having direct responsibility for the administration of this Agreement.
        "Restricted Payment" means (i) any dividend or other distribution (including, without limitation, a distribution of non-cash assets), direct or indirect, on account of any shares or other equity interests in the Company now or hereafter outstanding; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, by the Company of any shares or other equity interests in the Company now or hereafter outstanding; and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares or other equity interests in the Company now or hereafter outstanding.
        "Revolving Loan" means any Loan (other than a Delayed Funding Term Loan, but including funded and unfunded portions of revolving credit lines) that under the underlying instruments relating thereto may require one or more future advances to be made to the obligor by a creditor, but any such Loan will be a Revolving Loan only until all commitments by the holders thereof to make advances to the obligor thereon expire or are terminated or are irrevocably reduced to zero.
        "Sale Agreement" has the meaning set forth in the introductory section of this Agreement.


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        "Sanctioned Country" means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria and Crimea).
        "Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom or any other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b) or (d) any Person otherwise the subject of Sanctions.
        "Sanctions" means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any EU member state, Her Majesty's Treasury of the United Kingdom or any other relevant sanctions authority.
        "Second Amendment Date" means September 20, 2019.
        "Second Lien Loan" means a Loan (i) that is secured by a pledge of collateral, which security interest is validly perfected and second priority (subject to liens permitted under the related underlying instruments that are reasonable and customary for similar Loans) under Applicable Law (other than a Loan that is second priority to a Permitted Working Capital Lien) and (ii) the Portfolio Manager determines in good faith that the value of the collateral securing the Loan (including based on enterprise value) on or about the time of origination or acquisition by the Company 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 collateral.
        "Secondary Management Fee" means, with respect to any Interest Payment Date, the fee payable to the Portfolio Manager for services rendered during the related Calculation Period hereunder, which shall be equal to one-fourth of the product of (i) the Secondary Management Fee Percentage multiplied by (ii) the average of the values of the aggregate principal amount of the Portfolio Investments (other than Ineligible Investments) on the first day and the last day of the related Calculation Period. For the avoidance of doubt, the Portfolio Manager may waive or defer the payment of any Secondary Management Fee in its sole discretion.
        "Secondary Management Fee Percentage" means 0.45% per annum.
        "Secured Obligation" has the meaning set forth in Section 8.02(a).
        "Secured Party" has the meaning set forth in Section 8.02(a).
        "Securities Intermediary" has the meaning set forth in the introductory section of this Agreement.


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        "Security Trust Deed" means the Security Trust Deed, dated as of the First Amendment Date, among the Company, the Collateral Agent, the Administrative Agent, the UK Account Bank and the UK Custodian.
        "Seller" has the meaning set forth in the introductory section of this Agreement.
        "Senior Secured Loan" means any Loan or Bond, that (i) is not (and is not expressly permitted by its terms to become) contractually subordinate in right of payment to any obligation of the obligor in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings (other than pursuant to a Permitted Working Capital Lien and customary waterfall provisions contained in the applicable loan agreement or indenture), (ii) is secured by a pledge of collateral, which security interest is (a) validly perfected and first priority under Applicable Law (subject to liens permitted under the applicable credit agreement that are reasonable for similar Loans or Bonds, and liens accorded priority by law in favor of any Governmental Authority) or (b)(1) validly perfected and second priority in the accounts, documents, instruments, chattel paper, letter-of-credit rights, supporting obligations, deposit accounts, investments accounts (as such terms are defined in the UCC) and any other assets securing any Working Capital Revolver under Applicable Law and proceeds of any of the foregoing (a first priority lien on such assets a "Permitted Working Capital Lien") and (2) validly perfected and first priority (subject to liens permitted under the related underlying instruments that are reasonable and customary for similar Loans or Bonds) in all other collateral under Applicable Law, and (iii) the Portfolio Manager determines in good faith that the value of the collateral for such Loan or Bond (including based on enterprise value) on or about the time of acquisition equals or exceeds the outstanding principal balance of the Loan or Bond plus the aggregate outstanding balances of all other Loans or Bonds of equal or higher seniority secured by a first priority Lien over the same collateral.
        "Settlement Date" has the meaning set forth in Section 1.03.
        "Solvent" means, with respect to any Person, that as of the date of determination, (a) the sum of such Person's debt (including contingent liabilities) does not exceed the present fair value of such Person's present assets; (b) such Person's capital is not unreasonably small in relation to its business as contemplated on the date of this Agreement; and (c) such Person has not incurred debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
        "Specified Matter" means any Amendment of a Portfolio Investment that (a) reduces the principal amount of such Portfolio Investment, (b) reduces the rate of interest payable on such Portfolio Investment, (c) postpones the due date of any scheduled payment or distribution in respect of such Portfolio Investment, (d) alters the pro rata allocation or sharing of payments or distributions required by any related underlying instrument in a manner adverse to the Company, (e) releases any material guarantor of such Portfolio Investment from its obligations, (f) terminates or releases any lien on a material portion on the collateral securing such Portfolio Investment, (g) changes any of the provisions


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of any such underlying instrument specifying the number or percentage of lenders required to effect any of the foregoing or (h) materially changes any financial covenant.
        "Spot Rate" means, as of any date of determination and with respect to any then-current Permitted Non-USD Currency, (x) with respect to actual currency exchange between USD and CAD, Euros or GBP and the calculations made pursuant to Section 1.08(b), the applicable currency-USD rate available through Citibank, N.A.'s banking facilities (or, if Citibank, N.A. has notified the Administrative Agent and the Company that it will no longer provide such services or if Citibank, N.A. or one of its Affiliates is no longer the Collateral Agent, through such other source agreed to by the Administrative Agent in writing) at the time of such exchange or calculation and (y) with respect to all other purposes between USD and CAD, Euros or GBP, the applicable currency-USD spot rate that appeared on the BFIX page of Bloomberg Professional Service (or any successor thereto) (or such other recognized service or publication used by the Collateral Administrator for purposes of determining currency spot rates in the ordinary course of its business from time to time) for such currency at 5:00 p.m. New York City time on the immediately preceding Business Day, as determined by the Collateral Administrator. The determination of the Spot Rate shall be conclusive absent manifest error.
        "Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; provided that notwithstanding any provision herein to the contrary, the term "Subsidiary" shall not include any Person that constitutes an investment held by the Company in the ordinary course of business and that is not, under GAAP, consolidated on the financial statements of the Company.
        "Substitute Portfolio Investment" has the meaning set forth in Section 1.06.
        "Substitution" has the meaning set forth in Section 1.06.
        "Substitution Date" has the meaning set forth in Section 1.03.
        "TARGET2 Settlement Day" means any day on which the Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET2) system is open.
        "Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
        "Trade Date" has the meaning set forth in Section 1.03.
        "Transaction Schedule" has the meaning set forth in the introductory section of this Agreement.
        "UCC" means the Uniform Commercial Code in effect in the State of New York.


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        "UK Account Bank" means Citibank, N.A., in its capacity as account bank under the Security Trust Deed.
        "UK Custodian" means Citibank, N.A., in its capacity as custodian under the Security Trust Deed.
        "Uncertificated Security" has the meaning set forth in the UCC.
        "Unfunded Exposure Account" means the account established by the Securities Intermediary and set forth on the Transaction Schedule for the deposit of funds used to cash collateralize the Unfunded Exposure Amount and any successor accounts established in connection with the resignation or removal of the Securities Intermediary.
        "Unfunded Exposure Amount" means, on any date of determination, with respect to any Delayed Funding Term Loan, an amount equal to the aggregate amount of all unfunded commitments (in the case of unfunded commitments denominated in CAD, Euro and GBP, converted to USD at the Spot Rate on such date of determination) associated with such Delayed Funding Term Loan.
        "Unfunded Exposure Shortfall" means, on any date of determination, an amount equal to the greater of (x) 0 and (y) the aggregate Unfunded Exposure Amount for all Portfolio Investments minus the amounts on deposit in the Unfunded Exposure Account and any Non-USD Unfunded Exposure Account.
        "Unfunded Exposure Shortfall Amount" means, on any date of determination, (i) during the Reinvestment Period, the excess of the Unfunded Exposure Shortfall over 2.5% of the Collateral Principal Amount and (ii) after the Reinvestment Period, the Unfunded Exposure Shortfall.
        "USD" and "$" mean U.S. dollars.
        "U.S. Person" means any Person that is a "United States person" as defined in Section 7701(a)(30) of the Code.
        "U.S. Tax Compliance Certificate" has the meaning set forth in Section 3.03(f).
        "Working Capital Revolver" means a revolving lending facility secured on a first lien basis solely by all or a portion of the current assets of the related obligor, which current assets subject to such security interest do not constitute a material portion of the obligor's total assets (it being understood that such revolving lending facility may be secured on a junior lien basis by other assets of the related obligor).
ARTICLE I
THE PORTFOLIO INVESTMENTS
SECTION 1.01. Purchases of Portfolio Investments. On the Effective Date, the Company may acquire the Initial Portfolio Investments, subject to the conditions specified in this Agreement. From time to time during the Reinvestment Period, the Company may Purchase additional Portfolio


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Investments, or request that Portfolio Investments be Purchased for the Company's account, all on and subject to the terms and conditions set forth herein.
SECTION 1.02. Procedures for Purchases and Related Advances.
(a) Timing of Notices of Acquisition. No later than five (5) Agent Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) before the date on which the Company proposes that a binding commitment to acquire any Portfolio Investment (other than an Initial Portfolio Investment) be made by it or for its account (a "Purchase Commitment"), the Portfolio Manager, on behalf of the Company, shall deliver to the Administrative Agent a notice of acquisition (a "Notice of Acquisition").
(b) Contents of Notices of Acquisition. Each Notice of Acquisition shall consist of one or more electronic submissions to the Administrative Agent (in such format and transmitted in such a manner as the Administrative Agent, the Portfolio Manager and the Company may reasonably agree (which shall initially be the format and include the information regarding such Portfolio Investment identified on Schedule 2)), and shall be accompanied by such other information as the Administrative Agent may reasonably request to the extent such information is available to the Portfolio Manager.
(c) Eligibility of Portfolio Investments. The Administrative Agent shall have the right, on behalf of all Lenders, to request additional information regarding any proposed Portfolio Investment. The Administrative Agent shall notify the Portfolio Manager and the Company of its approval or failure to approve each Portfolio Investment proposed to be acquired pursuant to a Notice of Acquisition (and, if approved, an initial determination of the Market Value for such Portfolio Investment) no later than the fifth (5th) Agent Business Day succeeding the date on which it receives such Notice of Acquisition and any information reasonably requested in connection therewith); provided that (i) any Initial Portfolio Investment shall be deemed to be approved by the Administrative Agent and (ii) the failure of the Administrative Agent to notify the Portfolio Manager and the Company of its approval in accordance with this Section 1.02(c) shall be deemed to be a disapproval of such proposed acquisition.
(d) The failure of the Administrative Agent to approve the acquisition of a Portfolio Investment will not prohibit the Company from acquiring such Portfolio Investment (subject to the conditions set forth in Section 1.03); provided that any Portfolio Investment not so approved prior to its Trade Date shall be deemed to be an Ineligible Investment until such later date (if any) on which such Portfolio Investment is so approved.
(e) To the extent that the Administrative Agent has approved a Notice of Acquisition with respect to a Portfolio Investment, the Settlement Date for such Portfolio Investment has not yet occurred and there has been a change of the financial sponsor for such Portfolio Investor (and no other change to the terms thereof), the Administrative Agent shall use commercially reasonable efforts to provide a response to any revised Notice of Acquisition with respect thereto within two (2) Agent Business Days of its receipt of such revised Notice of Acquisition.
SECTION 1.03. Conditions to Purchases and Substitutions. No Purchase Commitment, Purchase or Substitution shall be entered into or made unless each of the following conditions is satisfied (or waived by the Administrative Agent in its sole discretion) as of the date on which such Purchase Commitment is entered into or such Purchase would otherwise be made (such Portfolio Investment's "Trade Date") (it being understood that the Trade Date for a Delayed Funding Term Loan Purchased by the Company is the date on which the Company enters into a trade ticket to acquire such Delayed Funding


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Term Loan) or, in the case of a Substitution, the date on which the Company consummates a Substitution (the "Substitution Date"):
(1) the information contained in the Notice of Acquisition accurately describes, in all material respects, such Portfolio Investment and such Portfolio Investment satisfies the eligibility criteria set forth in Schedule 3 (the "Eligibility Criteria");
(2) with respect to a Purchase, the proposed Settlement Date for such Portfolio Investment is not later than (i) in the case of a Loan, the date that is ten (10) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after such Trade Date or (ii) in the case of any other Portfolio Investment, the date that is three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after such Trade Date;
(3) no Market Value Event has occurred and no Event of Default or event that, with notice or lapse of time or both, would constitute an Event of Default (a "Default"), has occurred and is continuing, and the Reinvestment Period has not otherwise ended; and
(4) immediately after giving pro forma effect to the Purchase or Substitution of such Portfolio Investment and the related Advance, the Borrowing Base Test is satisfied.
If the above conditions to a Purchase Commitment, a Purchase or a Substitution are satisfied or waived by the Administrative Agent, the Portfolio Manager shall determine, in consultation with the Administrative Agent, the date on which such Purchase (if any) or Substitution shall settle (the "Settlement Date" for such Portfolio Investment). With respect to a Purchase, promptly following the Settlement Date for a Portfolio Investment (or, in the case of a Portfolio Investment that is a Participation Interest, the date on which such Participation Interest is elevated to a full assignment) and its receipt thereof, the Collateral Agent shall provide to the Administrative Agent a copy of the executed assignment agreement (or, in the case of a Portfolio Investment that is not a Loan, the executed purchase agreement or similar instrument) pursuant to which such Portfolio Investment was assigned, sold or otherwise transferred to the Company.
SECTION 1.04. Sales of Portfolio Investments. The Company will not sell, transfer or otherwise dispose of any Portfolio Investment or any other asset without the prior consent of the Administrative Agent (acting at the direction of the Required Lenders), except that (a) (i) following the last day of the Ramp-Up Period and subject to Section 6.02(w), the Company may sell any Portfolio Investment (including any Ineligible Investment) or other asset without such consent so long as, (x) immediately after giving effect thereto, no Market Value Event has occurred, no Event of Default has occurred and is continuing and no Default or Event of Default would occur as a result of such sale and (y) the sale of such asset by the Company shall be on an arm's-length basis and in accordance with the Portfolio Manager's standard market practices and (ii) if the Company wishes to sell any Portfolio Investment prior to the last day of the Ramp-Up Period, in conjunction with its request for the consent of the Administrative Agent, the Company (or the Portfolio Manager on its behalf) shall certify to the Administrative Agent that such sale is being undertaken due to a significant decline in the credit quality of the applicable Portfolio Investment (in the reasonable determination of the Portfolio Manager) and clauses (x) and (y) of the immediately preceding sentence are satisfied with respect to such sale, (b) the Company may sell, transfer or dispose of Portfolio Investments in accordance with the Sale Agreement in the event a breach of one or more representations, warranties, undertakings or covenants made by the Seller with respect thereto, (c) the Company may effect Substitutions in accordance with Section 1.06 and


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(d) the Company may sell, transfer or dispose of Portfolio Investments at a price at least equal to par to the extent required by the terms of the applicable underlying documents. In addition, within two (2) Business Days of any Delayed Funding Term Loan with an unfunded commitment becoming an Ineligible Investment, the Company, subject to clauses (x) and (y) in the immediately preceding sentence, shall sell such Delayed Funding Term Loan and shall pay any amount required to be paid to the transferee as consideration in connection with such sale.
Notwithstanding anything in this Agreement to the contrary (but subject to this Section 1.04): (i) following the occurrence and during the continuance of an Event of Default, neither the Company nor the Portfolio Manager on its behalf shall have any right to cause the sale, transfer or other disposition of a Portfolio Investment or any other asset (including, without limitation, the transfer of amounts on deposit in the Collateral Accounts or the Non-USD Obligation Accounts) without the prior written consent of the Administrative Agent (which consent may be granted or withheld in the sole discretion of the Administrative Agent), (ii) following the occurrence of a Market Value Event, the Company shall use commercially reasonable efforts to sell Portfolio Investments (individually or in lots, including a lot comprised of all of the Portfolio Investments) at the sole direction of, and in the manner (including, without limitation, the time of sale, sale price, principal amount to be sold and purchaser) required by the Administrative Agent (provided that the Administrative Agent shall only require sales at the direction of the Required Lenders and at least equal to the then-current fair market value and in accordance with the Administrative Agent's standard market practices) and the proceeds from such sales shall be used to prepay the Advances outstanding hereunder and (iii) following the occurrence of a Market Value Event, the Portfolio Manager shall have no right to act on behalf of, or otherwise direct, the Company, the Administrative Agent, the Collateral Agent or any other Person in connection with a sale of Portfolio Investments pursuant to any provision of this Agreement except with the prior written consent of the Administrative Agent. With respect to any sale of a Portfolio Investment the trade date of which was prior to the occurrence of an Event of Default or Market Value Event, as applicable, and the settlement date is scheduled to occur on a date following such Event of Default or Market Value Event, the Administrative Agent shall consent to such sale so long as all applicable criteria set forth in the immediately preceding paragraph were satisfied as of the trade date for such sale.
Any prepayments made pursuant to this paragraph shall automatically reduce the Financing Commitments as provided in Section 4.07(c).
In connection with any sale of Portfolio Investments required by the Administrative Agent following the occurrence of a Market Value Event, the Administrative Agent or a designee of the Administrative Agent shall:
(i) notify the Company at the Designated Email Notification Address promptly upon distribution of bid solicitations regarding the sale of such Portfolio Investments; and
(ii) direct the Company to sell such Portfolio Investments to the Designated Independent Dealer if the Designated Independent Dealer provides the highest bid in the case where bids are received in respect of the sale of such Portfolio Investments, it being understood that if the Designated Independent Dealer provides a bid to the Administrative Agent that is the highest bona fide bid to purchase a Portfolio Investment on a line-item basis where such Portfolio Investment is part of a pool of Portfolio Investments for which there is a bona fide bid on a pool basis proposed to be accepted by the Administrative Agent (in its sole discretion), then the Administrative Agent shall accept any such line-item bid only if such line-item bid (together with any other line-item bids by the Designated Independent


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Dealer or any other bidder for other Portfolio Investments in such pool) is greater than the bid on a pool basis.
For purposes of this paragraph, the Administrative Agent shall be entitled to disregard as invalid any bid submitted by the Designated Independent Dealer if, in the Administrative Agent's judgment (acting reasonably):
(A) either:
(x) the Designated Independent Dealer is ineligible to accept assignment or transfer of the relevant Portfolio Investments or any portion thereof, as applicable, substantially in accordance with the then-current market practice in the principal market for the relevant Portfolio Investments; or
(y) the Designated Independent Dealer would not, through the exercise of its commercially reasonable efforts, be able to obtain any consent required under any agreement or instrument governing or otherwise relating to the relevant Portfolio Investments to the assignment or transfer of the relevant Portfolio Investments or any portion thereof, as applicable, to it; or
(B) such bid is not bona fide, including, without limitation, due to (x) the insolvency of the Designated Independent Dealer or (y) the inability, failure or refusal of the Designated Independent Dealer to settle the purchase of the relevant Portfolio Investments or any portion thereof, as applicable, or otherwise settle transactions in the relevant market or perform its obligations generally.
In connection with any sale of a Portfolio Investment directed by the Administrative Agent pursuant to this Section 1.04 and the application of the net proceeds thereof, the Company hereby appoints the Administrative Agent as the Company's attorney-in-fact (it being understood that the Administrative Agent shall not be deemed to have assumed any of the obligations of the Company by this appointment), with full authority in the place and stead of the Company and in the name of the Company to effectuate the provisions of this Section 1.04 (including, without limitation, the power to execute any instrument which the Administrative Agent or the Required Lenders may deem necessary or advisable to accomplish the purposes of this Section 1.04 or any direction or notice to the Collateral Agent in respect of the application of net proceeds of any such sales). None of the Administrative Agent, the Lenders, the Collateral Administrator, the Securities Intermediary, the Collateral Agent or any Affiliate of any thereof shall incur any liability to the Company, the Portfolio Manager, any Lender or any other Person in connection with any sale effected at the direction of the Administrative Agent in accordance with this Section 1.04, including, without limitation, as a result of the price obtained for any Portfolio Investment, the timing of any sale or sales of Portfolio Investments or the notice or lack of notice provided to any Person in connection with any such sale, so long as, in the case of the Administrative Agent only, any such sale does not violate Applicable Law.
SECTION 1.05. Additional Equity Contributions. The Parent may, but shall have no obligation to, at any time or from time to time make a capital contribution to the Company for any purpose, including for the purpose of curing any Default or Event of Default, in connection with a Market Value Cure, satisfying any Borrowing Base Test, enabling the acquisition or sale of any Portfolio Investment or satisfying any conditions under Section 2.04. Each contribution shall either be made (a) in cash, (b) by assignment and contribution of Cash Equivalents and/or (c) by assignment and contribution of a Portfolio Investment that satisfies all of the Eligibility Criteria and the Concentration Limitations and could otherwise be sold to the Company in compliance with this Agreement.


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SECTION 1.06. Substitutions; Limitations on Sales and Substitutions. The Company may replace a Portfolio Investment with another Portfolio Investment (each such replacement, a "Substitution" and such new Portfolio Investment, a "Substitute Portfolio Investment") so long as the Company has submitted a Notice of Acquisition and all other applicable conditions precedent set forth in Section 1.03 have been satisfied with respect to each Substitute Portfolio Investment to be acquired by the Company in connection with such Substitution. In no event shall the aggregate outstanding balance of Portfolio Investments in the Portfolio subject to a Substitution, together with the aggregate outstanding balance of Portfolio Investments sold to the Seller by the Company pursuant to Section 1.04 of this Agreement, exceed 20% of the Net Purchased Loan Balance measured as of the date of such sale.
SECTION 1.07. Certain Assumptions relating to Portfolio Investments. For purposes of all calculations hereunder, any Portfolio Investment for which the trade date in respect of a sale thereof by the Company has occurred, but the settlement date for such sale has not occurred, shall be considered to be owned by the Company until such settlement date.
SECTION 1.08. Currency Equivalents Generally.
(a)  Except as set forth in clause (b) and Section 4.06(b), for purposes of all valuations and calculations under the Loan Documents, (i) the principal amount and Market Value of all Portfolio Investments and Eligible Investments denominated in a Permitted Non-USD Currency, (ii) proceeds denominated in a Permitted Non-USD Currency on deposit in any Non-USD Obligation Account and (iii) for the purposes of Net Advances and the Borrowing Base Test, the aggregate outstanding principal amount of Advances denominated in Permitted Non-USD Currencies shall be converted to USD at the Spot Rate in accordance with the definition of such term in consultation with the Administrative Agent on the applicable date of valuation or calculation, as applicable.
(b) Except as provided in Section 4.06(b), for purposes of determining (i) whether the amount of any Advance, together with all other Advances then outstanding or to be made at the same time as such Advances, would exceed the aggregate amount of the Financing Commitments, (ii) the aggregate unutilized amount of the Financing Commitments and (iii) the limitations on the portion of the Financing Limit and the Financing Commitment that may be utilized in Permitted Non-USD Currencies, the outstanding principal amount of any Advances that are denominated in a Permitted Non-USD Currency shall be deemed to be the Dollar Equivalent of the amount of the Permitted Non-USD Currency of such Advances determined as of the date such Advances were made. Wherever in this Agreement in connection with an Advance, an amount, such as a required minimum or multiple amount, is expressed in U.S. dollars, but such Advance is denominated in a Permitted Non-USD Currency, such amount shall be the applicable Permitted Non-USD Currency Equivalent of such U.S. dollar amount (rounded to the nearest 1,000 units of the applicable Permitted Non-USD Currency).
ARTICLE II 
THE ADVANCES
SECTION 2.01. Financing Commitments. Subject to the terms and conditions set forth herein, only during the Reinvestment Period, each Lender hereby severally agrees to make available to the Company Advances in a Currency in an aggregate amount outstanding not exceeding the amount of such Lender's Financing Commitment. The Financing Commitments shall terminate on the earliest of (a) the last day of the Reinvestment Period, (b) the Maturity Date and (c) the occurrence of a Market Value Event.


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SECTION 2.02. [Reserved].
SECTION 2.03. Advances; Use of Proceeds.
(a) Subject to the satisfaction or waiver of the conditions to the Purchase of a Portfolio Investment set forth in Section 1.03 and/or an Advance set forth in Section 2.05 as of (i) both the related Trade Date and Settlement Date and/or (ii) the Advance date, as applicable, the Lenders will (ratably in accordance with their respective Financing Commitments) make the applicable Advance available to the Company on the related Settlement Date (or otherwise on the related Advance date if no Portfolio Investment is being acquired on such date) as provided herein.
(b) Except as expressly provided herein, the failure of any Lender to make any Advance required hereunder shall not relieve any other Lender of its obligations hereunder. If any Lender shall fail to provide any Advance to the Company required hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations hereunder until all such unsatisfied obligations are fully paid.
(c) Subject to Section 2.03(e), the Company shall use the proceeds of the Advances received by it hereunder to purchase the Portfolio Investments identified in the related Notice of Acquisition or to make advances to the obligor of Delayed Funding Term Loans in accordance with the underlying instruments relating thereto; provided that, if the proceeds of an Advance are deposited in the Collection Account or a Non-USD Collection Account as provided in Section 3.01 prior to or on the expected Settlement Date for any Portfolio Investment but the Company is unable to Purchase such Portfolio Investment on the related expected Settlement Date, or if there are proceeds of such Advance remaining after such Purchase, then, subject to Section 3.01(a), upon written notice from the Portfolio Manager, the Collateral Agent shall apply such proceeds on such date as provided in Section 4.05. The proceeds of the Advances shall not be used for any other purpose. Notwithstanding the foregoing, if the purchase price of a Portfolio Investment with respect to which a Notice of Acquisition has been approved by the Administrative Agent and which could otherwise have been acquired with the proceeds of a related Advance in compliance with Section 2.05 and the other applicable requirements of this Agreement is instead paid by the Parent or its Affiliate on the designated Settlement Date, the Company may use the proceeds of such Advance to repay the Parent or such Affiliate for the amount of the purchase price for such Portfolio Investment advanced by such Person.
(d) With respect to any Advance, the Portfolio Manager on behalf of the Company shall submit a request substantially in the form of Exhibit A (a "Request for Advance") to the Lenders and the Administrative Agent, with a copy to the Collateral Agent and the Collateral Administrator, not later than 2:00 p.m. New York City time, one (1) Business Day prior to the Business Day specified as the date on which such Advance shall be made and, upon receipt of such request, the Lenders shall make such Advances in accordance with the terms set forth in Section 3.01. Any requested Advance shall be in an amount such that, immediately after giving effect thereto and the related purchase (if any) of the applicable Portfolio Investment(s), the Borrowing Base Test is satisfied.
(e) If two Business Days prior to the end of the Reinvestment Period there exists any Unfunded Exposure Shortfall, then the Portfolio Manager, on behalf of the Company, shall be deemed to have requested an Advance in the applicable Currency on such date, and the Lenders shall make a corresponding Advance on the last day of the Reinvestment Period (with written notice to the Collateral Administrator by the Administrative Agent) in accordance with Article III in amount, to be deposited in


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the Unfunded Exposure Account or any applicable Non-USD Unfunded Exposure Account, equal to the least of (i) the aggregate Unfunded Exposure Shortfall, (ii) the Financing Commitments in excess of the aggregate principal amount of the outstanding Advances and (iii) an amount such that the Borrowing Base Test is satisfied after giving effect to such Advance; provided that, if the Company provides evidence to the Administrative Agent that it has cash from other sources that is available in accordance with the terms of this Agreement to make any such future advances in respect of any Delayed Funding Term Loan, then the amount of any such Advance shall be reduced by the amount of such funds. After giving effect to such Advance, the Company shall cause the proceeds of such Advance and cash from other sources that are available in accordance with the terms of this Agreement in an amount equal to the aggregate Unfunded Exposure Shortfall to be deposited in the Unfunded Exposure Account and/or any applicable Non-USD Unfunded Obligation Account.
SECTION 2.04. Conditions to Effective Date. Notwithstanding anything to the contrary herein, this Agreement shall not become effective until the date (the "Effective Date") on which each of the following conditions is satisfied (or waived by the Administrative Agent in its sole discretion):
Executed Counterparts. The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(a) Loan Documents. The Administrative Agent (or its counsel) shall have received reasonably satisfactory evidence that the Loan Documents have been executed and are in full force and effect, and that the initial sales and contributions (or grant of Participation Interests, as applicable) contemplated by the Sale Agreement shall have been consummated in accordance with the terms thereof.
(b) Opinions. The Administrative Agent (or its counsel) shall have received one or more reasonably satisfactory written opinions of counsel for the Company, the Portfolio Manager, the Parent and the Seller, covering such matters relating to the transactions contemplated hereby and by the other Loan Documents as the Administrative Agent shall reasonably request (including, without limitation, certain bankruptcy and UCC matters) in writing.
(c) Corporate Documents. The Administrative Agent (or its counsel) shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of the Company, the Parent, the Seller and the Portfolio Manager as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer thereof or other Person authorized to act in connection with this Agreement and the other Loan Documents, and such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the Parent, the Seller and the Portfolio Manager and any other legal matters relating to the Company, the Parent, the Portfolio Manager, this Agreement or the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) Payment of Fees, Etc. The Administrative Agent, the Lenders, the Collateral Agent and the Collateral Administrator shall have received all fees and other amounts due and payable by the Company in connection herewith on or prior to the Effective Date, including the


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fee payable pursuant to Section 4.03(e) and, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented legal fees and expenses) required to be reimbursed or paid by the Company hereunder.
(e) PATRIOT Act, Etc. (i) To the extent requested by the Administrative Agent or any Lender, the Administrative Agent or such Lender, as the case may be, shall have received all documentation and other information required by regulatory authorities under the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "PATRIOT Act") and other applicable "know your customer" and anti-money laundering rules and regulations and (ii) to the extent the Company qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Company at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification.
(f) Filings. Copies of proper financing statements, as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the security interest of the Collateral Agent on behalf of the Secured Parties in all Collateral in which an interest may be pledged hereunder.
(g) Certain Acknowledgements. The Administrative Agent shall have received (i) UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches indicating that there are no effective lien notices or comparable documents that name the Company as debtor and that are filed in the jurisdiction in which the Company is organized, (ii) a UCC lien search indicating that there are no effective lien notices or comparable documents that name the Seller as debtor which cover any of the Portfolio Investments and (iii) such other searches that the Administrative Agent reasonably deems necessary or appropriate.
(h) Officer’s Certificate. The Administrative Agent (or its counsel) shall have received a certificate of an officer of the Company, certifying that the conditions set forth in Sections 2.05(4) and 2.05(6) have been satisfied on and as of the Effective Date.
(i) Other Documents. Such other documents as the Administrative Agent may reasonably require.
SECTION 2.05. Conditions to Advances. No Advance shall be made unless each of the following conditions is satisfied (or waived by the Administrative Agent in its sole discretion) as of the proposed date of such Advance:
(1) the Effective Date shall have occurred;
(2) the Company shall have delivered a Request for Advance in accordance with Section 2.03(d);
(3) no Market Value Event has occurred
(4) no Event of Default or Default has occurred and is continuing;
(5) the Reinvestment Period has not ended;


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(6) all of the representations and warranties contained in Article VI and in any other Loan Document shall be true and correct in all material respects (or with respect to such representations and warranties which by their terms contain materiality qualifiers, shall be true and correct), in each case on and as of the date of such Advance, 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 with respect to such representations and warranties which by their terms contain materiality qualifiers, shall be true and correct) as of such earlier date; and
(7) immediately after giving pro forma effect to such Advance (and any related Purchase) hereunder:
(x) the Borrowing Base Test is satisfied;
(y) the aggregate principal balance of Advances then outstanding will not exceed the aggregate limit for Advances set forth in the Transaction Schedule; and
(z) in the case of an Advance made in connection with a Purchase, the amount of such Advance shall be not less than U.S.$1,000,000; provided that the amount of the initial Advance on the Effective Date shall be not less than U.S.$120,000,000.
If the above conditions to an Advance are satisfied or waived by the Administrative Agent, the Portfolio Manager (on behalf of the Company) shall determine, in consultation with the Administrative Agent and with notice to the Lenders and the Collateral Administrator, the date on which any Advance shall be provided.
SECTION 2.06. Commitment Increase Request. The Company may, at any time during the Reinvestment Period, submit a Commitment Increase Request for an increase in the Financing Commitment to up to $900,000,000 (in the aggregate), subject to satisfaction (or waiver by the Administrative Agent in its sole discretion) of the following conditions precedent:
(a) the Administrative Agent (in its sole discretion) approves in writing (which may be by an email) such Commitment Increase Request;
(b) no Market Value Event shall have occurred and no Event of Default shall have occurred and be continuing, in each case on and as of the Commitment Increase Date;
(c) the Borrowing Base Test is satisfied on and as of the Commitment Increase Date;
(d) all of the representations and warranties contained in Article VI and in any other Loan Document shall be true and correct in all material respects (or with respect to such representations and warranties which by their terms contain materiality qualifiers, shall be true and correct), in each case on and as of the Commitment Increase 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 with respect to such representations and warranties which by their terms contain materiality qualifiers, shall be true and correct) as of such earlier date;
(e) no commitment reduction shall have occurred pursuant to Section 4.07(a) in connection with a Non-Call Termination Event prior to the Commitment Increase Date;


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(f) any Commitment Increase Request shall be in an amount not less than $50,000,000; and
(g) receipt by the Administrative Agent of such other documentation as the Administrative Agent may reasonably request, including without limitation, documentation similar to that provided pursuant to Sections 2.04(d) and (f)(ii) on the Effective Date.
ARTICLE III 
ADDITIONAL TERMS APPLICABLE TO THE ADVANCES
SECTION 3.01. The Advances.
(a) Making the Advances. If the Lenders are required to make an Advance to the Company as provided in Section 2.03, then each Lender shall make such Advance in the applicable Currency on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the Collateral Agent for deposit to the Principal Collection Account (or, in the case of Advances denominated in a Permitted Non-USD Currency, the applicable Non-USD Collection Account). Each Lender at its option may make any Advance by causing any domestic or foreign branch or Affiliate of such Lender to make such Advance; provided that any exercise of such option shall not affect the obligation of the Company to repay such Advance in accordance with the terms of this Agreement. Subject to the terms and conditions set forth herein, the Company may borrow and prepay Advances.
(b) Interest on the Advances. Subject to Section 3.01(h), all outstanding Advances shall bear interest (from and including the date on which such Advance is made) at a per annum rate equal to the applicable Reference Rate for each Calculation Period in effect plus the Applicable Margin for Advances set forth on the Transaction Schedule; provided that, following the occurrence and during the continuance of an Event of Default pursuant to clause (a) of Article VII (and upon election by the Required Lenders following the occurrence and during the continuance of any other Event of Default), all outstanding Advances and any accrued and unpaid interest thereon shall bear interest (from and including the date of such Event of Default) at a per annum rate equal to the applicable Reference Rate for each Calculation Period in effect plus the Adjusted Applicable Margin; provided further that, solely for purposes of this Section 3.01(b), if the aggregate amount of outstanding Advances at any time is less than the Minimum Funding Amount, the amount of outstanding Advances at such time shall be deemed to equal the Minimum Funding Amount.
(c) Evidence of the Advances. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Company to such Lender resulting from each Advance made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder and the Currency thereof. The Administrative Agent, acting solely for this purpose as an agent of the Company, shall maintain at one of its offices a register (the "Register") in which it shall record (1) the amount of each Advance made hereunder and the Currency thereof, (2) the amount of any principal or interest due and payable or to become due and payable from the Company to each Lender hereunder and (3) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof. The entries made in the Register maintained pursuant to this paragraph (c) shall be conclusive absent manifest error; provided that the failure of any Lender or the Administrative Agent to maintain such Register or any error therein shall not in any manner affect the obligation of the Company to repay the Advances in accordance with the terms of this Agreement.


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Any Lender may request that Advances made by it be evidenced by a promissory note. In such event, the Company shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if a registered note is requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Thereafter, the Advances evidenced by such promissory note and interest thereon shall at all times be represented by one or more promissory notes in such form payable to the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
(d) Pro Rata Treatment. Except as otherwise provided herein, all borrowings of, and payments in respect of, the Advances shall be made on a pro rata basis by or to the Lenders in accordance with their respective portions of the Financing Commitments in respect of Advances held by them.
(e) Illegality. Notwithstanding any other provision of this Agreement, if any Lender or the Administrative Agent shall notify the Company that the adoption of any law, rule or regulation, or any change therein or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, makes it unlawful, or any Governmental Authority asserts that it is unlawful, for a Lender or the Administrative Agent to perform its obligations hereunder to fund or maintain Advances hereunder in the applicable Currency, then (1) the obligation of such Lender or the Administrative Agent hereunder to fund or maintain Advances in such Currency shall immediately be suspended until such time as such Lender or the Administrative Agent determines (in its sole discretion) that such performance is again lawful, (2) any such Lender shall comply with the requirements of Section 3.04, and (3) if such Lender is unable to effect a transfer under clause (2), then any outstanding Advances of such Lender shall be promptly paid in full by the Company (together with all accrued interest and other amounts owing hereunder) but not later than the earlier of (x) if the Company requests such Lender or the Administrative Agent to take the actions set forth in clause (2) above, 20 calendar days after the date on which such Lender or the Administrative Agent notifies the Company in writing that it is unable to transfer its rights and obligations under this Agreement as specified in such clause (2) and (y) such date as shall be mandated by law; provided that, to the extent that any such adoption or change makes it unlawful for the Advances to bear interest by reference to the Reference Rate, then the foregoing clauses (1) through (3) shall not apply and the Advances shall bear interest (from and after the last day of the Calculation Period ending immediately after such adoption or change) at a per annum rate equal to the Base Rate plus the Applicable Margin for Advances set forth on the Transaction Schedule.
(f) Increased Costs.
(i) If any Change in Law shall:
(A) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender;
(B) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Advances made by such Lender; or


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(C) subject any Lender or the Administrative Agent 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;
and the result of any of the foregoing shall be to increase the cost to such Lender or the Administrative Agent of making, continuing, converting or maintaining any Advance or to reduce the amount of any sum received or receivable by such Lender or the Administrative Agent hereunder (whether of principal, interest or otherwise), then, upon written request by such Lender or the Administrative Agent, the Company will pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent, as the case may be, for such additional costs incurred or reduction suffered.
(ii) If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Advances made by such Lender to a level below that which such Lender or such Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy and liquidity) by an amount reasonably deemed by such Lender to be material, then from time to time the Company will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction suffered.
(iii) A certificate of a Lender setting forth the amount or amounts necessary to compensate, and the basis for such compensation of, such Lender or its holding company, as the case may be, as specified in paragraph (i) or (ii) of this Section shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(iv) Failure or delay on the part of any Lender or the Administrative Agent to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or the Administrative Agent's right to demand such compensation; provided that the Company shall not be required to compensate a Lender or the Administrative Agent pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Administrative Agent notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the Administrative Agent's intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180‑day period referred to above shall be extended to include the period of retroactive effect thereof.
(v) Each of the Lenders and the Administrative Agent agrees that it will take such commercially reasonable actions as the Company may reasonably request that will avoid the need to pay, or reduce the amount of, any increased amounts referred to in this Section 3.01(f); provided that no Lender or the Administrative Agent shall be obligated to take any actions that would, in the reasonable opinion of such Lender or the Administrative Agent, be disadvantageous to such Lender or the Administrative Agent (including, without limitation, due to a loss of


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money). In no event will the Company be responsible for increased amounts referred to in this Section 3.01(f) which relates to any other entities to which any Lender provides financing.
(g) No Set-off or counterclaim. Subject to Section 3.03, all payments to be made hereunder by the Company in respect of the Advances shall be made without set-off or counterclaim and in such amounts as may be necessary in order that every such payment (after deduction or withholding for or on account of any present or future Taxes imposed by the jurisdiction in which the Company is organized or any political subdivision or taxing authority therein or thereof) shall not be less than the amounts otherwise specified to be paid under this Agreement.
(h) Alternate Rate of Interest. (i) If prior to the commencement of any Calculation Period: (x) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Reference Rate (including, without limitation, because the Reference Rate is not available or published on a current basis), for deposits in the applicable Currency and such Calculation Period; or (y) the Administrative Agent is advised by the Required Lenders that the Reference Rate, as applicable, for such Calculation Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Advances (or its Advance) included in such Advance for such Calculation Period; then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist, if any Advance in the applicable Currency is requested, such Advance shall accrue interest at the Base Rate plus the Applicable Margin for Advances set forth on the Transaction Schedule.
(ii) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (x) the circumstances set forth in Section 3.01(h)(i)(x) have arisen and such circumstances are unlikely to be temporary or (y) the circumstances set forth in Section 3.01(h)(i)(x) have not arisen but the supervisor for the administrator of the Reference Rate or a governmental authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Reference Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Company shall endeavor to establish an alternate rate of interest to the Reference Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States or the applicable Eligible Jurisdiction at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such changes shall not include a reduction in the Applicable Margin). Notwithstanding anything to the contrary in Section 10.05, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (ii) (but, in the case of the circumstances described in clause (y) of the first sentence of this Section 3.01(h)(ii), only to the extent the Reference Rate for deposits in the applicable Currency and such Calculation Period is not available or published at such time on a current basis), if any Advance is requested, such advance shall accrue interest at the Base Rate plus the Applicable Margin for Advances set forth on the Transaction Schedule.
SECTION 3.02. [Reserved].


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SECTION 3.03. Taxes.
(a) Payments Free of Taxes. All payments to be made hereunder by the Company in respect of the Advances shall be made without deduction or withholding for any Taxes, except as required by Applicable Law (including FATCA). If any Applicable Law requires the deduction or withholding of any Tax from any such payment by the Company, then the Company shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Company 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) the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by the Company. The Company shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification by the Company. The Company shall indemnify each Lender, within 10 days 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) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Indemnification by the Lenders. Each Lender shall indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Lender's failure to comply with the provisions of 10.06 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 Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Evidence of Payments. As soon as practicable after any payment of Taxes by the Company to a Governmental Authority pursuant to this Section 3.03, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.


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(f) Status of Secured Parties. (%4) Any Secured Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.03(f) (ii)(A), (ii)(B) and (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.
(i) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall deliver to the Company and the Administrative Agent (in such number of copies as shall be reasonably 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 Company or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN, IRS Form W-8BEN-E or applicable successor form establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, an IRS Form W-8BEN or IRS Form W-8BEN-E or any applicable successor form 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) an executed 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 in form reasonably acceptable to the Company to the effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, is not a "10 percent shareholder" of the Company or the Parent within the meaning of Section 881(c)(3)(B) of the Code, and is not a "controlled foreign corporation" described in Section 881(c)(3)(C)


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of the Code (a "U.S. Tax Compliance Certificate") and (y) an executed IRS Form W-8BEN, IRS Form W-8BEN-E or applicable successor form; or
(iv) to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E or applicable successor form, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be reasonably 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 Company or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to 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 Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
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 Company and the Administrative Agent in writing of its legal inability to do so.
(E) The Administrative Agent shall deliver to the Company an electronic copy of an IRS Form W-9 upon becoming a party under this Agreement. The Administrative Agent represents to the Company that it is a "U.S. person" and a "financial institution" within the meaning of Treasury Regulations Section 1.1441-1 and a "U.S. financial institution" within the meaning of Treasury Regulations Section 1.1471-3T and that it will comply with its obligations to withhold under Section 1441 and FATCA.
(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 3.03 (including by the payment of additional amounts pursuant to this Section 3.03), 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 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 Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the


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amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (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 paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) Survival. Each party's obligations under this Section 3.03 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Financing Commitments, and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 3.04. Mitigation Obligations.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.01(e) or (f), or if the Company is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.03, then such Lender shall (at the request of the Company) use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01(e) or (f) or Section 3.03, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender (i) requests compensation under Section 3.01(e) or (f), or if the Company is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.03, and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.04(a), (ii) defaults in its obligation to make Advances hereunder or (iii) becomes subject to a Bail-In Action, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in and the consents required by Section 10.08), all of its interests, rights (other than its existing rights to payments pursuant to Section 3.01(e) or (f) or Section 3.03) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, conditioned or delayed, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts), (iii) such assignment will result in a ratable reduction in the claim for compensation or payments under Section 3.01(e) or (f) or Section 3.03, as applicable and (iv) such assignment does not conflict with applicable law. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the


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Company to require such assignment and delegation cease to apply. No prepayment fee that may otherwise be due hereunder shall be payable to such Lender in connection with any such assignment.
ARTICLE IV 
COLLECTIONS AND PAYMENTS
SECTION 4.01. Interest Proceeds. The Company shall notify the obligor (or the relevant agent under the applicable underlying documents) with respect to each Portfolio Investment to remit all amounts that constitute Interest Proceeds to the Collection Account. To the extent Interest Proceeds are received other than by deposit into the Collection Account, the Company shall cause all Interest Proceeds on the Portfolio Investments to be deposited in the Collection Account or remitted to the Collateral Agent, and the Collateral Agent shall credit (or cause to be credited) to the Collection Account all Interest Proceeds received by it promptly upon receipt thereof in accordance with the written direction of the Portfolio Manager. Notwithstanding the foregoing, Interest Proceeds denominated in Permitted Non-USD Currencies shall be deposited into the applicable Non-USD Collection Account in the manner provided above.
Interest Proceeds shall be retained in the Collection Account or the applicable Non-USD Collection Account and held in cash and/or invested (and reinvested) at the written direction of the Company (or the Portfolio Manager on its behalf) delivered to the Collateral Agent in Cash Equivalents in the applicable Currency selected by the Portfolio Manager (unless an Event of Default has occurred and is continuing or a Market Value Event has occurred, in which case, selected by the Administrative Agent) ("Eligible Investments"); provided that, prior to the date (if any) on which the Non-USD Custodial Account is established in accordance with this Agreement and the Security Trust Deed, Interest Proceeds received in any Permitted Non-USD Currency shall remain uninvested and shall be deposited into the applicable Non-USD Collection Account. Eligible Investments shall mature no later than the end of the then-current Calculation Period.
Interest Proceeds on deposit in the Collection Account or a Permitted Non-USD Collection Account shall be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and applied (i) to make payments in accordance with this Agreement or (ii) to make Permitted Distributions or Permitted RIC Distributions in accordance with this Agreement.
SECTION 4.02. Principal Proceeds. The Company shall notify the obligor (or the relevant agent under the applicable underlying documents) with respect to each Portfolio Investment to remit all amounts that constitute Principal Proceeds to the Collection Account. To the extent Principal Proceeds are received other than by deposit into the Collection Account, the Company shall cause all Principal Proceeds received on the Portfolio Investments to be deposited in the Collection Account or remitted to the Collateral Agent, and the Collateral Agent shall credit (or cause to be credited) to the Collection Account all Principal Proceeds received by it immediately upon receipt thereof in accordance with the written direction of the Portfolio Manager. Notwithstanding the foregoing, Principal Proceeds denominated in Permitted Non-USD Currencies shall be deposited into the applicable Non-USD Collection Account in the manner provided above.
All Principal Proceeds shall be held in the Collection Account or the applicable Non-USD Collection Account and held in cash and/or invested (and reinvested) at the written direction of the Administrative Agent in Eligible Investments in the applicable Currency selected by the Portfolio


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Manager (unless an Event of Default has occurred and is continuing or a Market Value Event has occurred, in which case, selected by the Administrative Agent); provided that, prior to the date (if any) on which the Non-USD Custodial Account is established in accordance with this Agreement and the Security Trust Deed, Principal Proceeds received in any Permitted Non-USD Currency shall remain uninvested and shall be deposited into the applicable Non-USD Collection Account. All investment income on such Eligible Investments shall constitute Interest Proceeds.
Principal Proceeds on deposit in the Collection Account or a Non-USD Collection Account shall be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and applied (i) to make payments in accordance with this Agreement, (ii) towards the purchase price of Portfolio Investments purchased in accordance with this Agreement or (iii) to make Permitted Distributions or Permitted RIC Distributions in accordance with this Agreement, in each case, to the extent not otherwise required under this Agreement, with prior notice to the Administrative Agent.
For the avoidance of doubt, Principal Proceeds received in connection with the sale of any Portfolio Investment pursuant to Section 1.04 following a Market Value Event shall be used to prepay Advances as set forth therein at the written direction of the Administrative Agent.
SECTION 4.03. Principal and Interest Payments; Prepayments; Commitment Fee.
(a) The Company shall pay the unpaid principal amount of the Advances (together with accrued interest thereon) to the Administrative Agent for the account of each Lender on the Maturity Date in accordance with the Priority of Payments and any and all cash in the Collateral Accounts and the Non-USD Obligation Accounts shall be applied to the satisfaction of the Secured Obligations on the Maturity Date and on each Additional Distribution Date in accordance with the Priority of Payments.
(b) Accrued and unpaid interest on the Advances shall be payable in arrears on each Interest Payment Date, each Additional Distribution Date and on the Maturity Date in accordance with the Priority of Payments; provided that (i) interest accrued pursuant to the first proviso to Section 3.01(b) shall be payable on demand and (ii) in the event of any repayment or prepayment of any Advances, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment. "Interest Payment Date" means the fifteenth day after the last day of each Calculation Period.
(c) (i) Subject to the requirements of this Section 4.03(c), the Company shall have the right from time to time to prepay outstanding Advances in whole or in part (A) on any Business Day that JPMorgan Chase Bank, National Association ceases to act as Administrative Agent, (B) in connection with a Market Value Cure, (C) subject to the payment of the premium (if applicable) described in clause (ii) below, up to but not more than three times during any Calculation Period; provided that the Company may not prepay any outstanding Advances pursuant to this Section 4.03(c)(i)(C) during the Non-Call Period in an amount that would cause the aggregate outstanding principal amount of the Advances to be below the Minimum Funded Amount in effect as of such date (such aggregate principal amount in excess of the Minimum Funded Amount, the "Excess Funded Amount"), or (D) at any time after the Non-Call Termination Date. The Company shall notify the Administrative Agent, the Collateral Agent and the Collateral Administrator by electronic mail of an executed document (attached as a .pdf or other similar file) of any prepayment pursuant to Section 4.03(c)(i)(A) or Section 4.03(c)(i)(C)


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not later than 2:00 p.m., New York City time, two (2) Business Days before the date of prepayment. Each such notice shall be irrevocable (unless such notice conditions such prepayment upon consummation of a transaction which is contemplated to result in a prepayment of outstanding Advances, in which event such notice may be revocable or conditioned upon such consummation) and shall specify the prepayment date and the principal amount of the Advances to be prepaid. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Except in connection with a Market Value Cure, each partial prepayment of outstanding Advances shall be in an amount not less than U.S.$1,000,000 (or, if less, the aggregate outstanding amount thereof). Prepayments shall be accompanied by accrued and unpaid interest.
(ii) Each prepayment or commitment reduction pursuant to Section 4.03(c)(i)(C) and Section 4.07(a) that is made after the Non-Call Period (unless the Non-Call Period ended as a result of a Non-Call Termination Date) and during the Reinvestment Period, whether in full or in part, shall be accompanied by a premium equal to 1% of the aggregate principal amount of such prepayment or (without duplication) commitment reduction and, at the request of any Lender in respect of any prepayment on a date other than an Interest Payment Date, any costs incurred by it in respect of the breakage of its funding at the Reference Rate for the related Calculation Period; provided that no such premium shall be payable with respect to any prepayment (or portion thereof) that does not exceed the Excess Funded Amount.
(d) Except as otherwise expressly agreed by the Administrative Agent in writing, the Company agrees to pay to the Administrative Agent, for the account of each Lender, a commitment fee (the "Commitment Fee") in accordance with the Priority of Payments which shall accrue at (i) for the period from the Effective Date to but excluding the last day of the Ramp-Up Period, 0.375% per annum and (ii) for the period from and including the last day of the Ramp-Up Period to but excluding the last day of the Reinvestment Period, 0.60% per annum, in each case, on the average daily unused amount of the Financing Commitment of such Lender during the applicable period (calculated by reference to the Minimum Funding Amount to the extent applicable). Accrued Commitment Fees shall be payable in arrears on each Interest Payment Date, and on the date on which the Financing Commitments terminate. All Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(e) Without limiting Section 4.03(c), the Company shall have the obligation from time to time to prepay outstanding Advances in whole or in part on any date with proceeds from sales of Portfolio Investments directed by the Administrative Agent pursuant to Section 1.04 and as set forth in Section 8.01(c). All such prepayments shall be accompanied by accrued and unpaid interest (but no premium).
SECTION 4.04. MV Cure Account.
(a) The Company shall cause all cash received by it in connection with a Market Value Cure to be deposited in the MV Cure Account or remitted to the Collateral Agent, and the Collateral Agent shall credit to the MV Cure Account such amounts received by it (and identified in writing as such) immediately upon receipt thereof. Prior to the Maturity Date, all cash amounts in the MV Cure Account shall be invested in overnight Eligible Investments at the written direction of the Administrative Agent (as directed by the Required Lenders). All amounts contributed to the Company by Parent in connection with a Market Value Cure shall be paid free and clear of any right of chargeback or other equitable claim.


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(b) Amounts on deposit in the MV Cure Account may be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and remitted to the Company with prior notice to the Administrative Agent (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, to the Lenders for prepayment of Advances and reduction of Financing Commitment); provided that the Company may not direct any withdrawal from the MV Cure Account if the Borrowing Base Test is not satisfied (or would not be satisfied after such withdrawal).
SECTION 4.05. Priority of Payments. On (w) each Interest Payment Date, (x) the Maturity Date, (y) upon request of the Administrative Agent (which request may be a standing request), each Agent Business Day after the occurrence of a Market Value Event and (z) upon request of the Administrative Agent (which request may be a standing request), each Agent Business Day after the occurrence of an Event of Default and the declaration of the Secured Obligations as due and payable hereunder (each date set forth in clauses (y) and (z) above, an "Additional Distribution Date"), the Collateral Agent shall distribute all amounts in the Collection Account in the following order of priority (the "Priority of Payments"):
(a) to pay (i) first, amounts due or payable to the Collateral Agent, the Collateral Administrator and the Securities Intermediary hereunder and under the Account Control Agreement (including reasonable and documented fees, out-of-pocket expenses and indemnities required to be paid hereunder and thereunder) and (ii) second, any other accrued and unpaid fees and out-of pocket expenses (other than the Commitment Fee payable to the Lenders, but including Lender indemnities) due hereunder and under the Account Control Agreement, up to a maximum amount under this clause (a) of U.S.$50,000 (the "Cap") on each Interest Payment Date, the Maturity Date and each Additional Distribution Date (in the case of any Additional Distribution Date or the Maturity Date, after giving effect to all payments of such amounts on any other Additional Distribution Date or Interest Payment Date occurring in the same calendar quarter); provided that, if an Event of Default has occurred and the Administrative Agent has terminated the Financing Commitments and declared the Secured Obligations due and payable, the Cap shall be increased to $200,000 for payment to the Collateral Agent, the Collateral Administrator and the Securities Intermediary in connection with any actions it has taken with respect to enforcement of rights on the Collateral;
(b) to pay accrued and unpaid interest due and payable hereunder in respect of the Advances, any accrued and unpaid Commitment Fees payable to the Lenders and any amounts payable to any Lender or the Administrative Agent pursuant to Section 3.01(e) or (f) or Section 3.03 (pro rata based on amounts due);
(c) to pay (i) on each Interest Payment Date, all prepayments of the Advances permitted or required under this Agreement (including any applicable premium) and (ii) on the Maturity Date (and, if applicable, any Additional Distribution Date), outstanding principal of the Advances until the Advances are paid in full;
(d) to pay to the Portfolio Manager (unless waived or deferred in whole or in part by Portfolio Manager) any accrued and unpaid Primary Management Fee for the related Calculation Period;
(e) prior to the end of the Reinvestment Period, at the direction of the Portfolio Manager, to fund the Unfunded Exposure Account and any applicable Non-USD Unfunded Exposure Account up to the Unfunded Exposure Amounts;


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(f) to pay all amounts set forth in clause (a) above not paid due to the limitation set forth therein;
(g) to pay to the Portfolio Manager (unless waived or deferred in whole or in part by Portfolio Manager) any accrued and unpaid Secondary Management Fee for the related Calculation Period;
(h) to make any Permitted Distributions or Permitted RIC Distributions (subject to the limitations on the use of Interest Proceeds and Principal Proceeds set forth in the definition of such term) directed pursuant to this Agreement;
(i) at the election of the Portfolio Manager, to pay to the Portfolio Manager any deferred and unpaid Primary Management Fee and/or deferred and unpaid Secondary Management Fee; and
(j) (i) on any Interest Payment Date, to deposit any remaining amounts in the Collection Account as Principal Proceeds (which, during the Reinvestment Period, may be applied to the acquisition of additional Portfolio Investments) and (ii) on the Maturity Date and any Additional Distribution Date, any remaining amounts to the Company.
SECTION 4.06. Payments Generally.
(a) All payments to the Lenders or the Administrative Agent shall be made to the Administrative Agent at the account designated in writing to the Company and the Collateral Agent for further distribution by the Administrative Agent (if applicable). The Administrative Agent shall give written notice to the Collateral Agent, the Collateral Administrator (on which the Collateral Agent and the Collateral Administrator may conclusively rely) and the Portfolio Manager of the calculation of amounts payable to the Lenders in respect of the Advances and the amounts payable to the Portfolio Manager. At least two (2) Business Days prior to each Interest Payment Date, the Maturity Date and any Additional Distribution Date, the Administrative Agent shall deliver an invoice to the Portfolio Manager, the Collateral Agent and the Collateral Administrator in respect of the interest due on such date. All payments not made to the Administrative Agent for distribution to the Lenders shall be made as directed in writing by the Administrative Agent. Subject to Section 3.03 hereof, all payments by the Company hereunder shall be made without setoff or counterclaim. All payments hereunder shall be made in USD other than payments of interest and principal made in respect of Advances denominated in a Permitted Non-USD Currency, which shall be made in the applicable Permitted Non-USD Currency of such Advance. All interest calculated using the Reference Rate hereunder shall be computed on the basis of a year of 360 days and all interest calculated using the Base Rate hereunder shall be computed on the basis of a year of 365 days in each case, payable for the actual number of days elapsed (including the first day but excluding the last day).
(b) If after receipt of an invoice from the Administrative Agent pursuant to Section 4.06(a) and at least two (2) Business Days prior to any Interest Payment Date or the Maturity Date or an Additional Distribution Date, the Collateral Administrator shall have notified the Company, the Collateral Agent and the Administrative Agent that the Company does not have a sufficient amount of funds in a Permitted Non-USD Currency on deposit in the applicable Non-USD Obligation Account(s) that will be needed (1) to pay to the Lenders all of the amounts required to be paid in such Permitted Non-USD Currency on such date and/or (2) to pay any expenses required to be paid in accordance with the Priority


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of Payments, in each case, in such Permitted Non-USD Currency as required for such payment (a "Currency Shortfall"), then, so long as no Event of Default shall have occurred and be continuing and no Market Value Event has occurred, the Company shall exchange (or shall direct the Collateral Agent to exchange) amounts in USD held in the Collection Account for the applicable Permitted Non-USD Currency in an amount necessary to cure such Currency Shortfall. Each such exchange shall occur no later than one Business Day prior to such Payment Date or Additional Distribution Date or the Maturity Date, as applicable, and shall be made at the Spot Rate at the time of conversion. If for any reason the Company shall have failed to effect any such currency exchange by the Business Day prior to such date, then the Administrative Agent shall be entitled to (but shall not be obligated to) direct such currency exchange on behalf of the Company.
(c) At any time following the occurrence of a Market Value Event or if an Event of Default has occurred and is continuing, the Administrative Agent may in its sole discretion direct the Collateral Agent to direct the UK Account Bank or the UK Custodian, as applicable, to exchange amounts held in any Non-USD Obligation Account for USD at the Spot Rate for application hereunder.
SECTION 4.07. Termination or Reduction of Financing Commitments.
(a) After the Non-Call Period (or any other date if JPMorgan Chase Bank, National Association ceases to act as Administrative Agent), the Company shall be entitled at its option, subject to the payment of any premium described in Section 4.03(c)(ii) to the extent the Non-Call Termination Date has not occurred on or prior to such date, and upon three (3) Business Days' prior written notice to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Administrator) to either (i) terminate the Financing Commitments in whole upon payment in full of all Advances, all accrued and unpaid interest, all applicable premium (if any) and all other Secured Obligations (other than unmatured contingent indemnification and reimbursement obligations) or (ii) reduce in part any portion of the Financing Commitments that exceeds the sum of the outstanding Advances (after giving effect to any concurrent repayment of the Advances on such date). In addition, the Financing Commitments shall be automatically and irrevocably reduced by any amount of any prepayment of Advances pursuant to Section 4.03(c)(i)(C) during the Reinvestment Period that exceeds the Excess Funded Amount.
(b) The Financing Commitments shall be automatically and irrevocably reduced on the date of any prepayment made in accordance with the definition of "Market Value Cure" in an amount equal to the amount of such prepayment.
(c) The Financing Commitments shall be automatically and irrevocably reduced by all amounts that are used to prepay or repay Advances following the occurrence of a Market Value Event or an Event of Default.
(d) All unused Financing Commitments as of the last day of the Reinvestment Period shall automatically be terminated.
(e) The Financing Commitments shall be irrevocably reduced by the amount of any repayment or prepayment of Advances following the last day of the Reinvestment Period.
ARTICLE V 
THE PORTFOLIO MANAGER


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SECTION 5.01. Appointment and Duties of the Portfolio Manager. The Company hereby appoints the Portfolio Manager as its portfolio manager under this Agreement and to perform the investment management functions of the Company set forth herein, and the Portfolio Manager hereby accepts such appointment. For so long as no Market Value Event has occurred and no Event of Default has occurred and is continuing and subject to Section 1.04, the services to be provided by the Portfolio Manager shall consist of (x) selecting, purchasing, managing and directing the investment, reinvestment and disposition of Portfolio Investments, delivering Notices of Acquisition on behalf of and in the name of the Company and (y) acting on behalf of the Company for all other purposes hereof and the transactions contemplated hereby. The Company hereby irrevocably appoints the Portfolio Manager its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with the performance of its duties provided for herein. Without limiting the foregoing:
(a) The Portfolio Manager shall perform its obligations hereunder with reasonable care, using a degree of skill not less than that which the Portfolio Manager exercises with respect to assets of the nature of the Portfolio Investments that it manages for itself and others having similar investment objectives and restrictions and consistent with practices and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Portfolio; and
(b) The Portfolio Manager shall not (and shall not cause the Company to) take any action that it knows or reasonably should know would (1) violate the constituent documents of the Company, (2) violate any law, rule or regulation applicable to the Company, (3) require registration of the Company as an "investment company" under the Investment Company Act of 1940, or (4) cause the Company to violate the terms of this Agreement, any other Loan Document or any instruments relating to the Portfolio Investments.
The Portfolio Manager may employ third parties (including its Affiliates) to render advice (including investment advice) and assistance to the Company and to perform any of the Portfolio Manager's duties hereunder, provided that the Portfolio Manager shall not be relieved of any of its duties or liabilities hereunder regardless of the performance of any services by third parties. For the avoidance of doubt, neither the Administrative Agent nor any Lender shall have the right to remove or replace the Portfolio Manager as investment adviser or portfolio manager hereunder.
SECTION 5.02. Portfolio Manager Representations as to Eligibility Criteria; Etc. The Portfolio Manager agrees to comply with all covenants and restrictions imposed on the Company hereunder and not to act in contravention of this Agreement. The Portfolio Manager represents to the other parties hereto that (a) as of the Trade Date and Settlement Date for each Portfolio Investment purchased, such Portfolio Investment meets all of the applicable Eligibility Criteria (unless otherwise consented to by the Administrative Agent) and, except as otherwise permitted hereunder, the Concentration Limitations shall be satisfied (unless otherwise consented to by the Administrative Agent) and (b) all of the information contained in the related Notice of Acquisition is true, correct and complete in all material respects; provided that, to the extent any such information was furnished to the Company by any third party, such information is as of its delivery date true, complete and correct in all material respects to the knowledge of the Portfolio Manager.
SECTION 5.03. Indemnification. The Portfolio Manager shall indemnify and hold harmless the Company, the Agents, the Collateral Administrator and the Lenders and their respective affiliates, directors, officers, stockholders, partners, agents, employees and controlling persons (each, an


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"Indemnified Person") from and against any and all losses, claims, demands, damages or liabilities of any kind, including legal fees and disbursements (collectively, "Liabilities"), and shall reimburse each such Indemnified Person on a current basis for all reasonable and documented expenses (including fees and disbursements of counsel), incurred by such Indemnified Person in connection with investigating, preparing, responding to or defending any investigative, administrative, judicial or regulatory action, suit, claim or proceeding, relating to or arising out of (a) any breach by the Portfolio Manager of any of its obligations hereunder and (b) the failure of any of the representations or warranties of the Portfolio Manager set forth herein to be true when made or when deemed made or repeated, except to the extent that such Liabilities or expenses (x) result from the performance or non-performance of the Portfolio Investments or (y) are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the applicable Indemnified Person.
This Section 5.03 shall survive the termination of this Agreement and the repayment of all amounts owing to the Secured Parties hereunder.
ARTICLE VI 
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 6.01. Representations and Warranties. The Company (and, with respect to clauses (a) through (e), (l), (n), (o), (t) through (w) and (aa), the Portfolio Manager) represents to the other parties hereto solely with respect to itself that as of the date hereof and each Trade Date (or as of such other date on which such representations and warranties are required to be made hereunder):
(a) it is duly organized or incorporated, as the case may be, and validly existing under the laws of the jurisdiction of its organization or incorporation and has all requisite power and authority to execute, deliver and perform this Agreement and each other Loan Document to which it is a party and to consummate the transactions herein and therein contemplated;
(b) the execution, delivery and performance of this Agreement and each such other Loan Document, and the consummation of the transactions contemplated herein and therein have been duly authorized by it and this Agreement and each other Loan Document to which it is a party constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms (subject to (A) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights generally and (B) equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement and each other Loan Document to which it is a party and the consummation of the transactions contemplated herein and therein do not conflict with the provisions of its governing instruments and will not violate in any material way any provisions of Applicable Law or regulation or any applicable order of any court or regulatory body and will not result in the material breach of, or constitute a default, or require any consent, under any material agreement, instrument or document to which it is a party or by which it or any of its property may be bound or affected;
(d) it is not subject to any Adverse Proceeding;
(e) it has obtained all consents and authorizations (including all required consents and authorizations of any Governmental Authority) that are necessary or advisable to be obtained by it in connection with the execution, delivery and performance of this Agreement and each other Loan Document to which it is or may become a party and each such consent and authorization is in full force


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and effect except where the failure to do so would not reasonably be expected to have a Material Adverse Effect;
(f) it is not required to register as an "investment company" as defined in the Investment Company Act of 1940, as amended;
(g) it has not issued any securities that are or are required to be registered under the Securities Act of 1933, as amended, and it is not a reporting company under the Securities Exchange Act of 1934, as amended;
(h) it has no Indebtedness other than (i) Indebtedness incurred or permitted to be incurred under the terms of the Loan Documents and (ii) if applicable, the obligation to make future payments under any Delayed Funding Term Loan;
(i) (x) it does not have underlying assets which constitute "plan assets" within the meaning of the Plan Asset Rules; and (y) except as would not be reasonably expected to have a Material Adverse Effect, neither it nor any ERISA Affiliate has within the last six years sponsored, maintained, contributed to, or been required to contribute to and does not have any liability with respect to any Plan;
(j) as of the date of this Agreement it is, and immediately after giving effect to any Advance it will be, Solvent and it is not entering into this Agreement or any other Loan Document or consummating any transaction contemplated hereby or thereby with any intent to hinder, delay or defraud any of its creditors;
(k) it is not in default under any other contract to which it is a party except where such default would not reasonably be expected to have a Material Adverse Effect;
(l) it has complied with all Applicable Laws, judgments, agreements with governmental authorities, decrees and orders with respect to its business and properties and the Portfolio, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect;
(m) it does not have any Subsidiaries or own any Investments in any Person other than the Portfolio Investments or Investments (i) constituting Eligible Investments (as measured at their time of acquisition), (ii) acquired by the Company with the approval of the Administrative Agent, or (iii) those the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof;
(n) (x) it has disclosed to the Administrative Agent all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters actually known to it, in each case, that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect, (y) no information (other than projections, forward-looking information, general economic data, industry information) heretofore furnished by or on behalf of the Company in writing to the Administrative Agent or any Lender in connection with this Agreement or any transaction contemplated hereby (after taking into account all updates, modifications and supplements to such information) contains (to the extent any such information was furnished by, or relates to, a third party, to the Company's knowledge), when taken as a whole, as of its delivery date (and as updated or supplemented after such date), any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading and (z) as of the Effective Date, to the best knowledge of the Company, the information included in the


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Beneficial Ownership Certification provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and correct in all respects;
(o) [Reserved];
(p) the Company has timely filed all Tax returns required by Applicable Law to have been filed by it; all such Tax returns are true and correct in all material respects; and the Company has paid or withheld (as applicable) all Taxes owing or required to be withheld by it (if any) shown on such Tax returns, except (i) any such Taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside in accordance with GAAP on its books and records or (ii) the failure to file such tax returns or pay, withhold or discharge such taxes or governmental charges would not reasonably be expected to have a Material Adverse Effect;
(q) the Company is and will be treated as a disregarded entity for U.S. federal income tax purposes;
(r) the Company is and will be wholly owned by the Parent, which is a U.S. Person;
(s) prior to the date hereof, the Company has not engaged in any business operations or activities other than as an ownership entity for Portfolio Investments and similar Loan or debt obligations and activities incidental thereto;
(t) neither it nor any of its Affiliates is (i) the subject or target of Sanctions; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a "Non‑Cooperative Jurisdiction" by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a "Foreign Shell Bank" within the meaning of the PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the PATRIOT Act as warranting special measures due to money laundering concerns. It is in compliance with all applicable Sanctions and also in compliance with all applicable provisions of the PATRIOT Act;
(u) the Company has implemented and maintains in effect policies and procedures designed to ensure compliance by the Company, its agents and their respective directors, managers, officers and employees (as applicable) with Anti-Corruption Laws and applicable Sanctions, and the Company and its officers and directors and, to its knowledge, its employees, members and agents are in compliance with Anti-Corruption Laws and applicable Sanctions and are not knowingly engaged in any activity that would reasonably be expected to result in the Company being designated as a Sanctioned Person. None of (i) the Company or its directors, officers, managers or employees or (ii) to the knowledge of the Company, any director, manager or agent of the Company that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person;
(v) the Loan Documents and the organizational documents of the Company represent all of the material agreements between the Portfolio Manager, the Parent and the Seller, on the one hand, and the Company, on the other. The Company has good and marketable title to all Portfolio Investments and other Collateral free of any Liens (other than Permitted Liens) and no valid and effective financing statement (other than with respect to Permitted Liens) or other instrument similar in effect naming or purportedly naming the Company or the Seller as debtor and covering all or any part of the Collateral is


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on file in any recording office, except such as may have been filed in favor of the Collateral Agent as "Secured Party" pursuant hereto, as necessary or advisable in connection with the Sale Agreement or which has been terminated;
(w) the Company is not relying on any advice (whether written or oral) of any Lender, Agent or any of their respective Affiliates in connection with its entering into and performing its obligations under this Agreement;
(x) there are no judgments for Taxes with respect to the Company and no claim is being asserted with respect to the Taxes of the Company, except, in the case of claims only, any such claims (x) which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside in accordance with GAAP or (y) that would not reasonably be expected to result in a Material Adverse Effect;
(y) 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 the Collateral acquired with the proceeds of such Advance, free and clear of any Liens (other than Permitted Liens);
(z) the Parent (i) is not required to register as an investment company under the Investment Company Act of 1940, as amended, and (ii) has elected to be treated a business development corporation for purposes of the Investment Company Act of 1940, as amended;
(aa) the Portfolio Manager is not required to register as an investment adviser under the Investment Advisers Act of 1940, as amended;
(bb) except with respect to clause (2) of the definition of ERISA Event where such ERISA Event would not reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred; and
(cc) all proceeds of the Advances will be used by the Company only in accordance with the provisions of this Agreement. No part of the proceeds of any Advance will be used by the Company to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock. Neither the making of any Advance nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Board. No Advance is secured, directly or indirectly, by Margin Stock, and the Collateral does not include Margin Stock.
SECTION 6.02. Covenants of the Company and the Portfolio Manager. The Company (and, with respect to clauses (e), (g), (j), (k), (o), (r) and (gg), the Portfolio Manager) on each day during the term of this Agreement:
(a) shall at all times: (i) maintain at least one independent manager or director (who is in the business of serving as an independent manager or director) except while a vacancy is being filled as required by the Company’s organizational documents; (ii) maintain its own separate books and records (other than tax returns and documents related thereto) and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Company may be consolidated as required by GAAP and included in such Person’s consolidated financial statements); (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Company is treated as a


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"disregarded entity" for Tax purposes and is not required to file any Tax returns under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name (except as may be required for U.S. federal income and applicable state and local tax purposes) and comply with all organizational formalities necessary to maintain its separate existence; (viii) pay its own liabilities only out of its own funds; (ix) except as permitted hereunder and under the other Loan Documents, maintain an arm's length relationship with the Parent and each of its other Affiliates; (x) not hold out its credit or assets as being available to satisfy the obligations of others; (xi) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xii) use separate stationery, invoices and checks; (xiii) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xiv) correct any known misunderstanding regarding its separate identity; (xv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvi) not acquire the obligations or any securities of its Affiliates except as permitted under the Loan Documents; (xvii) cause the managers, officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company; and (xviii) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Company, shall immediately become the member of the Company in accordance with its organizational documents.
(b) shall not (i) not engage in any business or activity other than the activities permitted pursuant to its constituent documents; (ii) fail to be Solvent, (iii) release, sell, transfer, convey or assign any Portfolio Investment to the extent otherwise prohibited by the Loan Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Company, enter into any transaction with an Affiliate of the Company except on commercially reasonable terms not materially less favorable to the Company (taken as a whole) than those available to unaffiliated parties in an arm's-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any material asset or property other than the Collateral and other assets as permitted hereunder, the Sale Agreement and the Loan Documents, and the related assets and incidental personal property necessary for the ownership or operation of these assets and the operation of the Company.
(c) shall take all actions consistent with and shall not take any action contrary to the "Facts and Assumptions" sections in the opinions of Dechert LLP, dated the date hereof, relating to certain true sale and non-consolidation matters;
(d) shall not create, incur, assume or suffer to exist any Indebtedness other than (i) Indebtedness incurred or permitted to be incurred under the terms of the Loan Documents and (ii) if applicable, the obligation to make future payments under any Delayed Funding Term Loan;
(e) shall comply with all Anti-Corruption Laws and applicable Sanctions and shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Company and its directors, managers, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions;
(f) shall not amend (1) any of its constituent documents or (2) any document to which it is a party in any manner that would reasonably be expected to adversely affect the Lenders in any material respect, without, in each case, the prior written consent of the Administrative Agent;


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(g) shall not (A) permit the validity or effectiveness of this Agreement or any grant hereunder to be impaired, or permit the Lien of this Agreement or any Non-USD Obligation Security Document to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to this Agreement, any other Loan Document or the Advances, except as may be expressly permitted hereby, (B) permit any Lien to be created on or extend to or otherwise arise upon or burden the Collateral or any part thereof, any interest therein or the proceeds thereof, in each case, other than Permitted Liens or (C) take any action that would cause the Lien of this Agreement not to constitute a valid perfected security interest in the Collateral that is of first priority, free of any adverse claim or the legal equivalent thereof, as applicable, except for Permitted Liens;
(h) shall not, without the prior consent of the Administrative Agent (acting at the direction of the Required Lenders), which consent may be withheld in the sole and absolute discretion of the Required Lenders, enter into any hedge agreement;
(i) shall not change its name, identity or corporate structure in any manner that would make any financing statement or continuation statement filed by the Company (or by the Collateral Agent on behalf of the Company) in accordance with subsection (a) above materially misleading or change its jurisdiction of organization, unless the Company shall have given the Administrative Agent and the Collateral Agent at least 10 Business Days (or such shorter period as agreed to by the Administrative Agent in its reasonable discretion) prior written notice thereof, and shall promptly file, or authorize the filing of, appropriate amendments to all previously filed financing statements and continuation statements (and shall provide a copy of such amendments to the Collateral Agent and Administrative Agent together with written confirmation to the effect that all appropriate amendments or other documents in respect of previously filed statements have been filed);
(j) shall do or cause to be done all things reasonably necessary to (i) preserve and keep in full force and effect its existence as a limited liability company (or, in the case of the Portfolio Manager, a statutory trust) and take all reasonable action to maintain its rights, franchises, licenses and permits material to its business in the jurisdiction of its formation and (ii) qualify and remain qualified as a limited liability company or statutory trust, as applicable, in good standing in each jurisdiction in which such qualification is necessary to protect the validity and enforceability of the Loan Documents or any of the Collateral;
(k) shall comply with all Applicable Law (whether statutory, regulatory or otherwise), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
(l) shall not merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, in each case, without the prior written consent of the Administrative Agent;
(m) except for Investments permitted by Section 6.02(u)(C) and without the prior written consent of the Administrative Agent, shall not form, or cause to be formed, any Subsidiaries; 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 Loan Documents (including, without limitation, Portfolio Investments);


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(n) shall ensure that (i) its affairs are conducted so that its underlying assets do not constitute "plan assets" within the meaning of the Plan Asset Rules, and (ii) except as would not reasonably be expected to have a Material Adverse Effect, neither it nor any ERISA Affiliate sponsors, maintains, contributes to or is required to contribute to or has any liability with respect to any Plan;
(o) except for the security interest granted hereunder and under the Non-USD Obligation Security Documents and as otherwise permitted hereunder, shall 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 Company 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 Company (other than Permitted Liens);
(p) 
(i) shall promptly furnish to the Administrative Agent, and the Administrative Agent shall furnish to the Lenders, copies of the following financial statements, reports and information: (i) within 120 days after the end of each fiscal year of the Parent, a copy of the audited consolidated balance sheet of the Parent and its consolidated Subsidiaries as at the end of such year, the related consolidated statements of income for such year and the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year; provided, that the financial statements required to be delivered pursuant to this clause (i) which are made available via EDGAR, or any successor system of the Securities Exchange Commission, in the Parent's annual report on Form 10‑K, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; (ii) within 45 days after the end of each fiscal quarter of each fiscal year (other than the last fiscal quarter of each fiscal year), an unaudited consolidated balance sheet of the Parent and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (if any), and the unaudited consolidated statements of income of the Parent 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, and the unaudited consolidated statements of cash flows of the Parent and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to be delivered pursuant to this clause (ii) which are made available via EDGAR, or any successor system of the Securities Exchange Commission, in Parent's quarterly report on Form 10-Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; and (iii) from time to time, such other information or documents (financial or otherwise) as the Administrative Agent or the Required Lenders may reasonably request;
(ii) shall furnish to the Administrative Agent no later than the date any financial statements are due pursuant to Section 6.02(p)(i) or (ii), a compliance certificate, certified by a Responsible Officer of the Company in such capacity (and not in any individual capacity), to the knowledge of such Responsible Officer, to be true and correct in all material respects, (i) stating whether any Default or Event of Default exists; (ii) stating that Company is in compliance with the covenants set forth in this Agreement, including a certification that the Collateral has been Delivered to the Collateral Agent; (iii) stating that the representations and warranties of the Company contained in Article IV, or in any other Loan Document, or which are contained in any document furnished at any time or in connection herewith or therewith, are true and correct in all


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material respects on and as of the date thereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; and (iv) certifying that such financial statements fairly present in all material respects, the consolidated financial condition and the results of operations of Parent on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to year-end audit adjustments permitted under GAAP and the absence of footnotes;
(q) shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all Taxes levied or imposed upon the Company or upon the income, profits or property of the Company; provided that the Company shall not be required to pay or discharge or cause to be paid or discharged any such Tax (i) the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which disputed amounts adequate reserves in accordance with GAAP have been made or (ii) the failure of which to pay or discharge would not reasonably be expected to have a Material Adverse Effect;
(r) shall, subject to the requirements of Section 10.7, permit representatives of the Administrative Agent at any time and from time to time as the Administrative Agent shall reasonably request, and at the Company's expense, (A) to inspect and make copies of and abstracts from its records relating to the Portfolio Investments and (B) to visit its properties in connection with the collection, processing or managing of the Portfolio Investments for the purpose of examining such records, and to discuss matters relating to the Portfolio Investments or such Person's performance under this Agreement and the other Loan Documents with any officer or employee or auditor (if any) of such Person having knowledge of such matters (including, if requested by the Administrative Agent, quarterly telephone conferences with representatives of the Company with respect to review of the Portfolio Investments). The Company agrees to render to the Administrative 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 Company's or the Portfolio Manager's business and operations. So long as no Event of Default has occurred and is continuing and no Market Value Event has occurred, such visits and inspections shall occur only (i) upon five (5) Business Days' prior written notice, (ii) during normal business hours and (iii) no more than once in any calendar year. Following the occurrence of a Market Value Event or following the occurrence and during the continuance of an Event of Default, there shall be no limit on the timing or number of such inspections and only one (1) Business Day' prior notice will be required before any inspection. Notwithstanding anything to the contrary in this clause (r), neither the Company nor any Affiliate thereof will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (x) constitutes non-financial trade secrets or non-financial proprietary information, (y) in respect of which access or inspection by, or disclosure to, the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Applicable Law or (z) is subject to attorney-client or similar privilege or constitutes attorney work product;
(s) shall not use any part of the proceeds of any Advance, whether directly or indirectly, for any purpose that entails a violation of any of the regulations of the Board of Governors of the Federal Reserve System of the United States of America, including Regulations T, U and X;
(t) shall not make any Restricted Payments without the prior written consent of the Administrative Agent; provided that the Company may make Permitted Distributions or Permitted RIC Distributions subject to the other requirements of this Agreement;


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(u) shall not make or hold any Investments, except (A) the Portfolio Investments or Investments constituting Eligible Investments (measured at the time of acquisition), (B) those that have been consented to by the Administrative Agent or (C) those the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof;
(v) shall not request any Advance, and the Company shall not directly or indirectly, use, and shall procure that its directors, officers, employees and agents shall not directly or indirectly use, the proceeds of any Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto;
(w) other than (i) with the consent of the Administrative Agent, (ii) pursuant to the Sale Agreement, (iii) as a permitted Substitution under Section 1.06 or (iv) in a required sale directed by the Administrative Agent under Section 1.04 following the occurrence of a Market Value Event, shall not transfer to any of its Affiliates any Portfolio Investment purchased from any of its Affiliates unless such sale is conducted on terms and conditions consistent with those of an arm's-length transaction and in accordance with the Portfolio Manager's standard market practices;
(x) shall post on a password protected website maintained by the Portfolio Manager to which the Administrative Agent will have access or deliver via email to the Administrative Agent, with respect to each obligor in respect of a Portfolio Investment, without duplication of any other reporting requirements set forth in this Agreement or any other Loan Document, any management discussion and analysis provided by such obligor and any financial reporting packages and notifications of default with respect to such obligor under such Portfolio Investment's underlying documents and with respect to each Portfolio Investment for such obligor (including any attached or included information, statements and calculations), in each case within five (5) Business Days of the receipt thereof by the Company or the Portfolio Manager; provided that the Company shall post on a password protected website maintained by the Portfolio Manager to which the Administrative Agent will have access and deliver via email to the Administrative Agent notice of any credit event relating to an obligor immediately upon obtaining knowledge thereof. The Company shall cause the Portfolio Manager to provide such other information as the Administrative Agent may reasonably request with respect to any Portfolio Investment or obligor (to the extent reasonably available to the Portfolio Manager);
(y) shall not elect to be classified as other than a disregarded entity or partnership for U.S. federal income tax purposes, nor shall the Company take any other action or actions that would cause it to be classified, taxed or treated as a corporation or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes (including transferring interests in the Company on or through an established securities market or secondary market (or the substantial equivalent thereof), within the meaning of Section 7704(b) of the Code (and Treasury regulations thereunder);
(z) shall only have partners or owners that are treated as U.S. Persons or that are disregarded entities owned by a U.S. Person and shall not recognize the transfer of any interest in the Company that constitutes equity for U.S. federal income tax purposes to a Person that is not a U.S. Person;


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(aa) shall from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as may be reasonably necessary to secure the rights and remedies of the Secured Parties hereunder and to grant more effectively all or any portion of the Collateral, maintain or preserve the security interest (and the priority thereof) of this Agreement or to carry out more effectively the purposes hereof, perfect, publish notice of or protect the validity of any grant made or to be made by this Agreement, preserve and defend title to the Collateral and the rights therein of the Collateral Agent and the Secured Parties in the Collateral and the Collateral Agent against the claims of all Persons and parties, pay any and all Taxes levied or assessed upon all or any part of the Collateral and use its commercially reasonable efforts to minimize Taxes and any other costs arising in connection with its activities or give, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable to create, preserve, perfect or validate the security interest granted pursuant to this Agreement or to enable the Collateral Agent to exercise and enforce its rights hereunder with respect to such pledge and security interest, and hereby authorizes the Collateral Agent to file a UCC financing statement listing 'all assets of the debtor' (or substantially similar language) in the collateral description of such financing statement;
(bb) [Reserved];
(cc) shall not hire any employees;
(dd) shall not maintain any bank accounts or securities accounts other than the Collateral Accounts and the Non-USD Obligation Accounts;
(ee) except as otherwise expressly permitted herein, shall not cancel or terminate any of the underlying instruments in respect of a Portfolio Investment to which it is party or beneficiary (in any capacity) without payment in full of the portion so cancelled or terminated of such Portfolio Investment, or consent to or accept any cancellation or termination of any of such agreements unless (in each case) the Administrative Agent shall have consented thereto in writing in its sole discretion;
(ff) shall not make or incur any capital expenditures except as reasonably required to perform its functions in accordance with this Agreement;
(gg) shall not act on behalf of, a country, territory, entity or individual that, at the time of such act, is the subject or target of Sanctions, and none of the Company, the Portfolio Manager or any of their respective Affiliates, owners, directors or officers is a natural person or entity with whom dealings are prohibited under Sanctions for a natural person or entity required to comply with such Sanctions. The Company does not own and will not acquire, and the Portfolio Manager will not cause the Company to own or acquire, any security issued by, or interest in, any country, territory, or entity whose direct ownership would be or is prohibited under Sanctions for a natural person or entity required to comply with Sanctions; and
(hh) shall give notice to the Administrative Agent promptly in writing upon (and in no event later than three (3) Business Days (or, in the case of clause (2)(y) below, one (1) Business Day) after) a Responsible Officer of the Company or the Portfolio Manager has actual knowledge of the occurrence of any of the following:
(1) any Adverse Proceeding;
(2) any (x) Default or (y) Event of Default;


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(3) any material adverse claim asserted against any of the Portfolio Investments, the Collateral Accounts, any Non-USD Obligation Account or any other Collateral; and
(4) any change in the information provided in the Beneficial Ownership Certification delivered to any Lender that would result in a change to the list of beneficial owners identified in such certification.
SECTION 6.03. Amendments of Portfolio Investments, Etc. If the Company or the Portfolio Manager receives any notice or other communication concerning any amendment, supplement, consent, waiver or other modification of any Portfolio Investment or any related underlying instrument or rights thereunder (each, an "Amendment") with respect to any Portfolio Investment or any related underlying instrument, or makes any affirmative determination to exercise or refrain from exercising any rights or remedies thereunder, it will give prompt (and in any event, not later than five (5) Business Days') notice thereof to the Administrative Agent. In any such event, the Company shall exercise all voting and other powers of ownership relating to such Amendment or the exercise of such rights or remedies as the Portfolio Manager shall deem appropriate under the circumstances; provided that if an Event of Default has occurred and is continuing or a Market Value Event has occurred, the Company will exercise all voting and other powers of ownership as the Administrative Agent (acting at the direction of the Required Lenders) shall instruct (it being understood that (x) if the terms of the related underlying instrument expressly prohibit or restrict any such rights given to the Administrative Agent, then such right shall be limited to the extent necessary so that such prohibition or restriction is not violated), and (y) the Administrative Agent shall not take direction with any action with regard to any Portfolio Investment from any Lender that the Administrative Agent knows is a "disqualified lender" (or similar term) pursuant to the documentation for such Portfolio Investment); provided that the foregoing shall not apply to JPMCB or any of its Affiliates as a Lender hereunder). In any such case, following the Company's receipt thereof, the Company shall promptly provide to the Administrative Agent copies of all executed amendments to underlying instruments, executed waiver or consent forms or other documents executed or delivered in connection with any Amendment.
ARTICLE VII 
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Company shall fail to pay any amount owing by it in respect of the Secured Obligations (whether for principal, interest, fees or other amounts) when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise and, solely in the case of amounts other than principal, such failure continues for a period of two (2) Business Days following such failure;
(b) any representation or warranty made or deemed made by or on behalf of the Company, the Portfolio Manager or the Seller (collectively, the "Credit Risk Parties") herein or in any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, or other document (other than projections, forward-looking information, general economic data, industry information or information relating to third parties) furnished pursuant hereto or in connection herewith or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made (it being understood that the failure of a Portfolio Investment to satisfy the Eligibility Criteria after the date of its purchase shall not constitute a failure);


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(c) (A) the Company shall fail to observe or perform any covenant, condition or agreement contained in Section 6.02(a)(i) through (vii), (xi), (xiv) or (xix), (b)(i) through (iv), (d), (f), (h), (i), (l), (m), (o), (t), (v), (w), (cc) or (hh), Section 8.02(b) or the last sentence of the first paragraph of Section 1.04 or (B) any Credit Risk Party shall fail to observe or perform any other covenant, condition or agreement contained herein (it being understood that the failure of a Portfolio Investment to satisfy the Eligibility Criteria after the date of its purchase shall not constitute such a failure) or in any other Loan Document and, in the case of this clause (B), if such failure is capable of being remedied, such failure shall continue for a period of 30 days following the earlier of (i) receipt by such Credit Risk Party of written notice of such failure from the Administrative Agent and (ii) an officer of such Credit Risk Party becoming aware of such failure;
(d) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Risk Party or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Risk Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(e) any Credit Risk Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (d) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Credit Risk Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(f) any Credit Risk Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(g) the passing of a resolution by the equity holders of the Company in respect of the winding up on a voluntary basis of the Company;
(h) any final judgments or orders (not subject to appeal or otherwise non-appealable) by one or more courts of competent jurisdiction for the payment of money in an aggregate amount in excess of U.S.$3,000,000 (after giving effect to insurance, if any, available with respect thereto) shall be rendered against the Company, and the same shall remain unsatisfied, unvacated, unbonded or unstayed for a period of thirty (30) days after the date on which the right to appeal has expired;
(i) an ERISA Event occurs except, with respect to clause (2) of the definition of ERISA Event, where such ERISA Event would not reasonably be expected to have a Material Adverse Effect;
(j) a Change of Control occurs;


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(k) the Company or the pool of Collateral shall become required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(l) the Portfolio Manager (i) resigns as Portfolio Manager hereunder, (ii) assigns any of its obligations or duties as Portfolio Manager in contravention of the terms hereof or (iii) otherwise ceases to act as Portfolio Manager in accordance with the terms hereof;
(m) the Net Advances are greater than the product of (1) the Net Asset Value multiplied by (2) 75% and such deficit is not remedied within two (2) Business Days; or
(n)  (i) failure of the Company to fund the Unfunded Exposure Account or any Non-USD Unfunded Exposure Account when required in accordance with Section 2.03(e) other than in the case that any Lender fails to make the Advance required in accordance with Section 2.03(e) or (ii) failure of the Company to satisfy its obligations in respect of unfunded obligations with respect to any Delayed Funding Term Loan (including the payment of any amount in connection with the sale thereof to the extent required under this Agreement); provided that the failure of the Company to undertake any action set forth in this clause (n) is not remedied (or such Delayed Funding Term Loan is not transferred in accordance with this Agreement) within three (3) Business Days;
then, and in every such event (other than an event with respect to the Company described in clause (d) or (e) of this Article), and at any time thereafter in each case during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times: (i) terminate the Financing Commitments, and thereupon the Financing Commitments shall terminate immediately, and (ii) declare all of the Secured Obligations then outstanding to be due and payable in whole (or in part, in which case any Secured Obligations not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the Secured Obligations so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company; and in case of any event with respect to the Company described in clause (d) or (e) of this Article, the Financing Commitments shall automatically terminate and all Secured Obligations then outstanding, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company.
ARTICLE VIII 
COLLATERAL ACCOUNTS; NON-USD OBLIGATION ACCOUNTS AND COLLATERAL SECURITY
SECTION 8.01. The Collateral Accounts; Agreement as to Control.
(a) Establishment and Maintenance of Collateral Accounts. Pursuant to the Account Control Agreement, each of the Custodial Account, the Collection Account, the MV Cure Account and the Unfunded Exposure Account (collectively, the "Collateral Accounts") has been established on the date hereof. The Securities Intermediary agrees to maintain the Collateral Accounts in accordance with the Account Control Agreement as a "securities intermediary" (within the meaning of Section 8-102(a)(14) of the UCC), in the name of the Company subject to the lien of the Collateral Agent. The parties hereto acknowledge and agree that the Securities Intermediary shall not have any additional duties under this


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Agreement other than those expressly set forth herein, and the Securities Intermediary shall satisfy those duties expressly set forth herein so long as it acts without gross negligence, fraud, reckless disregard or willful misconduct. Without limiting the generality of the foregoing, the Securities Intermediary shall not be subject to any fiduciary or other implied duties, and the Securities Intermediary shall not have any duty to take any discretionary action or exercise any discretionary powers under this Agreement. The Securities Intermediary shall be subject to all of the rights, protections and immunities given to the Collateral Agent hereunder, including indemnities.
(b) Investment of Funds on Deposit in the Unfunded Exposure Account. All amounts on deposit in the Unfunded Exposure Account shall be invested (and reinvested) at the written direction of the Company (or the Portfolio Manager on its behalf) delivered to the Collateral Agent in Eligible Investments; provided that, following the occurrence and during the continuance of an Event of Default or following a Market Value Event, all amounts on deposit in the Unfunded Exposure Account shall be invested, reinvested and otherwise disposed of at the written direction of the Administrative Agent delivered to the Collateral Agent.
(c) Unfunded Exposure Account.
(i) Amounts may be deposited into the Unfunded Exposure Account from time to time in accordance with Section 4.05 and from funds otherwise available to the Company. Amounts shall also be deposited into the Unfunded Exposure Account as set forth in Section 2.03(e).
(ii) While no Event of Default has occurred and is continuing and no Market Value Event has occurred and subject to satisfaction of the Borrowing Base Test (after giving effect to such release), the Portfolio Manager may direct, by means of an instruction in writing to the Securities Intermediary (with a copy to the Collateral Administrator), the release of funds on deposit in the Unfunded Exposure Account (i) for the purpose of funding the Company's unfunded commitments with respect to Delayed Funding Term Loans, for deposit into the Collection Account and (ii) so long as no Unfunded Exposure Shortfall Amount exists or would exist after giving effect to the withdrawal. Following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, at the written direction of the Administrative Agent (at the direction of the Required Lenders) (with a copy to the Collateral Administrator), the Securities Intermediary shall transfer all amounts in the Unfunded Exposure Account to the Collection Account to be applied pursuant to Section 4.05. Upon the direction of the Company by means of an instruction in writing to the Securities Intermediary (with a copy to the Collateral Administrator, the Collateral Agent and the Administrative Agent), any amounts on deposit in the Unfunded Exposure Account in excess of outstanding funding obligations of the Company shall be released to the Collection Account to prepay the outstanding Advances. The provisions of this clause (ii) shall also apply with respect to each Non-USD Unfunded Exposure Account, as the context requires (with references to the Securities Intermediary above being deemed to be references to the UK Account Bank and all amounts transferred or released from any such Non-USD Unfunded Exposure Account being exchanged at the then-current Spot Rate).
(d) Non-USD Obligation Accounts.
(i) The Company has caused the UK Account Bank to establish the Euro Collection Account in accordance with the Security Trust Deed. On any date following the First


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Amendment Date, (x) the Company may direct the UK Account Bank to establish pursuant to the Security Trust Deed (i) a GBP Collection Account, (ii) a GBP Unfunded Exposure Account, (iii) a CAD Collection Account, (iv) a CAD Unfunded Exposure Account and/or (v) a Euro Unfunded Exposure Account upon not less than ten (10) days prior written notice (or such longer period as may be required to establish such account(s)) to the Administrative Agent, the Collateral Agent, the Collateral Administrator and the UK Account Bank and (y) the Company may direct the UK Custodian to establish pursuant to the Security Trust Deed a Non-USD Obligation Account upon not less than ten (10) days prior written notice (or such longer period as may be required to establish such account) to the Administrative Agent, the Collateral Agent, the Collateral Administrator and the UK Custodian; provided that no such account may be opened until any Currency Amendment required to be entered into in connection therewith is entered into as set forth in Section 10.05. All Non-USD Obligation Accounts will be administered in accordance with this Agreement and the Security Trust Deed and shall be in the name of the Company subject to the security constituted by the Company over such Non-USD Obligation Accounts in favor of the Collateral Agent under the Security Trust Deed. The only permitted withdrawals from the Non-USD Obligation Accounts shall be in accordance with the provisions of this Agreement and the Security Trust Deed.
(ii) The parties hereto acknowledge and agree that the Account Bank will hold the funds in the Non-USD Obligation Accounts (other than the Non-USD Custodial Account) (the "Deposit") in non-interest bearing accounts established by it. The Account Bank holds all money forming part of the Deposit as banker and, as a result, such money will not be held as client money in accordance with applicable local law. Upon the establishment (if any) of the Non-USD Custodial Account, the Custodian will hold all funds and other Collateral held by it as banker and, as a result, such Collateral will not be held as client money in accordance with applicable local law.
SECTION 8.02. Collateral Security; Pledge; Delivery.
(a) Grant of Security Interest. As collateral security for the prompt payment in full when due of all the Company's obligations to the Agents and the Lenders (collectively, the "Secured Parties") under this Agreement (collectively, the "Secured Obligations"), the Company hereby pledges to the Collateral Agent and grants a continuing security interest in favor of the Collateral Agent in all of the Company's right, title and interest in, to and under (in each case, whether now owned or existing, or hereafter acquired or arising) all accounts, payment intangibles, general intangibles, chattel paper, electronic chattel paper, instruments, deposit accounts, letter-of-credit rights, investment property, and any and all other property of any type or nature owned by it (all of the property described in this clause (a) being collectively referred to herein as "Collateral"), including, without limitation: (1) each Portfolio Investment, (2) all of the Company's interests in the Collateral Accounts and the Non-USD Obligation Accounts and all investments, obligations and other property from time to time credited thereto, (3) the Sale Agreement, and any other Loan Document and all rights of the Company related to each such agreement, (4) all other property of the Company and (5) all proceeds thereof, all accessions to and substitutions and replacements for, any of the foregoing, and all rents, profits and products of any thereof.
(b) Delivery and Other Perfection. In furtherance of the collateral arrangements contemplated herein, the Company shall (1) Deliver to the Collateral Agent the Collateral hereunder as and when acquired by the Company and (2) if any of the securities, monies or other property pledged by the Company hereunder are received by the Company, forthwith take such action as is necessary to ensure


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the Collateral Agent's continuing perfected security interest in such Collateral (including Delivering such securities, monies or other property to the Collateral Agent).
(c) Remedies, Etc. During the period in which an Event of Default shall have occurred and be continuing, the Collateral Agent shall (but only if and to the extent directed in writing by the Required Lenders) do any of the following:
(i) Exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) and also may, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent's or its designee's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent or a designee of the Collateral Agent (acting at the direction of the Required Lenders) may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) calendar days' prior notice to the Company of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of the Collateral regardless of notice of sale having been given. The Collateral Agent or its designee 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;
(ii) Transfer all or any part of the Collateral into the name of the Collateral Agent or a nominee thereof;
(iii) Enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) Endorse any checks, drafts, or other writings in the Company's name to allow collection of the Collateral;
(v) Take control of any proceeds of the Collateral;
(vi) Execute (in the name, place and stead of any of the Company) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Collateral; and/or
(vii) Perform such other acts as may be reasonably required to do to protect the Collateral Agent's rights and interest hereunder.
Without limitation to the foregoing, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may exercise any available rights and remedies under the Security Trust Deed and any other Non-USD Obligation Security Document. In addition, nothing in this Agreement shall limit, or be construed as limiting, any rights and remedies which Citibank, N.A. or any affiliate thereof (as Collateral Agent or in a similar role) has under the Security Trust Deed or under any other Non-USD Obligation Security Document.


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(d) Compliance with Restrictions. The Company and the Portfolio Manager agree that in any sale of any of the Collateral whenever an Event of Default shall have occurred and be continuing, the Collateral Agent or its designee are hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel in writing is necessary in order to avoid any violation of Applicable Law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental regulatory authority or official, and the Company and the Portfolio Manager further agree that such compliance shall not, in and of itself, result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Collateral Agent be liable or accountable to the Company or the Portfolio Manager for any discount allowed by the reason of the fact that such Collateral is sold in good faith compliance with any such limitation or restriction.
(e) Private Sale. The Collateral Agent shall incur no liability as a result of a sale of the Collateral, or any part thereof, at any private sale pursuant to clause (c) above conducted in a commercially reasonable manner. The Company and the Portfolio Manager hereby waive any claims against each Agent and Lender arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale.
(f) Collateral Agent Appointed Attorney-in-Fact. The Company hereby appoints the Collateral Agent as the Company's attorney-in-fact (it being understood that the Collateral Agent shall not be deemed to have assumed any of the obligations of the Company by this appointment), with full authority in the place and stead of the Company and in the name of the Company, from time to time in the Collateral Agent's discretion (exercised at the written direction of the Administrative Agent or the Required Lenders, as the case may be), after the occurrence and during the continuation of an Event of Default, to take any action and to execute any instrument which the Administrative Agent or the Required Lenders may deem necessary or advisable to accomplish the purposes of this Agreement. The Company hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this clause is irrevocable during the term of this Agreement and is coupled with an interest.
(g) Further Assurances. The Company covenants and agrees that, from time to time upon the request of the Collateral Agent (as directed by the Administrative Agent), the Company will execute and deliver such further documents, and do such other acts and things as the Collateral Agent (as directed by the Administrative Agent) may reasonably request in order fully to effect the purposes of this Agreement and to protect and preserve the priority and validity of the security interest granted hereunder or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral; provided that no such document may alter the rights and protections afforded to the Company or the Portfolio Manager herein.
(h) Termination. Upon the payment in full of all Secured Obligations (other than any unmatured contingent indemnification and reimbursement obligations) and termination of the Financing Commitments, the security interest granted herein shall automatically (and without further action by any party) terminate and all rights to the Collateral shall revert to the Company. Upon any such termination, the Collateral Agent will, at the Company's sole expense, deliver to the Company, or cause the Securities Intermediary to deliver, without any representations, warranties or recourse of any kind whatsoever, all certificates and instruments representing or evidencing all of the Collateral held by the


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Securities Intermediary hereunder, and execute and deliver to the Company or its nominee such documents as the Company shall reasonably request to evidence such termination.
(i) Release of Security Interest upon Disposition of Collateral. Upon any sale, transfer or other disposition of any Collateral (or portion thereof) that is permitted hereunder, the security interest granted hereunder in such Loan or other Collateral (or the portion thereof which has been sold or otherwise disposed of) shall, immediately upon the sale or other disposition of such Loan or other Collateral (or such portion) and without any further action on the part of the Collateral Agent or any other Secured Party, be released. Upon any such release, the Collateral Agent will, at the Company's sole expense, deliver to the Company, or cause the Securities Intermediary to deliver, without any representations, warranties or recourse of any kind whatsoever, all certificates and instruments representing or evidencing all of the Collateral held by the Securities Intermediary hereunder, and execute and deliver to the Company or its nominee such documents as the Company shall reasonably request to evidence such release.
ARTICLE IX 
THE AGENTS
SECTION 9.01. Appointment of Administrative Agent and Collateral Agent. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent (each, an "Agent" and collectively, the "Agents") as its agent and authorizes such Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Anything contained herein to the contrary notwithstanding, each Agent and each Lender hereby agree that no Lender shall have any right individually to realize upon any of the Collateral hereunder, it being understood and agreed that all powers, rights and remedies hereunder with respect to the Collateral shall be exercised solely by the Collateral Agent for the benefit of the Secured Parties at the direction of the Administrative Agent.
Each of the Lenders hereby instructs Citibank, N.A. to execute, perform and deliver the Security Trust Deed and any instruments and agreements ancillary thereto, in each case, in its capacities as Collateral Agent, UK Account Bank and UK Custodian.
Each financial institution serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender (if applicable) as any other Lender and may exercise the same as though it were not an Agent, and such financial institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company as if it were not an Agent hereunder.
No Agent or the Collateral Administrator shall have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except that the foregoing shall not limit any duty expressly set forth in this Agreement to include such rights and powers expressly contemplated hereby or that such Agent is required to exercise as directed in writing by (i) in the case of the Collateral Agent (A) in respect of the exercise of remedies under Section 8.02(c), the Required Lenders, or (B) in all other cases, the Administrative Agent or (ii) in the case of any Agent, the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the circumstances as provided herein), and (c) except as expressly set forth herein, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information


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relating to the Company that is communicated to or obtained by the financial institution serving in the capacity of such Agent (except insofar as provided to it as Agent hereunder) or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct or with the consent or at the request or direction of the Administrative Agent (in the case of the Collateral Administrator and the Collateral Agent only) or the Required Lenders (or such other number or percentage of Lenders that shall be permitted herein to direct such action or forbearance). None of the Collateral Agent, the Collateral Administrator or the Securities Intermediary shall be deemed to have knowledge of any Default, Event of Default, Market Value Event or failure of the Borrowing Base Test unless and until a Responsible Officer has received written notice thereof from the Company, a Lender or the Administrative Agent. None of the Collateral Agent, the Collateral Administrator, the Securities Intermediary or the Administrative Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness, genuineness, value or sufficiency of this Agreement, any other agreement, instrument or document or the Collateral, or (v) the satisfaction of any condition set forth herein, other than to confirm receipt of items expressly required to be delivered to such Agent. None of the Collateral Agent, the Collateral Administrator, the Securities Intermediary or the Administrative Agent shall be required to risk or expend its own funds in connection with the performance of its obligations hereunder if it reasonably believes it will not receive reimbursement therefor hereunder. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, nothing in this Agreement shall eliminate or limit the express obligations, rights and remedies of Citibank, N.A. under the Security Trust Deed, under any other Non-USD Obligation Security Document or under the laws of any jurisdiction other than the United States.
Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, direction, opinion, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
In the event the Collateral Agent or the Collateral Administrator shall receive conflicting instruction from the Administrative Agent and the Required Lenders, the instruction of the Required Lenders shall govern. Neither the Collateral Administrator nor the Collateral Agent shall have any duties or obligations under or in respect of any other agreement (including any agreement that may be referenced herein) to which it is not a party. The grant of any permissive right or power to the Collateral Agent hereunder shall not be construed to impose a duty to act.
It is expressly acknowledged and agreed that neither the Collateral Administrator nor the Collateral Agent shall be responsible for, and shall not be under any duty to monitor or determine, compliance with the Eligibility Criteria or the Concentration Limitations in any instance, to determine if the conditions of "Deliver" have been satisfied or otherwise to monitor or determine compliance by any other Person with the requirements of this Agreement.
Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. No Agent shall be responsible for any misconduct or


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negligence on the part of any sub-agent or attorney appointed by such Agent with due care. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates and the respective directors, officers, employees, agents and advisors of such Person and its Affiliates (the "Related Parties") for such Agent. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub‑agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent, as the case may be.
Subject to the appointment and acceptance of a successor as provided in this paragraph, each of the Collateral Administrator, the Collateral Agent, the Securities Intermediary and the Administrative Agent may resign (which resignation of the Collateral Agent or the Securities Intermediary will also be effective as resignation under the Account Control Agreement) at any time upon 30 days' notice to each other agent, the Lenders, the Portfolio Manager and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Administrator, Collateral Agent, Securities Intermediary or Administrative Agent, as applicable, gives notice of its resignation, then the Administrative Agent may, on behalf of the Lenders, appoint a successor which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution. If no successor shall have been so appointed by the Administrative Agent and shall have accepted such appointment within sixty (60) days after the retiring agent gives notice of its resignation, such agent may petition a court of competent jurisdiction for the appointment of a successor. Upon the acceptance of its appointment as Collateral Administrator, Securities Intermediary, Administrative Agent or Collateral Agent, as the case may be, hereunder (and, if applicable, under the Account Control Agreement) by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring agent hereunder and under the Account Control Agreement, and the retiring agent shall be discharged from its duties and obligations hereunder and under the Account Control Agreement. After the retiring agent's resignation hereunder, the provisions of this Article and Sections 5.03 and 10.04 shall continue in effect for the benefit of such retiring agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Administrator, Securities Intermediary, Administrative Agent or Collateral Agent, as the case may be.
Subject to the appointment and acceptance of a successor as provided in this paragraph, each of the Collateral Administrator, the Collateral Agent and the Securities Intermediary may be removed at any time with 30 days' notice by the Company (with the written consent of the Administrative Agent), with notice to the Collateral Administrator, the Collateral Agent, the Securities Intermediary, the Lenders and the Portfolio Manager (which removal of the Collateral Agent or the Securities Intermediary will also be effective as removal under the Account Control Agreement). Upon any such removal, the Company shall have the right (with the written consent of the Administrative Agent) to appoint a successor to the Collateral Agent, the Collateral Administrator and/or the Securities Intermediary, as applicable. If no successor to any such Person shall have been so appointed by the Company and shall have accepted such appointment within thirty (30) days after such notice of removal, then the Administrative Agent may appoint a successor which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution. Upon the acceptance of its appointment as Collateral Administrator, Securities Intermediary or Collateral Agent, as the case may be, hereunder (and, if applicable, under the Account Control Agreement) by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the removed agent hereunder and under the Account Control Agreement, and the removed agent shall be discharged from its duties and


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obligations hereunder and under the Account Control Agreement. After the removed agent's removal hereunder, the provisions of this Article and Sections 5.03 and 10.04 shall continue in effect for the benefit of such removed agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Administrator, Securities Intermediary or Collateral Agent, as the case may be.
Upon the request of the Company or the Administrative Agent or the successor agent, such retiring or removed agent shall, upon payment of its charges then unpaid, execute and deliver an instrument transferring to such successor agent all the rights, powers and trusts of the retiring or removed agent, and shall duly assign, transfer and deliver to such successor agent all property and money held by such retiring or removed agent hereunder (and the Account Control Agreement, if applicable). Upon reasonable request of any such successor agent, the Company and the Administrative Agent shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor agent all such rights, powers and trusts.
Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
Anything in this Agreement notwithstanding, in no event shall any Agent, the Collateral Administrator or the Securities Intermediary be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if such Agent, the Collateral Administrator or the Securities Intermediary, as the case may be, has been advised of such loss or damage and regardless of the form of action.
Each Agent and the Collateral Administrator shall not be liable for any error of judgment made in good faith by an officer or officers of such Agent or the Collateral Administrator, unless it shall be conclusively determined by a court of competent jurisdiction that such Agent or the Collateral Administrator was grossly negligent in ascertaining the pertinent facts.
Each Agent and the Collateral Administrator shall not be responsible for the accuracy or content of any certificate, statement, direction or opinion furnished to it in connection with this Agreement.
Each Agent and the Collateral Administrator shall not be bound to make any investigation into the facts stated in any resolution, certificate, statement, instrument, opinion, report, consent, order, approval, bond or other document or have any responsibility for filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder.
No Agent shall be responsible for delays or failures in performance resulting from acts beyond its control. Such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war. In connection with any payment, the Collateral Agent and the Collateral Administrator are entitled to rely conclusively on any instructions provided to them by the Administrative Agent.


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The rights, protections and immunities given to the Agents in this Section 9.01 and, as applicable, Section 9.02 shall likewise be available and applicable to the Securities Intermediary, the Collateral Administrator and, to the maximum extent permitted by Applicable Law, the UK Custodian and the UK Account Bank.
SECTION 9.02. Additional Provisions Relating to the Collateral Agent and the Collateral Administrator.
(a) Collateral Agent May Perform. The Collateral Agent shall from time to time take such action (at the written direction of the Administrative Agent or the Required Lenders) for the maintenance, preservation or protection of any of the Collateral or of its security interest therein and the Administrative Agent may direct the Collateral Agent in writing to take any action incidental thereto; provided that in each case the Collateral Agent shall have no obligation to take any such action in the absence of such direction and shall have no obligation to comply with any such direction if it reasonably believes that the same (1) is contrary to Applicable Law or (2) may subject the Collateral Agent to any loss, liability, cost or expense, unless the Administrative Agent or the Required Lenders, as the case may be, issuing such instruction make provision reasonably satisfactory to the Collateral Agent for payment of same (which provision may be payment of such cost or expense by the Company (subject to the limitations set forth herein) in accordance with the Priority of Payments if such arrangement is reasonably satisfactory to the Collateral Agent).
With respect to actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, the Required Lenders or otherwise if the taking of such action, in the determination of the Collateral Agent, (1) is contrary to Applicable Law or (2) is reasonably likely to subject the Collateral Agent to any loss, liability, cost or expense, unless the Administrative Agent or the Required Lenders, as the case may be, issuing such instruction make provision reasonably satisfactory to the Collateral Agent for payment of same (which provision may be payment of such cost or expense by the Company (subject to the limitations set forth herein) in accordance with the Priority of Payments if such arrangement is reasonably satisfactory to the Collateral Agent). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, the Administrative Agent shall be deemed to have declined to consent to the relevant action.
If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within five (5) 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 and shall have no liability in connection therewith except as otherwise provided in this Agreement. The Collateral Agent shall act in accordance with instructions received after such five (5) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions.
(b) Reasonable Care. The Collateral Agent is required to exercise reasonable care in the custody and preservation of any of the Collateral in its possession, provided that the Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral


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if it takes such action for that purpose as the Company reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but failure of the Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. The Collateral Agent will 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 liens thereon. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants selected by it with due care in performing its duties hereunder.
(c) Collateral Agent Not Liable. Except to the extent arising from the gross negligence, willful misconduct, criminal conduct, fraud or reckless disregard of the Collateral Agent, the Collateral Agent shall not be liable by reason of its compliance with the terms of this Agreement with respect to (1) the investment of funds held thereunder in Eligible Investments (other than for losses attributable to the Collateral Agent's failure to make payments on investments issued by the Collateral Agent, in its commercial capacity as principal obligor and not as collateral agent, in accordance with their terms) or (2) losses incurred as a result of the liquidation of any Eligible Investment prior to its stated maturity.
(d) Certain Rights and Obligations of the Collateral Agent. Without further consent or authorization from any Lenders, the Collateral Agent shall be deemed to have released, and shall execute any documents or instruments necessary to release, any lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted by this Agreement or as otherwise permitted or required hereunder or to which the Required Lenders have otherwise consented. Anything contained herein to the contrary notwithstanding, in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, any Agent or Lender may be the purchaser of any or all of such Collateral at any such sale and the Collateral Agent, as agent for and representative of the Lenders (but not any Lender in its individual capacity unless the Required Lenders shall otherwise agree), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the purchaser at such sale.
(e) Collateral Agent, Securities Intermediary, Collateral Administrator, UK Custodian and UK Account Bank Fees and Expenses. Subject to the Priority of Payments, the Company agrees to pay to the Collateral Agent, the Securities Intermediary, the Collateral Administrator, the UK Custodian and the UK Account Bank such fees as such Persons, the Administrative Agent and the Portfolio Manager may agree in writing. Subject to the Priority of Payments, the Company further agrees to pay to the Collateral Agent, the Securities Intermediary, the Collateral Administrator, the UK Custodian and the UK Account Bank, or reimburse each such Person for paying, reasonable and documented out-of-pocket expenses (but limited, in the case of attorney’s fees, to reasonable and documented fees and out-of-pocket expenses of one firm of outside counsel for each such Person (and one local counsel in any jurisdiction where local counsel is required)) in connection with this Agreement, the Account Control Agreement, each Non-USD Obligation Security Document and the transactions contemplated hereby, in connection with this Agreement, the Account Control Agreement and the transactions contemplated hereby, subject to the Priority of Payments.
(f) Execution by the Collateral Agent, the Securities Intermediary and the Collateral Administrator. The Collateral Agent, the Securities Intermediary and the Collateral Administrator are executing this Agreement solely in their capacity as Collateral Agent, Securities Intermediary and


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Collateral Administrator hereunder and in no event shall have any obligation to make any Advance, provide any Advance or perform any obligation of the Administrative Agent hereunder.
(g) Reports by the Collateral Administrator. The Company hereby appoints Virtus Group, LP as Collateral Administrator and directs the Collateral Administrator to prepare the reports substantially in the form reasonably agreed by the Company, the Collateral Administrator and the Administrative Agent. Without limitation to the foregoing, upon the written request (including via email) of the Administrative Agent, which may be in the form of a standing request, the Collateral Administrator shall provide to the Administrative Agent a copy of the most recent notice memo, distribution report or similar notice or report received by it in respect of any Portfolio Investment(s) identified by the Administrative Agent as soon as reasonably practicable after such request is made by the Administrative Agent (or, if such request is a standing request, as soon as reasonably practicable after such notice or report is received).
(h) Information Provided to Collateral Agent and Collateral Administrator. Without limiting the generality of any terms of this Section, neither the Collateral Agent nor the Collateral Administrator shall have liability for any failure, inability or unwillingness on the part of the Portfolio Manager, the Administrative Agent, the Company or the Required Lenders to provide accurate and complete information on a timely basis to the Collateral Agent or the Collateral Administrator, as applicable, or otherwise on the part of any such party to comply with the terms of this Agreement, and, absent gross negligence, willful misconduct, criminal conduct, fraud or reckless disregard of the Collateral Agent or the Collateral Administrator, as applicable, shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent's or Collateral Administrator's, as applicable, 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.
ARTICLE X 
MISCELLANEOUS
SECTION 10.01. Non-Petition; Limited Recourse. Each of the Collateral Agent, the Securities Intermediary, the Collateral Administrator, the Portfolio Manager and the other parties hereto (other than the Administrative Agent acting at the direction of the Required Lenders) hereby agrees not to commence, or join in the commencement of, any proceedings in any jurisdiction for the bankruptcy, winding-up or liquidation of the Company or any similar proceedings, in each case prior to the date that is one year and one day (or if later, any applicable preference period plus one day) after the payment in full of all amounts owing to the parties hereto. The foregoing restrictions are a material inducement for the parties hereto to enter into this Agreement and are an essential term of this Agreement. The Administrative Agent or the Company may seek and obtain specific performance of such restrictions (including injunctive relief), including, without limitation, in any bankruptcy, winding-up, liquidation or similar proceedings. The Company shall promptly object to the institution of any bankruptcy, winding‑up, liquidation or similar proceedings against it and take all necessary or advisable steps to cause the dismissal of any such proceeding; provided that such obligation shall be subject to the availability of funds therefor. Nothing in this Section 10.01 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 Section that was instituted by the Company or against the Company by any Person other than a party hereto.
Notwithstanding any other provision of this Agreement or of any other Loan Document, the Secured Obligations are limited recourse obligations of the Company, payable solely from the


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Collateral as applied in accordance with this Agreement and, on the exhaustion of the Collateral, all Secured Obligations of and all claims against the Company arising under this Agreement or any other Loan Document or any transactions contemplated hereby or thereby shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Advances against any Affiliate, shareholder, manager, officer, director, employee or member of the Company (solely in their capacities as such) or successors or assigns for any amounts payable in respect of the Secured Obligations or this Agreement. It is understood that the foregoing provisions of this Section 10.01 shall not (1) prevent recourse to the Collateral for the sums due or to become due under any security, instrument or agreement which is part of the Collateral or (2) constitute a waiver, release or discharge of any Secured Obligation until such Collateral has been realized, whereupon any outstanding indebtedness or obligation shall be extinguished. It is further understood that the foregoing provisions of this section shall not limit the right of any person to name the Company as a party defendant in any Proceeding or in the exercise of any other remedy under this Agreement or any other Loan Document, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such person or entity. The Administrative Agent and the Financing Providers, in extending credit to the Company, have relied on the existence of the Company as an entity separate and distinct from any other entity (including any shareholder, manager, officer, director, employee or member of the Company) and are not treating the Company and any other Person, including, without limitation, Parent, as one and the same entity, or as a single economic unit.
SECTION 10.02. Notices. All notices and other communications in respect hereof (including, without limitation, any modifications hereof, or requests, waivers or consents hereunder) to be given or made by a party hereto shall be in writing (including by electronic mail or other electronic messaging system of .pdf or other similar files) to the other parties hereto at the addresses for notices specified on the Transaction Schedule (or, as to any such party, at such other address as shall be designated by such party in a notice to each other party hereto). All such notices and other communications shall be deemed to have been duly given when (a) transmitted by facsimile, (b) personally delivered, (c) in the case of a mailed notice, upon receipt, or (d) in the case of notices and communications transmitted by electronic mail or any other electronic messaging system, upon delivery, in each case given or addressed as aforesaid.
SECTION 10.03. No Waiver. No failure on the part of any party hereto to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
SECTION 10.04. Expenses; Indemnity; Damage Waiver; Right of Setoff.
(a) Subject to the Priority of Payments, the Company shall pay (1) all reasonable and documented fees and out‑of‑pocket expenses incurred by the Agents, the Collateral Administrator, the Securities Intermediary, the UK Custodian, the UK Account Bank and their Related Parties, including the fees, charges and disbursements of outside counsel for each Agent, the UK Custodian, the UK Account Bank, the Securities Intermediary and the Collateral Administrator, and such other local counsel as required for the Agents, the Securities Intermediary, the UK Custodian, the UK Account Bank and the Collateral Administrator, collectively, in connection with the preparation and administration of this Agreement, the Account Control Agreement, the Security Trust Deed, any other Non-USD Obligation Security Document or any amendments, modifications or waivers of the provisions hereof or thereof


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(whether or not the transactions contemplated hereby or thereby shall be consummated) and (2) all reasonable and documented out-of-pocket expenses incurred by the Agents, the Collateral Administrator, the Securities Intermediary, the UK Custodian, the UK Account Bank and the Lenders, including the reasonable and documented fees, charges and disbursements of outside counsel for each Agent, the Collateral Administrator, the Securities Intermediary, the UK Custodian and the UK Account Bank and such other local counsel as required for all of them, in connection herewith, including the enforcement or protection of their rights in connection with this Agreement, the Account Control Agreement, the Security Trust Deed and any other Non-USD Obligation Security Document, including their rights under this Section, or in connection with the Advances provided by them hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Advances.
(b) Subject to the Priority of Payments, the Company shall indemnify the Agents, the Collateral Administrator, the Securities Intermediary, the Lenders, the UK Custodian, the UK Account Bank and their Related Parties (each such Person being called an "Indemnitee"), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable and documented fees, charges and disbursements of outside counsel for each Indemnitee and such other local counsel as required for any Indemnitees (such counsel being limited to one outside counsel and one local counsel for the Collateral Administrator, the Securities Intermediary, the UK Custodian, the UK Account Bank and the Collateral Agent and their Related Parties and one outside counsel and one local counsel for the Lenders, the Administrative Agent and their Related Parties), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (1) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties thereto of their respective obligations or the exercise of the parties thereto of their respective rights or the consummation of the transactions contemplated hereby, (2) any Advance or the use of the proceeds therefrom, or (3) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto or is pursuing or defending any such action; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (B) with respect to indemnification obligations owed to the Administrative Agent or any Financing Provider, resulted from the material non-compliance by the Administrative Agent or (with respect to such Financing Provider or its Related Parties as an Indemnitee) any Financing Provider of their respective obligations under the Loan Documents or (C) relate to any claim, matter or dispute solely between or among Indemnitees. This Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) To the extent permitted by Applicable Law, no party hereto nor any Indemnitee shall assert, and each hereby waives, any claim against any party hereto or any Indemnitee, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, the Account Control Agreement, any other Loan Document or any agreement, instrument or transaction contemplated hereby, any Advance or the use of the proceeds thereof.
(d) If an Event of Default shall have occurred and be continuing, with prior written notice to the Administrative Agent and the Company, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply


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any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Company against any of and all the obligations of the Company now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this clause (d) are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
(e) The rights of the UK Custodian, the UK Account Bank, the Administrative Agent and the Collateral Agent pursuant to this Section 10.05 are not exclusive of the rights of such Persons pursuant to the Security Trust Deed, under any other Non-USD Obligation Security Document and under the laws of any jurisdiction outside of the United States.
SECTION 10.05. Amendments. Subject to Section 3.01(h)(ii), no amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including, without limitation, a writing evidenced by a facsimile transmission or electronic mail) and executed by each of the Agents, the Collateral Administrator, the Securities Intermediary, the Required Lenders, the Company and the Portfolio Manager; provided, however, that the Administrative Agent may waive any of the Eligibility Criteria and the requirements set forth in Schedule 3 or Schedule 4 in its sole discretion; provided further that none of the Collateral Agent, the Collateral Administrator or the Securities Intermediary shall be obligated to execute any amendment that affects its rights, duties, protections or immunities; provided further that any Material Amendment shall require the prior written consent of each Lender affected thereby. If so required by the Administrative Agent (as notified to the other parties hereto in writing (including via e-mail)) in conjunction with the establishment of any Non-USD Obligation Account (other than the Euro Collection Account), the parties shall work together in good faith to execute and deliver an amendment to this Agreement in form and substance satisfactory to all parties hereto to provide for any supplemental terms relating to the establishment of any such accounts which, as determined by the Administrative Agent in its sole discretion, are necessary or desirable to protect the rights and remedies of the Secured Parties with respect to any such account and any related Non-USD Obligations (which may include one or more amendments to the Security Trust Deed or the execution and delivery or one or more additional Non-USD Obligation Security Documents) (any such amendment, a "Currency Amendment"). No such account shall be established unless any required Currency Amendment has been executed and delivered by all parties hereto.
SECTION 10.06. Successors; Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and the Required Lenders (and any attempted assignment or transfer by the Company without such consent shall be null and void) and the Portfolio Manager may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent. Except as expressly set forth herein, nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Subject to the conditions set forth below, any Lender may assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including all or a portion of its Financing Commitment and the Advances at the time owing to it) with the prior written consent (such


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consent not to be unreasonably withheld) of the Administrative Agent and, unless an Event of Default has occurred and is continuing or a Market Value Event shall have occurred, if such assignee is not an Eligible Assignee, the Company; provided that no consent of the Administrative Agent or the Company shall be required for an assignment of any Financing Commitment to an assignee that is a Lender with a Financing Commitment immediately prior to giving effect to such assignment.
Assignments shall be subject to the following additional conditions: (A) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; and (B) the parties to each assignment shall execute and deliver to the Administrative Agent an assignment and assumption agreement in form and substance acceptable to the Administrative Agent.
Subject to acceptance and recording thereof below, from and after the effective date specified in each assignment and assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignment and assumption, be released from its obligations under this Agreement (and, in the case of an assignment and assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto as a Lender but shall continue to be entitled to the benefits of Sections 5.03 and 10.04).
The Administrative Agent, acting solely for this purpose as an agent of the Company, shall maintain at one of its offices a copy of each assignment and assumption delivered to it and the Register. The entries in the Register shall be conclusive absent manifest error, and the parties hereto shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company, any Lender and the Portfolio Manager, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed assignment and assumption executed by an assigning Lender and an assignee, the Administrative Agent shall accept such assignment and assumption and record the information contained therein in the Register.
(c) Any Lender may sell participations to one or more banks or other entities (a "Lender Participant") in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Financing Commitment and the Advances owing to it) and with the consent of, if such participant is not an Eligible Assignee, the Company; provided that (1) such Lender's obligations under this Agreement shall remain unchanged, (2) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (3) the Company, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Lender Participant, agree to any Material Amendment that materially and adversely affects such Lender Participant.
(d) Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Company, maintain a register on which it enters the name and address of each Lender Participant and the principal amounts (and stated interest) of each Lender Participant's interest in the Advances or other obligations under this Agreement (the "Participant Register"); provided that no Lender


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shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Lender Participant or any information relating to a Lender Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. The Company agrees that each Lender Participant shall be entitled to the benefits of Sections 3.01(e) and 3.03 (subject to the requirements and limitations therein, including the requirements under Section 3.03(f) (it being understood that the documentation required under Section 3.03(f) shall be delivered to the Lender that sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Lender Participant (A) agrees to be subject to the provisions of Section 3.01(f) relating to replacement of Lenders as if it were an assignee under paragraph (b) of this Section 10.06 and (B) shall not be entitled to receive any greater payment under Sections 3.01(e) and 3.03, with respect to any participation, than the Lender that sells the participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Lender Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company's request and expense, to use reasonable efforts to cooperate with the Company to effectuate the replacement of Lenders provisions set forth in Section 3.01(f) with respect to any Lender Participant.
SECTION 10.07. Confidentiality. Each Agent, the Collateral Administrator, the Securities Intermediary and each Lender agrees to maintain the confidentiality of the Information until the date that is two (2) years after receipt of such Information (or, with respect to Information relating to the financial and other material terms of this Agreement, until the date that is one (1) year after the Maturity Date), except that Information may be disclosed (i) to its and its Affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority (including any self-regulatory authority), (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder, the sale of any Portfolio Investment following the occurrence of a Market Value Event or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 10.07, to (x) any assignee of or Participant in or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement (in each case to the extent such Person is an Eligible Assignee), or (y) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its obligations, (vii) with the consent of the Company (or the Administrative Agent, in the case of a disclosure by the Company), (viii) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 10.07 by the delivering party or its Affiliates or (y) becomes available to any Agent, the Collateral Administrator, the Securities Intermediary or any Lender on a nonconfidential basis from a source other than the Company or (ix) to the extent permitted or required under this Agreement or the Account Control Agreement. For the purposes of this Section 10.07, any Person required to maintain the confidentiality of Information as provided in this Section 10.07 shall be considered to have complied


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with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 10.08. Governing Law; Submission to Jurisdiction; Etc.
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law of the State of New York.
(b) Submission to Jurisdiction. Any suit, action or proceedings relating to this Agreement (collectively, "Proceedings") shall be tried and litigated in the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City. With respect to any Proceedings, each party hereto irrevocably (i) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and (ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement precludes any party hereto from bringing Proceedings to enforce any judgment against any such party arising out of or relating to this Agreement in the courts of any place where such party or any of its assets may be found or located, nor will the bringing of such Proceedings in any one or more jurisdictions preclude the bringing of such Proceedings in any other jurisdiction.
(c) Waiver of Jury Trial. EACH OF THE PARTIES HERETO AND THE ADMINISTRATIVE AGENT ON BEHALF OF THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Advance, together with all fees, charges and other amounts which are treated as interest on such Advance under Applicable Law (collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for, charged, taken, received or reserved by the Lender holding such Advance in accordance with Applicable Law, the rate of interest payable in respect of such Advance hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Advance but were not payable as a result of the operation of this Section 10.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other Advances or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 10.10. PATRIOT Act. Each Lender and Agent that is subject to the requirements of the PATRIOT Act hereby notifies the Company that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Lender or Agent to identify the Company in accordance with the PATRIOT Act.
SECTION 10.11. Counterparts. This Agreement may be executed in any number of counterparts by facsimile or other written form of communication, each of which shall be deemed to be


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an original as against the party whose signature appears thereon, and all of which shall together constitute one and the same instrument.
SECTION 10.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 10.13. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.. Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under this Agreement may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(1) a reduction in full or in part or cancellation of any such liability;
(2) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(3) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
As used herein:
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
"Bail-In Legislation" means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
"EEA Financial Institution" means (a) any institution 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 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.


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"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.
"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.
"Write-Down and Conversion Powers" means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
BGSL JACKSON HOLE FUNDING LLC, as Company
By__________________________________
Name:
Title:
BLACKSTONE/GSO SECURED LENDING FUND, as Portfolio Manager
By__________________________________
Name:
Title:







JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent
By__________________________________
Name:
Title:




CITIBANK, N.A., as Collateral Agent
By__________________________________
Name:
Title:
CITIBANK, N.A., as Securities Intermediary
By__________________________________
Name:
Title:
VIRTUS GROUP, LP, as Collateral Administrator
By__________________________________
Name:
Title:




The Lenders
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Lender
By__________________________________
Name:
Title:




SCHEDULE 1
Transaction Schedule

1. Types of Financing Available Financing Limit
Advances yes
Prior to the Second Amendment Date, $300,000,000; On and after the Second Amendment Date and prior to a subsequent Commitment Increase Date: U.S.$600,000,000; On and after a subsequent Commitment Increase Date, if any, U.S.$600,000,000 plus the principal amount of each increase in the Financing Commitment set forth in the applicable Commitment Increase Requests up to U.S. $900,000,000 in the aggregate. Notwithstanding anything in this Agreement to the contrary, not more than 10% of the Financing Limit may be utilized in Permitted Non-USD Currencies.

2. Lenders
Financing Commitment



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JPMorgan Chase Bank, National Association
Prior to the Second Amendment Date, $300,000,000; On and after the Second Amendment Date and prior to a subsequent Commitment Increase Date: U.S.$600,000,000; On and after a subsequent Commitment Increase Date, if any, U.S.$600,000,000 plus the principal amount of each increase in the Financing Commitment set forth in the applicable Commitment Increase Requests up to U.S. $900,000,000 in the aggregate, in each case, as reduced from time to time pursuant to Section 4.07. Notwithstanding anything in this Agreement to the contrary, not more than 10% of the Financing Commitment may be utilized in Permitted Non-USD Currencies.
3.
Scheduled Termination Date:
May 16, 2023
4. Interest Rates


- 3 -
Applicable Margin for Advances: Prior to the Second Amendment Date:

With respect to interest based on the Reference Rate, 2.50% per annum (subject to increase in accordance with Section 3.01(b)).
With respect to interest based on the Base Rate, 2.50% per annum (subject to increase in accordance with Section 3.01(b)).

On and after the Second Amendment Date:

With respect to interest based on the Reference Rate, 2.375% per annum (subject to increase in accordance with Section 3.01(b)).
With respect to interest based on the Base Rate, 2.375% per annum (subject to increase in accordance with Section 3.01(b)).
5. Account Numbers*
Custodial Account: 12169700
Collection Account: 12169900
MV Cure Account: 12170000
Unfunded Exposure Account: 12170100
Euro Collection Account: 10522805
* The Collateral Agent or the UK Account Bank will provide account numbers for the GBP Collection Account, the GBP Unfunded Exposure Account, the CAD Collection Account, the CAD Unfunded Exposure Account and/or the Euro Unfunded Exposure Account when and if each such account is established in accordance with this Agreement and the Security Trust Deed. The Collateral Agent or the UK Custodian will provide account number for the Non-USD Custodial Account when and if such account is established in accordance with this Agreement and the Security Trust Deed.


- 4 -
6.
Market Value Trigger:
70%   
7.
Market Value Cure Trigger:
62%   
8.
Purchases of Restricted Securities
Notwithstanding anything herein to the contrary, no Portfolio Investment may constitute, at the time of initial purchase, a Restricted Security. As used herein, "Restricted Security" means any security that forms part of a new issue of publicly issued securities (a) with respect to which an Affiliate of any Lender that is a "broker" or a "dealer", within the meaning of the Securities Exchange Act of 1934, participated in the distribution as a member of a selling syndicate or group within 30 days of the proposed purchase by the Company and (b) which the Company proposes to purchase from any such Affiliate of any Lender.




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Addresses for Notices
The Company:
BGSL Jackson Hole Funding LLC
c/o Blackstone/GSO Secured Lending Fund
345 Park Avenue
New York, NY 10154

Attn: Shaker Choudhury
Email: Shaker.choudhury@gsocap.com
With a copy to:
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036-6797 		Attention: Jay R. Alicandri, Esq.
Email: jalicandri@dechert.com
The Portfolio Manager:
Blackstone/GSO Secured Lending Fund
345 Park Avenue
New York, NY 10154 		Attn: Shaker Choudhury
Email: Shaker.choudhury@gsocap.com
With a copy to:
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036-6797 		Attention: Jay R. Alicandri, Esq.
Email: jalicandri@dechert.com
The Administrative Agent:
JPMorgan Chase Bank, National Association
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd.,
3rd Floor
Newark, Delaware 19713
Attention: Ryan Hanks
Telephone: (302) 634-2030

with a copy to



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JPMorgan Chase Bank, National Association
383 Madison Ave.
New York, New York 10179
Attention: Louis Cerrotta
Telephone: 212-622-7092
Email:
louis.cerrotta@jpmorgan.com
With a copy to:
de_custom_business@jpmorgan.com

The Collateral Agent:
Citibank, N.A.
388 Greenwich Street
New York, NY 10013
Attention: Agency & Trust -
BGSL Jackson Hole Funding LLC
Telephone: (713) 693-6673
Email: Thomas.varcados@citi.com
The Securities Intermediary:
Citibank, N.A.
388 Greenwich Street
New York, NY 10013
Attention: Agency & Trust -
BGSL Jackson Hole Funding LLC
Telephone: (713) 693-6673
Email: Thomas.varcados@citi.com

Address for delivery of any physical securities under the Account Control Agreement:
Citibank, N.A.
399 Park Avenue
Level "B" - Securities Vault
New York, NY 10022

Attention: Mr. Keith Whyte,
BGSL Jackson Hole Funding, LLC
Telephone: (212) 559-1207
 
All physical securities must be sent by trackable courier service (e.g. UPS or Federal Express)
The Collateral Administrator:
Virtus Group, LP
1301 Fannin St., Suite 1700
Houston, TX 		Attention: BGSL Jackson Hole Funding LLC
Email: BGSLJacksonHoleFundingDL
@virtusllc.com


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JPMCB:
JPMorgan Chase Bank, National Association
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd.,
3rd Floor
Newark, Delaware 19713
Attention: Robert Nichols
Facsimile: (302) 634-1092
with a copy to:

JPMorgan Chase Bank, National Association
383 Madison Ave.
New York, New York 10179



Attention: Louis Cerrotta
Telephone: 212-622-7092
Each other Lender:
The address (or facsimile number or electronic mail address) provided by it to the Administrative Agent.






SCHEDULE 2
Contents of Notices of Acquisition
Each Notice of Acquisition shall include the following information for the related Portfolio Investment(s):
JPMorgan Chase Bank, National Association,
as Administrative Agent
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Attention: Ryan Hanks
Email: de_custom_business@jpmorgan.com
JPMorgan Chase Bank, National Association,
as Administrative Agent
383 Madison Avenue
New York, New York 10179
Attention: Michael Grogan
Email: NA_Private_Financing_Diligence@jpmorgan.com

JPMorgan Chase Bank, National Association,
as Lender
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Newark, Delaware 19713
Attention: Ryan Hanks
cc:
Citibank, N.A., as Collateral Agent
Virtus Group, LP, as Collateral Administrator
Ladies and Gentlemen:



- 2 -
Reference is hereby made to the Loan and Security Agreement, dated as of November 16, 2018 (as amended, the "Agreement"), among BGSL Jackson Hole Funding LLC, as borrower (the "Company"), JPMorgan Chase Bank, National Association, as administrative agent (the "Administrative Agent"), Blackstone/GSO Secured Lending Fund, as portfolio manager (the "Portfolio Manager"), the lenders party thereto and the collateral agent, collateral administrator and securities intermediary party thereto. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given such terms in the Agreement.
Pursuant to the Agreement, the Portfolio Manager hereby [requests approval for the Company to acquire][notifies the Administrative Agent of the Company's intention to acquire] via [a Purchase][a Substitution] the following Portfolio Investment(s):



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Fund
Issuer / Obligor
Jurisdiction
Identifier (LoanX; CUSIP)
Requested Notional Amount
Asset Class
Current Pay (Y/N)
Syndication Type
Lien
Tranche Size
Price
Spread / Coupon
Base Rate
LIBOR Floor
Maturity
GICS3 Industry
LTM EBITDA (In Millions)
LTM Capital Expenditures (in Millions)
Leverage Through Tranche (Net)
Interest Coverage
Financial Covenants
Currency Type
Security Identifier
Security Description
Quantity

To the extent available, we have included herewith (1) the material underlying instruments (including , in the case of a Loan, the final credit agreement and collateral and security documents) relating to each such Portfolio Investment, (2) an audited financial statement for the previous most recently ended three years of the obligor of each such Portfolio Investment or a quality of earnings report for the last 3 years (or, alternatively, since the last audit) prepared by an accredited accounting or financial advisory firm, to the extent available, (3) quarterly statements for the previous most recently ended fiscal quarters of the obligor of each such Portfolio Investment ending after the date of the most recent audited financial statements of such obligor, (4) any appraisal or valuation reports conducted by third parties in


- 4 -
connection with the proposed investment by the Company, (5) applicable "proof of existence" details (if requested by the Administrative Agent), and (6) investment committee memo. The Portfolio Manager acknowledges that it will provide such other information from time to time reasonably requested by the Administrative Agent, in each case to the extent that such information is available to the Company.
We hereby certify that all conditions to the [Purchase][Substitution] of such Portfolio Investment(s) set forth in Section 1.03 of the Agreement are satisfied[; provided that we request that the Administrative Agent waive the condition set forth in Section 1.03[__]].
Very truly yours,
Blackstone/GSO Secured Lending Fund, as Portfolio Manager
By_________________________________
Name:
Title:




SCHEDULE 3
Eligibility Criteria
1.Such obligation is a Loan or a debt security and is not a Synthetic Security, a Zero-Coupon Security, a Structured Finance Obligation, a Revolving Loan or a letter of credit or an interest therein; provided that, prior to the date (if any) on which the Non-USD Custodial Account is established in accordance with this Agreement and the Security Trust Deed, no such obligation that constitutes a certificated security (including a security represented by a global certificate) or is represented by a loan note or another instrument may be denominated in a Permitted Non-USD Currency.
2. Such obligation does not require the making of any future advance or payment by the Company to the issuer thereof or any related counterparty except in connection with a Delayed Funding Term Loan.
3. Such obligation is eligible to be entered into by, sold or assigned to the Company and pledged to the Collateral Agent.
4. Such obligation is denominated and payable in an Eligible Currency and purchased at a price that is at least 80% of the par amount of such obligation.
5. The primary obligor with respect to such obligation is a company organized in an Eligible Jurisdiction.
6. It is an obligation upon which no payments are subject to deduction or withholding for or on account of any withholding Taxes imposed by any jurisdiction unless the related obligor is required to make "gross-up" payments that cover the full amount of any such withholding Taxes (subject to customary conditions to such payments which the Company (or the Portfolio Manager on behalf of the Company) in its good faith reasonable judgment expects to be satisfied).
7. Such obligation is not subject to an event of default (as defined in the underlying instruments for such obligation) in accordance with its terms (including the terms of its underlying instruments after giving effect to any grace and/or cure period set forth in the related loan agreement, but not to exceed the lesser of (x) the grace period and/or cure period set forth in the related loan agreement and (y) thirty (30) days) and, to the knowledge of the Company, no Indebtedness of the obligor thereon ranking pari passu with or senior to such obligation is in default with respect to the payment of principal or interest or is subject to any other event of default that would trigger a default under the related loan agreement (after giving effect to any grace and/or cure period set forth in the related loan agreement, but not to exceed lesser of (x) the grace period and/or cure period set forth in the related loan agreement and (y) thirty (30) days) (a "Defaulted Obligation").
8. It is not at the time of purchase or commitment to purchase the subject of an offer other than an offer pursuant to the terms of which the offeror offers to acquire a debt obligation in exchange for consideration consisting solely of cash in an amount equal to or greater than the full face amount of such debt obligation plus any accrued and unpaid interest.
9. Such obligation is not an equity security and does not provide, on the date of acquisition, for conversion or exchange at any time over its life into an equity security.




10. Such obligation provides for periodic payments of interest thereon in cash at least semi-annually.
11. Such obligation will not cause the Company or the pool of Collateral to be required to register as an investment company under the Investment Company Act of 1940, as amended.
12. Such obligation has been Delivered to the Collateral Agent.
13. If such obligation is a Participation Interest, the seller of such Participation Interest is the Seller (or an Affiliate of the Parent consented to by the Administrative Agent in writing (including via e-mail)).
14. In the case of a Portfolio Investment that is a Loan, (i) the Administrative Agent is an "Eligible Assignee" (as such term, or comparable term, is defined in the documents evidencing such Portfolio Investment) and such Portfolio Investment is otherwise permitted to be entered into by, sold or assigned to the Administrative Agent and (ii) the Company shall have delivered to the Administrative Agent an assignment agreement duly executed by the administrative agent and/or obligor in respect of such Portfolio Investment, naming the Administrative Agent as assignee.
The following capitalized terms used in this Schedule 3 shall have the meanings set forth below:
"Eligible Currency" means U.S. dollars and any Permitted Non-USD Currency.
"Eligible Jurisdictions" means the United States and any State therein, Bermuda, Canada, the Cayman Islands, England and any country within the European Economic Area.
"Letter of Credit" means a facility whereby (i) a fronting bank ("LOC Agent Bank") issues or will issue a letter of credit ("LC") for or on behalf of a borrower pursuant to an underlying instrument, (ii) if the LC is drawn upon, and the borrower does not reimburse the LOC Agent Bank, the lender/participant is obligated to fund its portion of the facility and (iii) the LOC Agent Bank passes on (in whole or in part) the fees and any other amounts it receives for providing the LC to the lender/participant.
"Structured Finance Obligation" means any obligation issued by a special purpose vehicle and secured directly 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.
"Synthetic Security" means a security or swap transaction, other than a participation interest or a letter of credit, 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.
"Zero-Coupon Security" means any debt security that by its terms (a) does not bear interest for all or part of the remaining period that it is outstanding or (b) pays interest only at its stated maturity.




SCHEDULE 4
Concentration Limitations
The "Concentration Limitations" shall be satisfied on any date of determination if, in the aggregate, the Portfolio Investments (other than any Ineligible Investments) owned (or in relation to a proposed purchase of a Portfolio Investment, proposed to be owned) by the Company comply with all the requirements set forth below (each such limit calculated as a percentage of the Collateral Principal Amount on the applicable date of determination); provided that the requirements of clauses 5 and 8 below shall not be applicable and shall be deemed satisfied during the Ramp-Up Period:
1. The aggregate principal amount of Portfolio Investments issued by a single obligor and its affiliates may not exceed 6% of the Collateral Principal Amount (or, during the period from and including the Second Amendment Date to but excluding March 20, 2020, the greater of (i) 6% of the Collateral Principal Amount and (ii) (x) $40,000,000 in the case of all Portfolio Investments other than Jacuzzi Brands and (y) $30,000,000 in the case of Jacuzzi Brands); provided that the aggregate principal amount of Portfolio Investments issued by three (3) obligors and their respective affiliates may each constitute up to 7.5% of the Collateral Principal Amount. Notwithstanding the foregoing, no obligor shall be deemed an affiliate of any person solely because they are under the control of the same private equity sponsor or similar sponsor or because such obligor is owned by a common holding company with an obligor of another obligation so long as the collateral securing such loans is not common.
2. Not less than 92.5%of the Collateral Principal Amount may consist of Senior Secured Loans and cash and Eligible Investments on deposit in the Collection Account and the Non-USD Collection Accounts as Principal Proceeds.
3. Not more than 7.5% of the Collateral Principal Amount may consist of Second Lien Loans and Mezzanine Obligations, collectively;
4. Not more than 5% of the Collateral Principal Amount may consist of Mezzanine Obligations;
5. Not more than 20% of the Collateral Principal Amount may consist of Portfolio Investments that are issued by obligors that belong to the same Moody's Industry Classification; provided that Portfolio Investments that are issued by obligors that belong to one Moody's Industry Classification (excluding the Moody's Industry Classifications with industry codes 3, 12, 22 or 30 or the successor classification codes thereto) may constitute up to 30% of the Collateral Principal Amount. As used herein, "Moody's Industry Classifications" means the industry classifications set forth in Schedule 6 hereto, as such industry classifications shall be updated at the option of the Portfolio Manager (with the consent of the Administrative Agent) if Moody's publishes revised industry classifications.
6. The Unfunded Exposure Amount shall not exceed 5% of the Collateral Principal Amount; provided that, prior to the date on which a Non-USD Unfunded Exposure Account is established in a Permitted Non-USD Currency pursuant to this Agreement and the Security Trust Deed, not more than 0% of the Collateral Principal Amount may




consist of Delayed Funding Term Loans denominated in such Permitted Non-USD Currency.
7. Not more than 5% of the Collateral Principal Amount may consist of Participation Interests (other than Participation Interests acquired by the Company from the Seller pursuant to the Sale Agreement on the Effective Date).
8. Not more than 20% of the Collateral Principal Amount may consist of Portfolio Investments issued by companies organized in Eligible Jurisdictions other than the United States or any State thereof.
9. (i) not more than 20% of the Collateral Principal Amount may consist of Portfolio Investments denominated in any Permitted Non-USD Currency, (ii) prior to the establishment of a GBP Collection Account in accordance with this Agreement and the Security Trust Deed and, if required pursuant to Section 10.05 of this Agreement, the execution and delivery of a Currency Amendment, not more than 0% of the Collateral Principal Amount may consist of Portfolio Investments denominated in GBP and (iii) prior to the establishment of a CAD Collection Account in accordance with this Agreement and the Security Trust Deed and, if required pursuant to Section 10.05 of this Agreement, the execution and delivery of a Currency Amendment, not more than 0% of the Collateral Principal Amount may consist of Portfolio Investments denominated in CAD.
10. 



SCHEDULE 5
Initial Portfolio Investments





SCHEDULE 6

Moody's Industry Classifications
Industry Code
Description
1
Aerospace & Defense
2
Automotive
3
Banking, Finance, Insurance & Real Estate
4
Beverage, Food & Tobacco
5
Capital Equipment
6
Chemicals, Plastics & Rubber
7
Construction & Building
8
Consumer goods:  Durable
9
Consumer goods:  Non-durable
10
Containers, Packaging & Glass
11
Energy:  Electricity
12
Energy:  Oil & Gas
13
Environmental Industries
14
Forest Products & Paper
15
Healthcare & Pharmaceuticals
16
High Tech Industries
17
Hotel, Gaming & Leisure
18
Media: Advertising, Printing & Publishing
19
Media:  Broadcasting & Subscription
20
Media:  Diversified & Production
21
Metals & Mining
22
Retail




23
Services:  Business
24
Services:  Consumer
25
Sovereign & Public Finance
26
Telecommunications
27
Transportation:  Cargo
28
Transportation:  Consumer
29
Utilities:  Electric
30
Utilities:  Oil & Gas
31
Utilities:  Water
32
Wholesale





EXHIBIT A
Form of Request for Advance
JPMorgan Chase Bank, National Association,
as Administrative Agent
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Attention: Ryan Hanks
JPMorgan Chase Bank, National Association,
as Administrative Agent
383 Madison Avenue
New York, New York 10179
Attention: Louis Cerrotta
Email: louis.cerrotta@jpmorgan.com
de_custom_business@jpmorgan.com

JPMorgan Chase Bank, National Association,
as Lender
c/o JPMorgan Services Inc.
500 Stanton Christiana Rd., 3rd Floor
Newark, Delaware 19713
Attention: Robert Nichols
cc: 
Citibank, N.A., as Collateral Agent
Virtus Group, LP, as Collateral Administrator
Ladies and Gentlemen:
Reference is hereby made to the Loan and Security Agreement, dated as of November 16, 2018 (as amended, the "Agreement"), among BGSL Jackson Hole Funding LLC, as borrower (the "Company"), JPMorgan Chase Bank, National Association, as administrative agent (the "Administrative Agent"), Blackstone/GSO Secured Lending Fund, as portfolio manager (the "Portfolio Manager"), the lenders party thereto, and the collateral agent, collateral administrator and securities intermediary party thereto. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given such terms in the Agreement.
Pursuant to the Agreement, you are hereby notified of the following:
(1) The Company hereby requests an Advance under Section 2.03 of the Agreement to be funded on [____________].
(2) The aggregate amount of the Advance requested hereby is U.S.$[_________].
(3) (3) The currency of the proposed Advance is [USD][CAD][EUR][GBP].




(4) The proposed purchases (if any) relating to this request are as follows:

Security Par Price
Purchased Interest (if any)

We hereby certify that all conditions [to the Purchase of such Portfolio Investment(s) set forth in Section 1.03 of the Agreement and] to an Advance set forth in Section 2.05 of the Agreement have been satisfied or waived as of the [related Trade Date (and shall be satisfied or waived as of the related Settlement Date) and] Advance date[, as applicable].
Very truly yours,
BGSL Jackson Hole Funding LLC
By__________________________________
Name:
Title:









Exhibit 10.3
EXECUTION VERSION
FIRST AMENDMENT
Dated as of September 16, 2019
to
REVOLVING CREDIT AGREEMENT
Dated as of November 6, 2018
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”), dated as of September 16, 2019, is entered into by and among BLACKSTONE / GSO SECURED LENDING FUND, a Delaware statutory trust (the “Borrower”), the banks and financial institutions listed on the signature pages hereto as the Lenders (collectively, the “Lenders”, and, individually, a “Lender”) and Bank of America, N.A., as the administrative agent under the Credit Agreement (as defined below) (in such capacity, the “Administrative Agent”), the letter of credit issuer and a lender.
RECITALS
WHEREAS, the Borrower party hereto, the other Borrowers from time to time party thereto, the Lenders from time to time party thereto and the Administrative Agent are parties to that certain Revolving Credit Agreement, dated as of November 6, 2018 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”); and
WHEREAS, the parties hereto wish to make certain changes to the Credit Agreement as further described herein, and the Lenders have agreed to make such changes subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and in the Credit Agreement, the parties hereto agree as follows:
SECTION 1.Definitions. All capitalized terms not otherwise defined herein are used as defined in the Credit Agreement.
SECTION 2. Changes to the Credit Agreement. Effective as of the Effective Date (as defined below), the Credit Agreement is hereby amended as follows:
2.1 Certain sections of the Credit Agreement (including the schedules thereto but excluding the exhibits thereto) are hereby amended as set forth on Exhibit A to this Amendment. Language being inserted into the applicable section of the Credit Agreement is evidenced by bold and underline formatting.  Language being deleted from the applicable section of the Credit Agreement is evidenced by strike-through formatting.
2.2 Certain sections of Exhibit U to the Credit Agreement are hereby amended as set forth on Exhibit B to this Amendment. Language being inserted into the applicable section of the Exhibit is evidenced by bold and underline formatting. Language being deleted from the applicable section of the Exhibit is evidenced by strike-through formatting.
54043534.4

SECTION 3. Conditions Precedent to Closing. Section 2 hereof shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received:
3.1 a counterpart (or counterparts) of this Amendment, executed and delivered by the Borrower and each Lender, or other evidence satisfactory to the Administrative Agent of the execution and delivery of this Amendment by such parties;
3.2 a counterpart (or counterparts) of the Joinder Agreement, dated as of the Effective Date, executed and delivered by the Borrower and each Lender, or other evidence satisfactory to the Administrative Agent of the execution and delivery of the Joinder Agreement by such parties;
3.3 a Note, duly executed and delivered by the Borrower to each requesting Lender dated the Effective Date;
3.4 certified resolutions (or the equivalent in the applicable jurisdiction) on behalf of the Borrower authorizing the entry into the transactions contemplated by this Amendment, as in effect on the Effective Date and, in form and substance, reasonably satisfactory to the Administrative Agent;
3.5 a certification from a Responsible Officer that the Borrower’s Constituent Documents have not been amended, amended and restated, supplemented or otherwise modified since the Borrower last provided copies thereof to the Administrative Agent and that such Constituent Documents remain in full force and effect as of the Effective Date, together with certificates of good standing (or other similar instruments) of the Borrower; and
3.6  (a) payment of all fees and other amounts due and payable on or prior to the date hereof, and (b) Cadwalader, Wickersham & Taft LLP, as Administrative Agent’s special counsel, shall have received its fees and disbursements invoiced at least two (2) Business Days prior to the date hereof.
SECTION 4. Miscellaneous.
4.1 Facility Increase Request. Section 2.13 of the Credit Agreement requires the Borrower to deliver to the Administrative Agent a Facility Increase Request with respect to any Facility Increase (the “Facility Increase Delivery Requirement”). The Administrative Agent hereby waives the Facility Increase Delivery Requirement solely with respect to the Facility Increase to be consummated on the Effective Date.
4.2 Facility Extension Request. Section 2.14 of the Credit Agreement requires the Borrower to deliver to the Administrative Agent an Extension Request with respect to any extension of the Stated Maturity Date (the “Facility Extension Delivery Requirement”). The Administrative Agent hereby waives the Facility Extension Delivery Requirement solely with respect to the extension of the Stated Maturity Date to be consummated on the Effective Date.
‑2‑

4.3 Reallocation of Loans. The parties hereto agree that within thirty (30) days of the Effective Date, the Administrative Agent will reallocate the outstanding Loans and participations in Letters of Credit under the Credit Agreement in accordance with Section 2.13(b) of the Credit Agreement.
4.4 Reaffirmation of Covenants, Representations and Warranties. Upon the effectiveness of this Amendment, the Borrower hereby reaffirms all covenants applicable to it, and, in all material respects, representations and warranties made by it in the Loan Documents to the extent the same are not amended hereby (except to the extent of changes in facts or circumstances that have been disclosed to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or other specific date).
4.5  Representations and Warranties. The Borrower hereby represents and warrants that (i) this Amendment constitutes a legal, valid and binding obligation of such Person, enforceable against it in accordance with its terms, subject to Debtor Relief Laws and general equitable principles (whether considered a proceeding in equity or at law), and (ii) immediately before and after giving effect to the Effective Date, no Event of Default or Potential Default shall exist.
4.6  References to the Credit Agreement. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby.
4.7 Effect on Credit Agreement. Except as specifically amended above, the Credit Agreement and all other Loan Documents executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
4.8 No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Agent or any Lender under the Credit Agreement or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein.
4.9 Governing Law. This Amendment and the rights and obligations of the parties hereto, shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
4.10 Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4.11 Headings. Section headings in this Amendment are for reference only and shall in no way affect the interpretation of this Amendment.
‑3‑

4.12 Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of an executed counterpart hereof, or a signature page hereto, by facsimile or in a .pdf or similar file shall be effective as delivery of a manually executed original counterpart thereof.

[Signatures Follow]

‑4‑

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
BORROWER:
BLACKSTONE / GSO SECURED LENDING FUND, a Delaware statutory trust
By: /s/ Marisa J. Beeney
Name: Marisa J. Beeney
Title: Chief Compliance Officer,
Chief Legal Officer and Secretary


GSO BDC - First Amendment to Revolving Credit Agreement

ADMINISTRATIVE AGENT AND LENDERS:
BANK OF AMERICA, N.A., as Administrative Agent, Letter of Credit Issuer and a Lender
By: /s/ Jose Liz-Moncion
Name: Jose Liz-Moncion
Title: Director





GSO BDC - First Amendment to Revolving Credit Agreement

ING CAPITAL LLC, as a Lender
By: /s/ Patrick Frisch
Name: Patrick Frisch
Title: Managing Director
By: /s/ Dominik Breuer
Name: Dominik Breuer
Title: Vice President


GSO BDC - First Amendment to Revolving Credit Agreement

EXHIBIT A
TO
FIRST AMENDMENT


BLACKSTONE / GSO SECURED LENDING FUND

as the Initial Borrower

REVOLVING CREDIT AGREEMENT

BANK OF AMERICA, N.A.,
as the Administrative Agent, the Sole Lead Arranger, the Letter of Credit Issuer and a Lender,
and
the other Lenders from time to time party hereto
November 6, 2018



USActive 53991578.7
TABLE OF CONTENTS
(continued)
Page

SECTION 1. DEFINITIONS
1.1 Defined Terms_______________________________________________ 1
1.2 Other Definitional Provisions___________________________________ 33
1.3 Exchange Rates; Currency Equivalents___________________________ 33
1.4 Letter of Credit Amounts______________________________________ 34
1.5 Times of Day________________________________________________ 34
1.6 Schedules and Exhibits_________________________________________ 34
1.7 References to Agreements, Laws, Etc_____________________________ 34
1.8 Interest Rates________________________________________________ 34
SECTION 2. REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
2.1 The Lender Commitment________________________________________1
2.2 Revolving Credit Commitment___________________________________ 6
2.3 Manner of Borrowing__________________________________________ 6
2.4 Minimum Loan Amounts_______________________________________ 10
2.5 Funding_____________________________________________________ 10
2.6 Interest_____________________________________________________ 11
2.7 Determination of Rate__________________________________________ 12
2.8 Letters of Credit______________________________________________ 12
2.9 Addition of Qualified Borrowers, Payment of the Borrower Guaranty and Qualified Borrower Note___________________________  18
2.10 Use of Proceeds, Letters of Credit and Borrower Guaranties____________ 19
2.11 Fees________________________________________________________ 20
2.12 Unused Commitment Fee_______________________________________ 20
2.13 Increase in the Maximum Commitment Amount_____________________ 21
2.14 Extension of Stated Maturity Date________________________________ 23
2.15 Borrower Appointment_________________________________________ 24
SECTION 3. PAYMENT OF OBLIGATIONS
3.1 Revolving Credit Notes_________________________________________ 24
3.2 Payment of Obligations_________________________________________ 24
3.3 Payment of Interest____________________________________________ 24
3.4 Payments on the Obligations____________________________________ 26
3.5 Voluntary Prepayments________________________________________ 27
3.6 Reduction or Early Termination of Lender Commitments______________ 27
3.7 Lending Office_______________________________________________ 27
SECTION 4. CHANGE IN CIRCUMSTANCES
4.1 Increased Cost and Reduced Return; Change in Law__________________ 28
4.2 Limitation on Types of Loans____________________________________ 29
4.3 Illegality____________________________________________________ 30
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4.4 Unavailability of Alternate Currency______________________________ 30
4.5 Treatment of Affected Loans____________________________________ 31
4.6 Compensation________________________________________________ 31
4.7 Taxes_______________________________________________________ 32
4.8 Requests for Compensation_____________________________________ 36
4.9 Survival_____________________________________________________ 36
4.10 Replacement of Lenders________________________________________ 36
4.11 Euro Event__________________________________________________ 37
4.12 LIBOR Successor Rate_________________________________________ 37
SECTION 5. SECURITY
5.1 Liens and Security Interest______________________________________ 38
5.2 The Collateral Accounts; Investor Demand Notices__________________ 39
5.3 Lender Offset_________________________________________________42
5.4 Agreement to Deliver Additional Collateral Documents_______________ 42
5.5 Subordination________________________________________________ 43
SECTION 6. CONDITIONS PRECEDENT TO LENDING.
6.1 Obligations of the Lenders_____________________________________ 43
6.2 Conditions to all Loans and Letters of Credit______________________ 45
6.3 Conditions to Qualified Borrower Loans and Letters of Credit_________ 46
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 Organization and Good Standing_________________________________ 47
7.2 Authorization and Power_______________________________________ 47
7.3 No Conflicts or Consents_______________________________________ 48
7.4 Enforceable Obligations________________________________________ 48
7.5 Priority of Liens______________________________________________ 48
7.6 Financial Condition____________________________________________ 48
7.7 Full Disclosure_______________________________________________ 49
7.8 No Default__________________________________________________ 49
7.9 No Litigation________________________________________________ 49
7.10 Intentionally Omitted__________________________________________ 49
7.11 Taxes_______________________________________________________ 49
7.12 Principal Office; Jurisdiction of Formation_________________________ 49
7.13 ERISA_____________________________________________________ 49
7.14 Compliance with Law__________________________________________ 50
7.15 Environmental Matters_________________________________________ 50
7.16 Investor Commitments and Contributions__________________________ 50
7.17 Fiscal Year__________________________________________________ 50
7.18 Margin Stock________________________________________________ 50
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7.19 Investment Company Act_______________________________________ 51
7.20 No Defenses_________________________________________________ 51
7.21 Organizational Structure________________________________________ 51
7.22 Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws_____ 51
7.23 [Reserved]___________________________________________________51
7.24 Investor Commitments_________________________________________ 52
7.25 Beneficial Ownership Certification_______________________________ 52
SECTION 8. AFFIRMATIVE COVENANTS OF THE BORROWERS
8.1 Financial Statements, Reports and Notices__________________________ 52
8.2 Payment of Taxes_____________________________________________ 54
8.3 Maintenance of Existence and Rights______________________________ 55
8.4 Notice of Default______________________________________________ 55
8.5 Other Notices________________________________________________ 55
8.6 Compliance with Loan Documents and Constituent Documents_________ 55
8.7 Operations and Properties_______________________________________ 56
8.8 Books and Records; Access_____________________________________ 56
8.9 Compliance with Law__________________________________________ 56
8.10 Insurance____________________________________________________ 56
8.11 Authorizations and Approvals___________________________________ 56
8.12 Maintenance of Liens__________________________________________ 56
8.13 Further Assurances____________________________________________ 56
8.14 Collateral Accounts____________________________________________ 57
8.15 Investor Financial and Rating Information__________________________ 57
8.16 Compliance with Anti-Money Laundering Laws and Anti-Corruption Laws___________________________________________ 57
8.17 Environmental Compliance_____________________________________ 57
8.18 Confirmation of Unused Commitments____________________________________ 57
8.19 Investment Period_____________________________________________ 57
8.20 Covenant to Call Capital________________________________________ 57
8.21 Compliance with Sanctions________________________________________ 57
8.22 Notices to Defaulting Investors__________________________________ 58
8.23 ERISA_____________________________________________________ 58
8.24 Investment Company Act______________________________________ 58
SECTION 9. NEGATIVE COVENANTS OF THE BORROWERS
9.1 Mergers, Etc__________________________________________________58
9.2 Negative Pledge______________________________________________ 58
9.3 Fiscal Year and Accounting Method______________________________ 58
9.4 Constituent Documents________________________________________ 58
9.5 Transfer of Interests; Admission of Investors________________________ 59
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9.6 Commitments________________________________________________ 61
9.7 ERISA Compliance___________________________________________ 62
9.8 Dissolution__________________________________________________ 62
9.9 Compliance with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws___________________________________________ 62
9.10 Limitations on Distributions_____________________________________ 62
9.11 Limitation on Indebtedness______________________________________ 63
9.12 Limitation on Withdrawals From the Collateral Account______________ 63
9.13 Demand Notices______________________________________________ 63
9.14 Deposits to the Collateral Accounts_______________________________ 63
SECTION 10. EVENTS OF DEFAULT
10.1 Events of Default_____________________________________________ 64
10.2 Remedies Upon Event of Default_________________________________ 67
10.3 Performance by the Administrative Agent__________________________ 68
10.4 Qualified Borrower Defaults_____________________________________ 69
SECTION 11. AGENTS
11.1 Appointment_________________________________________________ 69
11.2 Delegation of Duties___________________________________________ 70
11.3 Exculpatory Provisions_________________________________________ 70
11.4 Reliance on Communications____________________________________ 70
11.5 Notice of Default_____________________________________________ 71
11.6 Non-Reliance on the Agents and the Lenders________________________ 71
11.7 Indemnification_______________________________________________ 71
11.8 Agents in Individual Capacity___________________________________ 72
11.9 Successor Agent______________________________________________ 72
11.10 Reliance by the Borrowers______________________________________ 73
11.11 Administrative Agent May File Proofs of Claim_____________________ 73
11.12 Delivery of Notices to the Lenders________________________________ 74
SECTION 12. MISCELLANEOUS
12.1 Amendments_________________________________________________74
12.2 Sharing of Offsets_____________________________________________ 77
12.3 Sharing of Collateral___________________________________________ 77
12.4 Waiver______________________________________________________ 77
12.5 Payment of Expenses; Indemnity_________________________________ 78
12.6 Notice______________________________________________________ 79
12.7 Governing Law_______________________________________________ 81
12.8 Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by Jury___________________________________________ 81
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12.9 Invalid Provisions_____________________________________________ 81
12.10 Entirety_____________________________________________________ 82
12.11 Parties Bound; Assignment_____________________________________ 82
12.12 Lender Default_______________________________________________ 85
12.13 Maximum Interest____________________________________________ 85
12.14 Headings___________________________________________________ 85
12.15 Survival_____________________________________________________ 85
12.16 Full Recourse________________________________________________ 85
12.17 Availability of Records; Confidentiality___________________________ 85
12.18 USA Patriot Act Notice________________________________________ 86
12.19 Multiple Counterparts_________________________________________ 87
12.20 Judgment Currency___________________________________________ 87
12.21 Acknowledgement and Consent to Bail‑In of EEA Financial Institutions_______________________________________ 87



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SCHEDULES

SCHEDULE I: Borrower Information
SCHEDULE II: Lender Commitments
SCHEDULE III: Specified Times


EXHIBITS
EXHIBIT A: Form of Borrowing Base Certificate
EXHIBIT B: Form of Note
EXHIBIT C: Form of Borrower Security Agreement
EXHIBIT D: Form of Borrower Pledge of Collateral Account
EXHIBIT E: Form of Request for Borrowing
EXHIBIT F: Form of Prepayment Notice
EXHIBIT G: Form of Rollover/Conversion Notice
EXHIBIT H: Form of Assignment and Acceptance Agreement
EXHIBIT I: Form of Qualified Borrower Promissory Note
EXHIBIT J: Form of Request for Letter of Credit
EXHIBIT K: Form of Borrower Guaranty
EXHIBIT L: [Reserved]
EXHIBIT M: Form of Responsible Officer’s Certificate
EXHIBIT N: [Reserved.]
EXHIBIT O: Form of Joinder Agreement
EXHIBIT P: Form of Extension Request
EXHIBIT Q: [Reserved.]
EXHIBIT R: [Reserved.]
EXHIBIT S: [Reserved.]
EXHIBIT T: [Reserved.]
EXHIBIT U: Form of Facility Increase Request
EXHIBIT V: [Reserved.]
EXHIBIT W:  Form of Compliance Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this “Credit Agreement”) is dated as of November 6, 2018, by and among BLACKSTONE / GSO SECURED LENDING FUND, a Delaware statutory trust (the “Initial Borrower” and, collectively with any Qualified Borrowers that join the Credit Facility, each, a “Borrower” and collectively, the “Borrowers”), BANK OF AMERICA, N.A. (“Bank of America”), as the Administrative Agent and the Letter of Credit Issuer, as the Sole Lead Arranger (the “Sole Lead Arranger”) and as a Lender (in such capacity, the “Initial Lender”), and each of the other financial institutions from time to time party hereto as Lenders (together with Bank of America, the “Lenders”, and each, a “Lender”).
A. The Initial Borrower has requested that the Lenders make loans and cause the issuance of letters of credit for the purpose of financing the Borrowers’ investment activities, providing working capital or for other purposes permitted under the Constituent Documents, and all related documentation, including the Subscription Agreements and any related Side Letters, of the Borrowers; and
B. The Lenders are willing to lend funds and to cause the issuance of letters of credit upon the terms and subject to the conditions set forth in this Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

Section 1.DEFINITIONS
1.1 Defined Terms. For the purposes of this Credit Agreement, unless otherwise expressly defined, the following terms shall have the respective meanings assigned to them in this Section 1 or in the Section or recital referred to:
“Adequately Capitalized” means “adequately capitalized” within the meaning of Section 2(o)(1)(B)(i) of the Bank Holding Company Act of 1956, as amended from time to time and any successor statute or statutes, and regulations promulgated thereunder.
“Adjusted LIBOR” means, for any LIBOR Loan for any Interest Period therefor, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1.0%) equal to the quotient obtained by dividing: (a) LIBOR for the applicable Interest Period; by (b) one (1) minus the LIBOR Reserve Requirement for such LIBOR Loan for such Interest Period, if applicable.
“Administration Agreement” means the Administration Agreement, dated as of October 1, 2018, between the Initial Borrower and the Administrator, as the same may be amended, restated, modified, supplemented or amended and restated from time to time.
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“Administrative Agent” means Bank of America, until the appointment of a successor “Administrative Agent” pursuant to Section 11.9 hereof and, thereafter, shall mean such successor Administrative Agent.
“Administrator” means GSO Capital Partners LP, a Delaware limited partnership.
“Affiliate” of any Person means any other Person that, directly or indirectly, controls or is controlled by, or is under common control with, such Person. For the purpose of this definition, “control” and the correlative meanings of the terms “controlled by” and “under common control with” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares or partnership interests or by contract or otherwise.
“Agency Services Address” means the address for the Administrative Agent set forth in Section 12.6 hereof, or such other address as may be identified by written notice from the Administrative Agent to the Borrowers and the other Agents.
“Agents” means, collectively, the Administrative Agent, the Sole Lead Arranger, the Letter of Credit Issuer and any successors and assigns in such capacities.
“Alternate Currency” means (a) any of the following: Canadian Dollars, Pounds Sterling, Euros, Australian Dollars and Yen, (b) any other non-US Dollar currency requested by a Borrower and approved by the Administrative Agent in its sole discretion, and (c) following the occurrence of a Euro Event, the common currency of any member state of the European Union requested by a Borrower and approved by the Administrative Agent and the Lenders in their reasonable discretion.
“Alternate Currency Liability” means the Dollar Equivalent of the aggregate outstanding principal amount of all Loans and the portion of the Letter of Credit Liability, which in each case is denominated in an Alternate Currency.
“Alternate Currency Sublimit” means an amount equal to fifty percent (50%) of the Maximum Commitment Amount.
“Anti-Corruption Laws” means any applicable anti-bribery and anti-corruption laws, regulations and rules, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, in particular the prohibitions against paying, offering, promising or giving anything of value, either directly or indirectly, to a Government Official for the purpose of influencing an act or decision in such Government Official's official capacity, or inducing such Government Official to use his or her influence with a government, political party, state-owned enterprise, or public international organization, or to receive any improper advantage in relation to the business of the Initial Borrower.
“Anti-Money Laundering Laws” means applicable Law in any jurisdiction in which the Initial Borrower is located or doing business that relates to money laundering or terrorism financing,
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any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
“Applicable Lending Office” means, for each Lender and for each Type of Loan, the “lending office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan on the signature pages hereof or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrowers by written notice in accordance with the terms hereof as the office by which such Type of Loans are to be made and maintained.
“Applicable Margin” has the meaning set forth in the applicable Fee Letter.
“Applicable Requirement” means each of the following requirements:
(a) if such Investor or such Investor’s Credit Provider or Sponsor shall be a Rated Investor, such Investor or such Investor’s Credit Provider or Sponsor, as applicable, shall have a Rating of BBB-/Baa3 or higher; and
(b)  the following, as applicable:
(i)  if such Investor or such Investor’s Credit Provider, as applicable, is a Bank Holding Company, it shall have Adequately Capitalized status or better;
(ii)  if such Investor or such Investor’s Credit Provider, as applicable, is an insurance company, it shall have a Best’s Financial Strength Rating of A- or higher; and
(iii)  if such Investor or such Investor’s Credit Provider, as applicable, is a Pension Plan Investor, or the trustee or nominee of a Pension Plan Investor, or a Governmental Plan Investor, or the Responsible Party with respect to a Governmental Plan Investor, the Pension Plan Investor or Governmental Plan Investor, as applicable, shall have a minimum Funding Ratio based on the Rating of its Sponsor or Responsible Party, as applicable, as follows:
Responsible Party or Sponsor Rating Minimum Funding Ratio
A-/A3 or higher No minimum
BBB+/Baa1 or lower 90%.

The first Rating indicated in each case above is the S&P Rating and the second Rating indicated in each case above is the Moody’s Rating. In the event that the S&P and Moody’s Ratings are not equivalent, the Applicable Requirement shall be based on the lower of the two. If any such Person has only one Rating, from either S&P or Moody’s, then that Rating shall apply.
“Application for Letter of Credit” means an application for a standby letter of credit by, between and among the applicable Borrower, on the one hand, and the Letter of Credit Issuer, on the other hand, substantially in a form provided by the Letter of Credit Issuer (and customarily used by it in similar circumstances) and conformed to the terms of this Credit Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended,
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renewed, or extended which form is completed to the reasonable satisfaction of the Letter of Credit Issuer; provided that to the extent that the terms of such Application for Letter of Credit are inconsistent with or otherwise more onerous than the terms of this Credit Agreement, the terms of this Credit Agreement shall control.
“Assignee” is defined in Section 12.11(c) hereof.
“Assignment and Acceptance Agreement” means the agreement contemplated by Section 12.11(c) hereof, pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, which agreement shall be substantially in the form of Exhibit H.
“Australian Dollars” means lawful currency of Australia.
“Available Commitment” means, on any date of determination, the lesser of: (a) the Maximum Commitment Amount and (b) the Borrowing Base minus, in either case, the FX Reserve Amount, if any, in effect at such time; provided that the Available Commitment will always be calculated in US Dollars.
“Bail-In Action” means the exercise of any Write‑Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail‑In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail‑In Legislation Schedule.
“Bank Holding Company” means a “bank holding company” as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended from time to time and any successor statute or statutes, or a non-bank subsidiary of such bank holding company.
“Bank of America” is defined in the preamble to this Credit Agreement.
“Basel III” means, collectively, those certain agreements on capital and liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time) and “Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring Tools,” as published by the Basel Committee on Banking Supervision in January 2013 (as revised from time to time) and, in each case, as implemented by a Lender’s primary U.S. federal bank regulatory authority.
“BBSY” means, with respect to any Loan denominated in Australian Dollars, the Bank Bill Swap Reference Bid Rate or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be reasonably designated by the
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Administrative Agent from time to time) at the Specified Time and for a period comparable to the applicable Interest Period of the requested Loan.
“Beneficial Ownership Certification” means, for a “legal entity customer” (as such term is defined in the Beneficial Ownership Regulation), a certification regarding beneficial ownership to the extent 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 included as Appendix A to the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Best’s Financial Strength Rating” means a “Best’s Financial Strength Rating” by A.M. Best Company.
“Borrower” and “Borrowers” are defined in the preamble to this Credit Agreement.
“Borrower Guaranty” and “Borrower Guaranties” are defined in Section 2.9(c) hereof.
“Borrower Party” is defined in Section 11.1(a) hereof.
“Borrower Security Agreement” means a security agreement, substantially in the form of Exhibit C hereto, made by the Initial Borrower, pursuant to which the Initial Borrower pledges and assigns by way of security a security interest and Lien in and on the Collateral described therein in favor of the Administrative Agent (for the benefit of the Secured Parties), as the same may be amended, restated, modified or supplemented from time to time.
“Borrowing” means a disbursement made by the Lenders of any of the proceeds of the Loans, and “Borrowings” means the plural thereof.
“Borrowing Base” means, on any date of determination, the sum of (i) 90% of the aggregate Uncalled Commitment of all Included Investors, as it may be reduced by all applicable Concentration Limits, (ii) 65% of the aggregate Uncalled Commitment of all Designated Investors that are not HNW Investors or Special HNW Aggregation Investors, as it may be reduced by all applicable Concentration Limits, (iii) 50% of the aggregate Uncalled Commitment of all Designated Investors that are HNW Investors, as it may be reduced by all applicable Concentration Limits, and (iv) 50% of the aggregate Uncalled Commitment of all Special HNW Aggregation Investors, as it may be reduced by all applicable Concentration Limits, minus in each case, the FX Reserve Amount, if any, in effect at such time.
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit A hereto which includes the information for each Investor and a calculation of the Available Commitment (including, for the avoidance of doubt, the FX Reserve Amount) as indicated by Exhibit A hereto.
“Borrowing Base Deficit” means, as of any date, the amount by which the Dollar Equivalent of the Principal Obligations exceeds the Available Commitment as of such date.
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“Borrowing Base Investors” means the Included Investors and the Designated Investors, collectively.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of New York, the State of North Carolina, or, to the extent applicable, the city of London, England and:
(a) if such day relates to any interest rate settings as to a LIBOR Loan denominated in US Dollars, any fundings, disbursements, settlements and payments in US Dollars in respect of any such LIBOR Loan, or any other dealings in US Dollars to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Loan, means any such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a LIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a LIBOR Loan denominated in a currency other than US Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; or
(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than US Dollars or Euro in respect of a LIBOR Loan denominated in a currency other than US Dollars or Euro, or any other dealings in any currency other than US Dollars or Euro to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
“Canadian Dollars” means lawful currency of Canada.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with Generally Accepted Accounting Principles, is or should be accounted for as a capital lease on the balance sheet of that Person and the amount of such obligation shall be the capitalized amount thereof determined in accordance with Generally Accepted Accounting Principles.
“Capitalized Interest Loan” is defined in Section 3.3(d) hereof.
“Capitalized Unused Commitment Fee Loans” is defined in Section 2.12(b) hereof.
“Cash Collateral Account” means a segregated, interest bearing deposit account held at the Administrative Agent for the purposes of holding Cash Collateral that is subject to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Letter of Credit Issuer (which documents are hereby consented to by the Lenders).
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Letter of Credit Issuer and the Lenders, as collateral for the Letter of Credit
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Liability, cash or deposit account balances in a Cash Collateral Account. Derivatives of the term “Cash Collateralize” shall have corresponding meanings.
“Cash Control Event” shall occur if, on any date of determination, (a) a mandatory prepayment is required pursuant to Section 2.1(e) of this Credit Agreement as a result of the then outstanding Dollar Equivalent of the Principal Obligations exceeding the Available Commitment, irrespective of whether such prepayment has become due and payable under the grace periods afforded in Section 2.1(e) of this Credit Agreement (including as a result of the issuance of a Demand Notice that has not yet been funded by the Investors); or (b) a mandatory prepayment will be required pursuant to Section 2.1(e) of this Credit Agreement with the passage of time as a result of an event which has occurred with respect to a Borrowing Base Investor which event would make such Investor an Excluded Investor after an applicable grace period provided in Section 2.1(d) of this Credit Agreement shall expire.
“CDOR” means with respect to any Loan denominated in Canadian Dollars and for a particular Interest Period, the simple average of the rates shown on the display referred to as the “CDOR Page” (or any display substituted therefor) published by Reuters (or any successor source from time to time) with respect to the banks and other financial institutions named in such display at the Specified Time for Canadian bankers’ acceptances, as determined by the Administrative Agent. If such rate does not appear on the Reuters Screen CDOR Page (or any display substituted therefor) as provided in the preceding sentence, CDOR on any day shall be calculated as the simple average of the rates for such Interest Period applicable to Canadian Dollar bankers’ acceptances of, and as quoted by, the Schedule I Banks (as published by the Canadian Bankers Association), as of the Specified Time.
“Certificate of Statutory Trust” shall mean the Certificate of Trust of the Initial Borrower, filed on March 26, 2018 with the Delaware Secretary of State, Division of Corporations, as amended, modified, supplemented or restated from time to time.
“Closing Date” means the date hereof; provided that all of the conditions precedent set forth in Section 6.1 hereof shall be satisfied or waived by the Lenders.
“Collateral” is defined in Section 5.1 hereof.
“Collateral Account” is defined in Section 5.2(a) hereof and “Collateral Accounts” means, where the context may require, all Collateral Accounts, collectively.
“Collateral Account Pledge” means a collateral account pledge, as amended, modified, supplemented or restated from time to time, substantially in the form attached hereto as Exhibit D, pursuant to which the Initial Borrower pledges and assigns by way of security to the Administrative Agent, for the benefit of the Secured Parties, a security interest and Lien in and on its right, title and interest in and to all amounts held in or credited to the account into which the applicable Investors are required to deposit Contributions, as more fully described in Section 5.2 hereof in order to secure the Initial Borrower’s Obligations.
“Collateral Documents” is defined in Section 5.1 hereof.
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“Commitment” means the “Capital Commitment” (as defined in the Trust Agreement) of the Investors to the Initial Borrower; “Commitments” means, where the context may require, all Commitments, collectively.
“Commitment Fee Rate” has the meaning set forth in the applicable Fee Letter.
“Commitment Period” means the period commencing on the Closing Date and ending on the Maturity Date.
“Competitor” means any investment vehicle, Affiliate thereof or Person whose primary business is the management of investment vehicles (including funds of funds or co-investment vehicles focused on achieving diversified exposure to alternative investment vehicles), excluding any commercial or investment bank (including any commercial or investment bank that sponsors investment vehicles); provided that any investment vehicle sponsored by a commercial bank shall be deemed a Competitor.
“Compliance Certificate” is defined in Section 8.1(b) hereof.
“Concentration Limits” means, with respect to each Investor classification, the following concentration limits calculated as a percentage of the aggregate Unused Commitments of all Borrowing Base Investors:
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Investor Classification Concentration Limit
(per Investor) 		Concentration Limit
(in aggregate)
Rated Included Investor (dependent on applicable ratings below)
AAA/Aaa 25.0%    N/A
AA+/Aa1 to AA-/Aa3 20.0%    N/A
A+/A1 to A-/A3 15.0%    N/A
BBB+/Baa1 to BBB-/Baa3 10.0%    N/A
Other Concentration Limits
Non-Rated Included Investor 10.0% - 25.0%    N/A
Corporate Designated Investor 5.0%    N/A
Foreign Sovereign Designated Investor 5.0%    20.0%   
Fund-of-Funds Designated Investor 3.0%    15.0%   
Institutional Designated Investors N/A 35.0%   
Special HNW Aggregation Investors 100%    N/A
Other HNW Aggregation Investors 1.0% – 10.0% N/A
Individual HNW Investor 1.0%    N/A

provided, that for purposes of calculating the above Concentration Limits for any Investor, each Investor and its investing affiliates shall be treated as a single Investor. For purposes of this definition, (a) “Corporate Designated Investor” means any Designated Investor that is not a Foreign Sovereign Designated Investor, a Fund-of-Funds Designated Investor, an HNW Investor or an HNW Aggregation Investor, (b) “Foreign Sovereign Designated Investor” means any Designated Investor that is a foreign sovereign government or any agency, instrumentality or political subdivision of a foreign sovereign government, (c) “Fund-of-Funds Designated Investor” means any Designated Investor that is a fund-of-funds, (d) “Institutional Designated Investor” means any Designated Investor that is an Institutional Investor, (e) “Other HNW Aggregation Investors” means any Designated Investor that is a HNW Aggregation Investor and that is not, for avoidance of doubt, a Special HNW Aggregation Investor and (f) “Individual HNW Designated Investor” means any Designated Investor that is a HNW Investor that is a natural person or that is an investment vehicle or family office where all of the beneficial owners thereof are exclusively natural persons.
“Confidential Information” means, at any time, all data, reports, interpretations, forecasts and records containing or otherwise reflecting information concerning any Borrower, any Investor or
USActive 53991578.7 9

any Affiliate of such Person which is not available to the general public, together with analyses, compilations, studies or other documents, which contain or otherwise reflect such information made available by or on behalf of any Borrower, any Investor or any such Affiliate pursuant to this Credit Agreement orally or in writing to any Agent or any Lender or their respective attorneys, certified public accountants or agents, but not any data or information that: (a) was or became generally available to the public at or prior to such time (unless divulged by an Agent or a Lender or such Agent’s or such Lender’s respective attorneys, certified public accountants or agents); or (b) was or became available to an Agent or a Lender or to such Agent’s or Lender’s respective attorneys, certified public accountants or agents on a non-confidential basis from the Borrowers or any Investor or any other source at or prior to such time other than as a result of a prohibited (insofar as the relevant Agent or Lender is aware) disclosure by such other source.
“Constituent Documents” means, for any Person, its constituent or organizational documents, including: (a) in the case of the Initial Borrower, the Certificate of Statutory Trust, the Trust Agreement and bylaws; (b) in the case of any other statutory trust, the related certificate of statutory trust, trust agreement and bylaws; (c) in the case of any limited partnership, exempted limited partnership, joint venture, trust or other form of business entity, the limited partnership, exempted limited partnership, joint venture or other applicable agreement of formation and any agreement, statement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state, Registrar of Exempted Limited Partnerships or other department in the jurisdiction of its formation, in each case as amended from time to time; (d) in the case of any limited liability company, the articles of formation, the articles of association, and operating agreement for such Person; and (e) in the case of a corporation or an exempted company, the certificate, memorandum or articles of incorporation, memorandum and articles of association and/or the bylaws (as applicable) for such Person, in each such case as it may be restated, modified, amended or supplemented from time to time.
“Continue”, “Continuation”, and “Continued” shall refer to the continuation pursuant to a Rollover of a LIBOR Loan from one Interest Period to the next Interest Period.
“Contribution” means the capital contributions made by the Investors to the Initial Borrower with respect to their Unused Commitments; “Contributions” means, where the context may require, all Contributions, collectively.
“Controlled Group” means: (a) the controlled group of corporations as defined in Section 1563 of the Internal Revenue Code; or (b) the group of trades or businesses under common control as defined in Section 414(c) of the Internal Revenue Code, in each case of which the Initial Borrower is a part.
“Conversion Date” means any LIBOR Conversion Date, Reference Rate Conversion Date, or Daily LIBOR Conversion Date, as applicable.
“Conversion Notice” is defined in Section 2.3(c) hereof.
“Convert”, “Conversion”, and “Converted” shall refer to a conversion pursuant to Section 2.3(c) or Section 4 hereof of one Type of Loan into another Type of Loan.
USActive 53991578.7 10

“Cost of Funds” means, with respect to a Loan, the actual cost to a Lender of funding or maintaining such Loan for the relevant Interest Period.
“Cost of Funds Rate” means a rate per annum notified by the applicable Lender as soon as practicable after the occurrence of the events specified in Section 4.2 hereof which expresses as a percentage rate the actual Cost of Funds to such Lender of funding Loans from whatever source it may reasonably select for the applicable Interest Period.
“Credit Agreement” means this Revolving Credit Agreement, of which this Section 1 forms a part, together with all amendments, modifications and restatements hereof, and supplements and attachments hereto.
“Credit Facility” means the Loans and Letters of Credit provided to the Borrowers by the Lenders under the terms and conditions of this Credit Agreement.
“Credit Provider” means a Person providing a guaranty or other credit support, in form and substance reasonably acceptable to the Administrative Agent, of the obligations of a Borrowing Base Investor to make Contributions.
“Currency” means US Dollars or any Alternate Currency.
“Current Party” is defined in Section 12.12 hereof.
“Daily LIBOR” means for each day during any Interest Period, the London interbank offered rate administered by ICE (or any other person that takes over the administration of such rate) for deposits in US Dollars with a term equivalent to one month, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be reasonably designated by the Administrative Agent from time to time) at the Specified Time, changing when and as such rate changes.
“Daily LIBOR Conversion Date” is defined in Section 2.3(c) hereof.
“Debt Limitations” means the limitations set forth in Section 9.11 hereof.
“Debtor Relief Laws” means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including, without limitation, the United States Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of the Loans or while any Letter of Credit is in effect or any Obligation is outstanding or any Lender or Letter of Credit Issuer has any commitment to extend credit hereunder.
“Default Rate” means (a) when used with respect to any overdue Obligations, other than LIBOR Loans or Letter of Credit fees, an interest rate equal to (i) the Reference Rate plus (ii) the Reference Rate Applicable Margin, if any, applicable to Reference Rate Loans plus (iii) 2% per annum, (b) when used with respect to any overdue LIBOR Loan, an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan plus 2% per
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annum, and (c) when used with respect to any overdue Letter of Credit fees, a rate equal to the Applicable Margin plus 2% per annum.
“Defaulting Lender” means any Lender that: (a) has failed to make its Pro Rata Share of any disbursement required to be made in respect of any Loan within three (3) Business Days of when due; (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute; (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding; (d) has notified the Borrowers, any Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Credit Agreement or has made a public statement that it does not intend to comply with its funding obligations under this Credit Agreement (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder or a loan under any such other credit agreement and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (e) has, or has an entity that controls such Lender that has, become the subject of a bankruptcy or insolvency proceeding; or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (ii) in the case of a solvent Lender, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Lender is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, in any such case where such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Demand Notice” means the issuance of a “Drawdown Notice” (as defined in the Subscription Agreements of the Initial Borrower) to the Investors for the making of Contributions pursuant to and in accordance with the Constituent Documents of the Initial Borrower; “Demand Notices” means, where the context may require, all Demand Notices, collectively.
“Deposit Account Control Agreement” means the deposit account control agreement among the Initial Borrower, the Administrative Agent and the Depository, as the same may be amended, modified, supplemented or restated from time to time.
“Depository” means State Street Bank and Trust Company or any replacement thereof which is an Eligible Institution.
“Designated Investor” means an Investor that (a) is approved in writing as a Designated Investor by the Lenders, in their sole discretion, and (b) in respect of which, except as otherwise determined by the Lenders, there has been delivered to the Administrative Agent:
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(i) a true and correct copy of the Subscription Agreement executed and delivered by or on behalf of such Investor which shall be acceptable to the Administrative Agent in its reasonable discretion (to the extent such Subscription Agreement contains material changes or any errors or discrepancies from the applicable approved form previously provided to the Administrative Agent), together with the Initial Borrower’s countersignature(s) accepting such Subscription Agreement, and any Constituent Documents of the Initial Borrower executed and delivered by or on behalf of such Investor;
(ii) a true and correct copy of any Side Letter executed by or on behalf of such Investor, which shall be acceptable to the Administrative Agent in its reasonable discretion; and
(iii) if such Investor’s Subscription Agreement or any Constituent Document of the Initial Borrower was signed by the Initial Borrower or any Affiliate thereof as an attorney-in-fact on behalf of such Investor, the Administrative Agent shall have received either (A) a copy of the power of attorney or other documentation substantiating the authority of the Initial Borrower (or Affiliate thereof) to sign on behalf of such Investor, such documentation to be in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that any power of attorney given by any Investor to the Initial Borrower (or Affiliate thereof) under the Constituent Documents as of the Closing Date is in form and substance reasonably acceptable to the Administrative Agent for purposes of executing any Constituent Document), or (B) a written opinion (addressed to the Administrative Agent) of the Investor’s counsel (or of the Initial Borrower’s counsel, who may assume the Investor’s existence and the Investor’s authorization, execution and delivery of the applicable power of attorney for this purpose and make such other assumptions as are reasonably acceptable to the Administrative Agent) in form and substance satisfactory to the Administrative Agent in its reasonable discretion, that such attorney-in-fact has duly executed and delivered such Subscription Agreement or Constituent Document, as the case may be, on behalf of such Investor, and that such Subscription Agreement or Constituent Document, as the case may be, is as binding upon such Investor as if the Investor had itself signed the same;
provided that (1) any Designated Investor in respect of which an Exclusion Event has occurred shall thereupon no longer be a Designated Investor until such time as all Exclusion Events in respect of such Investor shall have been cured to the satisfaction of the Administrative Agent in its sole discretion; and (2) each approval under clause (a) and each restoration under clause (1) of this proviso shall be subject to the satisfaction of such initial or ongoing conditions as may reasonably be specified by the Administrative Agent at the time of initial inclusion of such Investor as a Designated Investor. The Designated Investors as of the Closing Date are those specified as being Designated Investors on the Borrowing Base Certificate attached hereto as Exhibit A, as in effect on the Closing Date. If a Designated Investor would not be a Designated Investor but for the guaranty of its Credit Provider as contemplated in the definition
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of “Credit Provider”, such Designated Investor shall provide evidence satisfactory to the Administrative Agent of such guaranty.
“Distribution” is defined in Section 9.10 hereof.
“Dollar Equivalent” means, at any time on any date of determination: (a) with respect to any amount denominated in US Dollars, such amount; and (b) with respect to any amount denominated in an Alternate Currency, the equivalent amount thereof in US Dollars as reasonably determined by the Administrative Agent or the Letter of Credit Issuer, as applicable, at such time on the basis of the Spot Rate as of the most recent Revaluation Date for the purchase of US Dollars with such Alternate Currency.
“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 and subject to the Bail‑In Legislation; (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition; or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means: (a) a Lender; (b) an Affiliate of a Lender, or (c) subject to the provisions of Section 12.11(c) hereof, any other Person; provided that neither the Initial Borrower nor any Affiliate of the Initial Borrower shall qualify as an Eligible Assignee; and provided, further, that it shall not be unreasonable for the Borrowers to withhold consent to any assignment which (i) could reasonably be expected to create additional obligations of or risk to any Borrower or (ii) is to be made to a person that is a fiduciary with respect to the assets of any ERISA Investor or would result in a nonexempt prohibited transaction under ERISA or Section 4975 of the Internal Revenue Code (taking into consideration all remedial actions provided for herein).
“Eligible Institution” means State Street Bank and Trust Company or any depository institution, organized under the laws of the United States or any state, having capital and surplus in excess of $200,000,000, the deposits of which are insured by the Federal Deposit Insurance Corporation to the fullest extent permitted by law and which is subject to supervision and examination by federal or state banking authorities; provided that such institution also must have a short-term unsecured debt rating of at least P-1 from Moody’s and at least A-1 from S&P. If such depository institution publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then the combined capital and
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surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder, as from time to time in effect.
“ERISA Investor” means an Investor that is: (a) an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Part 4 of Title I of ERISA; (b) any “plan” defined in and subject to Section 4975 of the Internal Revenue Code; (c) a group trust, as described in Revenue Ruling 81-100, as amended; or (d) a partnership or commingled account of an employee benefit plan or plan described in (a) or (b) above, or any other entity whose assets include or are deemed to include Plan Assets.
“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.
“Euro Event” is defined in Section 4.11 hereof.
“Euros” mean the single, legal currency of the Participating Member States.
“Event of Default” is defined in Section 10.1 hereof.
“Excluded Investor” is defined in Section 2.1(d) hereof.
“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, franchise Taxes (imposed in lieu of net income Taxes), and branch profits Taxes, in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under the Laws of which such Recipient, as the case may be, is organized, maintains its Applicable Lending Office or otherwise is resident for Tax purposes, or (ii) that are Other Connection Taxes, (b) any Tax imposed by reason of the failure of a Tax Indemnified Party to comply with Section 4.7(e) hereof, (c) any withholding Taxes imposed pursuant to FATCA, and (d) any U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan or Lender Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Lender Commitment (other than pursuant to an assignment request by a Borrower under Section 4.10 hereof) or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 4.7 hereof, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Lender Commitment or to such Lender immediately before it changed its Applicable Lending Office.
“Exclusion Event” is defined in Section 2.1(d) hereof.
“Extension Fee” has the meaning set forth in the applicable Fee Letter.
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“Extension Request” means a written request by the Initial Borrower substantially in the form attached hereto as Exhibit P to extend the initial Stated Maturity Date in accordance with Section 2.14 hereof.
“Facility Increase” is defined in Section 2.13(a) hereof.
“Facility Increase Request” means a notice substantially in the form attached hereto as Exhibit U pursuant to which the Initial Borrower requests an increase of the Maximum Commitment Amount in accordance with Section 2.13 hereof.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code and any current or future regulations or official interpretations thereof (and any similar amendments thereto or successor provisions that are not materially more onerous to comply with), any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreements entered into in connection with the implementation of such Sections and any law, rule, regulation, official agreement or other guidance implementing any such intergovernmental agreement.

“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“Federal Reserve Act” means the Federal Reserve Act of 1913, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Fee Letter” means each Fee Letter between the Initial Borrower and the Administrative Agent or any Lender, as each may be amended, supplemented or otherwise modified from time to time.
“Funding Ratio” means (a) for a Governmental Plan Investor or other pension plan not covered by clause (b) below, the total fair market value of the assets of the plan divided by the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s most recent audited financial statements and (b) for a Pension Plan Investor, the funding target attainment percentage reported on Schedule SB to the Form 5500 or the funded percentage for monitoring the plan’s status reported on Schedule MB to the Form 5500, as applicable, as reported on the most recent Form 5500 filed by such plan with the U.S. Department of Labor.
“FX Reserve Amount” means, at any time of determination, the product of (a) the FX Reserve Percentage and (b) the Dollar Equivalent of the sum of the aggregate outstanding principal amount of Loans and the undrawn stated amount of all outstanding Letters of Credit, in each case denominated in an Alternate Currency at such time.
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“FX Reserve Percentage” means, as of any date of determination and for each Alternate Currency, a percentage determined in the reasonable discretion of the Administrative Agent to account for foreign exchange volatility, in each case using a methodology that is sufficient to cover the 3-month foreign exchange exposure of the Lenders at such date of determination at a ninety-five percent (95%) confidence interval as calculated using Bloomberg BGN source data on the FXFM screen of Bloomberg (or such other screen as may from time to time be in effect); provided that any such percentage may be reset for any particular Alternate Currency in connection with the delivery of any Borrowing Base Certificate hereunder or on any Revaluation Date in the reasonable discretion of the Administrative Agent if necessary to account for foreign exchange volatility. As of the Closing Date, the FX Reserve Percentage for the below Alternate Currencies is as follows:
Euro
8.06%   
Sterling
11.24%   
Canadian Dollar
7.30%   
Japanese Yen
8.04%   
Australian Dollars
9.49%   
“Generally Accepted Accounting Principles” means those generally accepted accounting principles and practices that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the Closing Date, so as to properly reflect the financial position of the applicable Person, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.
“Government Official” means an official, employee, instrumentality, or agent of a government, political party, state-owned enterprise, or public international organization.
“Governmental Authority” means any foreign governmental authority, the United States of America, any State of the United States of America, and any subdivision of any of the foregoing, and any agency, department, commission, board, authority or instrumentality, bureau or court having or reasonably claiming to have jurisdiction over any Borrower, any Agent, any Lender or the Letter of Credit Issuer, or any of their respective businesses, operations, assets, or properties, including any supra-national bodies (such as the European Union or the European Central Bank).
“Governmental Plan Investor” means an Investor that is a pension plan as defined in Section 3(3) of ERISA and that is also a governmental plan as defined in Section 3(32) of ERISA.
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“Guaranty Obligations” means, with respect to any Person, without duplication, any obligations guaranteeing any Indebtedness of any other Person in any manner, whether direct or indirect, and including, without limitation, any obligation, whether or not contingent: (a) to purchase any such Indebtedness or other obligation or any property constituting security therefor; (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person; (c) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness of the ability of the primary obligor to make payment of such primary obligation; or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof; provided, however, that the term Guaranty Obligations shall not include (w) endorsements of instruments for deposit or collection in the ordinary course of business, (x) deposits or other obligations to secure the performance of bids, trade contracts (other than for borrowed money), (y) contingent obligations under customary “carve outs” in non-recourse loan documentation, including, but not limited to, environmental indemnities, guarantees of environmental indemnities and guarantees of non-recourse carve-outs which are usual and customary in like transactions involving incurrence of such obligations or liabilities made by subsidiaries of such Person, and (z) other contingent obligations and liabilities which are not shown as indebtedness in the financial statements of the Borrowers, including but not limited to completion guaranties. The amount of any Guaranty Obligation of any guaranteeing person shall be deemed to be the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guaranty Obligation, unless such maximum amount for which such guaranteeing person may be liable is not stated or determinable, in which case the amount of such Guaranty Obligation shall be such guaranteeing person’s maximum reasonable anticipated liability in respect thereof as determined by such Person in good faith.
“Hedging Agreements” means, collectively, interest rate protection agreements, foreign currency exchange agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements.
“HNW Aggregation Investors” means, collectively, Investors which are dedicated feeder funds established by a Person other than the Investment Advisor, the Administrator and/or any of their respective Affiliates and with their knowledge, primarily to facilitate the participation of certain HNW Investors in the Initial Borrower, and each individually, a “HNW Aggregation Investor”.
“HNW Investor” means an Investor that is a domestic or international individual Investor (or group of individuals organized as a trust or family office) or an entity owned, controlled or established by a domestic or international individual Investor (or group of individuals organized as a trust or family office). For the avoidance of doubt, “HNW Investors” shall not include Special HNW Aggregation Investors.
“ICE” means ICE Benchmark Administration Limited (or any successor thereto if ICE Benchmark Administration Limited is no longer making LIBOR available).
USActive 53991578.7 18

“Included Investor” means an Investor (a) that either (i) meets the Applicable Requirement and at the request of the Initial Borrower has been approved in writing as an Included Investor by the Administrative Agent, in its reasonable discretion (which approval shall not be unreasonably withheld, provided that the failure, after using commercially reasonable efforts, to obtain approval for such Investor shall be deemed reasonable per se) (a “Rated Included Investor”), or (ii) does not meet the Applicable Requirement but at the request of the Initial Borrower has been approved in writing as an Included Investor by all of the Lenders, in their sole discretion (a “Non-Rated Included Investor”); and (b) in respect of which, except as otherwise determined by the Lenders, there has been delivered to the Administrative Agent:
(i)  a true and correct copy of the Subscription Agreement executed and delivered by or on behalf of such Investor which shall be acceptable to the Administrative Agent in its reasonable discretion (to the extent such Subscription Agreement contains material changes or any errors or discrepancies from the applicable approved form previously provided to the Administrative Agent), together with the Initial Borrower’s countersignature(s) accepting such Subscription Agreement, and any Constituent Documents of the Initial Borrower executed and delivered by or on behalf of such Investor;
(ii)  a true and correct copy of any Side Letter executed by or on behalf of such Investor, which shall be acceptable to the Administrative Agent in its reasonable discretion; and
(iii)  if such Investor’s Subscription Agreement or any Constituent Document of the Initial Borrower was signed by the Initial Borrower or any Affiliate thereof as an attorney-in-fact on behalf of such Investor, the Administrative Agent shall have received either (A) a copy of the power of attorney or other documentation substantiating the authority of the Initial Borrower (or Affiliate thereof) to sign on behalf of such Investor, such documentation to be in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that any power of attorney given by any Investor to the Initial Borrower (or Affiliate thereof) under the Constituent Documents as of the Closing Date is in form and substance reasonably acceptable to the Administrative Agent for purposes of executing any Constituent Document), or (B) a written opinion (addressed to the Administrative Agent) of the Investor’s counsel (or of the Initial Borrower’s counsel, who may assume the Investor’s existence and the Investor’s authorization, execution and delivery of the applicable power of attorney for this purpose and make such other assumptions as are reasonably acceptable to the Administrative Agent) in form and substance satisfactory to the Administrative Agent in its reasonable discretion, that such attorney-in-fact has duly executed and delivered such Subscription Agreement or Constituent Document, as the case may be, on behalf of such Investor, and that such Subscription Agreement or Constituent Document, as the case may be, is as binding upon such Investor as if the Investor had itself signed the same;
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provided that (1) any Included Investor in respect of which an Exclusion Event has occurred shall thereupon no longer be an Included Investor until such time as all Exclusion Events in respect of such Investor shall have been cured, (x) in the case of any Rated Included Investor, to the satisfaction of the Administrative Agent in its sole discretion and (y) in the case of any Non-Rated Included Investor, to the satisfaction of all of the Lenders in their sole discretion; and (2) each approval of a Rated Included Investor or a Non-Rated Included Investor and each restoration under clause (1) of this proviso shall be subject to the satisfaction of such initial or ongoing conditions as may reasonably be specified by the Administrative Agent at the time of initial inclusion of such Investor as an Included Investor. The Included Investors as of the Closing Date are those specified as being Included Investors on the Borrowing Base Certificate attached hereto as Exhibit A, as in effect on the Closing Date. If an Included Investor would not be an Included Investor but for the guaranty of its Credit Provider as contemplated in the definition of “Credit Provider”, the Initial Borrower shall provide evidence satisfactory to the Administrative Agent of such guaranty.
“Increase Effective Date” is defined in Section 2.13(b) hereof.
“Indebtedness” of any Person means, without duplication: (a) all obligations of such Person for borrowed money or with respect to advances of any kind held by such Person; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made; (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business); (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; (f) all Guaranty Obligations of such Person in respect of Indebtedness of others; (g) all obligations of such Person under: (i) Capital Leases; and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of such Person where such transaction is considered borrowed money indebtedness for U.S. federal tax purposes but is classified as an operating lease in accordance with Generally Accepted Accounting Principles; (h) all obligations of such Person to repurchase any securities which repurchase obligation is related to the issuance thereof; (i) all net obligations of such Person in respect of or under Hedging Agreements; (j) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and instruments of a like nature or of such Person in respect of bankers’ acceptances; and (k) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with Generally Accepted Accounting Principles. The Indebtedness of any Person shall include the Indebtedness of any partnership or unincorporated joint venture or similar entity for which such Person is legally obligated unless made non-recourse to such Person by written agreement reasonably satisfactory to the Administrative Agent.
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Notwithstanding the foregoing, Indebtedness shall not include obligations and liabilities which are not shown as obligations or liabilities on the financial statements of such Person.
“Indemnitee” is defined in Section 12.5(b) hereof.
“Initial Borrower” is defined in the preamble to this Credit Agreement.
“Initial Lender” is defined in the preamble to this Credit Agreement.
“Initial Notice Period” is defined in Section 10.2 hereof.
“Initial Payment Date” is defined in Section 10.2 hereof.
“Institutional Investor” means any Investor that is not a HNW Investor, a HNW Aggregation Investor or a Special HNW Aggregation Investor.
“Interest Option” means either (a) LIBOR or (b) the Reference Rate.
“Interest Payment Date” means: (a) with respect to any Reference Rate Loan, either (i) the LIBOR Conversion Date (if such Reference Rate Loan is converted into a LIBOR Loan pursuant to Section 2.3(c) and the accrued interest is not capitalized as provided in Section 2.3(c)) or (ii) the twelfth (12th) calendar day of each calendar month (or the next succeeding Business Day if such day is not a Business Day) following the last day of each Interest Period for the interest accruing during the preceding Interest Period; (b) with respect to any LIBOR Loan in respect of which the applicable Borrower has selected Daily LIBOR, the twelfth (12th) calendar day of each calendar month (or the next succeeding Business Day if such day is not a Business Day) following the last day of each Interest Period for the interest accruing during the preceding Interest Period; (c) with respect to any other LIBOR Loan (i) in respect of which the applicable Borrower has selected a one-month or three-month Interest Period, the last day of such Interest Period for such LIBOR Loan (or the next succeeding Business Day if such day is not a Business Day), and (ii) in respect of which the applicable Borrower has selected a six-month, or subject to availability, twelve-month Interest Period, the day of the month corresponding to the Borrowing date of such LIBOR Loan occurring each third calendar month during such Interest Period for such LIBOR Loan (or the next succeeding Business Day if such day is not a Business Day); (d) the Maturity Date; and (e) the date of any prepayment of any Loan made hereunder, as to the amount prepaid.
“Interest Period” means (a) with respect to any Reference Rate Loan, (i) initially the period commencing on (and including) the date of the initial purchase or funding of such Loan (or the related Reference Rate Conversion Date pursuant to Section 2.3(c) hereof) and ending on (and including) the last calendar day of such month and (ii) thereafter, each period commencing on (and including) the first calendar day of the succeeding calendar month and ending on (and including) the last calendar day of such month; (b) with respect to any LIBOR Loan in respect of which the applicable Borrower has selected Daily LIBOR, (i) initially the period commencing on (and including) the date of the initial purchase or funding of such Loan (or the related LIBOR Conversion Date pursuant to Section 2.3(c) hereof) and ending on (and including) the last
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calendar day of such month and (ii) thereafter, each period commencing on (and including) the first calendar day of the succeeding calendar month and ending on (and including) the last calendar day of such month; and (c) with respect to any other LIBOR Loan, the period commencing on (and including) the date of the initial purchase or funding of such Loan (or the related LIBOR Conversion Date pursuant to Section 2.3(c) hereof) and ending on (but excluding) the corresponding date one month, three months, six months or, subject to confirmation of availability by the applicable Lenders (i.e., a rate for such Interest Period is available for quotation under LIBOR), twelve months, as designated by the applicable Borrower in the applicable Request for Borrowing; provided that:
(A) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the preceding Business Day;
(B) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (A) above, end on the last Business Day of the applicable calendar month; and
(C) in the case of any Interest Period for any Loans which commences before the Maturity Date and would otherwise end on a date occurring after the Maturity Date, such Interest Period shall end on (but exclude) such Maturity Date and the duration of each Interest Period which commences on or after the Maturity Date shall be of such duration as shall be selected by the applicable Lender in its sole discretion.
“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.
“Investment” means an investment made by the Initial Borrower.
“Investment Advisor” means GSO Asset Management LLC, a Delaware limited liability company.
“Investment Advisory Agreement” means the Investment Advisory Agreement, dated as of October 1, 2018, between the Initial Borrower and the Investment Advisor, as the same may be amended, restated, modified, supplemented or amended and restated from time to time.
“Investment Exclusion Event” means the exclusion or excuse of any Investor from participating in a particular Investment pursuant to either (a) such Investor’s Side Letter or (b) such Investor’s Subscription Agreement, in each case, where (i) the Investor is entitled to such exclusion or excuse under the applicable Subscription Agreement or the applicable Side Letter (i.e., the Initial Borrower has no discretion to permit or prevent such exclusion or excuse) or (ii) the failure to so exclude or excuse such Investor could, in the reasonable determination of the Initial Borrower, reasonably be expected to result in a material adverse effect under the applicable Constituent Documents.
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“Investment Period” means the “Initial Drawdown Period” as that term is defined in the Trust Agreement.
“Investor” means any Person that is listed as such on the Borrowing Base Certificate attached hereto as Exhibit A (or on a revised Borrowing Base Certificate delivered to the Administrative Agent in accordance with Section 8.1(h) hereof) and incorporated herein by reference or is admitted to the Initial Borrower as a shareholder in accordance with the terms of the Initial Borrower’s Constituent Documents; “Investors” means all of such Persons, collectively.
“Investor Information” is defined in Section 12.17 hereof.
“Joinder Agreement” means an agreement contemplated by Section 12.11(e) hereof, pursuant to which a new lender joins the Credit Facility as a Lender.
“Judgment Currency” is defined in Section 12.20 hereof.
“KYC Compliant” means any Person who has satisfied all requests for information from the Lenders (through the Administrative Agent, as permitted) as may be reasonably required for the Lenders to comply with “know-your-customer” and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies and who would not result in any Lender being non-compliant with any such rules and regulations and related policies were such Person to enter into a banking relationship with such Lender, including, but not limited to, any information required to be obtained by the Lender pursuant to the Beneficial Ownership Regulation.
“Laws” means, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, guidelines, directives, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law; provided that notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all regulations, rules, guidelines, requests or directives thereunder or issued in connection therewith relating to capital and liquidity requirements and (b) all regulations, rules, guidelines, requests or directives promulgated or issued by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in Law”, regardless of the date enacted, adopted or issued.
“Lender Commitment” means, for each Lender, the amount set forth opposite its name on Schedule II or on its respective Assignment and Acceptance Agreement or Joinder Agreement, as the same may be reduced from time to time by the Initial Borrower, pursuant to Section 3.6 hereof, or by further assignment by such Lender pursuant to Section 12.11(c) hereof. The Lender Commitments shall be denominated in US Dollars.
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“Lenders” means Bank of America and each of the other lending institutions that shall become a Lender hereunder pursuant to Section 12.11(c) or Section 12.11(e) hereof.
“Letter of Credit” means any letter of credit issued by the Letter of Credit Issuer pursuant to Section 2.8 hereof either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.
“Letter of Credit Issuer” means Bank of America, or any Lender or Affiliate of such Lender so designated, and which accepts such designation, by the Administrative Agent and approved by the Initial Borrowers
“Letter of Credit Liability” means the sum of (a) the aggregate undrawn stated amount of all outstanding Letters of Credit plus (b) the aggregate amount drawn under all Letters of Credit for which the Letter of Credit Issuer and the Lenders, or any one of them, has not yet received payment or reimbursement (in the form of a conversion of such liability to Loans, or otherwise) as required by Section 2.8 hereof.
“Letter of Credit Sublimit” means an amount equal to fifty percent (50%) of the Maximum Commitment Amount at the time of issuance of any Letter of Credit; provided, however, that Letters of Credit denominated in an Alternate Currency shall comply with the sublimit set forth in the definition of “Alternate Currency Sublimit”.
“LIBOR” means, for any LIBOR Loan:
(a) denominated in US Dollars, at the option of the applicable Borrower, either (x) Daily LIBOR or (y) the rate per annum equal to the London interbank offered rate administered by ICE (or any Person that takes over administration of such rate) or a comparable or successor rate which rate is approved by the Administrative Agent and the Initial Borrower in their commercially reasonable discretion, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be reasonably designated by the Administrative Agent from time to time) at the Specified Time, for deposits in US Dollars (for delivery on the first day of the applicable Interest Period) with a term equivalent to such Interest Period;
(b) denominated in a LIBOR Quoted Currency (other than US Dollars), the rate per annum equal to LIBOR or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be reasonably designated by the Administrative Agent from time to time and approved by the Initial Borrower in their commercially reasonable discretion) at the Specified Time, for deposits in the relevant Currency (for delivery on the first day of the applicable Interest Period) with a term equivalent to such Interest Period;
(c) denominated in Canadian Dollars, CDOR;
(d)  denominated in Australian Dollars, BBSY; and
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(e) denominated in any other Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternate Currency at the time such Alternate Currency is approved by the Administrative Agent and the Lenders;
provided that, if more than one rate is published by Bloomberg (or such other commercially available source providing quotations of LIBOR or CDOR, as applicable, as designated by the Administrative Agent from time to time), the applicable rate shall be the arithmetic mean of all such rates (rounded upwards if necessary to the nearest 1/100 of 1%). If for any reason the rate specified in any of the preceding clauses (i) through (iv) is not available, then “LIBOR” shall mean the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which, as determined by the Administrative Agent in accordance with its customary practices, deposits in the applicable Currency in an amount comparable to the Loans then requested are being offered to leading banks at the Specified Time: (x) in the case of Loans denominated in an Alternate Currency, on the date that is two (2) Business Days prior to the date such rate shall apply for settlement in immediately available funds by leading banks in the London or Canadian interbank market, as applicable, for a period equal to the Interest Period selected, or (y) in the case of Loans denominated in US Dollars, (I) on the same day such rate shall apply for settlement in immediately available funds by leading banks in the London interbank market for a period equal to one month if such rate is to replace the rate specified in clause (a)(x) above or (II) on the date that is two (2) Business Days prior to the date such rate shall apply for settlement in immediately available funds by leading banks in the London interbank market for a period equal to the Interest Period selected if such rate is to replace the rate specified in clause (a)(y) above; provided, further that LIBOR shall, in no event, exceed the Reference Rate; provided, further that, to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and as notified to the Borrowers. If the calculation of LIBOR (or any applicable LIBOR Successor Rate adopted together with LIBOR Successor Rate Conforming Changes pursuant to Section 4.12 hereof) results in a LIBOR rate of less than zero (0), LIBOR or such LIBOR Successor Rate, as applicable, shall be deemed to be zero (0) for all purposes under the Loan Documents.
“LIBOR Conversion Date” is defined in Section 2.3(c) hereof.
“LIBOR Cutoff” means the Specified Time.
“LIBOR Loan” means a Loan that bears interest at a rate based on LIBOR.
“LIBOR Quoted Currency” means each of the following currencies: US Dollars, Euros, Pounds Sterling and Yen, in each case as long as there is a published LIBOR rate with respect thereto.
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“LIBOR Reserve Requirement” means, at any time, the maximum rate at which reserves (including, without limitation, any marginal, special, supplemental or emergency reserves) are required to be maintained under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor thereto) by member banks of the Federal Reserve System against: (a) “Eurocurrency liabilities” (as such term is used in Regulation D); (b) any category of liabilities which includes deposits by reference to which Adjusted LIBOR is to be determined; or (c) any category of extensions of credit or other assets which include LIBOR Loans. LIBOR shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Requirement. Each determination by the Administrative Agent of the LIBOR Reserve Requirement shall, in the absence of manifest error, be conclusive and binding.
“LIBOR Successor Rate” is defined in Section 4.12(a) hereof.
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Reference Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be mutually agreed by the Administrative Agent and the Initial Borrower, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent and the Initial Borrower mutually agree).
“Lien” means any lien, mortgage, security interest, security assignment, charge, tax lien, pledge, encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement or under common law, any statute, law, contract, or otherwise.
“Loan Documents” means this Credit Agreement, the Notes (including any renewals, extensions, re-issuances and refundings thereof), each of the Collateral Documents, each Assignment and Acceptance, each Borrower Guaranty, each Fee Letter and such other agreements and documents, and any amendments or supplements thereto or modifications thereof that are executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any additional documents delivered in connection with any such amendment, supplement or modification that the parties thereto agree shall constitute a “Loan Document” hereunder.
“Loans” means the groups of LIBOR Loans and Reference Rate Loans made by the Lenders to the Borrowers pursuant to the terms and conditions of this Credit Agreement and certain other related amounts specified in Section 2.8(g)(i), Section 2.9(f), Section 3.3(c) and Section 3.3(d) hereof shall be treated as Loans pursuant to Section 2.8(g)(i), Section 2.9(f), Section 3.3(c) and Section 3.3(d) hereof, respectively).
“Margin Stock” has the meaning assigned thereto in Regulation U.
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“Material Adverse Effect” means a material adverse effect on (a) the rights of, or benefits available to, the Lenders under the Loan Documents; (b) the Borrowers’ ability to pay the Obligations when due in accordance with the terms of the Loan Documents; (c) the Borrowers’ (taken as a whole) ability to perform its material obligations under any Loan Document to which it is a party; (d) the legality, validity, binding effect or enforceability of any Loan Document; (e) the ability of the Initial Borrower to issue Demand Notices; or (f) the obligations of the Borrowing Base Investors under the Initial Borrower’s Constituent Documents to make Contributions with respect to their Unused Commitments.
“Material Amendment” is defined in Section 9.4 hereof.
“Maturity Date” means the earliest of: (a) the Stated Maturity Date; (b) the date upon which the Administrative Agent declares the Obligations due and payable after the occurrence of an Event of Default; (c) 30 days prior to the termination of the Initial Borrower’s Constituent Documents; (d) 30 days prior to the date on which the Initial Borrower’s ability to call Contributions for the purpose of repaying the Obligations is terminated and (e) the date upon which the Initial Borrower terminates all of the Lender Commitments pursuant to Section 3.6 hereof or otherwise.
“Maximum Commitment Amount” means $400,000,000, as the same may be reduced pursuant to Section 3.6 hereof or increased pursuant to Section 2.13 hereof.
“Maximum Rate” means, on any day, the highest rate of interest (if any) permitted by applicable Law on such day.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Non-Excluded Taxes” means all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document.
“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.
“Non-Rated Included Investor” is defined in the definition of “Included Investor”.
“Notes” means the promissory notes provided for in Section 3.1 hereof, and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified, and the Qualified Borrower Notes; and “Note” means any one of the Notes.
“Obligations” means all present and future indebtedness, obligations, and liabilities of the Borrowers to the Lenders, and all renewals and extensions thereof (including, without limitation, Loans, Letters of Credit, or both), or any part thereof, arising pursuant to this Credit Agreement (including, without limitation, the indemnity provisions hereof) or represented by the Notes and each Borrower Guaranty, and all interest accruing thereon, and attorneys’ fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with
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all indebtedness, obligations and liabilities of the Borrowers to the Lenders evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof. For purposes of any Collateral Document, so long as the Credit Facility is in effect, “Obligations” shall also include (x) any liability of any Borrower to any Lender (or Affiliate thereof) under (i) any interest rate, currency and commodity swap agreement, cap agreement or collar agreement, (ii) any other agreement or arrangement with a Lender (or Affiliate thereof) designed to protect such Borrower against fluctuations in interest rates, currency exchange rates or commodity prices or (iii) any option of such Borrower to enter into any of the foregoing and (y) all liabilities to any Lender under or in connection with any arrangement of any Borrower with any Lender (or Affiliate thereof) in respect of overdraft protection, corporate credit cards, corporate purchase cards, automated clearing house services and other treasury, depositary and cash management services.
“OFAC” has the meaning provided in the definition of “Sanction”.
“Operating Company” means an “operating company”, a “venture capital operating company” or a “real estate operating company”, each as defined in the Plan Asset Regulations.
“Other Claims” is defined in Section 5.5 hereof.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” is defined in Section 4.7(c) hereof.
“Participant” is defined in Section 12.11(b) hereof.
“Participant Register” is defined in Section 12.11(b) hereof.
“Participating Member State” means any member state of the European Union that adopts or has adopted (and has not ceased to adopt) the Euro as its lawful currency in accordance with legislation of the European Union relating to the Economic and Monetary Union.
“Patriot Act” is defined in Section 12.18 hereof.
“Pending Demand Notice” means any Demand Notice that has been issued to Investors and that has not yet been (a) cancelled or withdrawn or (b) funded by the applicable Investor, but with respect to which such Investor is not in default under the terms of the Initial Borrower’s Constituent Documents beyond any notice and cure period specified therein, where applicable.
“Pension Plan Investor” means an ERISA Investor that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and is subject to Title IV of ERISA.
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“Permitted Liens” is defined in Section 9.2 hereof.
“Permitted RIC Distributions” means, with respect to each taxable year, any Distributions determined by the Initial Borrower in good faith to be required to be made in order to maintain the Initial Borrower’s tax status under Section 851 of the Internal Revenue Code or to avoid the payment of any tax imposed under Section 852(b)(1), Section 852(b)(3) or Section 4982 of the Internal Revenue Code.
“Person” means an individual, sole proprietorship, joint venture, association, trust, estate, business trust, corporation, exempted company, limited liability company, nonprofit corporation, partnership, exempted limited partnership, sovereign government or agency, instrumentality, or political subdivision thereof, or any similar entity or organization.
“Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), including any single-employer plan or multiemployer plan (as such terms are defined in Section 4001(a)(15) and in Section 4001(a)(3) of ERISA, respectively), that is subject to Title IV of ERISA or Section 412 of the Internal Revenue Code, each as established or maintained for employees of any Borrower or any member of the Controlled Group.
“Plan Asset Regulations” means 29 C.F.R. §2510.3-101, et seq., as modified by Section 3(42) of ERISA, as the same may be amended from time to time.
“Plan Assets” means “plan assets” within meaning of the Plan Asset Regulations.
“Potential Default” means any condition, act or event which, with the giving of notice or lapse of time or both, would become an Event of Default.
“Pounds Sterling” means the lawful currency of the United Kingdom.
“Prepayment Notice” is defined in Section 3.5 hereof.
“Prime Rate” means, for any date, a per annum rate equal to the rate of interest announced from time to time by the Administrative Agent to its prime customers as its “prime rate” for such date. The Prime Rate may be, but is not intended to be, the lowest rate of interest charged by the Administrative Agent, any Lender or Letter of Credit Issuer or any other financial institution in connection with extensions of credit to borrowers.
“Principal Obligations” means, on any date of determination, the sum, without duplication, of (a) the aggregate outstanding principal amount of the Loans plus (b) the Letter of Credit Liability.
“Pro Rata Share” means, with respect to each Lender, the percentage obtained from the fraction: (a) (i) the numerator of which is the Lender Commitment of such Lender; and (ii) the denominator of which is the aggregate Lender Commitments of all Lenders; or (b) in the event the Lender Commitments have been terminated: (i) the numerator of which is the Lender Commitment of such Lender as in effect immediately prior to such termination; and (ii) the
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denominator of which is the aggregate Lender Commitments of all Lenders as in effect immediately prior to such termination.
“Proceedings” is defined in Section 7.9 hereof.
“Proposed Amendment” is defined in Section 9.4 hereof.
“Qualified Borrower” is defined in Section 2.9(a) hereof.
“Qualified Borrower Note” is defined in Section 2.9(d) hereof.
“Rated Included Investor” is defined in the definition of “Included Investor”.
“Rated Investor” means any Investor that has a Rating (or that has a Credit Provider, Sponsor or Responsible Party that has a Rating). In the event an Investor, its Credit Provider, Sponsor or Responsible Party has more than one Rating, from S&P or Moody’s, then the lowest of such Ratings shall be the applicable Rating. In the event an Investor has only one rating, that Rating will apply.
“Rating” means, for any Person, its senior unsecured debt rating (or equivalent thereof, such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating or credit enhancement program (for a governmental entity), or revenue bond rating (for an educational institution or a governmental entity)) from either S&P or Moody’s.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Letter of Credit Issuer, as applicable.
“Reference Rate” means the greatest of: (a) the Prime Rate, (b) the Federal Funds Rate plus fifty (50) basis points, and (c) Adjusted LIBOR (based on Daily LIBOR) plus one hundred (100) basis points. Each change in the Reference Rate shall become effective without prior notice to any Borrower automatically as of the opening of business on the day of such change in the Reference Rate.
“Reference Rate Applicable Margin” has the meaning set forth in the applicable Fee Letter.
“Reference Rate Conversion Date” is defined in Section 2.3(c) hereof.
“Reference Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to the Reference Rate.
“Register” is defined in Section 12.11(f) hereof.
“Regulation D,” “Regulation T,” “Regulation U” and “Regulation X” means Regulation D, T, U or X, as the case may be, of the Board of Governors of the Federal Reserve System, from time to time in effect, and shall include any successor regulation relating to reserve requirements or
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margin requirements, as the case may be, applicable to member banks of the Federal Reserve System.
“Request for Borrowing” is defined in Section 2.3 hereof.
“Request for Letter of Credit” is defined in Section 2.8(b) hereof.
“Required Lenders” means, at any time: (a) Lenders (other than the Defaulting Lenders) holding an aggregate Pro Rata Share of greater than fifty percent (50%) of the Lender Commitments (excluding the Lender Commitments of any Defaulting Lenders); or (b) at any time that the Lender Commitments are zero (0), Lenders (other than the Defaulting Lenders) owed an aggregate Pro Rata Share of greater than fifty percent (50%) of the Obligations outstanding at such time; provided that if at any time there is only one Lender party hereto, then “Required Lenders” shall mean such Lender; and provided further that if at any time there are only two (2) Lenders party hereto, then “Required Lenders” shall mean both such Lenders.
“Required Payment Time” means, (a) promptly on demand but in no event later than two (2) Business Days following such demand, to the extent such funds are available in a Collateral Account and credited to or held for the Initial Borrower; and (b) otherwise within fifteen (15) Business Days of demand, to the extent that it is necessary for the Initial Borrower to issue Demand Notices (and the Initial Borrower will issue such Demand Notices and the Initial Borrower shall make such payment promptly after the Contributions relating to such Demand Notices are received).
“Responsible Officer” means any President, Chief Operating Officer, Senior Managing Director, General Counsel, Managing Director, Chief Compliance Officer, Director, Chief Financial Officer, Executive Vice President, Vice President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, Chief Legal Officer or other duly authorized officer, manager or director of (a) a corporation or an exempted company, (b) the general partner of a limited partnership or an exempted limited partnership or if such general partner is itself a limited partnership or an exempted limited partnership, its general partner, or (c) a limited liability company or the managing member thereof.
“Responsible Party” means, for any Governmental Plan Investor: (a) if the state under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state; and (b) otherwise, the Governmental Plan Investor itself.
“Revaluation Date” means: (a) each date of the making of any Loan or an issuance, amendment, renewal or extension of a Letter of Credit; (b) the date of any Exclusion Event; and (c) each other date on which any of the Administrative Agent, the Letter of Credit Issuer or a Borrower shall reasonably request (which may not be more than once in any calendar month).
“RIC Distribution Notice” means a written notice setting forth the calculation of any Permitted RIC Distribution with respect to the Initial Borrower and certifying that the Initial Borrower remains a “regulated investment company” under Subchapter M of the Internal Revenue Code.
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“Rollover” means the renewal of all or any part of any LIBOR Loan upon the expiration of the Interest Period with respect thereto, pursuant to Section 2.3 hereof.
“Rollover Notice” is defined in Section 2.3(b) hereof.
“S&P” means Standard & Poor’s Financial Services LLC and any successor thereto.
“Sanctioned Country” means a country or territory that is the subject or target of Sanctions (which includes, at the time of this Credit Agreement, Crimea, Cuba, Iran, North Korea, and Syria).
“Sanctioned Person” means a Person that is (a) currently the subject or target of Sanctions or (b) located, organized or resident in a Sanctioned Country.
“Sanction” or “Sanctions” means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order; (b) the United Nations Security Council; (c) the European Union; (d) Her Majesty’s Treasury; or (e) other Governmental Authority of a jurisdiction where any Borrower operates or in which the proceeds of the Loans or Letters of Credit will be used or from which repayments of the Obligations under this Credit Agreement or related Loan Documents will be derived.
“Scheduled Unavailability Date” is defined in Section 4.12(a) hereof.
“Secured Parties” means the Agents, the Lenders and the Letter of Credit Issuers.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Side Letter” means any side letter executed by or on behalf of an Investor with the Initial Borrower with respect to such Investor’s rights and/or obligations under its Subscription Agreement or the Initial Borrower’s Constituent Documents.
“Sole Lead Arranger” is defined in the preamble to this Credit Agreement.
“Solvent” means, with respect to the Initial Borrower, as of any date of determination, that as of such date:
(a) the fair value of the assets of the Initial Borrower and the aggregate Unused Commitments are greater than the total amount of liabilities, including contingent liabilities, of the Initial Borrower;
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(b) the fair value of the assets of the Initial Borrower and the aggregate Unused Commitments are not less than the amount that will be required to pay the probable liability of the Initial Borrower on its debts as they become absolute and matured;
(c) the Initial Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such debts or liabilities become absolute and matured; and
(d) the Initial Borrower is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which its assets and the aggregate Unused Commitments would constitute unreasonably small capital.
For the purposes of this definition, the amount of contingent liabilities (such as litigation, guarantees, and pension plan liabilities) at any time shall be computed as the amount which, in light of all the facts and circumstances existing at the time, represents the amount which can be reasonably expected to become an actual or matured liability.
“Special HNW Aggregation Investor” means an aggregation vehicles sourced by Merrill Lynch Alternative Investments, JPMorgan Private Bank, Morgan Stanley, or any other well-known private wealth management firm approved by the Administrative Agent in its sole discretion, subject to organizational documentation that is reasonably acceptable to Administrative Agent.
“Special HNW Aggregation Investor Letter Agreements” means the letter agreement(s) by and among the applicable Special HNW Aggregation Investor(s) and the Administrative Agent, as amended, restated, supplemented or modified from time to time in accordance with the terms thereof.
“Specified Time” means the applicable day and time determined in accordance with Schedule III.
“Sponsor” means, for any Pension Plan Investor, a sponsor as that term is understood under ERISA, specifically, the entity that established the plan and is responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and participating employers, the entity that has the ability to amend or terminate the plan.
“Spot Rate” for an Alternate Currency on any Revaluation Date means the spot rate for the purchase of such Alternate Currency with US Dollars as set forth on the applicable Bloomberg screen page at the Specified Time on such Revaluation Date. In the event that such rate does not appear on the applicable Bloomberg screen page, the Spot Rate with respect to such Alternate Currency shall be determined by reference to such other publicly available service for displaying exchange rates as the Administrative Agent or the Letter of Credit Issuer may determine, in their reasonable discretion; provided, that if at the time of any such Revaluation Date, for any reason, no such Spot Rate is being quoted, the Administrative Agent or Letter of Credit Issuer may obtain such spot rate from another commercially available source reasonably designated by the Administrative Agent or Letter of Credit Issuer.
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“Stated Maturity Date” means November 6, 2020, subject to extension as set forth in Section 2.14 hereof.
“Subscription Agreement” means a Subscription Agreement substantially in the form of the applicable subscription agreement previously provided to the Administrative Agent executed by an Investor in connection with the subscription for an equity interest in the Initial Borrower, as amended, restated, supplemented or otherwise modified from time to time. “Subscription Agreements” means, where the context may require, all Subscription Agreements, collectively.
“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Credit” means a credit against, relief or remission for, or repayment of any Non-Excluded Taxes or Other Taxes.
“Tax Indemnified Parties” means, collectively, the Lenders and the Agents; and “Tax Indemnified Party” means any of the foregoing.
“Tax Payment” means either the increase in a payment made by a Borrower to a Tax Indemnified Party under Section 4.7(a) hereof or a payment under the indemnity in Section 4.7(d) hereof.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Transfer” means to assign, convey, exchange, pledge, sell, set-off, transfer or otherwise dispose.
“Trust Agreement” means the Second Amended and Restated Agreement and Declaration of Trust of the Initial Borrower, dated as of October 1, 2018, as the same may be amended, restated, modified, supplemented or amended and restated from time to time.
“Type of Loan” means a LIBOR Loan or a Reference Rate Loan.
“UCC” means the Uniform Commercial Code as adopted in the State of New York and any other state from time to time, which governs creation or perfection (and the effect thereof) of security interests in any collateral for the Obligations.
“Uncalled Commitment” means, with respect to any Investor at any time, such Investor’s Unused Commitment minus any portion of such Investor’s Unused Commitment that is subject to a Pending Demand Notice.
“Unused Commitment” means, with respect to any Investor at any time, such Investor’s undrawn capital commitment under the Initial Borrower’s Constituent Documents.
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“Unused Portion” is defined in Section 2.12(a) hereof.
“Upfront Fee” means the upfront fees payable to the Lenders in connection with their initial Lender Commitments on the Closing Date or any increases pursuant to Section 2.13 herein, as set forth in the applicable Fee Letter.
“US Dollars” and the sign “$” means lawful currency of the United States of America.
“Write‑Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write‑down and conversion powers of such EEA Resolution Authority from time to time under the Bail‑In Legislation for the applicable EEA Member Country, which write‑down and conversion powers are described in the EU Bail‑In Legislation Schedule.
“Yen” means lawful currency of Japan.
1.2 Other Definitional Provisions.
(a) All terms defined in this Credit Agreement shall have the above-defined meanings when used in the Notes or any other Loan Documents or any certificate, report or other document made or delivered pursuant to this Credit Agreement, unless otherwise defined in such other document.
(b) Defined terms used in the singular shall import the plural and vice versa.
(c) The words “hereof,” “herein,” “hereunder,” and similar terms when used in this Credit Agreement shall refer to this Credit Agreement as a whole and not to any particular provisions of this Credit Agreement.
(d) “Including” and similar terms shall be deemed to be followed by “without limitation” unless in fact followed by “without limitation” or a similar term.
(e) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(f) Any reference to the Administrator or the Investment Advisor shall be deemed to be a reference to any successor thereto.
1.3 Exchange Rates; Currency Equivalents. Loans and Letters of Credit shall be available to the Borrowers in the applicable currencies specified herein, provided that, for purposes of determining the remaining Available Commitment, the Principal Obligations shall always be calculated in US Dollars by converting the Principal Obligations in an Alternate Currency into its Dollar Equivalent. The Administrative Agent or the Letter of Credit Issuer shall, as of each Revaluation Date, determine the applicable Spot Rates to be used for making such calculations. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.
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1.4 Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of the maximum face amount of such Letter of Credit available to be drawn at such time after giving effect to all increases thereof contemplated by such Letter of Credit or the documentation related thereto, whether or not such maximum face amount is in effect at such time.
1.5 Times of Day. Unless otherwise specified in the Loan Documents, time references are to time in the city of New York, New York.
1.6 Schedules and Exhibits. All references in this Credit Agreement to any schedule or exhibit hereto shall mean such schedule or exhibit, as applicable, as the same may be amended, amended and restated, supplemented, replaced or otherwise modified from time to time in accordance with the terms of this Credit Agreement. Each of the schedules and exhibits to this Credit Agreement may be modified from time to time as matters set forth in such schedule or exhibit, as applicable, are updated or modified in accordance with the terms of this Credit Agreement.
1.7 References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Constituent Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

1.8 Interest Rates. Except as expressly provided in this Credit Agreement, the Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “LIBOR” or with respect to any rate that is an alternative or replacement or comparable or successor rate thereto (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.
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Section 2. REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
2.1 The Lender Commitment.
(a) Committed Amount. Subject to the terms and conditions herein set forth, the Lenders agree, during the Commitment Period to (i) extend to the Borrowers a revolving line of credit and (ii) participate in Letters of Credit issued by the Letter of Credit Issuer for the account of the Borrowers.
(b) Limitation on Borrowings and Re-borrowings. Except as provided in clause (c) below, the Lenders shall not be required to advance any Borrowing or Rollover, if:
(i) after giving effect to such Borrowing or Rollover: (x) the Dollar Equivalent of the Principal Obligations would exceed the Available Commitment or (y) the Alternate Currency Liability would exceed the Alternate Currency Sublimit; provided that the foregoing restrictions with respect to Rollovers shall apply only to the extent of the amount such Rollover exceeds the Available Commitment or the Alternate Currency Sublimit as of such date, as applicable; or
(ii) an Event of Default or, to any Borrower’s or the Administrative Agent’s knowledge, Potential Default under Section 10.1(a), (e), (f), (g), (h), (i), (j), (o) or (p) exists.
(c) Exceptions to Limitations. Conversions to Reference Rate Loans and Rollovers shall be permitted in the situations described in clauses (i) and (ii) of Section 2.1(b) above, in each case, unless the Administrative Agent has otherwise accelerated the Obligations or exercised other rights that terminate the Lender Commitments under Section 10.2 hereof.
(d) Exclusion Events. If any of the following events (each, an “Exclusion Event”) shall occur with respect to any Borrowing Base Investor (or, if applicable, the Sponsor, Responsible Party, or Credit Provider of such Investor), (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) (such Investor hereinafter referred to as an “Excluded Investor”), such Investor shall no longer be a Borrowing Base Investor until such time as all Exclusion Events in respect of such Investor, shall have been cured in accordance with the definition of Included Investor or Designated Investor, as applicable:
(i) it shall: (A) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, or liquidator of itself or of all or a substantial part of its assets; (B) file a voluntary petition as debtor in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (C) make a general assignment for the benefit of creditors; (D) file a petition or answer seeking
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reorganization or an arrangement with creditors or take advantage of any Debtor Relief Laws; (E) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding; or (F) take personal, partnership, limited liability company, corporate or trust action, as applicable, for the purpose of effecting any of the foregoing;
(ii) (A) an involuntary case or other proceeding shall be commenced against it, seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or (B) an order, order for relief, judgment, or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking such Investor’s (or its Sponsor’s, Responsible Party’s or Credit Provider’s, as applicable) reorganization or appointing a receiver, custodian, trustee, intervenor, or liquidator of such Person or of all or substantially all of its assets;
(iii) other than in connection with an Investment Exclusion Event, such Investor shall (x) repudiate or declare unenforceable its obligation to make Contributions with respect to its Unused Commitment to the capital of the Initial Borrower pursuant to a Demand Notice, (y) shall otherwise disaffirm any material provision of its Subscription Agreement or the applicable Constituent Documents, or (z) give any written notice to the Initial Borrower that (1) it may not fund future Contributions (other than in connection with an Investment Exclusion Event) or comply with the provisions of its Subscription Agreement or the applicable Constituent Documents or (2) it intends to withdraw, retire or resign (excluding any right to do so which is documented in such Investor’s Side Letter, but including any written notice that it intends to exercise such right) from the Initial Borrower;
(iv) other than in connection with an Investment Exclusion Event, such Investor shall fail to make a Contribution with respect to its Unused Commitment when required pursuant to a Demand Notice for a period of ten (10) Business Days beyond the initial due date therefor (without regard to any cure or notice periods provided under the applicable Constituent Documents or such Investor’s Subscription Agreement or Side Letter), or, to the Initial Borrower’s knowledge, shall otherwise be in default under or in breach of any material provision of its Subscription Agreement (or related Side Letter) or the applicable Constituent Documents, and such other default or breach shall continue for a period of ten (10) Business Days; provided that, any Special HNW Aggregation Investor or HNW Aggregation Investor in the Initial Borrower shall only be subject to exclusion from the Borrowing Base under this clause in the event that its
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underlying interestholders holding 10% or more of such Investor’s total Commitment to the Initial Borrower fail to make a contribution to such Investor within ten (10) Business Days of the initial due date therefor (without regard to any cure or notice periods provided under such Special HNW Aggregation Investor’s or HNW Aggregation Investor’s Constituent Documents);
(v) any representation or warranty made by such Investor under the applicable Constituent Documents, its Subscription Agreement (or related Side Letter), or any guaranty or related document executed by such Investor’s Credit Provider shall prove to be untrue or inaccurate in any material respect, as of the date on which such representation or warranty is made and such circumstance remains uncured for five (5) Business Days after the earlier of (A) the Administrative Agent’s delivery of notice thereof to the Initial Borrower and (B) the Initial Borrower’s actual knowledge of such circumstance;
(vi) such Investor shall Transfer (other than any Transfer comprised of a pledge or other encumbrance which is covered by clause (vii) below) its interest in the Initial Borrower and be released from its obligation under the applicable Constituent Documents to make Contributions, provided that if such Investor shall Transfer less than all of its interest in the Initial Borrower, only the Transferred portion shall be subject to exclusion;
(vii) such Investor shall encumber its interest in the Initial Borrower, provided that if such Investor shall encumber less than all of its interest in the Initial Borrower, only the encumbered portion shall be subject to exclusion; and provided further that, if the Initial Borrower delivers evidence that such encumbrance will not materially affect the creditworthiness of the Investor or the obligation of the Investor under the applicable Constituent Documents and Subscription Agreement to fund Contributions with respect to its Unused Commitment, the Administrative Agent (in consultation with the Lenders) will evaluate such evidence in good faith to determine if a waiver of the exclusion is reasonable, but such waiver shall be in the sole discretion of the Administrative Agent;
(viii) in the case of any such Investor that is a Rated Included Investor (or its Sponsor, Responsible Party or Credit Provider, as applicable), it shall fail to maintain the Applicable Requirement for such Investor required in the definition of “Applicable Requirement” in Section 1 hereof;
(ix) in the case of any such Investor that is a Non-Rated Included Investor or a Designated Investor (or its Sponsor, Responsible Party or Credit Provider, as applicable), the failure to observe or maintain any terms or conditions required by the Administrative Agent in writing in connection with such Investor’s becoming a Non-Rated Included Investor or a Designated Investor (including, for the avoidance of doubt, with respect to any Designated Investor that is a Special HNW Aggregation Investor, the failure of such Investor to
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maintain the agreements, covenants or representations contained in, or otherwise violate the terms of, any applicable Special HNW Aggregation Investor Letter);
(x) in the case of any such Investor that is a Non-Rated Included Investor or a Designated Investor, the occurrence of any circumstance or event that would reasonably be expected to impair, impede or jeopardize the obligation of such Investor to fulfill its obligations to make Contributions under its Subscription Agreement or the applicable Constituent Documents;
(xi) in the case of any Non-Rated Included Investor (or its Credit Provider), to the Initial Borrower’s knowledge, such Investor shall fail to maintain a net worth (determined in accordance with Generally Accepted Accounting Principles) of at least seventy-five percent (75%) of the net worth (or, if calculated instead, net assets) of such Investor, measured as of the date of the most recent financial statements of such Investor prior to its initial designation as an Included Investor;
(xii) such Investor shall withdraw, retire or resign from the Initial Borrower;
(xiii) the Initial Borrower fails to deliver to the Administrative Agent, from time to time upon the request of the Administrative Agent pursuant to Section 8.18 hereof, a certificate setting forth for such Investor the remaining amount of its Unused Commitment which it is obligated to fund;
(xiv) there is a material breach or written repudiation by such Investor’s Credit Provider of its obligations under its guaranty of the obligations of such Investor or the occurrence of any event contemplated by clause (i), (ii), (viii) or (ix) of this Section 2.1(d) with respect to such Credit Provider;
(xv) the Initial Borrower cancels, reduces, excuses, terminates or abates the Unused Commitment of such Investor without the prior written consent of the Lenders, provided that if an Investor is excused or precluded from a specific Contribution in accordance with the terms of the applicable Constituent Documents or Side Letter (including any Investment Exclusion Event) or its Unused Commitment is otherwise reduced or abated, the portion of the Unused Commitment so excused, precluded, reduced or abated will be excluded from the Available Commitment but such Investor will not be deemed to be subject to an Exclusion Event;
(xvi) the Unused Commitment of such Investor ceases to be Collateral other than through the actions of the Administrative Agent or the Lenders;
(xvii) such Investor becomes listed on any list published by OFAC (or Her Majesty’s Treasury or any other comparable regulatory body having jurisdiction over any Lender) as a Person with whom dealings are prohibited
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under OFAC regulations (or those of Her Majesty’s Treasury or any other comparable regulatory body having jurisdiction over any Lender) or, to the actual knowledge of the Initial Borrower or any Agent (without making any inquiry), such Investor’s funds used in connection with this transaction are derived from illegal or suspicious activities;
(xviii) with respect to any Non-Rated Included Investor, the Administrative Agent is unable to obtain annual updated financial information for such Investor or such Investor’s Credit Provider within thirty (30) days after written request from the Administrative Agent to the Initial Borrower to the extent such financial information is not otherwise publicly available;
(xix) such Investor shall be (i) a director or executive officer (within the meaning of the Sarbanes-Oxley Act of 2002) or a full-time employee of The Blackstone Group L.P., (ii) a current spouse of any individual described in the foregoing clause (i) or (iii) an entity (including a family office but excluding The Blackstone Group L.P. or any Affiliate thereof) that an individual described in the foregoing clause (i) or (ii) uses for the purpose of making personal investments;
(xx) to the Initial Borrower’s knowledge, any final judgment or decree for the payment of money which in the aggregate exceeds twenty percent (20%) of the net worth (or, if calculated instead, net assets) of such Investor (or its Sponsor, Responsible Party or Credit Provider, as applicable) shall be rendered against such Person, and (A) any such judgment or decree shall not be discharged, paid, bonded or vacated within thirty (30) days, (B) enforcement proceedings shall be commenced by any creditor on any such judgment or decree and shall not be stayed or (C) a reputable insurance company shall provide written notice of its refusal of coverage or defense with respect thereto;
(xxi) in the case of any such HNW Investor that is a natural person, such HNW Investor is deceased;
(xxii) in the case of any such Investor that is a Special HNW Aggregation Investor, its administrator or sponsor (or such other administrator or sponsor acceptable to the Administrative Agent in its sole discretion) ceases to serve as the administrator or sponsor for such Investor; or
(xxiii) such Investor amends its Side Letter in any way (including pursuant to any “most favored nations” clause) that the Administrative Agent determines would materially impair the Lenders’ collateral rights.
(e) Mandatory Prepayment/Excess Loans Outstanding. If, on any day:
(i) the Dollar Equivalent of the aggregate Principal Obligations exceeds the Available Commitment (including, without limitation, as a result of
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an Exclusion Event) or the aggregate Alternate Currency Liability exceeds the Alternate Currency Sublimit; or
(ii) the Dollar Equivalent of the aggregate Principal Obligations of the Borrowers exceeds the maximum amount of Indebtedness permitted to be incurred under the Constituent Documents of the Borrowers;
then the applicable Borrower shall pay, on or before the Required Payment Time following the earlier of actual knowledge thereof or notice from the Administrative Agent, such excess to the Administrative Agent, for the benefit of the Secured Parties, in immediately available funds (except to the extent any such excess is addressed by Section 2.1(g) hereof). The Initial Borrower hereby agrees that the Administrative Agent may withdraw from any Collateral Account amounts therein credited to or held for the Initial Borrower any Contributions deposited therein for the benefit of the Initial Borrower and apply the same to the Principal Obligations owing by the Initial Borrower until such time as the payment obligations of this Section 2.1(e) have been satisfied in full.
(f) [Reserved].
(g) Excess Letters of Credit Outstanding. If any excess calculated pursuant to Section 2.1(e) hereof is attributable to undrawn Letters of Credit, the applicable Borrower shall pay such excess to the Administrative Agent, for the account of the Letter of Credit Issuer, when required pursuant to the terms of Section 2.1(e) hereof for deposit into the Cash Collateral Account, as security for such portion of the Obligations of such Borrower. Unless otherwise required by law, upon the earlier to occur of: (i) a change in circumstances such that the Dollar Equivalent of the aggregate Principal Obligations of the Borrowers no longer exceeds the Available Commitment (so long as no Event of Default or Potential Default has occurred and is continuing); or (ii) the full and final payment of the Obligations and the expiration or termination of all Letters of Credit, the Administrative Agent shall return to the applicable Borrower(s) any amounts remaining in the Cash Collateral Account.
2.2 Revolving Credit Commitment. Subject to the terms and conditions herein set forth, each Lender severally agrees, on any Business Day, during the Commitment Period, to make Loans in US Dollars or in one or more other Alternate Currencies to each of the Borrowers at any time and from time to time in an aggregate Dollar Equivalent principal amount at any one time outstanding up to such Lender’s Lender Commitment at any such time; provided that, after making any such Loans: (a) the Dollar Equivalent of such Lender’s Principal Obligations would not exceed such Lender’s Lender Commitment; (b) the Dollar Equivalent of the Principal Obligations would not exceed the Available Commitment; and (c) the Alternate Currency Liability would not exceed the Alternate Currency Sublimit; provided, further, that Reference Rate Loans shall only be available in US Dollars. Subject to the foregoing limitation, the conditions set forth in Section 6 hereof and the other terms and conditions hereof, the Borrowers may borrow, repay without penalty or premium, and re-borrow hereunder, during the Commitment Period. Each Borrowing pursuant to this Section 2.2 shall be funded in accordance with Section 2.5 hereof. No Lender shall be obligated to fund any Loan if the interest rate
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applicable thereto under Section 2.6 hereof would exceed the Maximum Rate in effect with respect to such Loan.
2.3 Manner of Borrowing. Each Borrowing hereunder shall be made by a single Borrower (it being understood and agreed that any Qualified Borrower’s Obligations shall be guaranteed by the Initial Borrower in accordance with Section 2.9 hereof). The applicable Borrower shall give the Administrative Agent notice at the Agency Services Address of the date of each requested Borrowing hereunder, which notice may be by telephone, if confirmed in writing, facsimile, electronic mail, or other written communication substantially in the form of Exhibit E attached hereto (a “Request for Borrowing”). Each Request for Borrowing: (a) shall be furnished to the Administrative Agent no later than the Specified Time; and (b) must specify: (i) the amount of such Borrowing; (ii) the Interest Option; (iii) in the case of a request for LIBOR Loans, the Interest Period therefor and currency (which shall be, subject to Section 2.2 hereof, US Dollars or an Alternate Currency); and (iv) including a confirmation that such Borrowing will be secured (either directly or indirectly) by a first priority, exclusive security interest and Lien (subject to Permitted Liens), granted to the Secured Parties, in and on 100% of the Unused Commitments of all Investors, which can be satisfied by checking the box next to such confirmation in a Request for Borrowing. If multiple Borrowers are requesting a Borrowing on the same date, then a separate Request for Borrowing shall be submitted by each applicable Borrower (or such Request for borrowing shall specify the respective amounts being requested by each applicable Borrower). Any Request for Borrowing received by the Administrative Agent after the Specified Time shall be deemed to have been given by the applicable Borrower on the next succeeding Business Day. No Request for Borrowing shall be required to be delivered in connection with any Borrowing under Section 2.8(g)(i), 2.9(f), 2.12(b), 3.3(c) or 3.3(d) hereof.
(a) Request for Borrowing. Each Request for Borrowing shall be substantially in the form attached hereto as Exhibit E (with blanks appropriately completed in conformity herewith and signed by a Responsible Officer of the applicable Borrower), shall be delivered to the Agency Services Address, and shall be deemed to constitute a representation and warranty by the applicable Borrower providing such Request for Borrowing (and, additionally, it is agreed by each other Borrower that it shall also be deemed to constitute a representation and warranty by each such Borrower as to itself) that the conditions (other than the qualification that any condition is satisfactory to the Administrative Agent or its counsel) specified in Sections 6.1 (with respect to the initial advance under this Credit Agreement), 6.2 and 6.3 hereof (with respect to the initial advance under this Credit Agreement to a Qualified Borrower) have been satisfied on and as of the date of the applicable Borrowing, and that:
(i) The representations and warranties herein (other than those in Section 7.8 hereof, which shall be replaced with the condition in Section 2.3(a)(ii) below) and in the other Loan Documents are true and correct in all material respects on and as of the date of such Request for Borrowing, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the Administrative
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Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or specific date);
(ii) No Event of Default or, to its knowledge, Potential Default under Section 10.1(a), (e), (f), (g), (h), (i), (j), (o) or (p) exists and is continuing at such date;
(iii) Other than as disclosed to the Administrative Agent in writing, the Borrowers have no knowledge or reason to believe any Investor would be entitled to exercise an excuse or exemption right (including any Investment Exclusion Event) under the Initial Borrower’s Constituent Documents, any Subscription Agreement or any Side Letter with respect to any Investment being acquired in whole or in part with any proceeds of the related Loan (provided, that if the Borrowers have disclosed a potential excuse or exemption right (including any Investment Exclusion Event) to the Administrative Agent in writing, the excused portion of the applicable Investor’s or Investors’ Unused Commitment shall be excluded from the calculation of the Available Commitment with respect to the applicable Borrowing, but the requesting Borrower(s) shall not be prohibited from Borrowing upon satisfaction of the other conditions therefor); and
(iv) After giving effect to such Borrowing (i) the Dollar Equivalent of the Principal Obligations as of such date will not exceed the Available Commitment as of such date and (ii) the Alternate Currency Liability as of such date will not exceed the Alternate Currency Sublimit as of such date.
Each Request for Borrowing shall be revocable, subject to Section 2.3(h) and Borrowers’ compliance with Section 4.6 hereof.
(b) Rollovers. No later than the Specified Time, the applicable Borrower shall give the Administrative Agent written notice at the Agency Services Address (which notice may be via fax, electronic mail, or by telephone, if confirmed in writing promptly thereafter) substantially in the form of Exhibit G attached hereto (the “Rollover Notice”) whether it desires to renew a LIBOR Loan (other than a LIBOR Loan bearing interest based on Daily LIBOR). The Rollover Notice shall also specify the length of the Interest Period selected by the applicable Borrower with respect to such Rollover. Each Rollover Notice shall be revocable, subject to the applicable Borrowers’ compliance with Section 4.6 hereof and the provisions of this paragraph. If the applicable Borrower fails to timely give the Administrative Agent the Rollover Notice with respect to any LIBOR Loan, such Borrower shall be deemed to have elected to continue such LIBOR Loan as a LIBOR Loan with an Interest Period of one (1) month commencing on the expiration of the preceding Interest Period.
(c) Conversions. Any Borrower shall have the right, with respect to: (i) any Reference Rate Loan, on any Business Day (a “LIBOR Conversion Date”), to convert such Reference Rate Loan to a LIBOR Loan; (ii) any LIBOR Loan denominated in US Dollars, on any Business Day (a “Reference Rate Conversion Date”), to convert such
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LIBOR Loan to a Reference Rate Loan; or (iii) any Reference Rate Loan or LIBOR Loan denominated in US Dollars (other than a LIBOR Loan bearing interest based on Daily LIBOR), on any Business Day (a “Daily LIBOR Conversion Date”), to convert such Loan to a LIBOR Loan bearing interest based on Daily LIBOR; provided that the applicable Borrower shall, on such Conversion Date, make the payments required by Section 4.6 hereof, if any, in either case, by giving the Administrative Agent written notice at the Agency Services Address (which notice may be via fax, electronic mail, or by telephone (if confirmed in writing promptly thereafter)) substantially in the form of Exhibit G attached hereto (a “Conversion Notice”) of such selection no later than the Specified Time. Each Conversion Notice shall be revocable, provided that the Borrowers shall indemnify each Lender against any loss or expense (other than loss of margin or spread) actually incurred by such Lender, either directly or indirectly. Notwithstanding the foregoing, upon the Borrowing of each Reference Rate Loan hereunder (including, for the avoidance of doubt, in connection with any Borrowing related to the drawing under a Letter of Credit under Section 2.8(g) hereof), the applicable Borrower shall be deemed to have simultaneously delivered to the Administrative Agent (i) a Conversion Notice to convert such Reference Rate Loan to a LIBOR Loan bearing interest based on Daily LIBOR and with a LIBOR Conversion Date that is three (3) Business Days after such date of Borrowing and (ii) a notice that it elects to capitalize the interest due on such Reference Rate Loan as of the related LIBOR Conversation Date pursuant to Section 3.3(d) hereof unless, in the case of any such Borrowing of a Reference Rate Loan, the applicable Borrower provides notice in the related Request for Borrowing that they elect not to convert such Reference Rate Loan into a LIBOR Loan.
(d) Lender Funding Shall be Proportional. Except to the extent provided in Section 2.3(g) or 2.8(f), each Lender shall make each requested Loan in accordance with its Pro Rata Share thereof.
(e) Interest Periods. No more than a total of fifteen (15) LIBOR Loans may be outstanding hereunder at any one time during the Commitment Period.
(f) Administrative Agent Notification of the Lenders. The Administrative Agent shall promptly notify each Lender (and will use good faith efforts to make such notification on the day such notice is timely received from the applicable Borrower(s)) of the receipt of a Request for Borrowing, a Conversion Notice or a Rollover Notice, the amount of the Borrowing and the amount of such Lender’s share of the applicable Loans, the date the Borrowing is to be made, the Interest Option and currency, the Interest Period selected, if applicable, and the applicable rate of interest.
(g) Loan Allocations. In accordance with Section 2.8(f), the Letter of Credit Issuer may participate exclusively in the Letter of Credit Liability. As a result of such exclusive participation, the aggregate Principal Obligations may from time to time be allocated among the Lenders in proportions other than their Pro Rata Share. As a result, and notwithstanding anything herein to the contrary, the funding of Loans by the Lenders shall be allocated as provided in this Section 2.3(g). If at any time a Borrowing is
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requested when there is no Letter of Credit Liability outstanding and the existing Loans are allocated in accordance with each Lender’s Pro Rata Share, such Loan shall be funded by each Lender in accordance with its Pro Rata Share. If at any time a Borrowing is requested at a time when there is Letter of Credit Liability outstanding or if the Loans are not currently allocated among all Lenders in accordance with their Pro Rata Share, the Administrative Agent shall allocate the funding of such Borrowing on a nonratable basis to the Lenders until the Dollar Equivalent of the aggregate Principal Obligations are again allocated among all Lenders in accordance with their Pro Rata Share; the purpose of such nonratable allocation being to keep each Lender in a utilized position as close to its Pro Rata Share as possible. In addition, (i) in the event that a Borrower seeks to obtain the issuance of a Letter of Credit pursuant to Section 2.8 but the Commitment of the Lender that is the Letter of Credit Issuer is insufficient to support such issuance, the Administrative Agent shall reallocate Loans to the other Lenders so as to create sufficient available Commitment from the Letter of Credit Issuer for the relevant Letter of Credit (and to the extent the Letter of Credit Issuer has an insufficient Commitment to cover such Letter of Credit, then ratably from the other Lenders that participate in such excess Letter of Credit amount pursuant to Section 2.8(c)), provided that (A) such Borrower will be liable in all respects for any breakage or other costs in accordance with Section 4.6 resulting from such reallocation, and (B) any such reallocation pursuant to this Section 2.3(g) which requires a Lender to make a funding shall be subject to the notice and timing provisions with respect to Loans set forth in Section 2.3 and (ii) in the event a Letter of Credit Issuer funds a drawing under a Letter of Credit and such drawing is not reimbursed by the relevant Borrower as set forth in Section 2.8(g), resulting in the aggregate Principal Obligations then being funded in the Currency of such Letter of Credit among the Lenders other than in accordance with their Pro Rata Share, then so long as no Event of Default or, to the knowledge of any Borrower, Potential Default shall have occurred and be continuing, on the next Interest Payment Date or the next date of a Rollover or Conversion with respect to such Loan, as applicable, the Administrative Agent shall reallocate Loans to the other Lenders so that all Principal Obligations are funded by the Lenders as close as reasonably possible to their Pro Rata Share, provided that any such reallocation pursuant to this Section 2.3(g) which requires a Lender to make a funding shall be subject to the Administrative Agent giving advance notice sufficient to comply with the applicable time period in Section 2.3 to each such Lender.
(h) Revocability of Requests for Borrowing. Requests for Borrowings for Reference Rate Loans shall be irrevocable. Each Request for Borrowing for LIBOR Loans completed and signed by the applicable Borrower in accordance with Section 2.3(a) shall be revocable by such Borrower so long as such revocation is received by the Administrative Agent no later than one (1) Business Day prior to the requested date of the Borrowing; provided that the Borrowers shall indemnify each Lender against any loss or expense (other than loss of margin or spread) actually incurred by such Lender, either directly or indirectly, as a result of any failure by the applicable Borrower to complete such Borrowing, including, without limitation, any loss or expense (other than loss of margin or spread) reasonably incurred by the Administrative Agent or any Lender, either directly or indirectly, by reason of the liquidation or reemployment of funds acquired by
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such Lender (including funds obtained by issuing promissory notes or obtaining deposits or loans from third parties) in order to fund such Borrowing except to the extent such loss or expense is due to the gross negligence or willful misconduct of such Person. A certificate of the Administrative Agent or applicable Lender setting forth the amount of any such cost, loss or expense, and the basis for the determination thereof and the calculation thereof, shall be delivered to the applicable Borrower and shall, in the absence of a manifest error, be conclusive and binding.
2.4 Minimum Loan Amounts. Each Loan shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000 (or, if applicable, the Dollar Equivalent of such amounts) (or such other amounts as reasonably agreed by the Administrative Agent); provided that in addition to the foregoing, a Reference Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the total Lender Commitments or that is required to finance the reimbursement of a Letter of Credit under Section 2.8(g) hereof or that is equal to the amount of any interest payment or unused commitment fees that are permitted to be capitalized as a Capitalized Interest Loan or a Capitalized Unused Commitment Fee Loan, as applicable, in accordance with Section 2.12(b) or Section 3.3(d) hereof, as applicable.
2.5 Funding. Subject to fulfillment of all applicable conditions set forth herein, by no later than the Specified Time, each Lender shall wire-transfer the proceeds of its Pro Rata Share of each Borrowing in immediately available funds to the Administrative Agent for the account of the applicable Borrower for value and, upon fulfillment of all applicable conditions set forth herein, by no later than the Specified Time, the Administrative Agent shall (i) if the account specified in the related Request for Borrowing is maintained with the Administrative Agent, deposit such proceeds, in immediately available funds, into such account, and (ii) otherwise, initiate a wire transfer of such proceeds to the account specified in the related Request for Borrowing. The failure of any Lender to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder shall not relieve any other Lender of its obligation to advance the proceeds of its Pro Rata Share of any such Borrowing required to be advanced hereunder. Absent contrary written notice from a Lender, the Administrative Agent may assume that each Lender has made its Pro Rata Share of the requested Borrowing available to the Administrative Agent on the applicable borrowing date, and the Administrative Agent may, in reliance upon such assumption (but is not required to), make available to the applicable Borrower a corresponding amount. If a Lender fails to make its Pro Rata Share of any requested Borrowing available to the Administrative Agent on the applicable borrowing date, then the Administrative Agent may recover the applicable amount: (a) from such Lender, on demand, together with interest at the Federal Funds Rate for the period commencing on the date the amount was made available to the applicable Borrower by the Administrative Agent and ending on (but excluding) the date the Administrative Agent recovers the amount from such Lender; or (b) if such Lender fails to pay such amount within three (3) Business Days of the Administrative Agent’s demand, then from the applicable Borrower by the Required Payment Time; together with interest at a rate per annum equal to the rate applicable to the requested Borrowing for the period commencing on the borrowing date and ending on (but excluding) the date the Administrative Agent recovers the amount from such Borrower. The liabilities and obligations of each Lender hereunder shall be several and not joint, and neither the Administrative Agent nor
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any Lender shall be responsible for the performance by any other Lender of its obligations hereunder. Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Each Lender hereunder shall be liable to the Borrowers only for the amount of its respective Lender Commitment.
2.6 Interest.
(a) LIBOR. The unpaid principal amount of each LIBOR Loan shall bear interest at a rate per annum which shall be equal to the Adjusted LIBOR plus the Applicable Margin for the applicable Interest Period.
(b) Reference Rate. The unpaid principal amount of each Reference Rate Loan shall bear interest at a rate per annum which shall from day to day be equal to the Reference Rate in effect from day to day plus the Reference Rate Applicable Margin.
(c) Change in Rate; Past Due Amounts; Calculations of Interest. Interest on the unpaid principal balance of (i) each LIBOR Loan shall be calculated on the basis of the actual days elapsed in a year consisting of 360 days (provided that LIBOR Loans denominated in Pounds Sterling or Australian Dollars shall be calculated on the basis of the actual days elapsed in a year consisting of 365 days (or 366 days, as the case may be)) and (ii) each Reference Rate Loan (other than when the Reference Rate is calculated based off LIBOR) shall be calculated on the basis of the actual days elapsed in a year consisting of 365 days (or 366, as the case may be). If any principal of, or interest on, the Obligations is not paid when due (whether at stated maturity, by acceleration, by mandatory prepayment or otherwise), then (in lieu of the interest rate provided in Section 2.6(a) or (b) above, as applicable) such overdue amount shall bear interest at the Default Rate until such amount is paid. If any fee payable under this Credit Agreement or any Fee Letter is not paid when due, such overdue amount shall bear interest at a per annum rate equal to the Default Rate until such amount is paid.
2.7 Determination of Rate. The Administrative Agent shall calculate each interest rate applicable to LIBOR Loans and Reference Rate Loans hereunder in accordance with the terms set forth in this Credit Agreement. The Administrative Agent shall give prompt notice to each Borrower and to the Lenders of each rate of interest so calculated, and its calculation thereof shall be conclusive and binding in the absence of manifest error.
2.8 Letters of Credit.
(a) Letter of Credit Commitment. Subject to the terms and conditions hereof, on any Business Day during the Commitment Period, the Letter of Credit Issuer shall issue Letters of Credit in such aggregate face amounts and currencies as any Borrower may request; provided that: (i) on the date of issuance, the Dollar Equivalent of the Letter of Credit Liability (after giving effect to the issuance of any such Letter of Credit) will not exceed an amount equal to the lesser of: (A) the remainder of: (1) the Available Commitment as of such date minus (2) the Dollar Equivalent of the Principal
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Obligations (excluding the Letter of Credit Liability) as of such date and (B) the Letter of Credit Sublimit on such date; (ii) the expiry date of each Letter of Credit shall not be later than the earlier of (A) twelve (12) months after the date of issuance without the Administrative Agent’s and the Letter of Credit Issuer’s consent, in their sole discretion, or (B) thirty (30) days prior to the Stated Maturity Date, provided, however, that (1) a Borrower may request, and the Letter of Credit Issuer shall issue, a Letter of Credit that has extension provisions for an automatic extension for twelve (12) months from the initial expiry date thereof or any future expiry date, so long as such Letter of Credit permits the Letter of Credit Issuer to elect not to extend the Letter of Credit for any such additional period by written notice to such Borrower and beneficiary at least thirty (30) days prior to the relevant expiry date, and (2) the Letter of Credit Issuer may issue one or more Letters of Credit with expiry dates later than the date set forth in the foregoing clause (B), so long as the Borrowers, with respect to any Letter of Credit with an expiry date beyond the Stated Maturity Date, obtain the Letter of Credit Issuer’s consent, in their sole discretion, and Cash Collateralize such Letter(s) of Credit (in the Currency of such Letter(s) of Credit unless otherwise consented to by all Lenders in their sole discretion) at least thirty (30) calendar days prior to the Stated Maturity Date in an amount equal to the undrawn stated amount of the applicable Letter of Credit (it being understood that, without the consent of the Letter of Credit issuer in its sole discretion, no Letter of Credit shall mature beyond or be extended beyond the date that is 364 days after the Stated Maturity Date); and (iii) the Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if, after the Closing Date (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any Law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good faith deems material to it and for which the Letter of Credit Issuer is not reimbursed hereunder, (B) the applicable Borrower has not provided the information necessary for the Letter of Credit Issuer to complete the form of Letter of Credit, or (C) the issuance of such Letter of Credit would violate applicable Laws or one or more policies of the Letter of Credit Issuer applicable to Letters of Credit generally.
(b) Request for Letter of Credit. Each request for a Letter of Credit (a “Request for Letter of Credit”) shall be submitted to the Administrative Agent and the Letter of Credit Issuer by the applicable Borrower in substantially the form attached hereto as Exhibit J (with blanks appropriately completed in conformity herewith) on or before the Specified Time, including a confirmation that such Letter of Credit will be secured (either directly or indirectly) by a first priority, exclusive security interest and
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Lien (subject to Permitted Liens), granted to the Secured Parties, in and on the Collateral. If multiple Borrowers are requesting the issuance of Letters of Credit on the same date, then a separate Request for Letter of Credit shall be submitted by each applicable Borrower. No Request for Letter of Credit shall be valid hereunder for any purpose unless it shall have been accompanied or preceded by the information and other documents required to be delivered in accordance with this Section. Upon each such application, the applicable Borrower shall be deemed to have automatically made to the Administrative Agent, each Lender, and the Letter of Credit Issuer the following representations and warranties (and, additionally, it is agreed by each other Borrower that it shall also be deemed to constitute a representation and warranty by each such Borrower as to itself) that:
(i) As of the date of the issuance of the Letter of Credit requested, the representations and warranties herein and in the other Loan Documents (other than those in Section 7.8 hereof, which shall be replaced with the condition in Section 6.2(b) hereof) are true and correct in all material respects on and as of the date of such issuance, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or specific date) and that all other conditions (other than the qualification that any condition is satisfactory to the Administrative Agent or its counsel) specified in Sections 6.1 (with respect to the initial extension of credit under this Credit Agreement), 6.2 and 6.3 hereof (with respect to the initial extension of credit under this Credit Agreement to a Qualified Borrower) have been satisfied;
(ii) (A) The Dollar Equivalent of the Letter of Credit Liability (after giving effect to the issuance of the requested Letter of Credit) will not exceed the lesser of: (x) the remainder of: (1) the Available Commitment as of such date; minus (2) the Dollar Equivalent of the Principal Obligations (excluding the Letter of Credit Liability) as of such date; and (y) the Letter of Credit Sublimit on such date; and (B) the Alternate Currency Liability (after giving effect to the issuance of the requested Letter of Credit) will not exceed the Alternate Currency Sublimit on such date;
(iii) Other than as disclosed to the Administrative Agent in writing, the Borrowers have no knowledge or reason to believe any Investor would be entitled to exercise an excuse or exemption right under the Initial Borrower’s Constituent Documents, any Side Letter or any Subscription Agreement with respect to any Investment which is related to the applicable Letter of Credit (or is otherwise not participating in such Investment); provided, that if the Borrowers have disclosed a potential excuse or exemption right or other non-participation to the Administrative Agent in writing, the excused portion of the applicable Investor’s Unused Commitment shall be excluded from the calculation of the Available
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Commitment with respect to the applicable Letter of Credit, but the requesting Borrower(s) shall not be prohibited from having the applicable Letter of Credit issued upon satisfaction of the other conditions therefor; and
(iv) Not more than fifteen (15) issued but undrawn Letters of Credit are then outstanding.
(c) Further Information. Each Request for Letter of Credit shall be accompanied or preceded by: (A) a Borrowing Base Certificate dated the date of such Request for Letter of Credit (which can be satisfied by attaching the required information and calculations to such Request for Letter of Credit); (B) an Application for Letter of Credit; and (C) such documents as are required to satisfy any applicable conditions precedent as provided in Sections 6.1 (with respect to the initial advance under this Credit Agreement), 6.2 and 6.3 (with respect to the initial extension of credit under this Credit Agreement to a Qualified Borrower), as applicable, all of which shall be delivered directly to the Letter of Credit Issuer.
(d) Notification of Lenders; Notification of the Administrative Agent. The Letter of Credit Issuer shall promptly (but in any event prior to 3:00 p.m. (New York time) on the date of issuance) notify the Administrative Agent of the issuance of any Letter of Credit and provide a copy of each issued Letter of Credit to the Administrative Agent (as well as any renewals, amendments or cancellations). The Administrative Agent shall promptly notify each Lender of such issuance of a Letter of Credit and the terms of the requested Letter of Credit.
(e) Request for Letter of Credit Revocable. Each Letter of Credit hereunder shall be issued on behalf of a Borrower. Each Request for Letter of Credit completed and signed by the applicable Borrower(s) in accordance with Section 2.8(b) hereof shall be revocable by such Borrower so long as such revocation is received by the Administrative Agent and Letter of Credit Issuer prior to such Borrower’s approval of the requested Letter of Credit pursuant to Section 2.8(h) hereof but in any event prior to the actual issuance of the requested Letter of Credit by the Letter of Credit Issuer; provided that the Borrowers shall indemnify the Letter of Credit Issuer against any loss or expense (other than loss of margin or spread) actually and reasonably incurred by such Letter of Credit Issuer, either directly or indirectly, as a result of such revocation or any failure by the specified beneficiary of such Letter of Credit to accept such Letter of Credit, including, without limitation, any loss or expense (other than loss of margin or spread) reasonably incurred by the Letter of Credit Issuer, either directly or indirectly by reason of the liquidation or reemployment of funds acquired by the Letter of Credit Issuer in order to issue such Letter of Credit except to the extent such loss or expense is due to the gross negligence or willful misconduct of the Letter of Credit Issuer. A certificate of the Letter of Credit Issuer setting forth the amount of any such cost, loss or expense, and the basis for the determination thereof and the calculation thereof, shall be delivered to the applicable Borrower(s) and shall, in the absence of a manifest error, be conclusive and binding.
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(f) Exclusive Participation by the Letter of Credit Issuer. Each Letter of Credit will be exclusively participated in by the Letter of Credit Issuer to the extent the Letter of Credit Issuer’s Commitment is sufficient to support the requested issuance of such Letter of Credit, such that when there is a drawing under a Letter of Credit, only the applicable Letter of Credit Issuer will have an obligation to fund such drawing except to the extent the Letter of Credit Issuer’s Commitment is insufficient to support the amount of such Letter of Credit, in which case, the other Lenders shall participate ratably in such excess amount. The Letter of Credit Issuer (and the other Lenders to the extent of their respective participation in a Letter of Credit, if applicable) shall have: (i) the right to receive from the Administrative Agent its Pro Rata Share of any reimbursement of the amount of each draft drawn under each Letter of Credit, including any interest payable with respect thereto; (ii) the right to receive from the Administrative Agent its Pro Rata Share of the Letter of Credit fee pursuant to the applicable Fee Letter; (iii) the right to receive from the Administrative Agent its additional costs pursuant to Section 4.1 hereof; and (iv) the obligation to pay to the Administrative Agent or the Letter of Credit Issuer, as the case may be, in immediately available funds, its Pro Rata Share of any unreimbursed drawing under a Letter of Credit.
(g) Payment of Letter of Credit.
(i) In consideration of the issuance by the Letter of Credit Issuer of the Letters of Credit for the account of a Borrower, such Borrower hereby authorizes, empowers, and directs the Administrative Agent, for the benefit of the Secured Parties and the Letter of Credit Issuer, to disburse directly, as a Borrowing hereunder by such Borrower, to the Letter of Credit Issuer, with notice to such Borrower, in immediately available funds (in the Currency of such Letter of Credit unless otherwise consented to by all Lenders in their sole discretion), an amount equal to the stated amount of each draft drawn under each such Letter of Credit plus all interest, reasonable costs and expenses, and fees due to the Letter of Credit Issuer pursuant to this Credit Agreement in respect of Letters of Credit issued for the benefit of such Borrower. To the extent Lenders other than the Letter of Credit Issuer are participants in any Letter of Credit and subject to receipt of notice from the Administrative Agent, each such Lender shall pay to the Administrative Agent such Lender’s Pro Rata Share of the amount to be disbursed by the Administrative Agent to the Letter of Credit Issuer on the Business Day on which the Letter of Credit Issuer honors any such draft or incurs or is owed any such interest, costs, expenses or fees, whereupon the Administrative Agent shall disburse such Lender’s payment to the Letter of Credit Issuer. By no later than 4:00 p.m. (New York time) on the date of any disbursement under a Letter of Credit, the Administrative Agent shall promptly notify the Borrower on whose behalf the applicable Letter of Credit was issued of the disbursement by the Letter of Credit Issuer with respect to such draft and any such payments made by the Lenders pursuant to this Section 2.8(g)(i); provided that the failure to give such notice will not affect the validity of such disbursement by the Letter of Credit Issuer or any such payments by the Lenders. Any such payments made by the
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Lenders to the Administrative Agent on account of a Letter of Credit shall be deemed a Reference Rate Loan (or, in the case of any such Loan in an Alternate Currency, a LIBOR Loan) to the applicable Borrower, and such Borrower shall be deemed to have given to the Administrative Agent, in accordance with the terms and conditions of Section 2.3(a) hereof, a Request for Borrowing with respect to such Loan; and such payments shall be made without regard to the minimum and multiple amounts specified in Section 2.4 hereof. The Administrative Agent and the Lenders may conclusively rely on the Letter of Credit Issuer as to the amount due the Letter of Credit Issuer by reason of any draw under a Letter of Credit or due the Letter of Credit Issuer under any Application for Letter of Credit. The obligations of a Lender to make payments to the Administrative Agent for the account of the Letter of Credit Issuer under this Section 2.8(g)(i) shall be irrevocable, shall not be subject to any qualification or exception whatsoever, and shall, irrespective of the satisfaction of the conditions to the making of any Loans or issuance of any Letter of Credit described in Sections 2.1, 2.3, 6.1, 6.2 and/or 6.3 hereof, as applicable, be honored in accordance with this Section 2.8(g)(i) under all circumstances, including, without limitation, any of the following circumstances: (A) any lack of validity or enforceability of such Letter of Credit, this Credit Agreement or any of the other Loan Documents; (B) the existence of any claim, counterclaim, setoff, defense or other right which any Borrower may have at any time against a beneficiary named in a Letter of Credit or any transferee of a beneficiary named in a Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Lender, or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the account party and beneficiary named in any Letter of Credit); (C) any draft, demand, certificate or any other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect or any loss or delay in the transmission or otherwise of any document required in order to make a draw under a Letter of Credit; (D) any payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (E) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (F) the occurrence of any Event of Default or Potential Default.
(ii) If a Lender fails to make available to the Administrative Agent any amount required of such Lender under Section 2.8(g)(i) hereof, then the Letter of
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Credit Issuer may recover such amount: (a) from such Lender, on demand, together with interest at the Federal Funds Rate for the period commencing on the date such amount was due from such Lender and ending on (but excluding) the date the Letter of Credit Issuer recovers such amount from such Lender; or (b) if such Lender fails to pay such amount upon the Letter of Credit Issuer’s demand, then from the applicable Borrower by the Required Payment Time; together with interest at the Reference Rate for the period commencing on the date such amount was due from the applicable Lender under Section 2.8(g)(i) hereof and ending on (but excluding) the date the Letter of Credit Issuer recovers such amount from such Borrower.
(h) Borrower Inspection. The applicable Borrower shall have the right to examine any Letter of Credit (or amendment thereto) prior to the issuance thereof and shall promptly notify the Letter of Credit Issuer of any claim of noncompliance with such Borrower’s instructions, irregularity or any other comments thereto. Such Borrower shall be conclusively deemed to have waived any such claim against the Letter of Credit Issuer and its correspondents unless such notice is given as aforesaid.
(i) Role of Letter of Credit Issuer. Each of the Lenders and the Borrowers agrees that, in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, the Administrative Agent nor any of the respective correspondents, participants or assignees of the Letter of Credit Issuer in the absence of gross negligence or willful misconduct shall be liable to any Lender for: (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit. The applicable Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not preclude any Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any agreement. None of the Letter of Credit Issuer, the Administrative Agent, nor any of the respective correspondents, participants or assignees of the Letter of Credit Issuer, shall be liable or responsible for any of the matters described in clauses (A) through (F) of Section 2.8(g)(i) hereof. In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
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(j) Acceleration of Undrawn Amounts. Should the Administrative Agent demand payment of the Obligations hereunder prior to the Maturity Date pursuant to Section 10.2 hereof, the Administrative Agent, by written notice to the Borrowers, may take one or more of the following actions: (i) declare the obligation of the Letter of Credit Issuer to issue Letters of Credit hereunder terminated, whereupon such obligation shall forthwith terminate without any other notice of any kind; or (ii) declare the outstanding Letter of Credit Liability to be forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby waived, and demand that each Borrower Cash Collateralize, as security for its Obligations, an amount equal to the aggregate undrawn stated amount of all Letters of Credit issued for the account of any member of such Borrower and outstanding at the time such notice is given. Unless otherwise required by law, upon the full and final payment of the outstanding Obligations and termination and expiration of all Letters of Credit, the Administrative Agent shall return to each such Borrower its ratable share of any amounts remaining in the Cash Collateral Account.
(k) Minimum Letter of Credit Amounts. Each Letter of Credit shall be in an amount which is not less than $500,000 (or such lesser amount as the Administrative Agent and the Letter of Credit Issuer may agree to in writing).
2.9 Addition of Qualified Borrowers, Payment of the Borrower Guaranty and Qualified Borrower Note.
(a) In order for an entity to be approved as a Qualified Borrower: (i) the Initial Borrower must obtain the consent of the Administrative Agent, such consent not to be unreasonably withheld; provided that the Administrative Agent shall approve such entity as a Qualified Borrower, subject to satisfaction of Section 6.3(h), unless such entity is formed or organized, as applicable, in a jurisdiction in which the applicable Lenders cannot make Loans or the Letter of Credit Issuer cannot issue Letters of Credit; (ii) such entity shall be one in which the Initial Borrower owns a direct or indirect ownership interest, or through which the Initial Borrower may acquire an investment, the indebtedness of which entity can be guaranteed by the Initial Borrower pursuant to the terms of its Constituent Documents (such entity, a “Qualified Borrower”); and (iii) the provisions of this Section 2.9 and Section 6.3 hereof shall be satisfied.
(b) Upon the satisfaction of the requirements of subsection (a) above, the Qualified Borrower shall be bound by the terms and conditions of this Credit Agreement as if it were a Qualified Borrower hereunder. Each such Qualified Borrower shall be severally liable for its Obligations hereunder.
(c) The Initial Borrower shall provide to the Administrative Agent and each of the Lenders an unconditional guaranty of payment substantially in the form of Exhibit K attached hereto (the “Borrower Guaranty”, and such guaranties, collectively, the “Borrower Guaranties”), enforceable against the Initial Borrower for the payment of a Qualified Borrower’s debt or obligation to the Lenders.
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(d) Each Qualified Borrower shall execute and deliver a promissory note, substantially in the form of Exhibit I attached hereto (a “Qualified Borrower Note”), payable to the Administrative Agent, for the benefit of the Secured Parties in the principal amount of its related Obligations.
(e) [Reserved].
(f) In consideration of the Lenders’ agreement to advance funds to a Qualified Borrower pursuant to Sections 2.2 and 2.3 hereof, to cause Letters of Credit to be issued for the account of a Qualified Borrower pursuant to Section 2.8 hereof, and to accept the applicable Borrower Guaranties in support thereof, the Initial Borrower hereby authorizes, empowers, and directs the Administrative Agent, for the benefit of the Secured Parties, within the limits of the Available Commitment, to disburse directly to the Lenders, with notice to the Initial Borrower, in immediately available funds, an amount equal to the amount due and owing under any Qualified Borrower Note or any Borrower Guaranty, together with all interest, reasonable costs and expenses and fees due to the Lenders pursuant thereto, as a Borrowing hereunder by the Initial Borrower, in the event the Administrative Agent shall have not received payment of such Obligations when due. The Administrative Agent will promptly notify the Initial Borrower of any disbursement made to the Lenders pursuant to the terms hereof; provided that the failure to give such notice shall not affect the validity of the disbursement, and the Administrative Agent shall provide the Lenders with notice thereof. Any such disbursement made by the Administrative Agent to the Lenders shall be deemed to be a LIBOR Loan pursuant to Section 2.3 hereof in the amount so paid, and the Initial Borrower shall be deemed to have given to the Administrative Agent in accordance with the terms and conditions of Section 2.3 hereof, a Request for Borrowing with respect thereto, and such disbursements shall be made without regard to the minimum and multiple amounts specified in Section 2.4 hereof. The Administrative Agent may conclusively rely on the Lenders as to the amount of any such Obligations due to the Lenders, absent manifest error.
(g) If a Qualified Borrower has no Obligations outstanding (including any Loans or Letters of Credit issued for its benefit), such Qualified Borrower shall be permitted to withdraw from the Credit Facility as a Qualified Borrower upon ten (10) days advance written notice (or such shorter period reasonably acceptable to the Administrative Agent) to the Administrative Agent. Upon request of such withdrawing Qualified Borrower, the Administrative Agent will return or destroy any Qualified Borrower Note issued by such Qualified Borrower. Notwithstanding any withdrawal by a Qualified Borrower, such Qualified Borrower (and the Initial Borrower pursuant to the applicable Borrower Guaranty) shall remain liable for any amounts due to the Secured Parties pursuant to Sections 4 and 12.5 of this Credit Agreement from such Qualified Borrower, which provisions shall survive any withdrawal by a Qualified Borrower and the termination of this Credit Agreement.
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2.10 Use of Proceeds, Letters of Credit and Borrower Guaranties.
(a) The proceeds of the Loans and the Letters of Credit shall be used solely to provide working capital or for other purposes permitted under the applicable Borrower’s Constituent Documents and all related documentation (including the Initial Borrower’s Subscription Agreements and Side Letters). Each Borrower agrees to respond promptly to any reasonable requests for information related to its use of Loan and Letter of Credit proceeds to the extent required by any Lender in connection with such Lender’s determination of its compliance with Section 23A of the Federal Reserve Act (12 U.S.C. § 371c) and the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223). No Borrower shall use the proceeds of any Borrowing hereunder to purchase securities (as defined in the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223.3(ff)) from Merrill Lynch, Pierce, Fenner & Smith Incorporated or any Affiliate thereof. In connection with each Request for Borrowing hereunder, the requesting Borrower shall be deemed to have represented and warranted to the Administrative Agent on the date of such Borrowing that, to its actual knowledge, as of the date of the requested Borrowing, the proceeds of such Borrowing will not be used by such Borrower to, directly or indirectly, either (x) purchase securities (as defined in the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223.3(ff)) issued by any Lender or Affiliate thereof or (y) invest in any fund sponsored by a Lender or Affiliate thereof. For the avoidance of doubt, notwithstanding anything to the contrary herein, it is acknowledged that no Borrower shall have increased costs, collateral requirements or additional fees imposed in connection with any such Lender’s compliance obligations under Section 23A of the Federal Reserve Act and Regulation W, except to the extent that such costs, requirements or fees are a direct result of such Borrower’s breach of this Section 2.10.
(b) [Reserved].
(c) Neither the Lenders nor the Agents shall have any liability, obligation, or responsibility whatsoever with respect to the applicable Borrower’s use of the proceeds of the Loans, the Letters of Credit or execution and delivery of the Borrower Guaranties, and neither the Lenders nor the Agents shall be obligated to determine whether or not such Borrower’s use of the proceeds of the Loans or the Letters of Credit are for purposes permitted under its Constituent Documents, all related documentation (including the Initial Borrower’s Subscription Agreements and Side Letters) or the Constituent Documents of the Initial Borrower. Nothing, including, without limitation, any Borrowing, any Rollover, any issuance of any Letter of Credit, or acceptance of any other document or instrument, shall be construed as a representation or warranty, express or implied, to any party by the Lenders or the Agents as to whether any investment by a Borrower is permitted by the terms of its Constituent Documents or the Constituent Documents of the Initial Borrower.
2.11 Fees. The Borrowers shall pay the Upfront Fees to the Lenders and, to the Administrative Agent, fees in consideration of the arrangement and administration of the Lender
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Commitments, which fees shall be payable in amounts and on the dates set forth in the applicable Fee Letter.
2.12 Unused Commitment Fee.
(a) In addition to the payments provided for in Section 3 hereof, the Borrowers shall pay or cause to be paid to the Administrative Agent, for the account of each Lender, according to its Pro Rata Share, an unused commitment fee on the average daily amount of the Maximum Commitment Amount less the Principal Obligations outstanding on such date (the “Unused Portion”), during the immediately preceding calendar month calculated on the basis of actual days elapsed in a year consisting of 360 days at the Commitment Fee Rate, payable in arrears on the twelfth (12th) calendar day of the first calendar month (or the next succeeding Business Day if such day is not a Business Day) of each calendar quarter for the unused commitment fees accruing during the preceding calendar quarter. For purposes of this Section 2.12, the fee shall be calculated on an average daily basis and shall be payable in US Dollars. The Administrative Agent will bill the Borrowers for unused commitment fees due and payable pursuant to this Section 2.12 for all Lenders. The Borrowers and the Lenders acknowledge and agree that the unused commitment fees payable hereunder are bona fide unused commitment fees and are intended as reasonable compensation to the Lenders for committing to make funds available to the Borrowers as described herein and for no other purposes.
(b) Notwithstanding anything in this Credit Agreement to the contrary, if the Initial Borrower notifies the Administrative Agent not later than the Specified Time that it elects to capitalize such fees as a Loan, then the amount of such fees shall be capitalized and deemed to be a Loan under this Credit Agreement (each such Loan, a “Capitalized Unused Commitment Fee Loan”); provided that such fees shall be automatically capitalized and deemed to be a Loan under this Credit Agreement to the extent the Administrative Agent has not delivered a written invoice setting forth such fees to the Initial Borrower by 9:00 a.m. (New York time) at least four (4) Business Days prior to such payment date; provided further that on any such payment date for unused commitment fees pursuant to Section 2.12(a) above, (i) no Event of Default or Potential Default shall have occurred and be continuing, (ii) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects on and as of such date, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to the Administrative Agent and do not constitute an Event of Default or Potential Default or to the extent such representations and warranties expressly relate to an earlier or specific date), and (iii) after giving effect to such Capitalized Unused Commitment Fee Loan, the Dollar Equivalent of the Principal Obligations will not exceed the Available Commitment. The initial Capitalized Unused Commitment Fee Loan hereunder shall be a new Loan bearing interest based on Daily LIBOR. Any subsequent Capitalized Unused Commitment Fee Loan, unless otherwise specified by the Initial Borrower in writing, shall become part of the initial Capitalized Unused
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Commitment Fee Loan, on the same terms and conditions as such initial Capitalized Unused Commitment Fee Loan.
2.13 Increase in the Maximum Commitment Amount.
(a) Request for Increase. Provided there exists no Event of Default or Potential Default, and subject to compliance with the terms of this Section 2.13, upon delivery of a Facility Increase Request to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may request an increase in the Maximum Commitment Amount to an aggregate amount not exceeding $700,000,000. Such increase may be effected in one or more requested increases, in an amount equal to at least $25,000,000 or increments of $5,000,000 in excess thereof (or such lesser amounts as agreed to by the Administrative Agent) (each such increase shall be referred to herein as a “Facility Increase”). At the time of sending such Facility Increase Request, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond to such request.
(b) Effective Date and Allocations. The Administrative Agent and the Borrowers shall determine the effective date of any Facility Increase (the “Increase Effective Date”), which shall be a Business Day. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of each such increase and the applicable Increase Effective Date. On any Increase Effective Date with respect to any Facility Increase (whether pursuant to a new Lender joining the Credit Facility or an existing Lender increasing its Lender Commitment), the Administrative Agent shall reallocate the outstanding Loans (including any Loans made by any new or increasing Lender pursuant to this Section 2.13) in accordance with Section 2.3 such that, after giving effect thereto, all Principal Obligations are funded by the Lenders as close as reasonably possible to their Pro Rata Share. For the avoidance of doubt, such reallocation may require the reallocation of Loans from an existing Lender to a new or increasing Lender. In connection with any such reallocation of the outstanding Loans, (i) the Administrative Agent shall give advance notice sufficient to comply with the applicable time period in Section 2.3 to each Lender that is required to fund any amount or receive any partial repayment in connection therewith and (ii) the applicable Lender or Lenders shall fund such amounts up to their respective shares of the Loans being reallocated and the Administrative Agent shall remit to any applicable Lender its applicable portion of such funded amount if necessary to give effect to the reallocation of such Loans. In connection with such repayment made with respect to such reallocation (to the extent such repayment is required), the applicable Borrowers shall pay (x) all interest due on the amount repaid to the date of repayment on the immediately following Interest Payment Date and (y) any amounts due pursuant to Section 4.6 as a result of such reallocation occurring on any date other than an Interest Payment Date.
(c) Conditions to Effectiveness of Increase. The following are conditions precedent to such increase:
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(i) the Initial Borrower shall have delivered to the Administrative Agent a Facility Increase Request signed by a Responsible Officer on behalf of such Borrower certifying and attaching the resolutions adopted by or on behalf of each Borrower approving or consenting to such increase;
(ii) on or prior to the proposed date of such Facility Increase, the Initial Borrower shall have paid to the Administrative Agent: (A) the applicable Upfront Fee, and (B) to the extent invoiced at least two (2) Business Days prior to the required payment date, all others fees due and owing hereunder or under any other Loan Document;
(iii) if requested by any applicable Lender, the Initial Borrower shall execute a Note payable to such Lender (or, in the case of a Qualified Borrower, to the Administrative Agent) reflecting the Facility Increase;
(iv) on the Increase Effective Date, (x) an existing Lender or Lenders shall increase its Lender Commitment to support any Facility Increase, in its sole discretion, and/or (y) an additional Lender or Lenders shall have joined the Credit Facility in accordance with Section 12.11(e) and, after giving effect thereto, the aggregate Lender Commitments of such increasing and additional Lenders shall be at least equal to the amount of such Facility Increase; and
(v) On or prior to the proposed date of such Facility Increase, the Administrative Agent shall have received (x) such information and documentation as is requested by the Lenders so that each Borrower has become KYC Compliant; and (y) with respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower;
For the avoidance of doubt, any Facility Increase shall be on the same terms as contained herein with respect to the Credit Facility. No Lender shall be required to commit to, nor shall any Lender have any preemptive right, to provide any portion of any Facility Increase. On each Increase Effective Date, Schedule II hereof shall be automatically updated to reflect the corresponding increase in the Lender Commitments.
2.14 Extension of Stated Maturity Date. The Borrowers shall have an option to extend the Stated Maturity Date then in effect for two (2) additional consecutive terms not longer than 364 days each, subject to satisfaction of the following conditions precedent:
(a) the Administrative Agent and the extending Lenders shall consent to such extension in their sole discretion;
(b) the Borrowers shall have paid the Extension Fee to the Administrative Agent;
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(c) no Event of Default or Potential Default shall have occurred and be continuing on the date on which notice is given in accordance with the following clause (d) or on the then applicable Stated Maturity Date; and
(d) the Borrowers shall have delivered an Extension Request with respect to the Stated Maturity Date to the Administrative Agent not less than thirty (30) days prior to the Stated Maturity Date then in effect, or such shorter period reasonably acceptable to the Administrative Agent (which shall be promptly forwarded by the Administrative Agent to each Lender).
To the extent any Lender does not consent to extend its Lender Commitment under this Section 2.14, the Obligations outstanding to such Lender as of the then effective Stated Maturity Date shall be due and payable to such Lender on such date; provided that, at the discretion of the Administrative Agent and the Initial Borrower, such non-extending Lender may be required to assign on the Stated Maturity Date all or part of its Lender Commitment to one or more extending Lenders (or new Lenders) who have consented to increase their Lender Commitments and have agreed to such extended Stated Maturity Date. Upon the payment of amounts due under the prior sentence to the non-extending Lender (and, if requested by the Administrative Agent and the Initial Borrower, such aforementioned assignment), such non-extending Lender shall cease to be a Lender hereunder.
2.15 Borrower Appointment. Each Qualified Borrower hereby irrevocably appoints the Initial Borrower as its agent for all purposes relevant to this Credit Agreement and each of the other Loan Documents, including (a) the giving and receipt of notices, b) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (c) unless otherwise provided in the applicable notice of borrowing, the receipt of the proceeds of any Loans made by the Lenders to any such Qualified Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by such Qualified Borrowers, or by each Qualified Borrower acting singly, shall be valid and effective if given or taken only by the Initial Borrower whether or not any such other Qualified Borrower joins therein. Any notice, demand, consent, acknowledgment, direction, certification or other communication delivered to the Initial Borrower in accordance with the terms of this Credit Agreement shall be deemed to have been delivered to each related Qualified Borrower.
Section 3. PAYMENT OF OBLIGATIONS
3.1 Revolving Credit Notes. The Administrative Agent may request that Loans made under this Credit Agreement be evidenced by the separate promissory notes of the Initial Borrower. In such event, the Initial Borrower shall execute and deliver a promissory note payable to each Lender in the amount of the Lender Commitments of such Lender. Any such note issued by the Initial Borrower shall be substantially in the form of Exhibit B attached hereto (with blanks appropriately completed in conformity herewith). The Initial Borrower agrees, from time to time, upon the request of a Lender, to reissue a new Note, in accordance with the terms and in the form heretofore provided, to such Lender, in renewal of and substitution for the
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Note previously issued by such Borrower to such Lender, and such previously issued Note shall be returned to such Borrower marked “replaced”.
3.2 Payment of Obligations. The unpaid principal amount of the Obligations outstanding on the Maturity Date, together with all accrued but unpaid interest thereon and any other outstanding Obligations, shall be due and payable on the Maturity Date.
3.3 Payment of Interest.
(a) Interest. Interest on each Borrowing and any portion thereof shall commence to accrue in accordance with the terms of this Credit Agreement and the other Loan Documents as of the date of the disbursal or wire transfer of such Borrowing by the Administrative Agent, consistent with the provisions of Section 2.5 hereof, notwithstanding whether any Borrower received the benefit of such Borrowing as of such date and even if such Borrowing is held in escrow pursuant to the terms of any escrow arrangement or agreement. When a Borrowing is disbursed by wire transfer pursuant to instructions received from the applicable Borrower in accordance with the related Request for Borrowing, then such Borrowing shall be considered made at the time of the transmission of the wire, rather than the time of receipt thereof by the receiving bank. With regard to the repayment of the Loans, interest shall continue to accrue on any amount repaid until such time as the repayment has been received in federal or other immediately available funds by the Administrative Agent to the Administrative Agent’s account described in Section 3.4 hereof, or any other account of the Administrative Agent which the Administrative Agent designates in writing to the Borrowers.
(b) Interest Payment Dates. Accrued and unpaid interest on the Obligations (i) shall be due and payable in the Currency of the related Obligations (unless otherwise consented to in writing by the Lenders in their sole discretion) in arrears on each Interest Payment Date, and on the Maturity Date, (ii) shall be due and payable on each other date of any reduction of the Principal Obligations hereunder (solely with respect to the portion of the Principal Obligations so prepaid), and (iii) with respect to any Obligation with respect to which any Borrower is in default, shall be due and payable at any time and from time to time following such default upon demand by the Administrative Agent. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(c) Direct Disbursement. If, at any time, the Administrative Agent or the Letter of Credit Issuer shall not have received on the date due, any payment of interest upon the Loans (other than as provided in Section 3.3(d) hereof), or any fee described herein, the Administrative Agent may direct the disbursement to the Lenders of funds from the amounts credited to or held for the Initial Borrower in a Collateral Account to the extent available therein for payment of any such amount; provided that, the amount so debited from any Collateral Account shall not exceed the amount so owing by such Borrower. Thereafter, if the amount so available in a Collateral Account is not sufficient for the full payment of such amounts due from such Borrower, the Administrative Agent
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may, without prior notice to or the consent of the Initial Borrower, within the limits of the Available Commitment, disburse to the Lenders or the Letter of Credit Issuer, in accordance with the terms hereof, in immediately available funds an amount equal to the interest or fee due to the Lenders, which disbursement shall be deemed to be a Reference Rate Loan (or a LIBOR Loan with respect to an Alternate Currency) to the applicable Borrower pursuant to Section 2.3 hereof, and such Borrower shall be deemed to have given to the Lenders in accordance with the terms and conditions of Section 2.3 hereof a Request for Borrowing with respect thereto. After any disbursement of funds from a Collateral Account to the Lenders as contemplated in this Section 3.3(c), the Administrative Agent shall promptly deliver written notice of such disbursement to the Initial Borrower; provided that the failure of the Administrative Agent to give such notice will not affect the validity of such disbursement, and the Administrative Agent shall provide the Lenders with notice thereof.
(d) Capitalization of Interest and Fees. Notwithstanding anything in this Credit Agreement to the contrary, if the Initial Borrower notifies the Administrative Agent no later than the Specified Time, that it elects to capitalize such interest or fees, as applicable, then the amount of such interest or fees shall be capitalized and deemed to be a Loan under this Credit Agreement (each such Loan, a “Capitalized Interest Loan”); provided that such interest or fees shall be automatically capitalized and deemed to be a Loan under this Credit Agreement to the extent the Administrative Agent has not delivered a written invoice setting forth such interest or fees to the Initial Borrower by 9:00 a.m. (New York time) at least four (4) Business Days prior to such payment date; provided further that on any such Interest Payment Date or Letter of Credit fee payment date, as applicable, (i) no Event of Default or Potential Default shall have occurred and be continuing, (ii) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects on and as of such date, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to the Administrative Agent in writing and do not constitute an Event of Default or to the extent such representations and warranties expressly relate to an earlier or specific date), and (iii) after giving effect to such Capitalized Interest Loan, the Dollar Equivalent of the Principal Obligations will not exceed the Available Commitment. Unless otherwise specified by the Initial Borrower in writing, any such Capitalized Interest Loan shall be either (i) a LIBOR Loan, if the applicable Lender can consolidate such Loan with an existing LIBOR Loan or (ii) a Reference Rate Loan (provided that such Reference Rate Loans shall be automatically converted into LIBOR Loans in accordance with Section 2.3(c) hereof). Such Loan will not be subject to the minimum and multiple amount limitations in Section 2.4 hereof.
3.4 Payments on the Obligations. All payments of principal of, and interest on, the Obligations under this Credit Agreement by the applicable Borrowers to or for the account of the Lenders, or any of them, shall be made without condition or deduction for any counterclaim, defense or recoupment by the applicable Borrower for receipt by the Administrative Agent on the relevant due date therefor in federal or other immediately available funds to the Administrative Agent at account number 001291068205 at Bank of America, N.A., ABA No.
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026 009 593, account name: Bilateral Clearing, reference: “GSO Secured Lending Fund”, or any other account of the Administrative Agent that the Administrative Agent designates in writing to the Borrowers. Funds received after 1:00 p.m. (New York time) shall be treated for all purposes as having been received by the Administrative Agent on the first Business Day next following receipt of such funds. Except as provided in Sections 2.3(g), 2.14 and 12.11 hereof, each Lender shall be entitled to receive its Pro Rata Share of each payment received by the Administrative Agent hereunder for the account of the Lenders on the Obligations. Each payment received by the Administrative Agent hereunder for the account of a Lender shall be promptly distributed by the Administrative Agent to such Lender. If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. The Administrative Agent and each Lender hereby agree that payments to the Administrative Agent by each Borrower of principal of, and interest on, the Obligations of such Borrower to or for the account of the Lenders in accordance with the terms of this Credit Agreement, the Notes and the other Loan Documents shall constitute satisfaction of such Borrower’s obligations with respect to any such payments, and the Administrative Agent shall indemnify, and each Lender shall hold harmless, such Borrower from any claims asserted by any Lender in connection with the Administrative Agent’s duty to distribute and apportion such payments to the Lenders in accordance with this Section 3.4. At all times when no Event of Default has occurred and is continuing, all payments made by a Borrower on the Obligations shall be credited as directed by the applicable Borrower. At all times when an Event of Default has occurred and is continuing, all payments made by a Borrower on the Obligations (including all amounts received by the Administrative Agent pursuant to the exercise of remedies hereunder or under any Collateral Document) shall be credited, to the extent of the amount thereof, in the following manner: (a) first, against all costs, expenses and other fees (including attorneys’ fees) arising under the terms hereof or under any Collateral Document; (b) second, against the amount of interest accrued and unpaid on the Obligations of such Borrower as of the date of such payment; (c) third, against all principal due and owing on the Obligations of such Borrower as of the date of such payment; (d) fourth, to all other amounts constituting any portion of the Obligations of such Borrower, other than the portion of the Obligations described in the last sentence of the definition of “Obligations” and (e) fifth, to all other amounts constituting any portion of the Obligations of such Borrower pursuant to the last sentence of the definition of “Obligations”.
3.5 Voluntary Prepayments. The Borrowers may, without premium or penalty, with written notice to the Administrative Agent by the Specified Time, which notice shall be substantially in the form of Exhibit F hereto (a “Prepayment Notice”), prepay the principal of the Obligations then outstanding, in whole or in part, at any time or from time to time; provided that (a) any partial prepayment shall be in the minimum amount of $1,000,000 or a higher integral multiple of $100,000 (or, if applicable, the Dollar Equivalent of such amounts) (or such other amounts as reasonably agreed by the Administrative Agent) and (b) if any Borrower shall prepay the principal of any LIBOR Loan (other than a Loan bearing interest at Daily LIBOR) on any date other than the last day of the applicable Interest Period applicable thereto, such Borrower shall make the payments required by Section 4.6 hereof. Any payment received after 1:00 p.m.
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New York time shall be treated for all purposes as having been received by the Administrative Agent on the first Business Day next following receipt of such amount.
3.6 Reduction or Early Termination of Lender Commitments. The Initial Borrower may terminate the Lender Commitments, or from time to time reduce the Maximum Commitment Amount, by giving prior written notice to the Administrative Agent (which notice may be by telephone, if confirmed in writing promptly thereafter, by fax, electronic mail or other written communication) of such termination or reduction three (3) Business Days prior to the effective date of such termination or reduction (which date shall be specified by the Initial Borrower in such notice): (a) in the case of complete termination of the Lender Commitments, upon prepayment by the applicable Borrowers of all of the outstanding Obligations, including, without limitation, all interest accrued thereon, in accordance with the terms of Section 3.5 hereof; or (b) in the case of a reduction of the Maximum Commitment Amount, upon prepayment of the amount by which the Dollar Equivalent of the Principal Obligations exceeds the reduced Available Commitment resulting from such reduction, including, without limitation, payment of all interest accrued thereon, in accordance with the terms of Section 3.5 hereof; provided that the Maximum Commitment Amount may not be terminated or reduced such that the Available Commitment would be less than the aggregate stated amount of outstanding Letters of Credit. Notwithstanding the foregoing: (i) any reduction of the Maximum Commitment Amount shall be in an amount equal to $5,000,000 or multiples thereof; and (ii) in no event shall a reduction by the Initial Borrower reduce the Maximum Commitment Amount to less than $50,000,000 (except for a termination of all the Lender Commitments). Promptly after receipt of any notice of reduction or termination, the Administrative Agent shall notify each Lender of the same. Any reduction of the Maximum Commitment Amount shall reduce the Lender Commitments of the Lenders on a pro rata basis.
3.7 Lending Office. Each Lender may: (a) designate its principal office or a branch, subsidiary or Affiliate of such Lender as its Applicable Lending Office (and the office to whose accounts payments are to be credited) for any Loan; and (b) change its Applicable Lending Office from time to time by notice to the Administrative Agent and the Borrowers. Each Lender shall be entitled to fund all or any portion of any Loan in any manner it reasonably deems appropriate, consistent with the provisions of Section 2.5 hereof, but for the purposes of this Credit Agreement such Lender shall, regardless of such Lender’s actual means of funding, be deemed to have funded each Loan in accordance with the Interest Option selected from time to time by the applicable Borrower for such Interest Period.
Section 4. CHANGE IN CIRCUMSTANCES
4.1 Increased Cost and Reduced Return; Change in Law.
(a) Subject to Section 4.1(b) hereof, if any Lender or Letter of Credit Issuer determines that as a result of the (i) introduction of after the date hereof, or if later, with respect to any Lender or Letter of Credit Issuer, after the date such Person became a Lender or Letter of Credit Issuer hereunder, or any change in, or in the interpretation by any Governmental Authority of, any Law or (ii) the compliance, application or implementation by such Lender or Letter of Credit Issuer (or its Applicable Lending
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Office) of the foregoing clause (i), there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Loans or (as the case may be) issuing or participating in Letters of Credit by virtue of the participation arrangement provided in Section 2.8(f) hereof, or a reduction in the amount received or receivable by such Lender or Letter of Credit Issuer in connection with any of the foregoing (excluding for purposes of this Section 4.1(a) any such increased costs or reduction in amount resulting from (i) Excluded Taxes, Non-Excluded Taxes or Other Taxes covered by Section 4.7 hereof, (ii) changes in the basis of taxation of net income or gross income by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender or Letter of Credit Issuer is organized or has its Applicable Lending Office or has a present or former connection, and (iii) reserve requirements utilized in the determination of Adjusted LIBOR, then from time to time upon demand of such Lender or Letter of Credit Issuer (with a copy of such demand to the Administrative Agent), the applicable Borrowers shall pay to such Lender or Letter of Credit Issuer such additional amounts (subject to Section 4.8 hereof and without duplication of amounts paid or payable under this Section 4.1(a) or Section 4.7 hereof) as will compensate such Lender or Letter of Credit Issuer for such increased cost or reduction by the Required Payment Time (provided that such amounts shall be consistent with amounts that such Lender or Letter of Credit Issuer, as applicable, is generally charging other borrowers similarly situated to the Borrowers; it being understood that the amount of such increased cost or reduced return between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
(b) Change in Law: Reduced Return. Subject to this Section 4.1(b), if any Lender or Letter of Credit Issuer determines that (i) the introduction after the date hereof, or if later, with respect to any Lender or Letter of Credit Issuer, after the date such Person became a Lender or Letter of Credit Issuer hereunder, of any Law regarding capital adequacy or liquidity requirements or any change therein, or in the interpretation by any Governmental Authority thereof, or (ii) the compliance, application or implementation by such Lender or Letter of Credit Issuer (or its Applicable Lending Office) with the foregoing clause (i), has the effect of reducing the rate of return on the capital of such Lender or Letter of Credit Issuer or any entity controlling such Lender or Letter of Credit Issuer as a consequence of such Lender’s or Letter of Credit Issuer’s obligations hereunder (taking into consideration its policies with respect to capital adequacy or liquidity requirements and such Lender’s, Letter of Credit Issuer’s or entity’s desired return on capital), then from time to time upon demand of such Lender or Letter of Credit Issuer (with a copy of such demand to the Administrative Agent), the applicable Borrowers shall (subject to Section 4.8 hereof) pay to such Lender or Letter of Credit Issuer such additional amounts as will compensate such Lender or Letter of Credit Issuer for such reduction by the Required Payment Time (provided that such amounts shall be consistent with amounts that such Lender or Letter of Credit Issuer, as applicable, is generally charging other borrowers similarly situated to the Borrowers; it being understood that the amount of such increased cost or reduced return between similarly
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situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
(c) Notice. The applicable Borrowers shall not be required to compensate the applicable Lender or Letter of Credit Issuer pursuant to this Section 4.1 for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date such Lender or Letter of Credit Issuer notifies the applicable Borrowers of such Lender’s intention to claim compensation pursuant to this Section 4.1; provided, that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such one hundred eighty (180) day period referenced above shall be extended to include the period of retroactive effect. Each Lender and Letter of Credit Issuer agrees to designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the good faith judgment of such Lender or Letter of Credit Issuer, be otherwise disadvantageous to it.
4.2 Limitation on Types of Loans. If the Administrative Agent reasonably determines in connection with any request for a LIBOR Loan or Conversion to or Continuation thereof that: (a) deposits in the applicable currency are not being offered to banks in the applicable offshore market for the applicable amount and Interest Period of such LIBOR Loan; (b) adequate and reasonable means do not exist for determining LIBOR for such LIBOR Loan; or (c) LIBOR for such LIBOR Loan does not adequately and fairly reflect the cost to the Lenders of funding such LIBOR Loan, the Administrative Agent will promptly notify the Borrowers and all Lenders. Thereafter, the obligation of the Lenders to make or maintain LIBOR Loans in the applicable currency shall be suspended until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrowers may revoke any pending Request for Borrowing, Conversion or Continuation of such LIBOR Loans or, failing that, with respect to a Loan in US Dollars, will be deemed to have Converted such Request for Borrowing of LIBOR Loans into a Request for Borrowing for Reference Rate Loans and, with respect to a Loan in Alternate Currency, will be deemed to have Converted such Request for Borrowing of LIBOR Loans into a Request for Borrowing for such Loans based on the Cost of Funds Rate for the applicable Alternate Currency, if available.
4.3 Illegality.
(a) If any Lender reasonably determines that any Law adopted after the date hereof or if later, with respect to any Lender, after the date such Lender became a Lender hereunder, has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make, maintain or fund LIBOR Loans in any applicable currency (including, for the avoidance of doubt, any Non-LIBOR Quoted Currency) or to determine or charge interest rates based upon the applicable LIBOR, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make or Continue such Loans or to Convert to such Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon the prepayment of any such Loans, the applicable Borrower shall also
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pay interest on the amount so prepaid. Each Lender agrees to designate a different Applicable Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender or result in increased taxes to any Borrower.
(b) In the event that the Initial Borrower, Lender or Agent obtains actual knowledge that the Initial Borrower “directly or indirectly, or acting through or in concert with one or more persons, owns, controls, or has the power to vote more than ten percent (10%) of any class of voting securities” (within the meaning of 12 U.S.C. § 375b(9)(F) and Regulation O of the Board of Governors of the Federal Reserve System) of any Lender, of a Bank Holding Company of which any Lender is a subsidiary, or of any subsidiary of a Bank Holding Company of which any Lender is a subsidiary, and such circumstance causes the applicable Lender to be in violation of Regulation O, the Initial Borrower, the Administrative Agent and such Lender shall cooperate in good faith to find a solution or remedy that would permit the applicable Lender to be in compliance with Regulation O, including if necessary such Lender assigning its Lender Commitment to a new Lender in accordance with Section 12.11(c) hereof (provided that such Lender shall not be required to accept less than the full amount of the Obligations due and owing to such Lender on the date of such assignment). In the event that after thirty (30) days the Initial Borrower, the Administrative Agent and the applicable Lender have not satisfactorily remedied such circumstance and caused such Lender to be in compliance with Regulation O or such Lender has not been able to assign its Lender Commitment in accordance with Section 12.11(c) hereof, then the applicable Borrowers shall repay all Obligations due and owing to such Lender within fifteen (15) Business Days and, upon receipt of such payment, the applicable Lender will resign from the Credit Facility and its Lender Commitment shall be extinguished in all respects.
4.4 Unavailability of Alternate Currency. If before the LIBOR Cutoff a Lender notifies the Administrative Agent that any Alternate Currency requested is not readily available to it in the amount required, then the Administrative Agent will give notice to the relevant Borrower to that effect by the LIBOR Cutoff. In this event, any Lender that gives notice pursuant to this Section 4.4 will be required to participate in the Loan in US Dollars (in an amount equal to such Lender’s pro rata share of such Loan or, in respect of a Rollover, an amount equal to such Lender’s pro rata share of the Rollover that is due to be made) and its participation will be treated as a separate Loan denominated in US Dollars during that Interest Period.
4.5 Treatment of Affected Loans. If the obligation of any Lender to make or to Continue a LIBOR Loan, or to Convert Loans into such Type of Loan, shall be suspended pursuant to Section 4.2 or 4.3 hereof, such Lender’s applicable LIBOR Loans shall be automatically Converted (and re-denominated into US Dollars, if applicable) into Reference Rate Loans on the last day(s) of the then current Interest Period(s) for such Loans (or, in the case of a Conversion required by Section 4.3 hereof or this Section 4.5, on such earlier date as such Lender may specify to the Borrowers with a copy to the Administrative Agent) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 4.2 or Section 4.3 hereof that gave rise to such Conversion no longer exist:
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(a) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Loans shall be applied instead to its Converted Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans shall be made instead as Reference Rate Loans, and all Loans of such Lender that would otherwise be Converted into LIBOR Loans shall remain as Reference Rate Loans.
If such Lender gives notice to the Borrowers (with a copy to the Administrative Agent) that the circumstances specified in Section 4.2 or Section 4.3 hereof that gave rise to the Conversion of such Lender’s Loans pursuant to this Section 4.5 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, such Lender’s Reference Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts and Interest Periods) in accordance with their respective Lender Commitments.
4.6 Compensation. Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such Lender for any cost or expense actually incurred by it (other than loss of margin or spread) as a result of:
(a) any Conversion, payment or prepayment by such Borrower of any LIBOR Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); provided that no Borrower shall be required to pay any of the foregoing amounts to the Lenders due to a prepayment pursuant to clause (b) of Section 2.5 hereof as a result of a Lender failing to make its share of any requested Borrowing; or
(b) any failure by such Borrower (for a reason other than the failure of such Lender to make a Loan, and including, without limitation, the failure of any condition precedent specified in Section 6 hereof to be satisfied) to prepay, borrow, or Continue or Convert any LIBOR Loan or Reference Rate Loan on the date or in the amount notified by the Borrowers including any loss or expense (other than loss of margin or spread) arising from the liquidation of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
The applicable Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
4.7 Taxes.
(a) Payments Free of Taxes. Any and all payments by any Borrower to or for the account of a Tax Indemnified Party under any Loan Document shall be made free
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and clear of and without deduction for any and all present or future Taxes with respect thereto, unless required by Law. If any Borrower or the Administrative Agent shall be required by any Laws to deduct or withhold any Taxes from or in respect of any sum payable under any Loan Document to or for the account of a Tax Indemnified Party: (i) in the event that the applicable Borrower is required to deduct or withhold Non-Excluded Taxes, the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.7), such Tax Indemnified Party receives an amount equal to the sum it would have received had no such deductions of Non-Excluded Taxes been made, (ii) the applicable Borrowers or the Administrative Agent shall make such deductions of Taxes, and (iii) the applicable Borrowers or the Administrative Agent shall pay the full amount deducted to the Governmental Authority in accordance with applicable Laws.
(b) Notice of Non-Excluded Taxes. The Borrowers shall promptly, upon becoming aware that a Borrower must deduct or withhold any non-United States federal Tax on a payment under a Loan Document (or that there is any change in the rate or the basis of a non-United States federal Tax required to be deducted or withheld), notify the Administrative Agent accordingly. Similarly, any other Tax Indemnified Party shall notify the Administrative Agent on becoming so aware in respect of a payment payable to such Tax Indemnified Party. If the Administrative Agent receives such notification from a Tax Indemnified Party it shall notify the Borrowers.
(c) Other Taxes. In addition, each Borrower agrees to pay any and all present and future stamp duty, stamp duty reserve tax, stamp duty land tax, court or documentary taxes and any other similar excise or property taxes or charges or levies or penalties that arise from any payment made by it under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document to which it is a party other than any “prohibited transaction” excise tax arising from any Lender’s violation of applicable law and/or use of Plan Assets to fund any portion of any Loan under any Loan Document (hereinafter referred to as “Other Taxes”); provided that the Borrowers shall not be responsible hereunder to pay any such Other Taxes imposed on any assignment (except to the extent requested by a Borrower pursuant to Section 4.10 hereof) or participation.
(d) Indemnification. (1) Each Borrower agrees to indemnify each Tax Indemnified Party for (A) the full amount of Non-Excluded Taxes and Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 4.7) paid by such Tax Indemnified Party, and (B) any liability (including penalties, interest or reasonable expenses, including reasonable legal expenses incurred in the enforcement of this Credit Agreement against the Administrative Agent or the Borrowers, but excluding any penalties, interest or expenses attributable to the gross negligence or willful misconduct of any Tax Indemnified Party or any of their affiliates) arising therefrom or with respect thereto, in each case whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Payment under this
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Section 4.7(d) shall be made by the Required Payment Time. Nothing in this Section 4.7(d) shall require the Borrowers to indemnify the Tax Indemnified Parties to the extent that the Non-Excluded Taxes, Other Taxes or liabilities are or will be compensated for under Section 4.7(a) hereof. A certificate as to the amount of such payment or liability delivered to a Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(i) Each Tax Indemnified Party (other than the Administrative Agent) shall indemnify the applicable Borrower and the Administrative Agent against any Excluded Taxes and any and all related losses, claims, liabilities, penalties, interest and reasonable expenses (including the fees, charges and disbursements of any counsel for such Borrower or the Administrative Agent, as applicable) incurred by or asserted against such Borrower or the Administrative Agent, as applicable, by the relevant Governmental Authority for not properly withholding such Excluded Taxes, except to the extent that any such amount or payment (A) results from the gross negligence or willful misconduct of such Borrower or the Administrative Agent, as applicable, (B) with respect to penalties or interest, results from such Borrower’s or the Administrative Agent’s failure to promptly notify the applicable Tax Indemnified Party under Section 4.7(b) hereof, or (C) represents an amount required to be deducted or withheld from additional amounts payable for Non-Excluded Taxes under Section 4.7(a) hereof. The agreements in this Section 4.7(d) hereof shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, any other Tax Indemnified Party, and the repayment, satisfaction or discharge of all other Obligations.
(e) Prescribed Forms.
(i) Each Tax Indemnified Party, on or prior to the date on which such Person becomes a Tax Indemnified Party hereunder (and from time to time thereafter upon the request of a Borrower or the Administrative Agent, but only to the extent that such Person is legally entitled to do so), shall deliver to the Borrowers and the Administrative Agent two duly completed copies of (A) a properly completed and valid Internal Revenue Service Form W-9 or applicable successor form, (B) a properly completed and valid Internal Revenue Service Form W-8BEN or W-8BEN-E, or applicable successor form, (I) claiming eligibility of such Tax Indemnified Party for a complete exemption from U.S. federal withholding Tax pursuant to the benefits of an income tax treaty to which the United States is a party, or (II) accompanied by a certificate for the “portfolio interest” rule of Section 881(c) of the Internal Revenue Code, in a form reasonably satisfactory to the Borrowers and the Administrative Agent, stating that such Tax Indemnified Party is not (x) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (y) a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue
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Code or (z) a controlled foreign corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Internal Revenue Code, (C) a properly completed and valid Internal Revenue Service Form W-8ECI, or an applicable successor form, (D) to the extent such Tax Indemnified Party is not the beneficial owner, a properly completed and valid Internal Revenue Service Form W-8IMY, or any applicable successor form, together with all required attachments, evidencing a complete exemption from U.S. federal withholding Tax, or (E) such other documentary evidence satisfactory to the Borrowers and the Administrative Agent establishing that such Tax Indemnified Party is entitled to a complete exemption from U.S. federal withholding Tax.
(ii) Any Tax Indemnified Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the applicable Borrower and the Administrative Agent, at the time or times reasonably requested by such Borrower or the Administrative Agent, such properly completed and duly executed documentation reasonably requested by such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Tax Indemnified Party, if reasonably requested by any Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Tax Indemnified Party 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 clause (e)(i) above or clause (e)(iii) below) shall not be required if in such Tax Indemnified Party’s reasonable judgment such completion, execution or submission would subject such Tax Indemnified Party to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Tax Indemnified Party.
(iii) If a payment made to a Tax Indemnified Party under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Tax Indemnified Party fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), (A) such Tax Indemnified Party shall deliver to the Borrowers and the Administrative Agent a certification signed by the chief financial officer, principal accounting officer, treasurer or controller, and (B) such Tax Indemnified Party shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such other documentation reasonably requested by the Borrowers and the Administrative Agent sufficient
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for the Borrowers and the Administrative Agent to comply with their obligations thereunder and to determine that such Tax Indemnified Party has complied with such applicable reporting requirements or to determine the amount to deduct and withhold from such payment. Solely for purposes of this subparagraph (iii), “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
If such Person fails to deliver the above forms, or other documentation, that otherwise would have entitled such Person to a complete exemption from U.S. federal withholding tax on payments of interest, then the Borrowers and the Administrative Agent may withhold from any interest payment to such Person an amount equivalent to the applicable withholding tax imposed by the Internal Revenue Code, without reduction. Each Tax Indemnified Party agrees that if any form or certification it previously delivered expires or become obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(f) Selection of Lending Office. If any Borrower is or is likely to be required to pay additional amounts to or for the account of any Tax Indemnified Party pursuant to this Section 4.7, then such Tax Indemnified Party will agree to use reasonable efforts to change the jurisdiction of its Applicable Lending Office, if applicable, so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the good faith judgment of such Tax Indemnified Party, is not otherwise materially disadvantageous to such Tax Indemnified Party.
(g) Evidence of Payment. Within thirty (30) days after the date of any payment of Taxes under a Loan Document by any Borrower, such Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(h) Tax Refunds and Credits. Each Tax Indemnified Party agrees that if such Person determines in its sole discretion exercised in good faith that it subsequently recovers or receives a Tax Credit attributable to a Tax Payment (including the payment of additional amounts by any Borrower pursuant to this Section 4.7), such Person shall promptly pay such Borrower such Tax Credit (but only to the extent of the Tax Payments made with respect to the Taxes giving rise to such Tax Credit), net of all out-of-pocket expenses (including Taxes) of such Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such Tax Credit); provided that if, due to subsequent adjustment of such Tax Credit, such Person is required to repay such amount to the relevant Governmental Authorities, such Borrower agrees to repay such Person, as the case may be, the amount required to be repaid, plus any interest imposed by the Governmental Authority in respect thereof.
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4.8 Requests for Compensation.
(a) Certificate. If requested by the Borrowers in connection with any demand for payment pursuant to Section 4.1, 4.6 or 4.7 hereof, a Lender shall provide to the Borrowers with a copy to the Administrative Agent, a certificate setting forth in reasonable detail the basis for such demand, the amount required to be paid by the Borrowers to such Lender and satisfaction of the condition set forth in subsection (b) below, provided however, that such details do not extend to information and detail that a Lender is not legally permitted to disclose, is confidential or price-sensitive in relation to listed shares or other instruments issued by such Lender or any of its Affiliates. Such certificate shall, in the absence of manifest error, be conclusive and binding.
(b) No Duplication. Any amount payable by the Borrowers on account of Section 4.1, 4.6, or 4.7 hereof shall not be duplicative of: (i) any amount paid under any other such sections, or (ii) any amounts included in the calculation of the LIBOR or the Reference Rate.
(c) Refund. Any amount determined to be paid by any Borrower in error pursuant to Section 4.1, 4.6, or 4.7 hereof shall be, if no Event of Default or Potential Default has occurred and is continuing, promptly refunded to such Borrower, or applied to amounts owing by such Borrower hereunder, as such Borrower may elect.
4.9 Survival. Without prejudice to the survival of any other agreement of the Borrowers hereunder, all of the Borrowers’ obligations under this Section 4 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Lender Commitments or the termination of this Credit Agreement or any provision hereof. Each Lender shall notify the Borrowers of any event occurring after the termination of this Credit Agreement entitling such Lender to compensation under Section 4.1, 4.6 or 4.7 hereof as promptly as practicable, but in any event within one hundred eighty (180) days, after such Lender obtains actual knowledge thereof; if any Lender fails to give such notice within one hundred eighty (180) days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable under Section 4.1, 4.6, or 4.7 hereof, only be entitled to payment for such compensation relating to the period from and after the date one hundred eighty (180) days prior to the date that such Lender does give such notice.
4.10 Replacement of Lenders. If any Lender (a) requests compensation under this Section 4, (b) becomes a Defaulting Lender or (c) does not provide its consent to an amendment, modification or waiver that requires the consent of each Lender or each affected Lender, as applicable, and such amendment, modification or waiver receives the consent of the Required Lenders, then, if there is no Event of Default, the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.11 hereof), all of its interests, rights and obligations under this Credit Agreement and the related Loan Documents to an Eligible Assignee who agrees to assume such obligations; provided that:
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(a) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under this Section 4) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);
(b) in the case of any such assignment resulting from a claim for compensation under this Section 4, such assignment will result in a reduction in such compensation or payments thereafter;
(c) such assignment does not conflict with applicable Law; and
(d) 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 Borrowers to require such assignment and delegation cease to apply.
4.11 Euro Event. In the event that the Euro is no longer used as the common currency of the European Union (such event, a “Euro Event”), each Borrower shall, in its sole discretion, either: (a) repay all Euro denominated Loans made to it (and Cash Collateralize all Euro denominated Letters of Credit issued for its account) in US Dollars or an Alternate Currency other than Euro (in either case based on the applicable Spot Rate on the date of such repayment) and/or (b) convert such Loans to (or replace such Letters of Credit with those denominated in) US Dollars or an Alternate Currency other than Euro, in each case within thirty (30) days of such Euro Event.
4.12 LIBOR Successor Rate. (%3)  Notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrowers) that the Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because LIBOR is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the administrator of LIBOR or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as
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applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, (x) the Administrative Agent shall notify the Borrowers and the Lenders and (y) the Administrative Agent and the Initial Borrower may amend this Credit Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark, if any, incorporated therein), giving due consideration to any evolving or then existing convention for similar syndicated credit facilities denominated in US Dollars for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Initial Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
(b) If no LIBOR Successor Rate has been determined and the circumstances under Section 4.12(a)(i) exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent shall promptly so notify the Borrowers and the Lenders. Thereafter, (i) the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended (to the extent of the affected LIBOR Loans or Interest Periods) and (ii) the Adjusted LIBOR component shall no longer be utilized in determining the Reference Rate. Upon receipt of such notice, the Borrowers may revoke any pending Request for Borrowing of, or Rollover Notice or Conversion Notice for the conversion to or Continuation of, LIBOR Loans (to the extent of the affected LIBOR Loans or Interest Periods) or, failing that, the applicable Borrower(s) will be deemed to have converted each such LIBOR Loan to a Reference Rate Loan pursuant to Section 2.3(f) (subject to the foregoing clause (ii)).
Notwithstanding any other provision of this Credit Agreement, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero (0) for purposes of this Credit Agreement.
Section 5. SECURITY
5.1 Liens and Security Interest.
(a) Commitment and Demand Notices. Subject to the terms of its Borrower Security Agreement, the Initial Borrower will grant, by way of pledge and assignment by way of security to the Administrative Agent for the benefit of the Secured Parties, a security interest and Lien in and to all of the collateral described therein, whether now owned or hereafter acquired or arising, including (i) its right under its Constituent Documents, any applicable Side Letters and Subscription Agreements to issue Demand Notices and receive Contributions with respect to the Unused Commitment of its Investors, (ii) its rights under its Constituent Documents, any applicable Side Letters and
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Subscription Agreements to enforce payment of Contributions with respect to the Unused Commitments of its Investors, duly called in accordance with the terms of its Constituent Documents, any applicable Side Letters and Subscription Agreements and (iii) all of its other remedies, to the extent related to the foregoing, in each case, for purposes of repaying its Obligations.
(b) Collateral Accounts. Subject to the terms of the applicable Collateral Documents, as additional collateral, the Initial Borrower shall pledge and assign to the Administrative Agent, for the benefit of the Secured Parties, a security interest and Lien in and on its right, title and interest in and to all amounts held in or credited to the applicable Collateral Account constituting Contributions to the Initial Borrower to secure its Obligations.
(c) Reliance. The Initial Borrower agrees that the Administrative Agent and each Lender has entered into this Credit Agreement, extended credit hereunder and at the time of each Loan or each issuance of a Letter of Credit, will make such Loan or issue such Letter of Credit in reasonable reliance on the obligations of the Investors to fund their respective Unused Commitments as shown in their Subscription Agreements delivered in connection herewith and in accordance with the Initial Borrower’s Constituent Documents and accordingly during the continuance of an Event of Default, subject to the limitations in Section 10.2 hereof, such Unused Commitments may be enforced in the name of the Initial Borrower by the Administrative Agent, on behalf of the Secured Parties, pursuant to the terms of the Loan Documents, directly against the Investors without further action by the Initial Borrower and notwithstanding any compromise of any such Unused Commitment by the Initial Borrower as provided in 6 Del. C. §17-502(b)(1); provided that in no event shall any Investor be required to fund Contributions to any Person other than the Initial Borrower (it being understood that each Investor shall be required to fund Contributions to an account in the name of the Initial Borrower).
The collateral security set forth in subsections (a) and (b) of this Section 5.1 shall be collectively referred to herein as the “Collateral”. The security agreements, assignments, collateral assignments and any other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant a security interest in the Collateral, including, without limitation, the Borrower Security Agreement, the Collateral Account Pledges and any documents or instruments amending or supplementing the same, shall be collectively referred to herein as the “Collateral Documents.”
5.2 The Collateral Accounts; Investor Demand Notices.
(a) The Collateral Accounts. The Initial Borrower shall establish an account at the Depository, which account shall be established prior to the Closing Date, and such account (and any replacement thereof in the name of the Initial Borrower) shall be subject to a Collateral Account Pledge and a Deposit Account Control Agreement and specified on Schedule I hereto, as amended, restated, modified or supplemented from time to time (each a “Collateral Account” and, collectively, the “Collateral Accounts”). The Initial
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Borrower shall direct all Contributions received by it into the applicable Collateral Account.
(b) [Reserved].
(c) Use of and Location of the Collateral Accounts. The Initial Borrower may withdraw funds from a Collateral Account only in compliance with Section 9.12 hereof. If the Depository with respect to a Collateral Account ceases to be an Eligible Institution, the Initial Borrower shall have thirty (30) days following notice from the Administrative Agent (or by such later date that is reasonably acceptable to the Administrative Agent) to move such Collateral Account to a replacement Depository that is an Eligible Institution. If a Depository for a Collateral Account terminates the Deposit Account Control Agreement, the Initial Borrower shall open a new collateral account that is subject to a new Deposit Account Control Agreement (or, if the Depository is the Administrative Agent, an acknowledgment from the Depository) with a replacement Depository within thirty (30) days of such termination (or by such later date that is reasonably acceptable to the Administrative Agent).
(d) Investor Demand Notices. The Initial Borrower irrevocably appoints the Administrative Agent in the name of the Initial Borrower, upon the occurrence and during the continuation of an Event of Default (but subject to the final paragraph of Section 10.2 hereof), to make all Demand Notices. During the continuation of an Event of Default, except as otherwise provided in the final paragraph of Section 10.2 hereof, any Investor Demand Notice not issued by the Administrative Agent or at the direction of the Administrative Agent shall be void. The Initial Borrower shall promptly deliver to the Administrative Agent any notice to its Investors to amend, delay or rescind any Demand Notice at any time prior to the payment due date thereof.
(e) No Liability of Administrative Agent or Lenders. Notwithstanding anything to the contrary herein contained, it is expressly understood and agreed that neither the Administrative Agent nor the Lenders undertake any duties, responsibilities, or liabilities with respect to the Demand Notices issued by the Initial Borrower. Neither the Administrative Agent nor the Lenders shall be required to refer to the Constituent Documents of the Initial Borrower, the Collateral Account Pledges, the Subscription Agreements, or take any other action with respect to any other matter that might arise in connection with the foregoing. Neither the Administrative Agent nor the Lenders have any duty to determine or inquire into any happening or occurrence or any performance or failure of performance of the Initial Borrower or any of the Investors. Neither the Administrative Agent nor any Lender has any duty to inquire into the use, purpose, or reasons for the making of any Demand Notice or the investment or use of the proceeds thereof.
(f) Investor Demand Notices; Investor Demand Notices by Administrative Agent. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent shall have the right, at any time during the continuation of such Event of Default, to direct the Initial Borrower to withdraw funds
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credited to or held from a Collateral Account, for the purpose of paying amounts not paid when due hereunder or under any other Loan Document (after the passage of any applicable grace period); provided that promptly after any disbursement of funds from any such account to the Lenders, as contemplated in this Section 5.2(f), the Administrative Agent shall deliver a written notice of such disbursement to the Initial Borrower. Subject to the final paragraph of Section 10.2 hereof, the Administrative Agent, on behalf of the Lenders, is hereby authorized, in the name of the Initial Borrower, at any time or from time to time during the existence of an Event of Default, to issue one or more Demand Notices in order to pay the Obligations of the Initial Borrower. With or without such general notification, when an Event of Default exists, the Administrative Agent, on behalf of the Lenders may, subject to Section 10.2 hereof: (i) initiate one or more Demand Notices to the Investors of the Initial Borrower in order to pay the Loans or the Letter of Credit Liability then due and owing by the Initial Borrower, or both; (ii) take or bring in the Initial Borrower’s name, all steps, actions, suits, or proceedings deemed by the Administrative Agent necessary or desirable to effect possession or collection of payments of the capital contributions with respect to the Unused Commitments which are called to repay the Obligations of the Initial Borrower; (iii) complete any contract or agreement of the Initial Borrower to enforce payment to the Initial Borrower with respect to the Unused Commitments pursuant to Demand Notices duly delivered in accordance with the applicable Constituent Documents, any applicable Side Letters and Subscription Agreements to repay the Obligations of the Initial Borrower; (iv) compromise any claims related to the payment of Contributions with respect to the Unused Commitments which are called to repay the Obligations; or (v) exercise any other right, privilege, power, or remedy provided to the Initial Borrower under and in accordance with its Constituent Documents, any Side Letters and Subscription Agreements, as applicable, with respect to the payment of Contributions with respect to the Unused Commitments which are called to repay the Obligations of the Initial Borrower. The Administrative Agent, on behalf of the Lenders, shall be granted an irrevocable power of attorney by the Initial Borrower to carry out the aforementioned acts and to exercise the aforementioned powers during the continuance of an Event of Default (subject to the final paragraph of Section 10.2 hereof). Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Administrative Agent or the Lenders, neither the Administrative Agent nor the Lenders shall be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Demand Notices or the Unused Commitments or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interests and Liens relating to the Collateral, subject to the Internal Revenue Code. The Administrative Agent shall give the Initial Borrower notice of actions taken pursuant to this Section 5.2(f) concurrently with, or promptly after, the taking of such action, but its failure to give such notice shall not affect the validity of such action, nor shall such failure give rise to defenses to the Initial Borrower’s obligations hereunder.
(g) Additional Action by the Administrative Agent. During the existence of an Event of Default, issuance by the Administrative Agent on behalf of the Lenders of
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a receipt to any Person obligated to pay any Contribution for the purposes of repaying the Obligations shall be a full and complete release, discharge, and acquittance to such Person to the extent of any amount so paid to a Collateral Account for the direct or indirect, by way of collateral assignment, benefit of the applicable Secured Parties. In furtherance of the foregoing, the Administrative Agent, on behalf of the Lenders, is hereby authorized and empowered, during the existence of an Event of Default, on behalf of the Initial Borrower, to endorse the name of the Initial Borrower upon any check, draft, instrument, receipt, instruction, or other document or items, including, but not limited to, all items evidencing payment upon a Contribution of any Person to the Initial Borrower coming into the Administrative Agent’s possession, and to receive and apply the proceeds therefrom in accordance with the terms hereof. The Administrative Agent, on behalf of the Lenders, is hereby granted an irrevocable power of attorney, which is coupled with an interest and given by way of security to secure the performance of the Obligations, to execute all checks, drafts, receipts, instruments, instructions, or other documents, agreements, or items on behalf of the Initial Borrower either before or after demand of payment of the Obligations but only during the existence of an Event of Default (and subject to Section 10.2 hereof), as shall be deemed by the Administrative Agent to be necessary or advisable, in the sole discretion, reasonably exercised, of the Administrative Agent, to protect the security interests and Liens in (and priority thereof) the Commitments for the repayment of the Obligations secured thereby, and neither the Administrative Agent nor the Lenders, in the absence of gross negligence and willful misconduct, shall incur any liability in connection with or arising from its exercise of such power of attorney. Notwithstanding anything to the contrary herein or in any other Loan Document, in no event shall the Administrative Agent (or any Lender) be permitted to require any Investor to fund its Contributions other than to an account in the name of the Initial Borrower.
The application by the Lenders of such funds shall, unless the Administrative Agent shall agree otherwise in writing, be the same as set forth in Section 3.4 hereof. The Initial Borrower acknowledges that all funds so transferred for its benefit into the applicable Collateral Account shall be the property of the Initial Borrower subject to the security interest of the Administrative Agent therein for the Obligations secured thereby.
(h) No Representations. Neither the Administrative Agent nor the Lenders shall be deemed to make at any time any representation or warranty as to the validity of any Demand Notice nor shall the Administrative Agent or the Lenders be accountable for the Initial Borrower’s use of the proceeds of any Contribution.
5.3 Lender Offset. In addition to the rights granted to the Administrative Agent and the Lenders under Section 5.2 hereof, each Borrower hereby grants to each Lender a right of offset, to secure repayment of the Obligations of such Borrower when due to the Secured Parties (after the passage of any applicable grace period), upon any and all monies, securities, or other property of such Borrower and the proceeds therefrom, now or hereafter held or received by or in transit to the Lenders, from or for the account of such Borrower, whether for safekeeping, custody, pledge, transmission, collection, or otherwise, and also upon any and all deposits
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(general or specified) and credits of such Borrower and any and all claims of such Borrower, against the Lenders at any time existing. The Lenders are hereby authorized at any time and from time to time during the existence of an Event of Default, without notice to the applicable Borrower, to offset, appropriate, apply, and enforce such right of offset against any and all items referred to above against the Obligations of such Borrower. Each Borrower shall be deemed directly indebted to the Lenders in the full amount of its Obligations, and the Lenders shall be entitled to exercise the rights of offset provided for above. The rights of the Lenders under this Section 5.3 are subject to Section 12.2 hereof. The Administrative Agent, and the Lenders, as applicable, shall give the Borrowers prompt notice of any action taken pursuant to this Section 5.3, but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of the Borrowers with respect to such action.
5.4 Agreement to Deliver Additional Collateral Documents. The Initial Borrower shall deliver such security agreements, financing statements, financing change statements, assignments, notices and other acknowledgments and other collateral documents (all of which security agreements shall be deemed part of the Collateral Documents), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent acting on behalf of the Lenders may reasonably request from time to time for the purpose of granting to, or maintaining or perfecting in favor of the Lenders, security interests in the Collateral with respect to which the Initial Borrower is granting a security interest to the Administrative Agent, together with other assurances of the enforceability of the Lenders’ Liens and assurances of due recording and documentation of the Collateral Documents or copies thereof, as the Administrative Agent may reasonably require to avoid material impairment of the Liens and security interests (or the priority thereof) granted or purported to be granted pursuant to this Section 5.
5.5 Subordination. During the occurrence and continuation of an Event of Default, if there are any Obligations outstanding under the Credit Facility, the Initial Borrower shall not make any payments or advances of any kind, directly or indirectly, on any debts and liabilities to any Investor whether now existing or hereafter arising and whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the “Other Claims”), unless such payments or advances are first applied, directly or indirectly, to such Obligations. All Other Claims, together with all liens, security interests, and all other encumbrances or charges on assets securing the payment of all or any portion of the Other Claims shall at all times during the continuance of an Event of Default, if there are any Obligations outstanding under the Credit Facility, be subordinated to and inferior in right and in payment to the Obligations and all liens, security interest, and all other encumbrances or charges on assets securing all or any portion of the Obligations, and the Borrowers agree to take any actions reasonably requested by the Administrative Agent as are necessary to provide for such subordination between it and any other Borrower, inter se, including but not limited to including provisions for such subordination in the documents evidencing the Other Claims. Notwithstanding the foregoing, there shall be no other restriction or limitation on the right of the Investment Advisor or Administrator (or Affiliate of any thereof) to receive management or other fees (including incentive management fees) or expenses payable to the Investment Advisor or Administrator (or such Affiliate) under or pursuant to the Investment Advisory Agreement and Administration Agreement except as set forth in Section 9.10 hereof.
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Section 6. CONDITIONS PRECEDENT TO LENDING.
6.1 Obligations of the Lenders. The obligation of the Lenders to enter into this Credit Agreement shall not become effective until the date on which (i) the Administrative Agent shall have received each of the following documents and (ii) each of the other conditions listed below is satisfied or waived:
(a) Credit Agreement. This Credit Agreement, duly executed and delivered by the Initial Borrower;
(b) Security Agreement. The Borrower Security Agreement, duly executed and delivered by the Initial Borrower;
(c) Collateral Account.
(i) The Collateral Account Pledge, duly executed and delivered by the Initial Borrower; and
(ii) The Deposit Account Control Agreement, duly executed and delivered by the Initial Borrower and the Depository, in form and substance reasonably acceptable to the Administrative Agent in its reasonable discretion.
(d) Notes. The Notes, duly executed and delivered by the Initial Borrower to each requesting Lender in accordance with Section 3.1 hereof (for the avoidance of doubt, Bank of America has not requested any Note as of the Closing Date);
(e) Financing Statements.
(i) Searches of UCC filings (or their equivalent) in each jurisdiction where a filing would need to be made in order to perfect the Secured Parties’ first priority security interest (subject to any Permitted Liens) in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens (other than Permitted Liens) exist on the Collateral, or, if necessary, copies of proper financing statements, if any, filed on or before the date hereof necessary to terminate all security interests and other rights of any Person in any Collateral previously granted; and
(ii) UCC financing statement(s) satisfactory to the Administrative Agent with respect to the Collateral in the Administrative Agent’s sole discretion, to perfect the first priority security interest (subject to any Permitted Liens) of the Administrative Agent (on behalf of the Secured Parties) in the Collateral.
(f) Responsible Officer Certificates. A certificate from a Responsible Officer of the Initial Borrower, substantially in the form of Exhibit M;
(g) The Initial Borrowers’ Constituent Documents. True and complete copies of the Constituent Documents of the Initial Borrower, together with certificates of
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existence and good standing (or other similar instruments) of the Initial Borrower, in each case as in effect on the date hereof (or, in the case of a good standing certificate, dated as of a recent date) and in each case satisfactory to the Administrative Agent in its sole discretion;
(h) Authority Documents. Certified resolutions (or the equivalent in the applicable jurisdiction) on behalf of the Initial Borrower authorizing the entry into the transactions contemplated herein and in the other Loan Documents to which the Initial Borrower is a party;
(i) Incumbency Certificate. A signed certificate of a Responsible Officer of the Initial Borrower who shall certify the names of the Persons authorized, on the date hereof, to sign each of the Loan Documents to which it is a party and the other documents or certificates to be delivered pursuant to the Loan Documents by or on behalf of the Initial Borrower, together with the true signatures of each such Person. The Administrative Agent may conclusively rely on such certificate until it shall receive a further certificate canceling or amending the prior certificate and submitting the signatures of the Persons named in such further certificate;
(j) Opinions. A favorable opinion or opinions of (i) Simpson Thacher & Bartlett LLP, New York counsel to the Initial Borrower and (ii) Richards, Layton & Finger, P.A., Delaware counsel to the Initial Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as of the Closing Date; and
(k) Fees; Costs and Expenses. Payment of all fees and other amounts due and payable on or prior to the date hereof, including pursuant to any applicable Fee Letters, and, to the extent invoiced at least two (2) Business Days prior to the date hereof, reimbursement or payment of all reasonable expenses required to be reimbursed or paid by the Initial Borrower hereunder, including the reasonable fees and disbursements invoiced through the date hereof of the Administrative Agent’s special counsel, Cadwalader, Wickersham & Taft LLP, which may be deducted from the proceeds of such initial Borrowing;
(l) Special HNW Aggregation Investor Letter Agreement and Special Investor Letter Agreement. An executed Special HNW Aggregation Investor Letter Agreement from each Special HNW Aggregation Investor (or its administrator on its behalf), in each case in favor of the Administrative Agent, which addresses certain restrictions including material amendments to any Special HNW Aggregation Investor’s Constituent Documents, in form and substance acceptable to the Administrative Agent in its sole discretion; and
(m) “Know Your Customer” Information and Documents. Such information and documentation as is requested by the Lenders so that the Initial Borrower has become KYC Compliant.
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6.2 Conditions to all Loans and Letters of Credit. The obligation of the Lenders to advance each Borrowing (including, without limitation, the initial Borrowing) or to cause the issuance of Letters of Credit (including, without limitation, the initial Letter of Credit) hereunder is subject to the conditions precedent that:
(a) Representations and Warranties. The representations and warranties (other than those in Section 7.8 hereof, which shall be replaced with the condition in Section 6.2(b) below) set forth herein and in the other Loan Documents are true and correct in all material respects on and as of the date of the advance of such Borrowing or issuance of such Letter of Credit, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to the Lenders and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or other specific date);
(b) No Default. No event shall have occurred and be continuing, or would result from the Borrowing or issuance of such Letter of Credit, which constitutes an Event of Default or a Potential Default under Section 10.1(a), (e), (f), (g), (h), (i), (j), (o) or (p) of this Credit Agreement;
(c) Request for Borrowing. The Administrative Agent shall have received a Request for Borrowing or Request for Letter of Credit; and
(d) Application. In the case of a Letter of Credit, the Letter of Credit Issuer shall have received an Application for Letter of Credit executed by the applicable Borrower.
6.3 Conditions to Qualified Borrower Loans and Letters of Credit. The obligation of the Lenders to advance a Borrowing to a Qualified Borrower, or of the Letter of Credit Issuer to issue a Letter of Credit for the account of a Qualified Borrower, is subject to the conditions that, on or prior to the first such credit extension:
(a) Qualified Borrower Note. The Administrative Agent shall have received a duly executed Qualified Borrower Note, as applicable, complying with the terms and provisions hereof;
(b) Authorizations of Qualified Borrower. The Administrative Agent shall have received from such Qualified Borrower appropriate evidence of the authorization of such Qualified Borrower approving the execution, delivery and performance of the Qualified Borrower Note, duly adopted by such Qualified Borrower, as required by law or agreement, and accompanied by a certificate of an authorized Person of such Qualified Borrower stating that such authorizations are true and correct, have not been altered or repealed and are in full force and effect;
(c) Incumbency Certificate. The Administrative Agent shall have received from such Qualified Borrower a signed certificate of the appropriate Person of such
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Qualified Borrower which shall certify the names of the Persons authorized to sign the Qualified Borrower Note and the other documents or certificates to be delivered pursuant to the terms hereof by such Qualified Borrower, together with the true signatures of each such Person;
(d) Qualified Borrowers’ Constituent Documents. True and complete copies of the Constituent Documents of such Qualified Borrower, together with certificates of existence and good standing (or other similar instruments) of such Qualified Borrower, as in effect on the date such Qualified Borrower joins the Credit Facility and as reasonably satisfactory to the Administrative Agent;
(e) The Borrower Guaranty. The Administrative Agent shall have received from the Initial Borrower a duly executed Borrower Guaranty complying with the terms and provisions hereof;
(f) Opinion of Counsel to Qualified Borrower. The Administrative Agent shall have received a favorable opinion of counsel for such Qualified Borrower, in form and substance reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent for the benefit of the Lenders;
(g) Opinion of Counsel to the Initial Borrower. The Administrative Agent shall have received a favorable opinion of counsel for the Initial Borrower, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and addressed to the Administrative Agent for the benefit of the Lenders, that the subject Borrower Guaranty: (i) has been duly authorized, executed and delivered by the Initial Borrower, and (ii) is a valid and binding obligation and agreement of the Initial Borrower, enforceable in accordance with its terms, except to the extent that it may be limited by bankruptcy, insolvency, moratorium and other laws affecting creditors’ rights generally, and by general equitable principles (whether considered in a proceeding in equity or at law). The Initial Borrower hereby directs such counsel to prepare and deliver such legal opinion to the Administrative Agent for the benefit of the Lenders;
(h) “Know Your Customer” Information and Documents. Unless otherwise consented to in writing by the Administrative Agent on behalf of each Lender, (i) true and complete copies of the articles of incorporation or the certificate of formation and operating agreement of such Qualified Borrower, (ii) the name and address of each Person that has an ownership interest in such Qualified Borrower and the percentage of such Qualified Borrower owned by such Person, (iii) the name of each director of such Qualified Borrower, (iv) to the extent available, the most recent audited financial statements for such Qualified Borrower or the most recent audited annual report of such Qualified Borrower; (v) all other items reasonably required to make such Qualified Borrower KYC Compliant; and (vi) with respect to any Qualified Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Administrative Agent shall have received a Beneficial Ownership Certification in relation to such Qualified Borrower;
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(i) Fees, Costs and Expenses. Payment of all fees and other invoiced amounts due and payable by any Borrower on or prior to the date of such Borrowing or issuance of a Letter of Credit and, to the extent invoiced at least two (2) Business Days prior to the required payment date, reimbursement or payment of all reasonable expenses required to be reimbursed or paid by any Borrower hereunder, including the reasonable fees and disbursements invoiced through the date of such extension of credit of the Administrative Agent’s special counsel, Cadwalader, Wickersham & Taft LLP, which, in each case, may be deducted from the proceeds of such Borrowing; and
(j) Additional Information. The Administrative Agent shall have received such other information and documents as may reasonably be required by the Administrative Agent and its counsel.
Section 7. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to make the Loans and cause the issuance of Letters of Credit hereunder, each Borrower hereby represents and warrants (each as to itself) to the Agents and the Lenders that:
7.1 Organization and Good Standing. Each Borrower is duly formed, validly existing and, except where such failure would not result in a Material Adverse Effect, in good standing under the laws of its jurisdiction of formation, and in each case such Borrower has the requisite power and authority to own its properties and assets and to carry on its business as now conducted, and each Borrower, except where such failure would not result in a Material Adverse Effect, is qualified to do business in every jurisdiction where the nature of the business conducted or the property owned or leased requires such qualification.
7.2 Authorization and Power. Each Borrower has the requisite power and authority to execute, deliver and perform its obligations under this Credit Agreement, the Notes, any applicable Constituent Documents, the Subscription Agreements and each of the other Loan Documents to be executed by it, as the case may be; each Borrower is duly authorized to, and has taken all action necessary to authorize it to, execute, deliver and perform its obligations under this Credit Agreement, the Notes, the applicable Constituent Documents, the Subscription Agreements and each of the other Loan Documents to which it is a party.
7.3 No Conflicts or Consents. None of the execution and delivery of this Credit Agreement or the other Loan Documents to which it is a party, the consummation of any of the transactions herein or therein contemplated, or the compliance with the terms and provisions hereof or with the terms and provisions thereof, will contravene or conflict, in any material respect, with any provision of law, statute or regulation to which each Borrower is subject or any material judgment, license, order or permit applicable to such Borrower or any material indenture, mortgage, deed of trust or other material agreement or instrument to which such Borrower is a party or by which such Borrower may be bound, or to which such Borrower may be subject. No material consent, approval, authorization or order of any court or Governmental Authority or third party is required in connection with the execution and delivery by any Borrower of the Loan Documents to which it is a party or to consummate the transactions
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contemplated hereby or thereby, except (a) the consents, approvals, authorizations, filings and notices that have been obtained or made and are in full force and effect and (b) the filings and regulations referred to in Section 6.1(e) hereof.
7.4 Enforceable Obligations. This Credit Agreement, the Notes and the other Loan Documents to which each Borrower is a party are the legal and binding obligations of such Borrower, enforceable against it in accordance with their respective terms, subject to Debtor Relief Laws and general equitable principles (whether considered a proceeding in equity or at law).
7.5 Priority of Liens. Subject to compliance with Sections 6.1(e)(ii) and 8.12 hereof, Collateral Documents to which it is a party create, as security for the Obligations of the Initial Borrower, valid and enforceable security interests in and Liens on all of the Collateral in which the Initial Borrower has any right, title or interest, in favor of the Administrative Agent for the benefit of the Secured Parties, and such Liens are prior to all other Liens on the Collateral (other than Permitted Liens), except as enforceability may be limited by Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law). Such security interests in and Liens on the Collateral in which the Initial Borrower has any right, title or interest shall (subject to Permitted Liens) be superior to and prior to the rights of all third parties in such Collateral, and, other than in connection with any future change in Law or in the Initial Borrower’s name, identity or structure, or its jurisdiction of organization, as the case may be, no further recordings or filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements, financing change statements or their equivalent in accordance with applicable Law. Each Lien referred to in this Section 7.5 is and shall be the sole and exclusive Lien (other than Permitted Liens) on the Collateral in which the Initial Borrower has any right, title or interest.
7.6 Financial Condition. The Initial Borrower has delivered to the Administrative Agent copies of the financial statements and reports, if any, required to be delivered in Section 8.1 hereof on the Closing Date. The Initial Borrower is Solvent.
7.7 Full Disclosure. There is no fact that such Borrower has not disclosed to the Administrative Agent in writing which could reasonably be expected to have a Material Adverse Effect. No information heretofore furnished by such Borrower, in connection with this Credit Agreement, the other Loan Documents or any transaction contemplated hereby (or, to the extent such information was provided to a Borrower by an Investor, to the knowledge of such Borrower) contains any untrue statement of material fact that could reasonably be expected to result in a Material Adverse Effect.
7.8 No Default. No event has occurred and is continuing which constitutes an Event of Default or a Potential Default.
7.9 No Litigation. As follows: (a) for purposes of this representation and warranty as of the Closing Date, there are no material actions, suits, investigations or legal, equitable, arbitration or administrative proceedings in any court or before any arbitrator or governmental
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authority (“Proceedings”) pending, or to the knowledge of such Borrower threatened, against any Borrower, other than any such Proceeding that is disclosed in writing by such Borrower to the Administrative Agent before the Closing Date, and (b) for purposes of this representation and warranty as of the date of the advance of any Borrowing or the issuance of any Letter of Credit, there are no such Proceedings pending, or to the knowledge of such Borrower threatened, against such Borrower, other than any such Proceeding that would not be reasonably likely to have a Material Adverse Effect.
7.10 Intentionally Omitted.
7.11 Taxes. Except, in each case, as would not (individually or in the aggregate) be reasonably likely to result in a Material Adverse Effect, all Tax returns required to be filed by any Borrower in any jurisdiction have been filed and all Taxes (including mortgage recording Taxes), assessments, fees, and other governmental charges upon such Borrower or upon any of its properties, income or franchises have been paid prior to the time that such Taxes, assessments, fees or charges become delinquent (other than any Tax, assessment, fee or charge which is currently being contested in good faith). To the knowledge of any Borrower, there is no proposed tax assessment against any Borrower or any basis for such assessment that is material and is not being contested in good faith.
7.12 Principal Office; Jurisdiction of Formation. As of the Closing Date, (a) each of the principal office, chief executive office and principal place of business of the Initial Borrower are correctly listed on Schedule I hereto and the Initial Borrower has maintained such principal office, chief executive office and principal place of business at such location(s) since its formation and (b) the jurisdiction of formation of the Initial Borrower is correctly listed on Schedule I hereto, and the Initial Borrower is not organized under the laws of any other jurisdiction.
7.13 ERISA. Assuming that no portion of the assets used by any Lender in connection with the transactions contemplated under the Loan Documents constitutes Plan Assets, the execution, delivery and performance of this Credit Agreement and the other Loan Documents by the Initial Borrower which is a party hereto and thereto, and the borrowing and repayment of amounts under this Credit Agreement by the Initial Borrower, do not and will not constitute a non-exempt “prohibited transaction” under Section 406(a) of ERISA or Section 4975(c)(1)(A) - (D) of the Internal Revenue Code.
7.14 Compliance with Law. Such Borrower is in compliance with all laws, rules, regulations, orders, and decrees which are applicable to it or its properties, except where non-compliance would not be reasonably likely to have a Material Adverse Effect.
7.15 Environmental Matters. There have been no past, and there are no pending or, to the knowledge of such Borrower, threatened, claims, complaints, notices, or governmental inquiries against such Borrower regarding any alleged violation of, or potential liability under, any environmental laws that could reasonably be expected to have a Material Adverse Effect. Such Borrower’s properties are in compliance with all environmental laws and related licenses and permits, except where non-compliance would not be reasonably likely to have a Material
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Adverse Effect. No conditions exist at, on or under any property now owned or leased by such Borrower or existed at, on or under any property previously owned or leased by such Borrower at the last date so owned or leased that, in either case, could give rise to liability under any environmental law that could reasonably be expected to have a Material Adverse Effect.
7.16 Investor Commitments and Contributions. All the Investors in the Initial Borrower on the date hereof are set forth on the Borrowing Base Certificate attached hereto as Exhibit A and incorporated herein by reference (or on a revised subsequent Borrowing Base Certificate delivered to the Administrative Agent in accordance with Section 8.1(h) hereof), and the Commitment of each Investor is set forth on the Borrowing Base Certificate attached hereto as Exhibit A (or on any such revised Borrowing Base Certificate). No Demand Notices have been delivered to any Investors other than any that have been disclosed, or will be disclosed pursuant to Section 8.1(c) hereof, in writing to the Administrative Agent. The applicable Subscription Agreement (and any related Side Letter) and the Initial Borrower’s Constituent Documents set forth each Investor’s entire agreement regarding its Commitment. As of the date hereof, the aggregate amount of the Commitments of the Investors; and the aggregate Unused Commitments that could be subject to a Demand Notice are set forth on the Borrowing Base Certificate attached hereto as Exhibit A. Each Side Letter for the Investors as set forth on the Borrowing Base Certificate attached hereto as Exhibit A (or on any such revised Borrowing Base Certificate) has been provided to the Administrative Agent on or prior to the Closing Date or the date such Investor first becomes a Borrowing Base Investor hereunder.
7.17 Fiscal Year. The fiscal year of the Initial Borrower is the calendar year, or in the case of the first and last fiscal years of the Initial Borrower, the fraction thereof commencing on the effective date or ending on the date on which winding up of the Initial Borrower is completed, as the case may be.
7.18 Margin Stock. Neither the execution and delivery by the Borrowers of the Loan Documents nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof by the Borrowers will or will cause any Lender to violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal Reserve System applicable to Margin Stock or to violate Section 7 of the Securities Exchange Act, in each case as now in effect or as the same may hereafter be in effect.
7.19 Investment Company Act.
(a) The Initial Borrower has elected to be regulated as a “business development company” within the meaning of the Investment Company Act.
(b) The business and other activities of the Initial Borrower, including the making of the Loans and the issuance of the Letters of Credit hereunder to the Initial Borrower, the application of the proceeds and repayment thereof by the Initial Borrower and the consummation of the transactions contemplated by the Loan Documents, do not result in a material violation or breach in any respect of the provisions of the Investment Company Act or any rules, regulations or orders issued by the United States Securities
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and Exchange Commission thereunder, in each case, that are applicable to the Initial Borrower.
7.20 No Defenses. No Responsible Officer of the Initial Borrower has actual knowledge of any default or circumstance which with the passage of time and/or giving of notice would constitute an event of default by the Initial Borrower under its Constituent Documents or any Subscription Agreement which would constitute a defense to the obligations of any Investor to make Contributions to the Initial Borrower in accordance with such Investor’s Subscription Agreement or the Initial Borrower’s Constituent Documents and has no actual knowledge of any claims of offset or any other claims of any Investor against the Initial Borrower which would or could materially and adversely affect the obligations of such Investor to make Contributions and fund Demand Notices in accordance with such Investor’s Subscription Agreement (and any related Side Letters) or the Initial Borrower’s Constituent Documents other than, in each case, that which has been disclosed in writing by the Initial Borrower to the Administrative Agent.
7.21 Organizational Structure. The information contained in Schedule I (as updated by the Borrowers in writing to the Administrative Agent from time to time) is accurate in all material respects.
7.22 Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No Borrower and no Person or Persons owning 50% or more of a Borrower (a) is a Sanctioned Person; (b)  to each Borrower’s knowledge is under investigation for an alleged breach of Sanctions by a governmental authority that enforces Sanctions; or (c) will fund any repayment of the Obligations with proceeds derived from any transaction that would be prohibited by Sanctions or would otherwise cause any Lender or any other party to this Credit Agreement to be in breach of any Sanctions. To each Borrower’s knowledge, no Investor is a Sanctioned Person. To the knowledge of each Borrower, no Investor’s funds used in connection with this transaction are derived from illegal or suspicious activities. Each Borrower has policies and procedures in place that are reasonably designed to comply with all applicable Anti-Money Laundering Laws, Anti-Corruption Laws and Sanctions. No Borrower, to its knowledge, is under investigation for any alleged breach of Anti-Money Laundering Law or Anti-Corruption Law by any Governmental Authority that enforces Anti-Money Laundering Laws or Anti-Corruption Laws. Each Borrower is in compliance in all material respects with all applicable Anti-Money Laundering Laws and all applicable Anti-Corruption Laws.
7.23 [Reserved].
7.24 Investor Commitments. Other than as disclosed in writing to the Administrative Agent, no Investor has (a) been excused from funding any Contribution, (b) requested in writing to be permitted to withdraw from the Initial Borrower, (c) been precluded from participating in any Investment, (d) elected not to participate in any Investment in accordance with the Initial Borrower’s Constituent Documents, or (e) informed the Initial Borrower in writing of its intent to transfer its interest in the Initial Borrower.
7.25 Beneficial Ownership Certification. As of the Closing Date, to the best of the applicable Responsible Officer’s knowledge, the information included in such Borrower’s
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Beneficial Ownership Certification, to the extent such certification is required to have been provided, is complete and correct in all respects.
Section 8. AFFIRMATIVE COVENANTS OF THE BORROWERS
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letters of Credit hereunder, and until the performance and payment in full of the Obligations (other than Letter of Credit Obligations that have been fully cash collateralized and contractual Obligations that by their terms survive termination of this Credit Agreement) under this Credit Agreement and the other Loan Documents, each Borrower agrees (as to itself) that, unless the Administrative Agent shall otherwise consent in writing based upon the approval of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of the Lenders is expressly permitted below):
8.1 Financial Statements, Reports and Notices. The Initial Borrower shall deliver to the Administrative Agent (and the Administrative Agent shall provide to the Lenders promptly upon receipt) each of the following:
(a) Financial Reports.
(i) Annual Reports. Within one hundred and twenty (120) days after the end of each fiscal year of the Initial Borrower, or as soon as delivered to the Investors, a report setting forth, as of the end of such fiscal year, the Initial Borrower’s audited balance sheet and income statement, prepared in accordance with Generally Accepted Accounting Principles, except where determined by the Administrator that such Generally Accepted Accounting Principles would not reflect the activities of a statutory trust, as more particularly provided in the Constituent Documents of the Initial Borrower, together with the unqualified opinion of a firm of nationally-recognized independent certified public accountants; and
(ii) Quarterly Reports. As soon as available, but no later than sixty (60) days after the end of each of the first three (3) fiscal quarters of the Initial Borrower, or as soon as practical thereafter, but in no event later than when such statements and reports are distributed to Investors, a copy of the capital statements as of the end of such fiscal quarter as delivered to Investors.
(b) Compliance Certificate. As soon as available, but no later than two (2) Business Days following the delivery of any quarterly financial reports are delivered pursuant to Section 8.1(a)(ii) hereof or any annual audited financial reports are delivered pursuant to Section 8.1(a)(i) hereof, a compliance certificate substantially in the form of Exhibit W hereto (the “Compliance Certificate”), and (i) stating whether any Event of Default or, to such Responsible Officer’s knowledge, any Potential Default has occurred and is continuing; (ii) stating whether the Initial Borrower is in compliance with the Debt Limitations contained in Section 9.11 hereof and containing the calculations evidencing such compliance; (iii) stating that, to the Initial Borrower’s actual knowledge, no
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Exclusion Event has occurred with respect to any Borrowing Base Investor or if one has occurred, the nature of such Exclusion Event (it being understood and agreed that no Borrower shall have any obligation to monitor the Rating or net worth of any Investor, which shall not in any way limit the Initial Borrower’s obligation to report any related Exclusion Event to the extent it has actual knowledge thereof); and (iv) setting forth (or attaching, as applicable): (A) in the case of a Compliance Certificate delivered in connection with a fiscal quarter-end report, a copy of any Investment information delivered by the Initial Borrower to its Investors generally on a quarterly basis; (B) in the case of a Compliance Certificate delivered in connection with a fiscal year-end report, a copy of any Investment information delivered by the Initial Borrower), to its Investors generally on an annual basis; (C) the aggregate Unused Commitments of the Investors and, separately, the aggregate Unused Commitments of the Borrowing Base Investors; (D) the changes, if any, in the names or notice information for any Investor; (E) a listing of all new and substitute Investors who have not satisfied each of the applicable requirements set forth in Section 9.5(d) hereof, if any; (F) a listing of all Investors who have been declared defaulting Investors under Section 7.1(c) of the Trust Agreement as of the end of such quarter, if any; and (G) a listing of the amounts and dates of any Demand Notices made upon Investors as of the end of such quarter;
(c) Investor Demand Notices. (i) Promptly following the issuance thereof, a copy of the form of each Demand Notice delivered to the Investors of the Initial Borrower; and (ii) to the extent not previously reported pursuant to this Section 8.1(c) or Section 8.1(b) or 8.15 hereof, a report of all Investors failing to fund their Contributions within ten (10) Business Days of when such Contributions are initially due pursuant to the related Demand Notice therefor (other than in connection with an Investment Exclusion Event), delivered promptly thereafter (but in no event later than the close of business of the fifth (5th) Business Day following such tenth (10th) Business Day), along with documentation of all Contributions, if any, received in the Collateral Accounts as of the end of such Business Day with respect to such Investors and thereafter on any Business Day when such information changes;
(d) Notice of Certain Withdrawals. Promptly, but no later than three (3) Business Days following receipt thereof, copies of any notice of withdrawal by any Investor of the Initial Borrower pursuant to the Initial Borrower’s Constituent Documents;
(e) Notice of Action to Terminate. No later than the next Business Day after becoming aware of any proposed vote of the Investors for approval, or similar action to be taken, to terminate or dissolve any Borrower pursuant to the applicable Constituent Documents, notice of any such vote or other similar action;
(f) Funding Deficiencies. No later than ten (10) days after becoming aware thereof, notice of any material funding deficiencies with respect to any Plan;
(g) [Reserved];
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(h) Borrowing Base Certificates. The Initial Borrower shall provide to the Administrative Agent a revised Borrowing Base Certificate certified by a Responsible Officer of the Initial Borrower to be true and correct in all material respects setting forth a calculation of the Available Commitment in reasonable detail as of such date: (i) in connection with the delivery of each quarterly Compliance Certificate in accordance with Section 8.1(b) hereof; (ii) in connection with any new Borrowing or issuance of Letter of Credit (which can be satisfied by attaching the required information and calculations to the related Request for Borrowing or Request for Letter of Credit, as applicable); (iii) within two (2) Business Days following the issuance of Demand Notices to Investors (delivered to the Administrative Agent along with the copies of the form of such Demand Notices and calculated after giving effect to the related Contributions requested by such Demand Notices); (iv) promptly following the admission of any Investor as such delivery is required pursuant to Section 9.5(d) hereof; and (v) promptly following the occurrence of any Exclusion Event and a Borrower obtaining actual knowledge thereof (calculated after giving effect thereto).
(i) Other Reporting. Promptly following the delivery to the Investors of the Initial Borrower, copies of all other financial statements and reports from time to time prepared by the Initial Borrower and furnished to its Investors generally and that are material to the interests of the Lenders;
(j) Know Your Customer Information. Promptly following any request therefor by the Administrative Agent, or any Lender through the Administrative Agent, (i) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws and Anti-Corruption Laws, or (ii) information and documentation to update the Beneficial Ownership Certification (if any) for such Borrower to the extent required by the Beneficial Ownership Regulation; and
(k) Other Information. Such other information concerning the business, properties, or financial condition of such Borrower (as the Administrative Agent shall reasonably request, and which information is not otherwise subject to confidentiality restrictions with third parties.
8.2 Payment of Taxes. Except, in each case, as would not (individually or in the aggregate) result in a Material Adverse Effect, such Borrower will, and will require each Borrower to, file, or cause to be filed, all Tax returns required to be filed by it in any jurisdiction, and pay all Taxes (including mortgage recording Taxes), assessments, fees, and other governmental charges or levies imposed upon it or upon any of its properties, income or franchises prior to the time that such Taxes, assessments, fees, charges or levies become delinquent; provided that no Borrower shall be required to pay any such Tax, assessment, fee charge, or levy if and so long as the amount, applicability, or validity thereof shall currently be contested in good faith by appropriate proceedings and appropriate reserves therefor have been established.
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8.3 Maintenance of Existence and Rights. Subject to the provisions of the Loan Documents, such Borrower will preserve and maintain its existence and all of its rights, privileges, and franchises necessary in the normal conduct of its business and in accordance with all valid regulations and orders of any Governmental Authority the failure of which would reasonably be expected to result in a Material Adverse Effect.
8.4 Notice of Default. Such Borrower will furnish to the Administrative Agent, promptly upon becoming aware (and in no event later than the next Business Day after obtaining actual knowledge at all times when any Principal Obligations are outstanding, and within three (3) Business Days, at all times when no Principal Obligations are outstanding) of the existence of any condition or event which constitutes an Event of Default or a Potential Default, a written notice specifying the nature and period of existence thereof and the action which such Borrower is taking or proposes to take with respect thereto.
8.5 Other Notices.
(a) Prior to or simultaneously with any delivery of a Request for Borrowing, the applicable Borrower shall disclose in writing to the Administrative Agent all material Proceedings pending, or to the knowledge of such Borrower, threatened against the Borrowers which could reasonably be expected to have a Material Adverse Effect.
(b) The applicable Borrowers will, promptly upon receipt of knowledge thereof, notify the Administrative Agent of any of the following events if such event would reasonably be expected to result in a Material Adverse Effect: (i) any change in the financial condition or business of any Borrower; (ii) any default under any material agreement, contract, or other instrument to which any Borrower is a party or by which any of its properties are bound, or any acceleration of the maturity of any material Indebtedness owing by a Borrower; (iii) any uninsured claim against or affecting a Borrower or any of its properties; and (iv) the commencement of, and any material determination in any Proceeding affecting any Borrower.
(c) [Reserved].
(d) The Administrative Agent shall provide any written disclosure or written notice received from the Borrowers under this Section 8.5 to the Lenders promptly upon receipt.
8.6 Compliance with Loan Documents and Constituent Documents. Unless otherwise approved in accordance with the terms of this Credit Agreement (which approval, by such terms, may require more or fewer Lenders than the Required Lenders), such Borrower will promptly comply with any and all covenants and provisions applicable to it of this Credit Agreement, the Notes, and all of the other Loan Documents executed by it. Such Borrower will use the proceeds of any Demand Notice only for such purposes as are permitted by its Constituent Documents.
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8.7 Operations and Properties. Such Borrower will act in accordance with its Constituent Documents in managing or operating its assets, properties, business, and investments so as not to have a Material Adverse Effect.
8.8 Books and Records; Access. Following five (5) Business Days prior written notice, the Borrowers will give any representative of any Agent or the Lenders, or any of them, access during ordinary business hours to, and permit such representative to examine, copy, or make excerpts from, any and all books, records, and documents in the possession of the Borrowers and relating to their affairs; provided that, so long as no Event of Default exists, any such inspection, which shall be at the Borrowers’ expense, shall be conducted no more than once in any twelve (12) month period. The right of inspection described in this Section 8.8 shall not apply to any information regarding customers (as defined by Title V of the Gramm-Leach-Bliley Act of 1999, as amended, and applicable implementing regulations) of any Borrower to the extent any such Borrower is prohibited from providing such information by Title V of the Gramm-Leach-Bliley Act of 1999, as amended, and the applicable implementing regulations thereunder.
8.9 Compliance with Law. Such Borrower will comply in all material respects with all material laws, rules, regulations, and all orders of any Governmental Authority, including, without limitation, ERISA, if applicable, except where the failure to comply would not reasonably be expected to result in a Material Adverse Effect. Each Borrower shall maintain policies and procedures reasonably designed to ensure compliance with applicable Sanctions.
8.10 Insurance. Such Borrower will maintain insurance in respect of its properties and business against such loss or damage as is customary in the case of Persons engaged in the same or similar businesses and similarly situated, except where the failure to maintain could not reasonably be expected to result in a Material Adverse Effect.
8.11 Authorizations and Approvals. Such Borrower will promptly obtain, from time to time at its own expense, all such material governmental licenses, authorizations, consents, permits and approvals as may be required to enable such Borrowers to comply with their respective obligations hereunder, under the other Loan Documents to which it is a party and its Constituent Documents.
8.12 Maintenance of Liens. The Initial Borrower will perform all such acts and execute all such documents as the Administrative Agent may reasonably request in order to enable the Secured Parties to file and record every instrument that the Administrative Agent may reasonably deem necessary in order to perfect and maintain the Administrative Agent’s first priority security interests (subject to any Permitted Liens) in and Liens on the Collateral and otherwise to preserve and protect the rights of the Secured Parties in respect of such security interests and Liens.
8.13 Further Assurances. The Initial Borrower will take any and all such other action as the Administrative Agent may, from time to time, reasonably deem necessary or proper in connection with this Credit Agreement or any of the other Loan Documents, the obligations of
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the Initial Borrower hereunder or thereunder for better assuring and confirming unto the Lenders all or any part of the security for any of such obligations.
8.14 Collateral Accounts. The Initial Borrower shall ensure that, at all times, the Administrative Agent shall have electronic monitoring access to its Collateral Account.
8.15 Investor Financial and Rating Information. The Initial Borrower will promptly notify the Administrative Agent in writing (but in no event later than five (5) Business Days) upon obtaining actual knowledge of: (a) any decline in the Rating of any Borrowing Base Investor, or decline in the capital status of any Investor that is a Bank Holding Company, where such change results in an Exclusion Event; (b) notice of any portion of a Borrowing Base Investor’s Unused Commitment that has been excused, precluded, reduced or abated (including in connection with any Investment Exclusion Event) and will be excluded from the Available Commitment pursuant to the proviso in Section 2.1(d)(xv) hereof; and (c) any other Exclusion Event with respect to a Borrowing Base Investor.
8.16 Compliance with Anti-Money Laundering Laws and Anti-Corruption Laws. Such Borrower shall (a) maintain policies and procedures reasonably designed to ensure compliance with all applicable Anti-Money Laundering Laws and Anti-Corruption Laws; (b) ensure it does not use any of the Loans or Letters of Credit in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws; and (c) ensure it does not fund any repayment of the credit in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.
8.17 Environmental Compliance. Such Borrower will use and operate all of the facilities and properties owned directly by it in material compliance with all environmental laws, keep all necessary permits, approvals, certificates, licenses and other authorizations relating to environmental matters in effect and remain in material compliance therewith, and handle all hazardous materials in material compliance with all applicable environmental laws, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
8.18 Confirmation of Unused Commitments. If at any time the Administrative Agent reasonably believes that a certification delivered by the Initial Borrower with respect to the Unused Commitment of an Investor or the Investors is inaccurate in any material respect, the Administrative Agent shall have the right to request that the Initial Borrower obtain such certification directly from the Investor or the Investors and that the Initial Borrower provide a certification to the Administrative Agent confirming the amount of the Unused Commitments of its Investors within ten (10) Business Days of such request.
8.19 Investment Period. The Initial Borrower shall give prompt written notice to the Administrative Agent of the termination of the Investment Period.
8.20 Covenant to Call Capital. During each twelve (12)-month period commencing on the first day after the end of the Initial Closing Period (as defined in the Trust Agreement), the Initial Borrower will request that all Investors fund at least one (1) Demand Notice, unless such requirement is otherwise waived in writing by the Administrative Agent. The Initial Borrower
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shall give prompt written notice to the Administrative Agent informing it of the occurrence of the first day after the end of the Initial Closing Period.
8.21 Compliance with Sanctions. Such Borrower shall maintain policies and procedures reasonably designed to ensure compliance with applicable Sanctions.
8.22 Notices to Defaulting Investors. At all times when an Event of Default has occurred and is continuing and any Investor has failed to fund any Contributions when due or otherwise defaulted on any of its obligations to the Initial Borrower, then the Initial Borrower shall exercise its available remedies as to such Investor only with the written consent of the Administrative Agent, at the direction of the Required Lenders.
8.23 ERISA. Such Borrower agrees to use commercially reasonable efforts to promptly provide notice to the Administrative Agent in writing if such Borrower has reason to believe that the assets of such Borrower constitute Plan Assets.
8.24 Investment Company Act. The Initial Borrower will maintain its status as a “business development company” under the Investment Company Act.
Section 9. NEGATIVE COVENANTS OF THE BORROWERS
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letters of Credit hereunder, and until payment and performance in full of the Obligations (other than Letter of Credit Obligations that have been fully cash collateralized and contractual Obligations that by their terms survive termination of this Credit Agreement) under this Credit Agreement and the other Loan Documents, each Borrower agrees (as to itself) that, unless the Administrative Agent shall otherwise consent in writing, based upon the approval of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of the Lenders is expressly permitted below):
9.1 Mergers, Etc. Except as otherwise provided in the Loan Documents, such Borrower shall not take any actions (a) to merge, consolidate or divide with or into any Person, unless a Borrower is the surviving entity, or (b) except as permitted by clause (a), that will dissolve or terminate such Borrower.
9.2 Negative Pledge. Such Borrower shall not create, permit or suffer to exist any Lien (whether such interest is based on common law, statute, other law or contract) upon the Collateral, other than the following (“Permitted Liens”): (a) to the Administrative Agent, for the benefit of the Secured Parties; (b) Liens of the Depository holding any Collateral Account which arise as a matter of law on items in the course of collection or encumbering deposits or other similar liens (including the right of set-off); and (c) non-consensual Liens, if any, imposed on the property of any Borrower not yet delinquent or being contested in good faith by appropriate proceedings.
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9.3 Fiscal Year and Accounting Method. Such Borrower shall not change its fiscal year or its method of accounting, other than in accordance with the terms of its Constituent Documents.
9.4 Constituent Documents. Except as otherwise provided in this Credit Agreement, the Initial Borrower shall not alter, amend, modify, terminate, or change any provision of its Trust Agreement, if any such Proposed Amendment (hereinafter defined) would (a) affect the Initial Borrower’s or the Investors’ (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, Liens, powers and privileges of the Initial Borrower (as applicable), in any case, relating to any Demand Notices, Commitments or Contributions, including any Investor’s obligation to fund Contributions with respect to its Unused Commitment, (b) have a Material Adverse Effect on the rights, titles, first priority security interests (subject to any Permitted Liens) and Liens, and powers and privileges of the Lenders hereunder or (c) remove or reduce (or affect in a similar manner) the Debt Limitations imposed on the Initial Borrower (each a “Material Amendment”). With respect to any proposed alteration, amendment, modification, termination or change (each, a “Proposed Amendment”) to the Trust Agreement, the Initial Borrower shall notify the Administrative Agent of such proposal (except as provided below). The Administrative Agent shall determine, in its sole commercially reasonable discretion (i.e., the determination of the other Lenders shall not be required) and on its good faith belief, whether such Proposed Amendment to the Trust Agreement would constitute a Material Amendment within three (3) Business Days of the date on which it is deemed to have received such notification in accordance with Section 12.6 hereof and shall promptly notify the Initial Borrower of its determination. If the Administrative Agent determines that the Proposed Amendment is a Material Amendment, the approval of the Required Lenders will be required (unless the approval of all Lenders is otherwise required consistent with the terms of this Credit Agreement), and the Administrative Agent shall promptly notify the Lenders of such request for such approval, distributing, as appropriate, the Proposed Amendment and any other relevant information provided by the Initial Borrower. Subject to Section 12.1 hereof, the Lenders shall have ten (10) Business Days from the date of such notice from the Administrative Agent to deliver their approval or denial thereof; provided that such Lender shall be deemed to have consented to any such Material Amendment to the extent such Lender does not provide an express approval or denial thereof within such ten (10) Business Day period. If the Administrative Agent determines that the Proposed Amendment is not a Material Amendment, the Initial Borrower may make such amendment without the consent of the Lenders. Notwithstanding the foregoing, the Initial Borrower may, without the consent of the Administrative Agent or the Lenders (and without submitting the Proposed Amendment to the Administrative Agent for determination as described above), amend the Trust Agreement: (i) to cure any ambiguity, correct or supplement any provision of the Trust Agreement which is incomplete or inconsistent with any other provision thereof (the effect of which shall be immaterial to the Lenders), correct any printing, stenographic or clerical error or effect changes of an administrative or ministerial nature which do not materially increase the authority of the Initial Borrower or adversely affect the rights of the Lenders or to fix any other obvious error or any other error or omission of a technical or immaterial nature; (ii) to admit new Investors in accordance with Section 9.5(b) below; (iii) to reflect transfers of interests in the Initial Borrower in accordance with Section 9.5(a) below and any action permitted under Section 9.6 hereof; and
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(iv) to reflect any withdrawals in accordance with Section 9.5(f) below; provided that the Initial Borrower shall promptly provide to the Administrative Agent a copy of any such executed amendment which does not require the consent of the Administrative Agent or the Lenders.
9.5 Transfer of Interests; Admission of Investors.
(a) Transfers by Investors. The Initial Borrower will, promptly upon receipt thereof, deliver a copy to the Administrative Agent of any notice from any Investor in the Initial Borrower of such Investor’s bona fide intention to Transfer all or a portion of any interest in the Initial Borrower under its Constituent Documents, and will, promptly upon receipt thereof, deliver to the Administrative Agent copies of any assignment agreement, Subscription Agreement and other documentation delivered to, or required of such Investor by, the Initial Borrower in connection with such Transfer.
(b) Admission of Investors. Any admission of an assignee of an interest in the Initial Borrower as a substitute Investor and any admission of a Person as a new Investor of the Initial Borrower will be subject to compliance with OFAC and the requirements of Section 9.5(d) below. The Initial Borrower will, promptly upon receipt thereof, deliver to the Administrative Agent copies of any Subscription Agreement, Side Letter and other documentation delivered to, or required of such Investor by, the Initial Borrower promptly following such admission.
(c) [Reserved].
(d) Documentation and Funding Requirements; Amendment of the Borrowing Base Certificate. The Initial Borrower will require that any existing Investor that is an assignee will provide confirmation of its obligations under its Subscription Agreement with respect to any increase in its Commitment relating to such assignment. If any substitute Investor to which an assignment of an interest in the Initial Borrower is made by a Borrowing Base Investor is not designated as a Borrowing Base Investor by the Administrative Agent, with the same or greater Unused Commitment as the assignor Investor and if the transferring Investor is released from its obligation to fund Contributions under the applicable Constituent Documents, the calculation described in Section 2.1(e) hereof will be made prior to the effectiveness of such substitution or assignment, as applicable, but taking into consideration the Commitments of the Investors as if such substitution or assignment will have occurred, and to the extent such substitution or assignment would cause a mandatory prepayment event, then the Initial Borrower will initiate a Demand Notice for the purpose of making such prepayment, and such assignor or assignee Investor must fund its share of the Demand Notice prior to such substitution or assignment. In the event any Person is admitted as an additional or substitute Investor, the Initial Borrower will promptly deliver to the Administrative Agent a revised Borrowing Base Certificate to this Credit Agreement, containing the name of each Investor in the Initial Borrower and such Investor’s Commitment. The Borrowing Base Certificate shall specify whether or not an Investor satisfied the conditions set forth in the definition of “Included Investor” or “Designated Investor”, as applicable. The Initial Borrower shall use reasonable best efforts to give the Administrative Agent at least
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five (5) Business Days’ prior written notice to any transfer of an interest in the Initial Borrower if such transferring Investor is being released from its obligations, provided that in the event the Initial Borrower fails to deliver such (5) Business Days’ notice and as a result the Administrative Agent is unable to determine whether such transferee Investor satisfies the requirements of “Included Investor” or “Designated Investor” prior to the effective date of the transfer, then such transferee Investor shall be deemed not to have satisfied such requirements until such time as the Administrative Agent can make such determination in accordance with the definition of “Included Investor” or “Designated Investor” and the Initial Borrower shall make any resulting mandatory prepayment pursuant to Section 2.1(e) hereof prior to the consummation of such transfer.
(e) [Intentionally Omitted].
(f) Notice of Withdrawals. The Initial Borrower shall not permit any Investor to withdraw its interest in the Initial Borrower without the prior written consent of the Administrative Agent in its sole discretion unless (i) such withdrawal is in accordance with the terms of the Initial Borrower’s Constituent Documents or the applicable Side Letter or Subscription Agreement (i.e., the Investor is permitted to withdraw without the discretion of the Initial Borrower or where the Initial Borrower has the discretion to permit such withdrawal because, in the reasonable determination of the Initial Borrower, the failure to permit such withdrawal could reasonably be expected to result in a material adverse effect under the Initial Borrower’s Constituent Documents) and (ii) the Initial Borrower complies with the mandatory prepayment provisions of Section 2.1(e) hereof, if applicable, prior to the effectiveness of such withdrawal.
(g) [Reserved.]
(h) Other Transfers of Unused Commitments. The Initial Borrower shall not cause Contributions to be made or Commitments to be transferred to (i) any Affiliate or (ii) directly to any Investment.
9.6 Commitments. The Initial Borrower shall not: (a) except in connection with a Transfer or withdrawal of an Investor in accordance with Section 9.5 hereof, cancel, reduce, excuse, or abate the Unused Commitment of any Investor other than (i) in accordance with the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter under circumstances where the Initial Borrower has no discretion (i.e., the applicable Investor is entitled to such cancellation, reduction, excuse or abatement under the terms of the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter) or where the Initial Borrower has the discretion to permit such cancellation, reduction, excuse or abatement under the terms of the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter because, in the reasonable determination of the Initial Borrower, the failure to do so could reasonably be expected to result in a material adverse effect under the Initial Borrower’s Constituent Documents and (ii) upon advance prepayment of any amounts that will become due in accordance with Section 2.1(e) hereof after giving effect to such cancellation, reduction, excuse, or abatement; or (b) relieve, delay, postpone, compromise or abate any Investor from the making of any Contribution under the Initial Borrower’s
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Constituent Documents or the applicable Subscription Agreement or Side Letter, other than (i) in accordance with the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter under circumstances where the Initial Borrower has no discretion (i.e., the applicable Investor is entitled to such relief, delay, postponement, compromise or abatement under the terms of the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter) or where the Initial Borrower has the discretion to permit such relief, delay, postponement, compromise or abatement under the terms of the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter because, in the reasonable determination of the Initial Borrower, the failure to do so could reasonably be expected to result in a material adverse effect under the Initial Borrower’s Constituent Documents and (ii) upon advance prepayment of any amounts that will become due in accordance with Section 2.1(e) hereof after giving effect to such relief, delay, postponement, compromise or abatement. The Initial Borrower shall promptly provide the Administrative Agent notice of any other reduction of any Investor’s Uncalled Commitment. The Initial Borrower shall not agree to any amendment or modification (including, without limitation, any waiver) of any Side Letter or any new Side Letter which, in either case, would have a Material Adverse Effect on the right, title, security interest and Liens of the Lenders without the prior written consent of the Administrative Agent (it being understood and agreed that any provisions in Side Letters in existence on the Closing Date that the Initial Borrower is required to grant to a particular Investor pursuant to a most favored nations clause shall not require the Administrative Agent’s consent to the extent such provisions are included in Side Letters after the Closing Date, although such inclusion may result in such Investor not being approved as a Borrowing Base Investor). The Initial Borrower shall promptly provide any such new or amended Side Letter to the Administrative Agent. Notwithstanding any of the foregoing, if an Investor has the right under the Initial Borrower’s Constituent Documents or the applicable Subscription Agreement or Side Letter or such excuse is reasonably required by applicable law to be excused from an Investment, the Initial Borrower shall be permitted to excuse such Investor from its Contribution with respect to such Investment and any obligations incurred with respect to such Investment, so long as any resulting prepayment to become due in accordance with Section 2.1(e) hereof as a result of such excuse is made prior to giving effect thereto.
9.7 ERISA Compliance. Such Borrower shall not permit the imposition of a lien on the assets of such Borrower or any member of its Controlled Group under Section 303(k) or Section 4068 of ERISA which, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. Such Borrower shall not take any action that would cause it to fail to meet an exception under the Plan Asset Regulations which prevents the assets of such Borrower from being subject to Title I of ERISA, which would result in a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975(c)(1)(A)-(D) of the Internal Revenue Code.
9.8 Dissolution. Except as permitted by Section 9.1 hereof, without the prior written consent of all Lenders (in their sole discretion), the Initial Borrower shall not take any action to terminate or dissolve.
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9.9 Compliance with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No Borrower shall directly or, to the knowledge of such Borrower, indirectly use the proceeds of any Loan hereunder, or lend, contribute, or otherwise make available such proceeds to any subsidiary, joint venture partner, or other Person (a) for the purpose of funding any activities or business of or with a Sanctioned Person, to the extent such transactions would be prohibited by Sanctions if conducted by Persons subject to U.S. jurisdiction, (b) in any manner that would be prohibited by Sanctions or would otherwise cause a Lender to be in breach of any Sanctions, or (c) in any manner that would violate Anti-Corruption Laws.
9.10 Limitations on Distributions. The Initial Borrower will not make, pay or declare any Distribution (as defined below) at any time except as permitted pursuant to the Initial Borrower’s Constituent Documents; provided, however, that at any time during the continuance of an Event of Default or, to the knowledge of the Initial Borrower, a Potential Default under Section 10.1(a), (h) or (i) hereof, no Distributions (other than Permitted RIC Distributions, provided that the Initial Borrower delivers a RIC Distribution Notice to the Administrative Agent at least five (5) days prior to any such Permitted RIC Distribution (or such shorter period agreed to by the Administrative Agent)) shall be permitted to be made, paid or declared if there are any Obligations outstanding under this Credit Facility; provided further, that during the existence of an Event of Default under Section 10.1(a), (h) or (i) hereof, or where the Administrative Agent has accelerated the unpaid balance of the Obligations of the Borrowers pursuant to Section 10.2 hereof, the Initial Borrower shall not make, pay or declare any Permitted RIC Distribution, or withdraw Permitted RIC Distributions from the Collateral Account. “Distribution” means any distributions (whether or not in cash) on account of any partnership interest or other equity interest in the Initial Borrower, including as a dividend or other distribution and on account of the purchase, redemption, retirement or other acquisition of any such partnership interest or other equity interest. For the avoidance of doubt, (i) for so long as no Event of Default has occurred and is continuing, each Investor shall be entitled to receive Distributions to which it is entitled under the Initial Borrower’s Constituent Documents and Subscription Agreement; and (ii) there shall be no limitation on the right of the Investment Advisor, the Administrator or any of their respective Affiliates to receive management or other fees or expenses under the Investment Advisory Agreement and Administration Agreement.
9.11 Limitation on Indebtedness. The Borrowers shall not incur Indebtedness in an aggregate amount which would violate the limitations on Indebtedness imposed on such Borrowers in the applicable Constituent Documents (including, without limitation, in the case of the Initial Borrower, Section 3.5 of the Trust Agreement) and, if applicable, under the Investment Company Act (collectively, the “Debt Limitations”).
9.12 Limitation on Withdrawals From the Collateral Account. Without the prior written consent of the Administrative Agent, no Borrower will make or cause the making of any withdrawal or transfer of funds from the Collateral Account if: (i) an Event of Default has occurred and is continuing; (ii) a Potential Default has occurred and is continuing unless such withdrawal shall be applied first, to the payment of any amounts then due and payable by such Borrower under this Credit Agreement and thereafter to cure any other such Potential Default;
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(iii) a mandatory prepayment is required pursuant to Section 2.1(e) hereof as a result of the Dollar Equivalent of the Principal Obligations exceeding the Available Commitment, irrespective of whether such prepayment has become due and payable under the grace periods afforded in Section 2.1(e) hereof, unless such withdrawal shall be applied to such prepayment; or (iv) a mandatory prepayment will be required pursuant to Section 2.1(e) hereof with the passing of time as a result of an event with respect to a Borrowing Base Investor which event will make such Investor an Excluded Investor after an applicable grace period provided in Section 2.1(d) hereof shall expire unless such withdrawal shall be applied to such prepayment; provided that, notwithstanding the foregoing, the Initial Borrower may withdraw Permitted RIC Distributions from the Collateral Account at all times, except as set forth in Section 9.10 hereof.
9.13 Demand Notices. The Initial Borrower shall not issue any Demand Notice or otherwise request, notify, or demand that any Investor fund any Demand Notice if doing so would create a Borrowing Base Deficit, unless the proceeds thereof shall be used in payment of the Obligations of the Initial Borrower such that, after giving effect to such payment, no Borrowing Base Deficit will exist.
9.14 Deposits to the Collateral Accounts. Such Borrower shall not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Collateral Account cash or cash proceeds other than Contributions; provided that, in the event any deposit is made into a Collateral Account by the Initial Borrower that does not consist of Contributions or the proceeds thereof as the result of a good faith error, the Initial Borrower shall promptly notify the Administrative Agent of such error and, so long as no Cash Control Event has occurred and is continuing, transfer such amounts out of such Collateral Account to correct such error within two (2) Business Days of obtaining knowledge thereof.
Section 10. EVENTS OF DEFAULT
10.1 Events of Default. An “Event of Default” shall exist if any one or more of the following events (herein collectively called “Events of Default”) shall occur and be continuing (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) (i) any Borrower shall fail to pay when due any principal of its Obligations, including any failure to pay any amount required to be paid by it under Section 2.1(e) hereof; or (ii) any Borrower shall fail to pay when due any interest on its Obligations or any fee, expense, indemnity or other payment required to be paid by it hereunder, and such failure under this clause (ii) shall continue for three (3) Business Days following the date the Administrative Agent notifies the applicable Borrower in writing of such failure (except for the failure to pay its Obligations in full on the Maturity Date, for which no notice shall be required, and except for the failure to prepay any amount required to be paid by it under Section 2.1(e) hereof, for which no additional notice shall be required);
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(b) any representation or warranty made by or on behalf of the Borrowers (in each case, as applicable) under this Credit Agreement, or any of the other Loan Documents executed by any one or more of them, or in any certificate or statement furnished or made to the Lenders or any one of them by the Borrowers (in each case, as applicable) pursuant hereto, in connection herewith or with the Loans, or in connection with any of the other Loan Documents, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made and the adverse effect of the failure of such representation or warranty shall not have been cured within thirty (30) days after written notice thereof is delivered to the Borrowers by the Administrative Agent;
(c) default shall occur in the performance of: (i) any of the covenants or agreements contained herein (other than the covenants contained in Sections 2.1(e), 2.10, 8.1(a), (b), (c), (d), (h), (i), (j), 8.4, 8.5, 8.8, 8.12, 8.15, 8.18, the first sentence of 8.20, 8.22 and Sections 9.1 through 9.6 and 9.8 through 9.14 hereof) by the Borrowers; or (ii) the covenants or agreements of the Borrowers contained in any other Loan Documents executed by such Person, and, in each case, such default shall continue uncured to the satisfaction of the Administrative Agent for a period of thirty (30) days after the earlier of: (x) written notice thereof has been given by the Administrative Agent to the Borrowers; or (y) the Administrative Agent has been notified or should have been notified of such default pursuant to Section 8.4 or Section 8.5 hereof; provided that if such default is not susceptible of being cured with diligence within said thirty (30) day period, but, in the reasonable determination of the Administrative Agent, is susceptible of being cured within an additional period, then such period shall be extended for such additional period of time, not to exceed an additional thirty (30) days, as may reasonably be necessary to cure the same; provided, further, that the applicable Borrower commences such cure within such thirty (30) day period and diligently prosecutes the same until its completion;
(d) default shall occur in the performance of any of the covenants or agreements of the Borrowers contained in Section 2.1(e) hereof, Section 2.10 hereof, or any one of Sections 9.1 through 9.14 hereof (other than covenants or agreements contained in the second sentence of Section 9.7);
(e) default shall occur in the performance of any one of the covenants contained in Section 8.1(a), (b), (c), (d), (h), (i), (j), 8.4, 8.5, 8.8, 8.12, 8.15, 8.18, the first sentence of 8.20 or 8.22 hereof and such default shall continue uncured for five (5) Business Days (or, solely in the case of Section 8.22 hereof, ten (10) Business Days) after written notice thereof has been given by the Administrative Agent to the Borrowers;
(f) other than in compliance with the provisions of the Loan Documents, any of the Loan Documents executed by the Initial Borrower: (i) shall cease, in whole or in material part, to be legal, valid, binding agreements enforceable against the Initial Borrower, as the case may be, in accordance with the terms thereof; (ii) shall in any way be terminated or become or be declared ineffective or inoperative except in accordance
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with its terms thereof; or (iii) shall in any way whatsoever cease to give or provide the respective first priority Liens (subject to any Permitted Liens), security interest, rights, titles, interest, remedies, powers, or privileges intended to be created thereby (other than, in each case, solely as the result of an action or failure to act on the part of the Administrative Agent); provided that if any of the events set forth in the foregoing clauses (i), (ii) and (iii) occurs as a result of a change in any applicable Law, the Initial Borrower shall have thirty (30) days from the date thereof to cure a default arising under this Section 10.1(f) to the reasonable satisfaction of the Administrative Agent;
(g) default shall occur with respect to the payment of any recourse Indebtedness or guaranty obligations of the Initial Borrower in an aggregate amount equal to or greater than $50,000,000, and such default shall continue for more than the applicable period of grace or cure, if any; or any such Indebtedness shall become due before its stated maturity by acceleration of the maturity thereof;
(h) the Initial Borrower or the Investment Advisor or the Administrator shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, or liquidator of itself or of all or a substantial part of its assets; (ii) file a voluntary petition in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (iii) make a general assignment for the benefit of creditors; (iv) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any Debtor Relief Laws; (v) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding; or (vi) take partnership, limited liability company or corporate action for the purpose of effecting any of the foregoing;
(i) an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking reorganization of the Initial Borrower or appointing a receiver, custodian, trustee, intervenor, or liquidator of the Initial Borrower, or of all or substantially all of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days;
(j) any final judgment(s) for the payment of money in excess of an aggregate amount equal to $50,000,000 shall be rendered against the Initial Borrower, and such judgment is not stayed, discharged or vacated after a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Initial Borrower to enforce any such judgment, unless such judgment is covered by insurance or bonded or unless it is being appealed and such Borrower has posted a bond or cash collateral;
(k) the Initial Borrower shall make an Investment in violation of its Constituent Documents;
(l) the issuance to the Initial Borrower of any administrative order by any Governmental Authority under any environmental law, or the issuance to the Initial
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Borrower of any injunctive order by any court under any environmental law, which results in a Material Adverse Effect;
(m) the assets of any Borrower shall be treated as Plan Assets within the meaning of Section 3(42) of ERISA and conditions give rise to a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975(c)(1)(A)-(C) of the Internal Revenue Code subjecting the Administrative Agent and/or Lenders to any tax or penalty on prohibited transactions imposed under Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA;
(n) the Administrator (or an Affiliate thereof) shall cease to be the administrator of the Initial Borrower, or the Administrator shall withdraw or be removed as the administrator of the Initial Borrower;
(o) two or more Investors having Commitments aggregating, at any one time, ten percent (10%) or greater of the total Commitments of Investors shall default in their obligation to fund any portion of their Unused Commitments under their Subscription Agreement and/or the applicable Constituent Document within ten (10) Business Days of when due pursuant to the applicable Demand Notice, without regard to any cure or notice periods contained in the applicable Constituent Documents; provided that, for purposes of this provision, an HNW Aggregation Investor and Special HNW Aggregation Investor will be considered one Investor regardless of how many of such HNW Aggregation Investor’s and Special HNW Aggregation Investor’s, as applicable, underlying interest holders default; provided further that, to the extent any HNW Aggregation Investor or Special HNW Aggregation Investor has an underlying interestholder that has defaulted on its obligation to fund such HNW Aggregation Investor or Special HNW Aggregation Investor, as applicable, then only such default portion shall count toward the ten percent (10%) threshold above and such HNW Aggregation Investor or Special HNW Aggregation Investor, as applicable, shall be counted as such defaulted Investor;
(p) Blackstone BGSL Holdings LLC or any Affiliate thereof through which Blackstone BGSL Holdings LLC makes its investment in the Initial Borrower shall: (i) repudiate, challenge, or declare unenforceable its Commitment or its obligation to make Contributions to the capital of the Initial Borrower pursuant to a Demand Notice or shall otherwise disaffirm the provisions of the Initial Borrower’s Constituent Documents; (ii) fail to timely fund any portion of its Unused Commitment within three (3) Business Days of when due pursuant to the applicable Demand Notice; or (iii) shall be in default in its obligations thereunder in its capacity as a shareholder (or the equivalent thereof), and such default in this clause (iii) shall continue uncured beyond any cure or grace period under the terms of the applicable Constituent Document;
(q) (i) the Investment Advisor (or an Affiliate thereof) shall not be acting in the capacity of the “Adviser” as set forth in the Investment Advisory Agreement; or (ii) the Administrator or the Investment Advisor shall cease to be directly or indirectly controlled by, or under common control with, The Blackstone Group L.P.;
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(r) except as permitted by Section 9.1 hereof, an event shall occur that causes a dissolution or liquidation of the Initial Borrower;
(s) [Reserved]; or
(t) any Borrower Guaranty (other than a Borrower Guaranty with respect to a Qualified Borrower which has withdrawn from the Credit Facility pursuant to Section 2.9(g)) or any material provision thereof shall cease to be in full force and effect, or the Initial Borrower providing such guaranty or any other Person acting by or on behalf of the Initial Borrower shall deny or disaffirm such Borrower’s obligations under such Borrower Guaranty.
10.2 Remedies Upon Event of Default. If an Event of Default shall have occurred and be continuing, then the Administrative Agent may (or shall if so directed by the Required Lenders): (a) suspend the Lender Commitments of the Lenders until such Event of Default is cured or waived; (b) terminate the Lender Commitment of the Lenders hereunder; (c) declare the principal of, and all interest then accrued on, the Obligations to be forthwith due and payable (including the obligation to deliver Cash Collateral pursuant to Section 2.1(g) hereof), whereupon the same shall forthwith become due and payable without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind (other than notice of such declaration) all of which the Borrowers hereby expressly waive, anything contained herein or in any other Loan Document to the contrary notwithstanding; (d) exercise any right, privilege, or power set forth in Sections 5.2 and 5.3 hereof, including, but not limited to, the initiation of Demand Notices of the Commitments (subject to the following paragraph); or (e) without notice of default or demand, pursue and enforce any of the Administrative Agent’s or the Lenders’ rights and remedies under the Loan Documents, or otherwise provided under or pursuant to any applicable Law or agreement; provided that the Administrative Agent may select which remedies to exercise unless otherwise directed by the Required Lenders, in which case the Administrative Agent will exercise such remedies as directed by the Required Lenders, and provided further that if any Event of Default specified in Section 10.1(h) or 10.1(i) hereof shall occur, the principal of, and all interest on, the Obligations shall thereupon become due and payable concurrently therewith, without any further action by the Administrative Agent or the Lenders, or any of them, and without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind, all of which each of the Borrowers hereby expressly waives. Notwithstanding anything to the contrary contained in this Credit Agreement or any other Loan Document, in no event shall the Administrative Agent (or any Secured Party) be permitted to require any Investor to fund its Contributions other than to an account in the name of the Initial Borrower.
Notwithstanding anything to the contrary herein, upon the occurrence and during the continuance of an Event of Default (other than those described in Section 10.1(f), (h), (i), (n), (q) or (r)), if such Event of Default can be cured by the funding of Unused Commitments, then prior to the Administrative Agent, on behalf of the Lenders, exercising its right to issue Demand Notices to the Investors or exercising any other remedy provided for herein, the Administrative
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Agent shall be required to give five (5) Business Days written notice (the “Initial Notice Period”) of its intention to exercise such remedies and, if, at any time prior to or during such Initial Notice Period, the Initial Borrower shall issue a Demand Notice to their Investors sufficient to cure such Event of Default, then the Administrative Agent and the Lenders shall not exercise such remedies until the Business Day following the Initial Payment Date (as defined below); provided, that: (i) such Demand Notice as issued by the Initial Borrower must require the Investors to fund their related Contribution within ten (10) Business Days after the date of such Demand Notice (such tenth (10th) Business Day being the “Initial Payment Date”); (ii) the Initial Borrower directs all Contributions received by it into the applicable Collateral Account; and (iii) the Initial Borrower directs the Depository that such Contributions and other payments by the Investors in the Initial Borrower, together with any other funds held for or credited to the Initial Borrower in a Collateral Account, shall be withdrawn by the Administrative Agent to prepay the Obligations of the Initial Borrower in their entirety; provided, further that nothing in this Section 10.2 shall prohibit the Administrative Agent or any Lender from exercising any remedies it may have with respect to (i) any Collateral Account and taking any such actions as may be required to protect their rights in a bankruptcy proceeding or (ii) any Event of Default pursuant to Section 10.1(f), (h), (i), (n), (q) or (r) or any other Event of Default that shall have occurred and be continuing that cannot be cured by the funding of Unused Commitments or which was triggered by the failure of the Initial Borrower to issue a Demand Notice upon its Investors following a mandatory prepayment event pursuant to Section 2.1(e) hereof and/or make such mandatory prepayment following the receipt of such related Contributions, in each case, as required by this Credit Agreement.
10.3 Performance by the Administrative Agent. Should the Borrowers fail to perform any covenant, duty, or agreement contained herein or in any of the Loan Documents to which it is a party, and such failure continues beyond any applicable cure period, the Administrative Agent may (pursuant to such Loan Documents, including any collateral assignments therein to the Administrative Agent), but shall not be obligated to, perform or attempt to perform such covenant, duty, or agreement on behalf of such Person. In such event, the Borrowers shall, at the request of the Administrative Agent, promptly pay any amount expended by the Administrative Agent in such performance or attempted performance to the Administrative Agent at its designated Agency Services Address, together with interest thereon at the Default Rate from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly understood that neither the Agents nor the Lenders assume any liability or responsibility for the performance of any duties of the Borrowers, or any related Person hereunder or under any of the Loan Documents or other control over the management and affairs of the Borrowers, or any related Person, nor by any such action shall the Agents or the Lenders be deemed to create a partnership arrangement with any Borrower, or any related Person.
10.4 Qualified Borrower Defaults. Notwithstanding any provision in this Credit Agreement to the contrary, if an Event of Default or a Potential Default relating solely to a Qualified Borrower shall occur, upon the payment of all Obligations of such Qualified Borrower hereunder: (a) such Event of Default or Potential Default shall be deemed to be cured and (b) such Qualified Borrower shall withdraw from the Credit Facility in accordance with Section
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2.9(g) hereof; provided, however, that such withdrawal shall not be required to the extent any such Event of Default or Potential Default has been cured or waived and is no longer continuing.
Section 11. AGENTS
11.1 Appointment.
(a) Authority of the Administrative Agent. Each Lender hereby irrevocably appoints, designates and authorizes each Agent to take such action on its behalf under the provisions of this Credit Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms hereof and of the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Loan Documents, no Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or any of the other Loan Documents, or shall otherwise exist against such Agent. The provisions of this Section 11 are solely for the benefit of the Agents and the Lenders and none of the Borrowers or any Affiliate of the foregoing (each, a “Borrower Party”) or any Investor or its Affiliates shall have any rights as a third-party beneficiary of the provisions hereof (except for the provisions that explicitly relate to the Borrowers in Section 11.10 hereof). In performing its functions and duties under this Credit Agreement and the other Loan Documents, each Agent shall act solely as an agent of the applicable Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Borrower Party.
(b) Release of Collateral. The Secured Parties irrevocably authorize the Administrative Agent, at the Administrative Agent’s option and in its sole discretion, to release any security interest in or Lien on any Collateral granted to or held by the Administrative Agent: (i) upon termination of this Credit Agreement and the other Loan Documents, termination of the Lender Commitments and payment in full of all of the Obligations, including all fees and indemnified costs and expenses that are then due and payable pursuant to the terms of the Loan Documents; (ii) pursuant to any express provision of any Loan Document and (iii) if approved by the Lenders pursuant to the terms of Section 12.1. Upon the request of the Administrative Agent, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 11.1(b).
11.2 Delegation of Duties. Each Agent may execute any of its duties hereunder or under the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of legal counsel, accountants, and other professionals selected by such Agent concerning all matters pertaining to such duties. No Agent shall be responsible to any Lender for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care, nor shall it be liable for any action taken or suffered in good faith by it in accordance with the advice of such Persons.
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11.3 Exculpatory Provisions. No Agent nor any of its affiliates, nor any of their respective officers, directors, employees, agents or attorneys-in-fact, shall be liable to any Lender for any action lawfully taken or omitted to be taken by it or such Person under or in connection herewith or in connection with any of the other Loan Documents (except for its or such Person’s own gross negligence or willful misconduct) or be responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any of the Borrower Parties contained herein or in any of the other Loan Documents or in any certificate, report, document, financial statement or other written or oral statement referred to or provided for herein, or received by such Agent under or in connection herewith or in connection with the other Loan Documents, or enforceability or sufficiency therefor of any of the other Loan Documents, or for any failure of a Borrower Party to perform its obligations hereunder or thereunder. No Agent shall be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Credit Agreement, or any of the other Loan Documents or for any representations, warranties, recitals or statements made herein or therein or made by any Borrower Party in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by such Agent to the Lenders or by or on behalf of the Borrower Parties to such Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Potential Default or Event of Default or to inspect the properties, books or records of the Borrower Parties. The Agents are not trustees for the Lenders and owe no fiduciary duty to the Lenders hereunder and/or pursuant to the Borrower Security Agreements, which is governed by New York law. Each Lender recognizes and agrees that the Administrative Agent shall not be required to determine independently whether the conditions described in Section 6.2(a) or 6.2(b) hereof have been satisfied and, when the Administrative Agent disburses funds to any Borrower, or causes Letters of Credit to be issued or accepts any Borrower Guaranties, it may rely fully upon statements contained in the relevant requests by any Borrower.
11.4 Reliance on Communications. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, email, 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, without limitation, counsel to any of the Borrower Parties, independent accountants and other experts selected by such Agent with reasonable care). The Administrative Agent may deem and treat each Lender as the owner of its interests hereunder for all purposes unless an Assignment and Acceptance Agreement shall have been delivered to the Administrative Agent in accordance with Section 12.11(c) hereof. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement or under any of the other Loan Documents 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 by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully
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protected in acting, or in refraining from acting, hereunder or under any of the other Loan Documents in accordance with a request of the Required Lenders (or to the extent specifically required, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns).
11.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Potential Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or a Borrower Party referring to the Loan Document, describing such Potential Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Potential Default or Event of Default as shall be reasonably directed by the Required Lenders and as is permitted by the Loan Documents.
11.6 Non-Reliance on the Agents and the Lenders. Each Lender expressly acknowledges that no Agent nor any of its affiliates nor any of their respective officers, directors, employees, agents or attorneys-in-fact has made any representations or warranties to it and that no act by any Agent or any affiliate thereof hereinafter taken, including any review of the affairs of any Borrower Party, shall be deemed to constitute any representation or warranty by such Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any 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, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties and made its own decision to make its Loans hereunder and enter into this Credit Agreement. Each Lender also represents that it will, independently and without reliance upon any 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 credit analysis, appraisals and decisions in taking or not taking action under this Credit Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Borrower Parties which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.7 Indemnification. The Lenders agree to, jointly and severally, indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following payment in full of the Obligations) be incurred by such Agent in its capacity as such in any way relating to or arising out of this Credit
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Agreement or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence, fraud or willful misconduct of such Agent. If any indemnity furnished to an Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section 11.7 shall survive the payment of the Obligations.
11.8 Agents in Individual Capacity. With respect to the Loans made and Letters of Credit issued (as applicable) and all obligations owing to it, each Agent acting in its individual capacity shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though it were not an agent, and the terms “Lender” and “Lenders” shall include such Agent in its individual capacity. Each Agent acting in its individual capacity and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Borrower as though such Agent were not an agent hereunder and without any duty to account therefor to the other Lenders.
11.9 Successor Agent.
(a) The Administrative Agent may, (i) with the written consent of the Borrowers in their sole discretion, or (ii) upon the declaration that the Obligations are immediately due and payable pursuant to Section 10.2 hereof upon the occurrence of an Event of Default, resign upon twenty (20) days written notice to the Lenders and the Borrowers. In addition, the Required Lenders may remove the Administrative Agent upon twenty (20) days written notice to the Administrative Agent and Borrowers (i) for gross negligence, fraud or willful misconduct or (ii) if the Administrative Agent ceases to be a Lender hereunder. Upon any such resignation or removal of the Administrative Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent (subject, except when an Event of Default of the type described in Section 10.1(a), (h) or (i) hereof (or any other Event of Default which has continued uncured for a period of thirty (30) days) exists, to the consent of the Borrowers, such consent not to be unreasonably withheld). If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within sixty (60) days after the notice of resignation, then the retiring Administrative Agent shall select a successor Administrative Agent (subject, except when an Event of Default of the type described in Section 10.1(a), (h) or (i) hereof (or any other Event of Default which has continued uncured for a period of thirty (30) days) exists, to the consent of the Borrowers, not to be unreasonably withheld); provided that such successor is an Eligible Assignee (or if no Eligible Assignee shall have been so appointed by the retiring Administrative Agent and shall have accepted such appointment, then the Lenders shall perform all obligations of the retiring Administrative Agent hereunder until such time, if any, as a successor Administrative Agent shall have been appointed and shall have
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accepted such appointment as provided for above). Prior to the occurrence and continuance of an Event of Default pursuant to Section 10.1(a) hereof that has not been cured within sixty (60) days, in no event may any Competitor be appointed successor Administrative Agent hereunder.
(b) Any other Agent may, at any time, resign upon twenty (20) days’ written notice to the Lenders and the Borrowers and, if no successor Agent is appointed prior to the effective date of the resignation of such Agent, such Agent may appoint, after consulting with the Lenders and subject (except when an Event of Default of the type described in Section 10.1(a), (h) or (i) hereof (or any other Event of Default which has continued uncured for a period of thirty (30) days) exists to the consent of the Borrowers, a successor Agent from any of the Lenders. If any such Agent ceases to be a Lender hereunder, it shall, without any further action, cease to be an Agent.
(c) Upon the acceptance of any appointment as an Agent hereunder by a successor, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and shall assume the duties and obligations of such retiring or removed Agent, and the retiring or removed Agent shall be discharged from its duties and obligations as Agent under this Credit Agreement and the other Loan Documents and the provisions of this Section 11.9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Credit Agreement.
11.10 Reliance by the Borrowers. Each Borrower shall be entitled to rely upon, and to act or refrain from acting on the basis of, any notice, statement, certificate, waiver or other document or instrument delivered by an Agent to such Borrower so long as such Agent is purporting to act in its respective capacity as an Agent pursuant to this Credit Agreement, and such Borrower shall not be responsible or liable to any Lender (or to any Participant or Assignee), or as a result of any action or failure to act (including actions or omissions which would otherwise constitute defaults hereunder) which is based upon such reliance upon such Agent. Such Borrower shall be entitled to treat each Agent as a properly authorized Agent pursuant to this Credit Agreement until such Borrower shall have received notice of resignation, and such Borrower shall not be obligated to recognize any successor Agent until such Borrower shall have received written notification satisfactory to it of the appointment of such successor.
11.11 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Borrower, the Secured Parties acknowledge and agree that the Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit Liability shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on Borrower Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Liability and all other
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Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties (including any claim for the reasonable compensation, expenses, disbursements and advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Party, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party or to authorize the Administrative Agent to vote in respect of the claim of any Secured Party in any such proceeding.
11.12 Delivery of Notices to the Lenders. Promptly upon receipt of any written notice, report or information from the Borrowers under the Loan Documents, the Administrative Agent will provide copies of such notice, report or information to the Lenders in a time and manner reasonable under the circumstances.
Section 12. MISCELLANEOUS
12.1 Amendments. Except as may otherwise be provided in this Credit Agreement, neither this Credit Agreement (including the exhibits hereto) nor any other Loan Document to which any Borrower is a party (other than any Fee Letter, which may be amended, waived, discharged or terminated in accordance with its terms), nor any of the terms hereof or thereof, may be amended, waived, discharged or terminated, unless such amendment, waiver, discharge, or termination is in writing and signed by the Administrative Agent (based upon the approval of the Required Lenders), or the Required Lenders, on the one hand, and such Borrower on the other hand (other than, in the case of this Credit Agreement, any Qualified Borrower); provided that no such amendment, waiver, discharge, or termination shall, without the consent of:
(a) each Lender affected thereby:
(i) increase the amount or extend the term of the Lender Commitment of such Lender (other than an increase of the Maximum Commitment Amount pursuant to Section 2.13 hereof, an extension of the Stated Maturity Date pursuant to Section 2.14 hereof or a termination of Lender Commitments or a decrease of
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the Maximum Commitment Amount, in either case, pursuant to Section 3.6 hereof), decrease the amount of fees (or any other payments) payable to such Lender, or accelerate the obligations of such Lender to advance its portion of any Borrowing, as contemplated in Section 2.5 hereof or issue or participate in any Letter of Credit, as contemplated in Section 2.8 hereof;
(ii) extend the time for payment for the principal of or interest on the Obligations (other than an extension pursuant to Section 2.14 hereof), or fees or costs, or reduce the principal amount of the Obligations (except as a result of the application of payments or prepayments), or reduce the rate of interest borne by the Obligations (other than as a result of waiving the applicability of the Default Rate), or otherwise affect the terms of payment of the principal of or any interest on the Obligations or fees or costs hereunder; and
(iii) release all or any material portion of the Collateral, except as otherwise contemplated herein or in the Collateral Documents, except in connection with the transfer or withdrawal of interests in the Borrowers permitted hereunder.
(b) all Lenders:
(i) except as otherwise provided by Section 9.5 hereof, permit the cancellation, excuse or reduction of the Commitment of any Borrowing Base Investor;
(ii) amend the definition of “Applicable Requirement”, “Available Commitment”, “Borrowing Base”, “Concentration Limit”, “Designated Investor”, “Exclusion Event”, “FX Reserve Amount”, “Included Investor”, “Lender Commitment”, “Loan”, “Maximum Commitment Amount”, “Obligations”, “Principal Obligations”, “Special HNW Aggregation Investor”, “Stated Maturity Date”, “Uncalled Commitment” or “Unused Commitment”, other than (A) a decrease of the Maximum Commitment Amount pursuant to Section 3.6 hereof or an increase of the Maximum Commitment Amount pursuant to Section 2.13 hereof and (B) an extension of the Stated Maturity Date pursuant to Section 2.14 hereof;
(iii) change the percentages specified in the definition of Required Lenders herein or any other provision hereof specifying the number or percentage of the Lenders which is required to amend, waive or modify any rights hereunder or otherwise make any determination or grant any consent hereunder;
(iv) except in a transaction permitted by this Credit Agreement, consent to the assignment or transfer by any Borrower of any of its rights and obligations under (or in respect of) the Loan Documents; or
(v) amend the terms of this Section 12.1.
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The Administrative Agent agrees that it will promptly notify each Lender and the Letter of Credit Issuer of any proposed waiver, modification or amendment to any Loan Document, and deliver drafts of any such proposed waiver, modification or amendment to each Lender and the Letter of Credit Issuer prior to the effectiveness of such proposed waiver, modification or amendment. Notwithstanding the above: (A) no provision of Section 11 hereof may be amended or modified without the consent of the Administrative Agent; (B) no provisions of Section 2.8 hereof may be waived, amended or modified without the consent of the Letter of Credit Issuer; and (C) Section 8 and Section 9 hereof specify the requirements for waivers of the affirmative covenants and negative covenants listed therein, and any amendment to a provision of Section 8 or Section 9 hereof shall require the consent of the Lenders or the Administrative Agent that are specified therein as required for a waiver thereof. For the avoidance of doubt, the Administrative Agent and the Borrowers may amend this Credit Agreement at any time to replace LIBOR with a LIBOR Successor Rate pursuant to Section 4.12 hereof, and such amendment shall not require the consent of any other Person. Any amendment, waiver or consent not specifically addressed in this Section 12.1 or otherwise shall be subject to the approval of Required Lenders.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans or the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein; (2) the Required Lenders may consent to allow a Borrower to use Cash Collateral in the context of a bankruptcy or insolvency proceeding; and (3) the Administrative Agent may, with the consent of the Borrowers, agree to the modification or waiver of any of the other terms of this Credit Agreement or any other Loan Document or consent to any action or failure to act by any Borrower, if such modification, waiver, or consent is of an administrative nature. If the Administrative Agent shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or exercise of rights covered by this Credit Agreement, such Lender shall use best efforts in good faith to give such consent or denial thereof in writing within ten (10) Business Days of the making of such request by the Administrative Agent, as the case may be, but if such Lender is unable to respond within such time, such Lender shall be deemed to have denied its consent to the request.
Notwithstanding anything to the contrary herein, Schedule A to any Borrower Guaranty may be amended to identify additional Qualified Borrowers (which, for the avoidance of doubt, have been approved by the Administrative Agent pursuant to Section 2.9(a) hereof) without the consent of any Lender or other Agent.
Notwithstanding anything to the contrary herein, if following the Closing Date, the Administrative Agent and the Initial Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of this Credit Agreement or any other Loan Document, then the Administrative Agent and the Initial Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.
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Notwithstanding anything to the contrary herein, any Deposit Account Control Agreement or Collateral Account Pledge may be amended, waived, discharged or terminated by the Administrative Agent in order to (i) assist with any transfer to a new Depository which is an Eligible Institution in accordance with this Credit Agreement or to otherwise reflect any change in the account number with an existing Depository or (ii) to fix an obvious error or any error or omission of a technical or immaterial nature, in either case, without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is, in the reasonable determination of the Administrative Agent, not materially adverse to the Lenders.
12.2 Sharing of Offsets. Each Lender and the Administrative Agent agrees that if it shall, through the exercise of any right of counterclaim, offset, banker’s lien or otherwise, receive payment of a portion of the aggregate amount of principal, interest and fees due to such Lender hereunder which constitutes a greater proportion of the aggregate amount of principal, interest and fees then due to such Lender hereunder than the proportion received by any other Lender in respect of the aggregate amount of principal, interest and fees due with respect to such other Lenders under this Credit Agreement, then such Lender shall purchase participations in the Obligations under this Credit Agreement held by such other Lenders so that all such recoveries of principal, interest and fees with respect to this Credit Agreement, the Notes and the Obligations thereunder held by the Lenders shall be pro rata according to each Lender’s Lender Commitment (determined as of the date hereof and regardless of any change in any Lender’s Lender Commitment caused by such Lender’s receipt of a proportionately greater or lesser payment hereunder).
12.3 Sharing of Collateral. To the extent permitted by applicable law, each Lender and the Administrative Agent, in its capacity as a Lender, agrees that if it shall, through the receipt of any proceeds from a Demand Notice or the exercise of any remedies under any Collateral Documents, receive or be entitled to receive payment of a portion of the aggregate amount of principal, interest and fees due to it under this Credit Agreement which constitutes a greater proportion of the aggregate amount of principal, interest and fees then due to such Lender under this Credit Agreement than the proportion received by any other Lender in respect of the aggregate amount of principal, interest and fees due with respect to any Obligations to such Lender under this Credit Agreement, then such Lender or the Administrative Agent, in its capacity as a Lender, as the case may be, shall purchase participations in the Obligations under this Credit Agreement held by such other Lenders so that all such recoveries of principal, interest and fees with respect to this Credit Agreement, the Notes and the Obligations thereunder held by the Lenders shall be pro rata according to each Lender’s Lender Commitment (determined as of the date hereof and regardless of any change in any Lender’s Lender Commitment caused by such Lender’s receipt of a proportionately greater or lesser payment hereunder). Each Lender hereby authorizes and directs the Administrative Agent to coordinate and implement the sharing of collateral contemplated by this Section 12.3 prior to the distribution of proceeds from Demand Notices or proceeds from the exercise of remedies under the Collateral Documents prior to making any distributions of such proceeds to each Lender or the Administrative Agent, in their respective capacity as the Lenders.
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12.4 Waiver. No failure to exercise, and no delay in exercising, on the part of the Agents or the Lenders, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any other right. The rights of the Agents and the Lenders hereunder and under the Loan Documents shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Credit Agreement, the Notes or any of the other Loan Documents, nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand. Subject to Section 12.1 hereof, the Administrative Agent acting on behalf of all Lenders, and the Initial Borrower may from time to time enter into agreements amending or changing any provision of this Credit Agreement or the rights of the Lenders or the Borrowers hereunder, or may grant waivers or consents to a departure from the due performance of the obligations of the Borrowers hereunder, any such agreement, waiver or consent made with such written consent of the Administrative Agent being effective to bind all the Lenders, except as provided in Section 12.1 hereof. A waiver on any one or more occasions shall not be construed as a bar to or waiver of any right or remedy on any future occasion.
12.5 Payment of Expenses; Indemnity.
(a) The Initial Borrower agrees to pay (within thirty (30) days after the receipt of written notice from the Administrative Agent) (i) all out-of-pocket costs and expenses of the Administrative Agent (including, without limitation, the reasonable fees and expenses of one designated law firm in each applicable jurisdiction acting as counsel to the Administrative Agent) reasonably and actually incurred by it in connection with the negotiation, preparation, execution and delivery of this Credit Agreement, the Notes, and the other Loan Documents and any and all amendments, modifications, waivers and supplements thereof or thereto and (ii) if an Event of Default exists, all out-of-pocket costs and expenses of the Administrative Agent and the Lenders (including, without limitation, the reasonable attorneys’ fees of the Administrative Agent’s and the Lenders’ legal counsel) reasonably incurred by them in connection with the preservation and enforcement of the Administrative Agent’s and the Lenders’ rights under this Credit Agreement, the Notes, and the other Loan Documents.
(b) The Initial Borrower agrees to indemnify each of the Agents and the Lenders and their respective directors, officers, employees, attorneys and agents (each such Person, including, without limitation, each of the Agents and the Lenders, being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, actions, judgments, suits, disbursements, penalties, damages (other than consequential damages), liabilities and related expenses and counsel fees and expenses (including, without limitation, the counsel fees and expenses incurred in the enforcement of any Loan Documents against any Borrower), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
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(i) the execution, delivery and enforcement of this Credit Agreement or any other Loan Document or any agreement or instrument contemplated thereby;
(ii) the use or misuse of the proceeds of the Loans;
(iii) the fraudulent actions or misrepresentations of any Borrower or its Affiliates in connection with the transactions contemplated by this Credit Agreement and the other Loan Documents, or any breach by any Borrower of its obligations under this Credit Agreement or any other Loan Document; or
(iv) any claim, litigation, investigation or proceeding relating to any of the foregoing or relating to any transaction contemplated hereby, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, apply to any such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses as determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from gross negligence, fraud, bad faith or willful misconduct of such Indemnitee or from any dispute between or among the Indemnitees and not involving any Borrower; provided further that this Section 12.5(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or like items arising from any non-Tax claim.
(c) WITHOUT LIMITATION OF AND SUBJECT TO THE FOREGOING, THE INITIAL BORROWER INTENDS AND AGREES THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNITEE WITH RESPECT TO ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND EXPENSES OF COUNSEL) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OR CLAIMS OF NEGLIGENCE OF SUCH OR ANY OTHER INDEMNITEE OR ANY STRICT LIABILITY OR CLAIMS OF STRICT LIABILITY.
(d) The provisions of this Section 12.5 shall survive termination of this Credit Agreement, and shall remain operative and in full force and effect regardless of the expiration of the Commitment Period, the consummation of the transactions contemplated hereby, the repayment of the Loans, the occurrence of the Maturity Date, the invalidity, illegality, or unenforceability of any term or provision of this Credit Agreement or any other Loan Document, or any investigation made by or on behalf of the Lenders. All amounts due under this Section 12.5 shall be payable promptly on written demand therefor.
12.6 Notice.
(a) Notices Generally. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in
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writing (except where telephonic instructions or notices are expressly authorized herein to be given) and shall be deemed to be effective: (a) if by hand delivery, telecopy or other facsimile transmission, on the day and at the time on which delivered to such party at the address or fax numbers specified below; (b) if by mail, on the day which it is received after being deposited, postage prepaid, in the United States registered or certified mail, return receipt requested, addressed to such party at the address specified below; (c) if by FedEx or other internationally recognized express mail service, on the next Business Day following the delivery to such express mail service, addressed to such party at the address set forth below; (d) if by telephone, on the day and at the time communication with one of the individuals named below occurs during a call to the telephone number or numbers indicated for such party below; or (e) if by email, as provided in Section 12.6(b) hereof:
If to the Initial Borrower:
At the address specified with respect thereto on Schedule I hereto.
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Mary B. Touchstone, Esq.
Telephone: (212) 455-2549
Fax:  (212) 455-2502
Email:  mtouchstone@stblaw.com
If to a Qualified Borrower:
At the address specified in its
related Qualified Borrower Note.
If to the Administrative Agent, the Lenders or any other Agent:
At the address specified with respect thereto on Schedule II hereto or on the Assignment and Acceptance Agreement of such Lender or Agent.
Any party may change its address for purposes of this Credit Agreement by giving notice of such change to the other parties pursuant to this Section 12.6. With respect to any notice received by the Administrative Agent from any Borrower or any Investor not otherwise addressed herein, the Administrative Agent shall notify the Lenders promptly of the receipt of such notice, and shall provide copies thereof to the Lenders.
(b) Electronic Communication. Notices and other communications to the Lenders and the Letter of Credit Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not
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apply to notices to any Lender or the Letter of Credit Issuer pursuant to Section 2 hereof if such Lender or the Letter of Credit Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving such notices by electronic communication. Any Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Notwithstanding the foregoing, (i) delivery by posting to Intralinks or any similar secure website which is available to the Administrative Agent shall be an acceptable form of delivery for any report, statement or copy of Investor Demand Notices required of the applicable Borrowers pursuant to Section 8.1(a), 8.1(b)(iv)(A) and (B), 8.1(c)(i) or 8.1(i) hereof, so long as such posting is accompanied by a notice delivered via email in accordance with the procedures for electronic communications set forth in this clause (b) and (ii) documents required to be delivered pursuant to Section 8.1 or 8.5 (to the extent any such documents are included in materials otherwise filed with the United States Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on a publicly available website maintained by or on behalf of the United States Securities and Exchange Commission for access to documents filed in the EDGAR database.
12.7 Governing Law. This Credit Agreement and all of the other Loan Documents shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
12.8 Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by Jury. Any suit, action or proceeding against any Borrower with respect to this Credit Agreement, the Notes or the other Loan Documents or any judgment entered by any court in respect thereof, may be brought in the courts of the State of New York, or in the United States Courts located in the Borough of Manhattan in New York City, pursuant to Section 5-1402 of the New York General Obligations Law, as the Lenders in their sole discretion may elect and each party hereto hereby submits to the non-exclusive jurisdiction of such courts for the purpose of
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any such suit, action or proceeding. Each party hereto hereby irrevocably consents to the service of process in any suit, action or proceeding in said court by the mailing thereof by registered or certified mail, postage prepaid, to such party’s address set forth in Section 12.6 hereof. Each party hereto hereby irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Credit Agreement or the Notes brought in the courts located in the State of New York, Borough of Manhattan in New York City, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, WHICH WAIVER IS INFORMED AND VOLUNTARY.
12.9 Invalid Provisions. If any provision of this Credit Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Credit Agreement, such provision shall be fully severable and this Credit Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Credit Agreement, and the remaining provisions of this Credit Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Credit Agreement, unless such continued effectiveness of this Credit Agreement, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein. If any provision of this Credit Agreement shall conflict with or be inconsistent with any provision of any of the other Loan Documents, then the terms, conditions and provisions of this Credit Agreement shall prevail.
12.10 Entirety. The Loan Documents embody the entire agreement between the parties and supersede all prior agreements and understandings, if any, relating to the subject matter hereof and thereof.
12.11 Parties Bound; Assignment.
(a) Parties Bound. The provisions of this Credit Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that, except as expressly permitted hereby, no Borrower may assign or otherwise transfer any of its respective rights under this Credit Agreement without the prior written consent of all the Lenders.
(b) Participations. Any Lender may at any time grant to one or more banks or other institutions (each a “Participant”) a participating interest in its Lender Commitment or any or all of its Loans; provided that (i) such Lender has provided prior written notice to the Borrowers, (ii) any such participation shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Commitment) and (iii) prior to the occurrence and continuance of an Event of Default pursuant to Section 10.1(a) hereof that has not been cured within sixty (60) days, no such participation shall be granted to any Competitor. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall
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remain responsible for the performance of its obligations hereunder, and the Borrowers and each Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Credit Agreement. The voting rights of each Participant shall be limited to (i) reductions or increases in the amount, or altering the term, of the Lender Commitment of such Participant and (ii) changes to the Maturity Date or interest rate. The Borrowers agree that each Participant shall be entitled to the benefits of Section 4 and Section 5.3 hereof with respect to its participating interest; provided that in no event shall the Borrowers be obligated to pay to such Participant amounts greater than those the Borrowers would have been required to pay to the granting Lender in the absence of such participation; and provided, further, that the Participant shall have complied with the obligations of such sections as though such Participant were a Lender (including the requirements under Section 4.7(e) (it being understood that the documentation required under Section 4.7(e) shall be delivered to the participating Lender)). An assignment or other transfer which is not permitted by subsection (c) below shall be given effect for purposes of this Credit Agreement only to the extent of a participating interest which is permitted in accordance with this subsection (b). Each Lender that sells a participating interest in any Loan, Lender Commitment or other interest to a Participant shall, as agent of the Borrowers solely for the purpose of this Section 12.11(b), record in book entries maintained by such Lender the name and the amount of the participating interest of each Participant entitled to receive payments in respect of such participating interests (the “Participant Register”). 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 pursuant to the terms hereof as the owner of such participation for all purposes of this Credit Agreement, notwithstanding notice to the contrary.
(c) Assignments. With the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and with the prior written consent of the Initial Borrower (such consent not to be unreasonably withheld, conditioned or delayed, and such consent of the Borrowers not to be required for assignments to another existing Lender or during the existence of an Event of Default of the type described in Section 10.1(a), (h) or (i) hereof, or any other Event of Default which has continued uncured for a period of thirty (30) days), any Lender may (at its expense) at any time assign to one or more Eligible Assignees (an “Assignee”) all, or a proportionate part of all (in a constant, not varying, percentage), of its rights and obligations under this Credit Agreement, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Acceptance Agreement; provided that:
(i) this Section 12.11(c) shall not restrict an assignment or other transfer by any Lender to a Federal Reserve Bank, but no such assignment to a
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Federal Reserve Bank shall release the assigning Lender from its obligations hereunder;
(ii) except in the case of an assignment to another Lender, or the assignment of all of a Lender’s rights and obligations under this Credit Agreement, any assignment shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Lender Commitment); provided that, no Lender shall have a Lender Commitment of less than $5,000,000 following any such assignment (unless the assigning Lender shall have assigned all of its rights and obligations under this Credit Agreement);
(iii) prior to the occurrence and continuance of an Event of Default pursuant to Section 10.1(a) hereof that has not been cured within sixty (60) days, the assignee shall not be a Competitor;
(iv) the assignee shall provide any required documentation under Section 4.7 of this Credit Agreement; and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement, the Assignee shall pay to the transferor Lender an amount equal to the purchase price agreed between such transferor Lender and such Assignee, and the transferor Lender shall deliver payment of a processing and recordation fee of $5,000 to the Administrative Agent.
(d) Consequences of Assignment. Upon execution and delivery of such Assignment and Acceptance Agreement and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Credit Agreement and shall have all the rights and obligations of a Lender with a Lender Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required.
(e) Addition of Lenders. With the prior written consent of the Administrative Agent in its sole discretion, at the request of the Borrowers, a new lender may join the Credit Facility as a Lender by delivering a Joinder Agreement to the Administrative Agent, and such new Lender shall assume all rights and obligations of a Lender under this Credit Agreement and the other Loan Documents; provided that:
(i) the Lender Commitment of the new Lender shall be in addition to the Lender Commitment of the existing Lenders in effect on the date of such new Lender’s entry into the Credit Facility and the Maximum Commitment Amount shall be increased in a corresponding amount;
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(ii) the Lender Commitment of the new Lender shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $1,000,000 (in each case, or such lesser amount agreed to by the Borrowers and the Administrative Agent in writing);
(iii) the new Lender shall provide any required documentation under Section 4.7 hereof; and
(iv) the parties shall execute and deliver to the Administrative Agent a Joinder Agreement, the Borrowers shall execute such new Notes as the Administrative Agent or any Lender may reasonably request, and the new Lender shall deliver payment of a processing and recordation fee of $3,500 to the Administrative Agent.
(f) Register of Lenders. The Administrative Agent shall maintain at its principal offices in New York or at such other location as the Administrative Agent shall designate in writing to each Lender and the Borrowers, a copy of each Assignment and Acceptance Agreement and Joinder Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders, the amount of each Lender’s Pro Rata Share of the Lender Commitments and the Loans, and the name and address of each Lender’s agent for service of process in the State of New York (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each person or entity whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register shall be available for inspection and copying by any Borrower or any Lender during normal business hours upon reasonable prior notice to the Administrative Agent. A Lender may change its address and its agent for service of process upon written notice to the Administrative Agent, which notice shall be effective upon actual receipt by the Administrative Agent, which receipt will be acknowledged by the Administrative Agent upon request. Upon receipt of any Assignment and Acceptance Agreement or Joinder Agreement, the Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed, fully-executed and is substantially in the form of Exhibit H attached hereto or if such Joinder Agreement has been completed, fully-executed and is substantially in the form of Exhibit O attached hereto: (i) accept such an Assignment and Acceptance Agreement or Joinder Agreement; (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(g) Disclosure of Information. Any Lender may furnish any information concerning any Borrower Party in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 12.17 hereof.
12.12 Lender Default. If any Lender becomes a Defaulting Lender, then, in addition to the rights and remedies that may be available to the Administrative Agent, the Lenders, or the Borrowers at law or in equity, such Lender’s right to vote on matters related to this Credit
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Agreement, and to participate in the administration of the Loans, the Letters of Credit and this Credit Agreement, shall be suspended during the pendency of such failure or refusal or other event that caused such Lender to be a Defaulting Lender. The Administrative Agent shall have the right, but not the obligation, in its sole discretion, to acquire at par all of such Lender’s Lender Commitment, including its Pro Rata Share in the Obligations under this Credit Agreement. In the event that the Administrative Agent does not exercise its right to so acquire all of such Lender’s interests, then each Lender that is not a Defaulting Lender (a “Current Party”) shall then, thereupon, have the right, but not the obligation, in its sole discretion to acquire (or if more than one Current Party exercises such right, each Current Party shall have the right to acquire, pro rata) at par such Defaulting Lender’s Lender Commitment, including its Pro Rata Share in the outstanding Obligations under this Credit Agreement.
12.13 Maximum Interest. Regardless of any provision contained in any of the Loan Documents, in no event shall the rate of interest payable by any Borrower with respect to any Loan exceed the Maximum Rate.
12.14 Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Credit Agreement.
12.15 Survival. All representations and warranties made by the Borrowers herein shall survive delivery of the Notes, the making of the Loans and the issuance of Letters of Credit.
12.16 Full Recourse. Notwithstanding anything in this Credit Agreement or the Loan Documents to the contrary, the payment and performance of the Obligations of each Borrower shall, subject to Section 3.1 hereof, be fully recourse to such Borrower and its properties and assets, as applicable. Notwithstanding anything in this Credit Agreement and the Loan Documents to the contrary, the Obligations shall not be recourse to any Investor or any Investments.
12.17 Availability of Records; Confidentiality. (a) The Borrowers acknowledge and agree that the Administrative Agent may provide to the Lenders, and that the Administrative Agent and each Lender may provide to any other Lender, any Affiliate of a Lender or Participant or Assignee or proposed Participant or Assignee or any other Person as deemed necessary or appropriate in any Lender’s reasonable judgment, originals or copies of this Credit Agreement, all Loan Documents and all other documents, certificates, opinions, letters of credit, reports, and other material information of every nature or description, and may communicate all oral information, at any time submitted by or on behalf of any Borrower or received by the Administrative Agent or a Lender in connection with the Loans, the Letter of Credit Liability, the Lender Commitments or any Borrower; provided that, prior to any such delivery or communication, the Lender, Affiliate of a Lender, Participant, or Assignee, or proposed Participant or Assignee or such other Person, as the case may be, shall agree to preserve the confidentiality of all data and information which constitutes Confidential Information; (b) the Borrowers, the Administrative Agent and the Lenders (i) acknowledge and agree that (x) the identities of the Investors, any structural or financial information delivered by the Investors, the amounts of their respective Commitments and details regarding their investments under the Constituent Documents (collectively, the “Investor Information”) have been and will be
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delivered on a confidential basis; and (y) information with respect to Investments has been and will be delivered on a confidential basis; (ii) acknowledge and agree that such Investor Information and information with respect to Investments are Confidential Information; and (iii) agree that such Investor Information and information with respect to Investments shall be subject to the provisions of this Section 12.17; and (c) anything herein to the contrary notwithstanding, the provisions of this Section 12.17 shall not preclude or restrict any such party from disclosing any Confidential Information: (i) with the prior written consent of any Borrower; (ii) upon the order of or pursuant to the rules and regulations of any Governmental Authority or regulatory body having or reasonably claiming to have jurisdiction over such party; (iii) in connection with any audit by an independent public accountant of such party, provided such auditor thereto agrees to be bound by the provisions of this Section 12.17; (iv) to examiners or auditors of any applicable Governmental Authority which examines such party’s books and records while conducting such examination or audit; (v) to the Lenders’ respective attorneys, certified public accountants or agents, provided that such recipient has been advised of the confidential nature of such information and been instructed to keep such information confidential; (vi) as otherwise specifically required by applicable Laws or by any subpoena or similar legal process; (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to any Loan Document or the enforcement of rights thereunder; (viii) to the extent such information (A) becomes publicly available other than as a result of a breach of this Section 12.17 or (B) becomes available to such Person on a non-confidential basis from a source other than the Borrowers; or (ix) which relates to the tax treatment and tax structure of the transactions contemplated hereby, including, without limitation, all materials of any kind (including opinions or other tax analyses) that are provided to such Person relating to such tax treatment and tax structure, to taxing authorities. Notwithstanding the termination of this Credit Agreement, each Lender agrees to hold Confidential Information in accordance with its internal document retention policies and procedures for two (2) years following the termination of this Credit Agreement, which policies and procedures, as of the date hereof, provide that information considered confidential shall be held on a confidential basis.
12.18 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Borrower in accordance with the PATRIOT Act.
12.19 Multiple Counterparts. This Credit Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Credit Agreement by signing any such counterpart. Delivery of an executed counterpart hereof, or a signature page hereto, by facsimile or in a .pdf or similar file shall be effective as delivery of a manually executed original counterpart thereof.
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12.20 Judgment Currency. Subject to Section 3.1 hereof, each Borrower agrees to indemnify and hold harmless the Agents and the Lenders from and against any loss incurred by any of them as a result of any judgment or order being given or made for an amount due from such Borrower under or in connection with this Credit Agreement or any other Loan Document and such judgment or order being paid or payable in a currency other than the applicable currency (the “Judgment Currency”) as a result of any variation as between (i) the rate of exchange at which the applicable currency amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which the relevant indemnified party is able to purchase the applicable currency with the amount of the Judgment Currency actually received by such Person. The foregoing indemnity shall constitute separate and independent obligations of the Borrowers and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion of, the relevant currency.
12.21 Acknowledgement and Consent to Bail‑In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Letter of Credit Issuer that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write‑down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or Letter of Credit Issuer that is an EEA Financial Institution; and
(b) the effects of any Bail‑In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write‑down and conversion powers of any EEA Resolution Authority.

USActive 53991578.7 92

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW.


USActive 53991578.7 93

IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the day and year first above written.
INITIAL BORROWER:
BLACKSTONE / GSO SECURED LENDING FUND, a Delaware statutory trust

By: 
Name:
Title:

USActive 53991578.7 BAML – Bx/GSO SLF – Revolving Credit Agreement

ADMINISTRATIVE AGENT, SOLE LEAD ARRANGER, LETTER OF CREDIT ISSUER AND LENDER:
BANK OF AMERICA, N.A., as Administrative Agent, Sole Lead Arranger, Letter of Credit Issuer and a Lender

By: 
Name: 
Title:



USActive 53991578.7 BAML – Bx/GSO SLF – Revolving Credit Agreement

SCHEDULE I
Borrower Information
Name type of credit party Jurisdiction of Formation type of entity principal office and chief executive office Principal Place of Business Notice Address Constituent Documents Collateral account
Blackstone / GSO Secured Lending Fund Initial Borrower Delaware Statutory Trust
345 Park Avenue
31st Floor
New York, NY
10154
New York 345 Park Avenue
31st Floor
New York, NY
10154
Attn: Matt Skurbe; Andrew Jordan; and Angelina Perkovic
Email: GSOTreasury@blackstone.com; skurbe@Blackstone.com; Angelina.Perkovic@gsocap.com; Andrew.Jordan@gsocap.com 		(i) Second Amended and Restated Agreement and Declaration of Trust, dated as of October 1, 2018; and (ii) By-Laws, dated as of July 31, 2018 11148319






USActive 53991578.7 

SCHEDULE II
Lender Commitments

Lender Name Commitment
Bank of America, N.A.
$200,000,000   
ING Capital LLC
$200,000,000   

Administrative Agent / Lender Notice Information
Bank of America, N.A. 
NC1-027-15-01
214 North Tryon Street Charlotte, NC 28255
Attention: Jose Liz-Moncion
Telephone: (980) 387-1124
Fax: (312) 453-6498
Email: jose.liz-moncion@baml.com

With a copy to:
Cadwalader, Wickersham & Taft LLP
227 W Trade Street
Charlotte, NC 28202
Attention: Wesley Misson
Telephone: (704) 348-5355
Fax: (704) 348-5200
Email: wesley.misson@cwt.com
ING Capital LLC
1133 Avenue of the Americas
New York, NY 10036
Attention: Dominik Breuer
Telephone: (646) 424-6269
Email: dominik.breuer@ing.com




SCHEDULE III
Time Tables

Loans/Letters of Credit in Dollars

Loans/Letters of Credit in an Alternate Currency
Delivery of Request for Borrowing at Reference Rate
By 11:00 a.m. on the date of Borrowing
N/A
Delivery of Request for Borrowing at LIBOR rate (other than Daily LIBOR)
3 Business Days prior to date of Borrowing
at 11:00 a.m.
4 Business Days prior to date of Borrowing
at 11:00 a.m.
Delivery of Request for Borrowing at Daily LIBOR rate
1 Business Day prior to date of Borrowing
at 11:00 a.m.
N/A
Delivery of Conversion Notice from Reference Rate to LIBOR rate (other than Daily LIBOR)
3 Business Days
prior to LIBOR rate Conversion Date
at 9:00 a.m.

N/A
Delivery of Conversion Notice from Reference Rate to Daily LIBOR rate
By 9:00 a.m.
on the Reference Rate Conversion Date

N/A
Delivery of Conversion Notice from LIBOR rate to Reference Rate
By 9:00 a.m.
on the Reference Rate Conversion Date

N/A
Delivery of Conversion Notice from LIBOR rate (other than Daily LIBOR) to Daily LIBOR
By 9:00 a.m. on the Reference Rate Conversion Date
N/A
‑2‑

Loans/Letters of Credit in Dollars

Loans/Letters of Credit in an Alternate Currency
Delivery of Rollover Notice
3 Business Days
prior to termination of each Interest Period
at 9:00 a.m.
4 Business Days
prior to termination of each Interest Period
at 9:00 a.m.

Delivery of Request for Letter of Credit
5 Business Days prior to requested date of issuance (in the case of an issuance by a local branch office of the Letter of Credit Issuer in the United States) or 7 Business Days (in the case of an issuance by a local branch office of the Letter of Credit Issuer outside of the United States) at 2:00 p.m.

Determination of Daily LIBOR
On such day at approximately 11:00 a.m. (London time)
Determination of LIBOR
2 Business Days prior to first day of Interest Period at approximately 11:00 a.m. (London time)
Determination of CDOR
N/A
2 Business Days
prior to first day of Interest Period
at approximately
10:00 a.m. (Toronto Time)
Determination of BBSY
N/A
2 Business Days prior to first day of Interest Period at approximately 10:30 a.m. (Melbourne, Australia time)
Determination of interest rate if LIBOR is unavailable
The date such rate shall apply for settlement in immediately available funds by leading banks in the London interbank market for a period equal to the Interest Period selected at approximately 11:00 a.m. (London time)
LIBOR Cutoff
2 Business Days prior to first day of Interest Period at approximately 11:00 a.m. (London time)
Voluntary Prepayments of LIBOR Loans (other than Daily LIBOR)
3 Business Days prior to date of prepayment
at 11:00 a.m.
4 Business Days prior to date of prepayment
at 11:00 a.m.
Voluntary Prepayments of Loans bearing interest at Daily LIBOR
1 Business Day prior to date of prepayment
at 11:00 a.m.
N/A
‑3‑

Loans/Letters of Credit in Dollars

Loans/Letters of Credit in an Alternate Currency
Voluntary Prepayments of Reference Rate Loans
By 11:00 a.m. on the date of prepayment

N/A
Funding by Lenders of Lender Percentage of Borrowings at LIBOR rate (other than Daily LIBOR or Reference Rate)
The date specified in the Request for Borrowing at 11:00 a.m.
Funding by Lenders of Lender Percentage of Borrowings at Daily LIBOR rate or Reference Rate
The date specified in the Request for Borrowing at 1:00 p.m.
Deposit by Administrative Agent of proceeds of Borrowings at LIBOR rate (other than Daily LIBOR or Reference Rate) into Borrower’s account
The requested Borrowing date at 1:00 p.m.
Deposit by Administrative Agent of proceeds of Borrowings at Daily LIBOR rate or Reference Rate into Borrower’s account
The requested Borrowing date at 3:00 p.m.
Spot Rate Determination
11:00 a.m. New York time
Notice of election to capitalize unused commitment fees
9:00 a.m. (New York time) three (3) Business Days prior to any payment date for unused commitment fees pursuant to Section 2.12(a)
Notice of election to capitalize interest or Letter of Credit fees
9:00 a.m. (New York time) three (3) Business Days prior to any Interest Payment Date, or date on which Letter of Credit fees are payable, as applicable


‑4‑

‑5‑

EXHIBIT U
FORM OF FACILITY INCREASE REQUEST
[DATE]
Bank of America, N.A.
NC1‑027‑15‑01
214 North Tryon Street
Charlotte, NC 28255
Attention: Jose Liz‑Moncion
Telephone: (980) 387‑1124
Fax: (312) 453‑6498
Email: jose.liz‑moncion@baml.com

That certain Revolving Credit Agreement, dated as of November 6, 2018, by and among Blackstone / GSO Secured Lending Fund, a Delaware statutory trust, as the Initial Borrower (the “Initial Borrower”), Bank of America, N.A., as the Administrative Agent (the “Administrative Agent”), the Sole Lead Arranger, the Letter of Credit Issuer and a Lender, and the other financial institutions from time to time party thereto as lenders (the “Lenders”) (as the same may be modified, amended, supplemented or restated from time to time, the “Credit Agreement”). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.

Ladies and Gentlemen:
This facility increase request (this “Request”) is executed and delivered by the Initial Borrower to the Administrative Agent pursuant to Section 2.13 of the Credit Agreement.
The Initial Borrower hereby requests an increase in the Maximum Commitment in the amount of $[___] (the “Facility Increase”), such Facility Increase to be effective on [DATE].
In connection with the Facility Increase requested herein, the Initial Borrower hereby represents, warrants and certifies (as to itself and any Qualified Borrowers) to the Administrative Agent for the benefit of the Lenders that:
(1) On and as of the date of this Request, the representations and warranties set forth in Section 7 of the Credit Agreement (other than the representations and warranties contained in Section 7.8 of the Credit Agreement) and in the other Loan Documents are true and correct in all material respects on and as of the date of this Request, and will be true and correct in all material respects immediately after the Facility Increase requested herein, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the


Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or other specific date);
(2) No Event of Default or, to any Borrower’s knowledge, Potential Default exists and is continuing on and as of the date hereof or will exist on the date of the Facility Increase requested herein;
(3) Attached hereto as Annex I is a true and correct copy of the resolutions adopted by each Borrower approving or consenting to this Request, as is required pursuant to the Credit Agreement; and
(4) After giving effect to the Facility Increase, the Maximum Commitment will not exceed $700,000,000.
In the event that between the date hereof and the date of the Facility Increase, any event should occur which could reasonably be expected to have a Material Adverse Effect, the Initial Borrower shall promptly notify the Administrative Agent.
Remainder of Page Intentionally Left Blank.
Signature Page(s) Follow.

U-2

IN WITNESS WHEREOF, the undersigned has executed and delivered this Request as of the date first written above.
INITIAL BORROWER:
BLACKSTONE / GSO SECURED LENDING FUND, a Delaware statutory trust

By:  
Name:
Title:



U-3

ANNEX 1 TO FACILITY INCREASE REQUEST

Resolutions

[To be attached]




Exhibit 31.1
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Brad Marshall, Chief Executive Officer of Blackstone / GSO Secured Lending Fund, certify that:
1.I have reviewed this quarterly report on Form 10-Q of Blackstone / GSO Secured Lending Fund (the “registrant”);
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of trustees (or persons performing the equivalent function):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 13, 2019
By: /s/ Brad Marshall
Brad Marshall
Chief Executive Officer



Exhibit 31.2
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Stephan Kuppenheimer, Chief Financial Officer of Blackstone / GSO Secured Lending Fund, certify that:
1.I have reviewed this quarterly report on Form 10-Q of Blackstone / GSO Secured Lending Fund (the “registrant”);
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of trustees (or persons performing the equivalent function):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 13, 2019
By: /s/ Stephan Kuppenheimer
Stephan Kuppenheimer
Chief Financial Officer



Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned, as Chief Executive Officer of Blackstone / GSO Secured Lending Fund (the “Company”), does hereby certify that to the undersigned’s knowledge:
(1)the Company’s Form 10-Q for the quarter ended September 30, 2019 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)the information contained in the Company’s Form Q for the quarter ended September 30, 2019 fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: November 13, 2019
 
By: /s/ Brad Marshall
  Brad Marshall
  Chief Executive Officer



Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned, as Chief Financial Officer of Blackstone / GSO Secured Lending Fund (the “Company”), does hereby certify that to the undersigned’s knowledge:
(1)the Company’s Form 10-Q for the quarter ended September 30, 2019 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)the information contained in the Company’s Form Q for the quarter ended September 30, 2019 fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: November 13, 2019
 
By: /s/ Stephan Kuppenheimer
  Stephan Kuppenheimer
  Chief Financial Officer