Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 3, 2021, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 2 contracts

Samples: Supplemental Indenture (Blue Owl Capital Corp), Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~August 20, ~~2021~~2019, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx)~~ XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Debt or additional Subordinated Securities are issued, any Accountants’ Report delivered ~~in connection thereto~~ pursuant to Section 2.4(e) as an attachment, will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P by the date thirty (30) ~~days~~ Business Days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$25,000,000 of the net proceeds of the issuance of the Notes and incurrence of the Class A Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued ~~Interest, if any,~~ Interest from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c). (g) [Reserved].

Appears in 2 contracts

Samples: Supplemental Indenture (Owl Rock Capital Corp), Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~June 15, 2021, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If ~~(1)~~ the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment ~~Date~~Date (such event, an “S&P Rating Confirmation Failure”), then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as the Effective Date S&P ~~has provided written confirmation of its Initial Rating of the Secured Notes~~ Conditions have been satisfied (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to ~~obtain written confirmation of its Initial Rating of~~ satisfy the ~~Secured Notes from S&P.~~ Effective Date S&P Conditions. (f) ~~U.S.$29,549,508.80~~ U.S.$90,913,744 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 2 contracts

Samples: Supplemental Indenture (Blue Owl Technology Finance Corp.), Indenture and Security Agreement (Owl Rock Technology Finance Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) ~~Within thirty~~ [Intentionally omitted]. (30d) ~~days~~ Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer will provide, or cause the Collateral Manager to provide, the following documents: (i) to each of the ~~Issuer shall provide to the Collateral Manager~~ Rating Agencies and the Trustee, a report identifying the Collateral Obligations, (ii) to each of the Rating Agencies, the Effective Date Report and (iii) to the Trustee, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~obligor, outstanding principal balance, coupon/spread, stated maturity, ~~S&P Rating and~~ country of ~~Domicile~~ Domicile, Xxxxx’x Rating, Moody’s Default Probability Rating, and Fitch Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test; and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) ~~If (1) the Effective Date S&P Conditions have not been satisfied~~ If, prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), (x) the Trustee has not been provided with an Accountants’ Certificate indicating the level of compliance with, or satisfaction or non-satisfaction of Effective Date Specified Tested Items and each of the Rating Agencies has not been provided with (i) a report identifying the Collateral Obligations and (ii) an Effective Date Report or (2y) ~~S&P has~~ the Xxxxx’x Rating Condition is not ~~provided written confirmation~~ satisfied (~~which may take the form of~~ such occurrence constituting a ~~press release or other written communication~~“Moody’s Ramp-Up Failure”) ~~of its Initial Rating of the Secured Notes rated by S&P by the date thirty~~ then (30A) ~~days following the Effective Date, then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) notify Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report on or before the first Determination Date or (ii) request ~~S&P~~ Moody’s to ~~provide written confirmation of~~ confirm on or before the first Determination Date that Moody’s will not reduce or withdraw its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes ~~rated~~ and (B) if, by ~~S&P~~ the first Determination Date, the Issuer (~~which may take~~ or the ~~form of a press release or other written communication). In~~ Collateral Manager on the Issuer’s behalf) has not confirmed to Moody’s that the Trustee has been provided with such ~~case, if S&P does not provide written confirmation of its Initial Rating~~ Accountants’ Certificate and each of the ~~Secured Notes on~~ Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or ~~prior to~~ obtained the ~~Determination Date immediately~~ confirmation from Moody’s, each as described in the preceding ~~the first Payment Date~~clause (A) of this paragraph, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) confirm to Moody’s that the Trustee has been provided with such ~~time as S&P~~ Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (ii) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A~~ Notes); provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) confirm to Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (2) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). The Collateral Manager shall provide Fitch written notice if a Moody’s Ramp-Up Failure has occurred. Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Notes pursuant to this clause (e), the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from ~~S&P.~~Moody’s its written confirmation of its Initial Ratings of the Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). Payments made in respect of the Notes in connection with such Special Redemption shall be paid in accordance with the Note Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount in connection with such a Special Redemption on a Business Day other than a Payment Date if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Notes on such next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ U.S.$100,925,565.30 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~January 24, ~~2021~~2025, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$9,480,108 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-1L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, spread/coupon, Libor floor (if applicable), LoanX identification number (if applicable), purchase price for any unsettled assets, legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate and identification of any First-Lien Last-Out Loans. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately prior to the first Payment Date), the Issuer shall provide, or cause the Collateral Manager (or, in the case of clause (ii), the Collateral Administrator) to provide, the following documents: (i) ~~the Issuer shall provide~~ to the ~~Collateral Manager~~ Rating Agency, the Trustee and the ~~Trustee~~Collateral Agent, a report identifying the Collateral Obligations; (ii) to the Rating Agency, the Effective Date Report, and (iii) to the Trustee and the Collateral Agent, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~Obligor, ~~principal balance~~Principal Balance, spread/coupon~~/spread~~, stated maturity, ~~S&P Rating and~~ country of Domicile and S&P Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test); and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) If ~~(1)~~ neither the Effective Date Condition nor the S&P ~~Conditions have not been~~ Rating Condition is satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (~~2) S&P has not provided written confirmation (which may take~~ but in no event later than the ~~form of a press release or other written communication) of its Initial Rating of~~ Determination Date immediately preceding the ~~Secured Notes rated by S&P by the date thirty (30) days following the Effective~~ first Payment Date), then (A) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall (x) either (i) cause the S&P Deemed Rating Confirmation to occur or (ii) request S&P to ~~provide written confirmation of~~ confirm, on or before the first Determination Date, that it will not reduce or withdraw its Initial Rating of the ~~Secured Notes~~ Debt it rated and (B) if, by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first ~~Payment~~ Determination Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not caused the S&P Deemed Rating Confirmation to occur or obtained the confirmation from S&P, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the ~~Trustee~~ Collateral Agent to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as~~ in an amount sufficient to enable the Co-Issuers (or the Collateral Manager on the Co-Issuers’ behalf) to (x) cause the S&P ~~has provided~~ Deemed Rating Confirmation to occur or (y) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Debt it rated; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (x) cause the S&P Deemed Rating Confirmation to occur or (y) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes from S&P.~~Debt it rated. (f) ~~U.S.$29,549,508.80~~ An S&P Deemed Rating Confirmation (“S&P Deemed Rating Confirmation”) shall occur, and a written confirmation from S&P of its initial ratings of the ~~net proceeds~~ Secured Debt will be deemed to have been provided, if (x) the Issuer causes the Collateral Manager to provide to S&P the Effective Date Report and the Effective Date Report confirms satisfaction of the ~~issuance~~ S&P CDO Monitor Test as of the ~~Notes~~ Effective Date, (y) the Collateral Manager certifies to S&P (which confirmation may be in the form of an email) that as of the Effective Date the S&P CDO Monitor Test is satisfied (testing as though the S&P CDO Monitor Switchover Date has occurred and taking into account the S&P CDO Monitor Non-Model Adjustments described below) and (z) the Collateral Manager provides to S&P a report identifying the Collateral Obligations used to generate the passing test result; provided that, for purposes of determining compliance with the S&P CDO Monitor Test in connection with such Effective Date Report, the Aggregate Funded Spread will be calculated without giving effect to the proviso to clause (a) of the definition of “Aggregate Funded Spread” and by assuming that any Collateral Obligation subject to a Libor floor bears interest at a rate equal to the stated interest rate spread over the Libor-based index for such Collateral Obligation (the “S&P CDO Monitor Non-Model Adjustments”). Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Debt pursuant to clause (e) above, the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from S&P, its written confirmation of its Initial Ratings of the Debt it rated. Payments made in respect of the Debt in connection with such Special Redemption shall be paid in accordance with the Debt Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount pursuant to clause (e) above if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Debt on such next succeeding Payment Date. (g) The amount specified in Section 3.1(k)(i) will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee~~ Collateral Agent shall apply the remaining amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Second Supplemental Indenture (Silver Point Specialty Lending Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~April 6, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered ~~in connection thereto~~ pursuant to Section 2.4(e) as an attachment, will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) ~~days~~ Business Days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$394,400,000 of the net proceeds of the issuance of the ~~Notes~~ Securities will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued ~~Interest, if any,~~ Interest from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency (in the ~~Issuer shall provide~~ case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Notes; (ii) to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the ~~Trustee~~Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and~~ Reports; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . (Av) the ~~information required~~ Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Trustee with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (w) the Issuer delivers the Effective Date Certificate to the Trustee and causes the Collateral Administrator to make available to the Rating Agencies (i) a ~~Monthly~~ report identifying the Collateral Obligations and (ii) the Effective Date Report, (Bx) ~~a calculation~~ the Collateral Manager certifies to S&P (which may be in the form of ~~the Aggregate Principal Balance~~ an e-mail) that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (z) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Secured Notes shall be deemed to have been provided (the “Effective Date Condition”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 ~~Website~~website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating ~~Agency~~ Agencies or posted on the 17g-5 website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured Notes ~~rated by S&P by the date thirty (30) days following the Effective Date,~~ then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Notes. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$11,359,703.08 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL INVESTMENT Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~March 22, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer (or the Collateral Manager on its behalf) shall provide, or cause the Collateral Manager to provide, the following documents (i) to the Rating Agency, a report (that the Issuer shall ~~provide~~ cause the Collateral Administrator to prepare on its behalf in accordance with, and subject to the terms of, the Collateral ~~Manager~~ Administration Agreement) identifying the Collateral Obligation; (ii) to the Rating Agency, the Trustee and the ~~Trustee~~Collateral Manager, ~~an Accountants’ Report:~~ (x) ~~confirming the identity of the issuer~~ a report (~~it being understood~~ that the ~~same issuer may be referred~~ Issuer shall cause the Collateral Administrator to ~~differently due~~ prepare on its behalf in accordance with, and subject to the ~~use of abbreviations or shorthand references by different record keepers)~~terms of, the Collateral Administration Agreement) stating the following information (the “Effective Date Report”): (A) the Obligor, principal balance, coupon/spread, stated maturity, S&P ~~Rating~~ Rating, S&P Industry Classification Group and country of Domicile with respect to each Collateral Obligation as of the Effective Date and ~~the~~ substantially similar information provided by the Issuer with respect to every other asset included in the ~~Assets~~Assets (to the extent such asset is a security or a loan), by reference to such sources as shall be specified therein and (B) as of the Effective Date, the level of compliance with, and satisfaction or non-satisfaction of, (1) the Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test) (the “Effective Date Tested Items”) and (y) a certificate of the Issuer (such ~~report~~certificate, the “Effective Date Issuer Certificate”), certifying that the Issuer has received (A) an Accountants’ Report (the “Accountants’ Effective Date Comparison AUP Report”) recalculating and confirming the following items from the Effective Date Report: the Obligor, principal balance, coupon/spread, stated maturity, S&P Rating, S&P Industry Classification Group and country of Domicile with respect to each Collateral Obligation as of the Effective Date and substantially similar information provided by the Issuer with respect to every other asset included in the Assets (to the extent such asset is a security or a loan), by reference to such sources as will be specified therein and (yB) an Accountants’ Report (the “Accountants’ Effective Date Recalculation AUP Report”) recalculating ~~and comparing~~ as of the Effective Date the level of compliance with, or and satisfaction or non-satisfaction of of, the Effective Date Tested ~~Items~~ Items; and ~~specifying~~ (iii) to the ~~procedures undertaken by them to review data~~ Trustee and ~~computations relating to such report (~~the “Collateral Manager, the Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and (ii)~~ Reports. If the ~~Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “~~S&P Effective Date ~~Report”)~~Condition is satisfied, ~~determined as~~ written confirmation from S&P of its Initial Rating of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report Secured Debt shall be ~~provided~~ deemed to ~~or otherwise shared with the Rating Agency~~have been provided. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). Upon receipt of the Effective Date Report, the Collateral Manager shall compare the information contained in such Effective Date Report to the information contained in its records with respect to the Assets and shall, within three Business Days after receipt of such Effective Date Report, notify the Issuer, the Collateral Administrator, the Rating Agency and the Trustee if the information contained in the Effective Date Report does not conform to the information maintained by the Trustee with respect to the Assets. In the event that any discrepancy exists, the Trustee and the Issuer, or the Collateral Manager on behalf of the Issuer, shall attempt to resolve the discrepancy. If such discrepancy cannot be promptly resolved, the Trustee shall within five Business Days notify the Collateral Manager who shall, on behalf of the Issuer, request that the Independent accountants selected by the Issuer pursuant to Section 10.10 perform agreed-upon procedures on the Effective Date Report, the Collateral Manager’s records and the Trustee’s and/or the Collateral Administrator’s records to assist the Collateral Manager and the Trustee in determining the cause of such discrepancy. If such procedures reveal an error in the Effective Date Report, the Collateral Manager’s records or the Trustee’s and/or the Collateral Administrator’s records, the Effective Date Report, the Collateral Manager’s records, the Trustee’s records and/or the Collateral Administrator’s records, as applicable, will be revised accordingly and notice of any error in the Effective Date Report shall be sent as soon as practicable by the Issuer to all recipients of such report. (e) If If, within 30 Business Days after the Effective Date, (1) the S&P Effective Date ~~S&P Conditions have~~ Condition has not been satisfied ~~prior to the date that is thirty (30) days after the Effective Date or~~ and (2) S&P has not provided written confirmation (which may take the form of a press release or other written ~~communication~~communication or may be deemed provided under Section 7.18 above) of its Initial Rating assigned by it on the Closing Date to each Class of ~~the~~ Secured ~~Notes~~ Debt rated by it (the failure to satisfy clauses (1) and (2), an “S&P ~~by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial~~ Rating ~~of the Secured Notes rated by S&P (which may take the form of a press release or other written communication~~Confirmation Failure”)~~. In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date~~, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and ~~may~~the Issuer (or the Collateral Manager on its behalf) may direct the Trustee, prior to the first Payment Date, to use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation (which may take the form of a press release or other written communication) of its Initial ~~Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Rating; provided that in lieu of complying with ~~this clause (e)~~the foregoing, the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation (which may take the form of a press release or other written communication) from S&P of its Initial ~~Rating~~ Rating; provided further that amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount if, after giving effect to such transfer, (I) the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay in the full amount of the accrued and unpaid interest on any Class of Secured ~~Notes from S&P.~~Debt on such next succeeding Payment Date or (II) such transfer would result in a deferral of interest with respect to the Deferrable Debt on the next succeeding Payment Date. (f) ~~U.S.$29,549,508.80 of~~ The Issuer hereby directs the ~~net proceeds of~~ Trustee to deposit the ~~issuance of~~ amount specified in the ~~Notes will be deposited in~~ Closing Date Certificate to the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee shall apply~~ amounts held in the Ramp-Up Account shall be used to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c). (g) Within 30 Business Days after the Effective Date, the Issuer (or the Collateral Manager on its behalf) shall provide, or cause the Collateral Administrator to provide, to S&P, a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Administrator shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), LoanX ID (if any), name of Obligor, coupon, spread (if applicable), Reference Rate floor (if any), legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, trade date and settlement date, S&P Industry Classification Group, S&P Rating, S&P Recovery Rate and the purchase price of assets purchased by the Issuer that have not settled as of such date. (h) If, following the Effective Date, either (i) S&P provides written confirmation of its Initial Rating or (ii) during an S&P CDO Monitor Formula Election Period (if the Issuer has satisfied the S&P Effective Date Condition), the S&P CDO Monitor Test is satisfied, then the Issuer shall be under no obligation to transfer (or cause the transfer of) Interest Proceeds to the Collection Account as Principal Proceeds or to effect a Special Redemption (subject to satisfaction of the S&P Effective Date Condition). (i) On or prior to the Effective Date, the Collateral Manager shall elect the Weighted Average S&P Recovery Rate that will apply during an S&P CDO Monitor Model Election Period for purposes of determining compliance with the Minimum Weighted Average S&P Recovery Rate Test, by written notice to the Trustee, the Collateral Administrator and S&P. Thereafter, at any time during any S&P CDO Monitor Model Election Period, by written notice to the Trustee, the Collateral Administrator and S&P, the Collateral Manager may elect a different Weighted Average S&P Recovery Rate to apply to the Collateral Obligations; provided, that, if: (i) the Collateral Obligations are currently in compliance with the Weighted Average S&P Recovery Rate case then applicable to the Collateral Obligations, but the Collateral Obligations would not be in compliance with the Weighted Average S&P Recovery Rate case to which the Collateral Manager desires to change, then such changed case will not apply or (ii) the Collateral Obligations are not currently in compliance with the Weighted Average S&P Recovery Rate case then applicable to the Collateral Obligations and would not be in compliance with any other Weighted Average S&P Recovery Rate case, the Weighted Average S&P Recovery Rate to apply to the Collateral Obligations shall be the lowest Weighted Average S&P Recovery Rate in Section 2 of Schedule 6. If the Collateral Manager does not so notify the Trustee and the Collateral Administrator that it will alter the Weighted Average S&P Recovery Rate in the manner set forth above, the Weighted Average S&P Recovery Rate chosen on or prior to the Effective Date will continue to apply. (j) Compliance with the S&P CDO Monitor Test will be measured only during the Reinvestment Period and shall be measured by the Collateral Manager on each Measurement Date; provided that on each Measurement Date after the Effective Date and after receipt by the Issuer of the S&P CDO Monitor Input File, the Collateral Manager shall provide to the Trustee and the Collateral Administrator a report on the portfolio of Collateral Obligations containing such information as is reasonably necessary to permit the Collateral Administrator to calculate the Class Default Differential with respect to the Highest Ranking Class on such Measurement Date. In the event that the Collateral Manager’s measurement of compliance and the Collateral Administrator’s measurement of compliance show different results, the Collateral Manager and the Collateral Administrator shall cooperate promptly in order to reconcile such discrepancy. (k) The failure of the Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith.

Appears in 1 contract

Samples: Indenture (HPS Corporate Lending Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to the ~~Issuer~~ Rating Agency (via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Debt; (ii) to the Collateral ~~Manager~~ Agent and the ~~Trustee~~Rating Agency (via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Collateral Agent and the Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report~~Reports; and (iv) to the Collateral Agent and the Rating Agency (via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) an Officer’s certificate of the Issuer (the “Effective Date Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date. If (v) the Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Collateral Agent with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (w) the Issuer delivers the Effective Date Certificate to the Collateral Agent and the Rating Agency and causes the Collateral Administrator to make available to the Rating Agency (i) a report identifying the Collateral Obligations and (ii) the ~~Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “~~Effective Date Report”), ~~determined~~ and such Effective Date Certificate and Effective Date Report indicates satisfaction of the S&P CDO Monitor Test as of the Effective Date, ~~containing~~ (Ax) the ~~information required~~ Collateral Manager certifies to S&P (which may be in ~~a Monthly Report, (B~~the form of an e-mail) ~~a calculation of the Aggregate Principal Balance~~ that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (z) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Secured Notes shall be deemed to have been provided (the “Effective Date Condition”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the ~~17g-5~~ Issuer’s Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating Agency or posted on the Issuer’s Website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured ~~Notes rated by S&P by the date thirty (30) days following the Effective Date~~Debt, then the ~~Issuer (or~~ Collateral Manager, on behalf of the Issuer, shall instruct the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee Agent in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes~~ Debt (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A A-1 Debt, the Class A-2 Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Debt. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the ~~Notes~~ Debt which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$48,424,921.17 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee~~ Collateral Agent shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations ~~(i)~~ such that the Target Initial Par Condition is ~~satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests~~satisfied. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from any amounts on deposit in the Ramp-Up Account or~~ Obligation, first, any Principal Proceeds on deposit in the Collection Account, and, second, any amounts on deposit in the Interest Ramp-Up Account or the Principal Ramp-Up Account (at the discretion of the Collateral ~~Manager~~ Manager) and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any Interest Proceeds on deposit in the Collection Account, and second, any amounts on deposit in the Interest Ramp-Up Account or ~~any~~ the Principal ~~Proceeds on deposit in the Collection~~ Ramp-Up Account (at the discretion of the Collateral Manager). In addition, the Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (30“Excel Default Model Input File”) ~~days~~ that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), the LoanX identifier (if any), name of Obligor, coupon, spread (if applicable), legal final maturity date, average life, principal balance, the reference rate floor with respect to any Floor Obligation, identifying such Collateral Obligation with a trade date and settlement date, the purchase price thereof, identification as a Cov-Lite Loan or otherwise, S&P Industry Classification, S&P Rating and S&P Recovery Rate. (d) Within 15 Business Days after the Effective Date, (i) the Issuer will provide, or cause the Collateral Manager to provide, to the Rating Agency a report identifying the Collateral Obligations and request that S&P reaffirm its Initial Ratings of the Secured Notes, (ii) the Issuer shall cause the Collateral Administrator to compile and provide to the ~~Collateral Manager~~ Rating Agency a report (the “Effective Date Report”) determined as of the Effective Date, containing (A) the information required in a Monthly Report and (B) a calculation with respect to whether the ~~Trustee,~~ Target Initial Par Condition is satisfied and (iii) the Trustee shall have received (A) an Accountants’ Effective Date Comparison AUP Report recalculating and comparing the following items in the Effective Date Report: ~~(x) confirming~~ the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, principal balance, coupon/spread, stated maturity, Xxxxx’x Rating, Xxxxx’x Default Probability Rating, Xxxxx’x Industry Classification, S&P Industry Classification, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, and specifying the procedures undertaken by them to compare such data and (~~such report, the “~~B) an Accountants’ Effective Date ~~Comparison~~ Recalculation AUP ~~Report”) and (y)~~ Report recalculating ~~and comparing~~ as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of of, (1) the ~~Effective Date~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Tests (excluding the S&P CDO Monitor Test) (the items in this clause (B), collectively, the “Specified Tested ~~Items~~ Items”), and specifying the procedures undertaken by them to ~~review data and computations relating to~~ recalculate such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Dateinformation. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the ~~Accountants’~~ Accountants Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and the 17g-5 Information Agent who will post or cause to be posted such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 ~~Website~~Website in accordance with Section 10.9 hereto. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed-upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager~~ Issuer and the 17g-5 Information Agent who will post or ~~Collateral Administrator will not~~ cause to be ~~provided to any other party including~~ posted such Form 15-E on the ~~Rating Agency (other than as provided in an access letter between the accountants and such party)~~17g-5 Website. (e) If ~~(1)~~ the Effective Date ~~S&P Conditions have~~ Rating Condition has not been satisfied ~~prior to the date that is thirty~~ (30such event, an “S&P Rating Confirmation Failure”) ~~days~~ within 30 Business Days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A~~ Notes); provided ~~that~~ that, in lieu of ~~complying with this clause (e)~~acquiring additional Collateral Obligations, the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation from S&P of its Initial ~~Rating~~ Ratings of the Secured Notes; provided, further, that amounts may not be transferred from the Interest Collection Account to the Principal Collection Account if, after giving effect to such transfer, (i) the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Secured Notes ~~from S&P.~~on such next succeeding Payment Date or (ii) such transfer would result in a deferral of interest with respect to the Deferrable Notes on the next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ The failure of the ~~net~~ Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith. Of the proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations purchased by the Issuer on or before the Closing Date (including, without limitation, repayment of any amounts borrowed by the Issuer in connection with the purchase of Collateral Obligations prior to the Closing Date) or to pay other applicable fees and expenses, funds will be deposited in each of the Principal Ramp-Up Account and the Interest Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c), and the Issuer, or the Collateral Manager on behalf of the Issuer, shall notify S&P in writing (such notice to be delivered with the Excel Default Model Input File) of any amounts transferred to the Interest Collection Account from the Interest Ramp-Up Account on the Effective Date.

Appears in 1 contract

Samples: Indenture (Palmer Square Capital BDC Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to the ~~Issuer shall provide~~ Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Rated Notes; (ii) to the Trustee and the ~~Trustee~~Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report~~Reports; and (iv) to the Trustee and the Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) an Officer’s certificate of the Issuer (the “Effective Date Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date. (v) the Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Trustee with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (w) the Issuer delivers the Effective Date Certificate to the Trustee and the Rating Agency and causes the Collateral Administrator to make available to the Rating Agency (i) a report identifying the Collateral Obligations and (ii) the ~~Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “~~Effective Date Report”), ~~determined~~ and such Effective Date Certificate and Effective Date Report indicates satisfaction of the S&P CDO Monitor Test as of the Effective Date, ~~containing~~ (Ax) the ~~information required~~ Collateral Manager certifies to S&P (which may be in ~~a Monthly Report, (B~~the form of an e-mail) ~~a calculation of the Aggregate Principal Balance~~ that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (z) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Rated Notes shall be deemed to have been provided (the “Effective Date Condition”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the ~~17g-5~~ Issuer’s Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating Agency or posted on the Issuer’s Website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the ~~Secured Notes rated by S&P by the date thirty (30) days following the Effective Date~~Rated Notes, then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Rated Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Rated Notes. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$295,007,000 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Golub Capital BDC 3, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~February 20, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from S&P. (f) ~~U.S.$29,549,508.80~~ Approximately $35,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Capital Corp II)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 328, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “"Accountants’ Effective Date Comparison AUP Report”") and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “"Accountants’ Effective Date Recalculation AUP Report”"), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “"Effective Date Report”"), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$247,552,950 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Supplemental Indenture (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty~~ 30 Business Days after the Effective Date (30but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer's expense) ~~days after~~ cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency (in the case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file ("Excel Default Model Input File") that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), Floating Rate Obligation Floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Notes rated by it; (ii) to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the "Effective Date Report"), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the Collateral Manager, (A) an Accountants' Report comparing, as of the Effective Date, ~~(i)~~ the ~~Issuer shall provide to the Collateral Manager and the Trustee~~issuer, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balancePrincipal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “"Accountants’ ' Effective Date Comparison AUP Report”") and (yB) ~~recalculating and comparing~~ an Accountants' Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the "Accountants' Effective Date Recalculation AUP Report" and together with the Accountants' Effective Date Comparison AUP Report, the "Accountants' Effective Date AUP Reports"), with both Accountants' Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ ' Effective Date ~~Recalculation~~ AUP ~~Report”), and~~ Reports; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) an Officer's certificate of the Issuer (the "Effective Date Certificate") certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date. If (w) the Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants' Effective Date AUP Reports to the Trustee with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (x) the Issuer delivers the Effective Date Certificate to the Trustee and the Rating Agencies and causes the Collateral Administrator to make available to the Rating Agencies (i) a report identifying the Collateral Obligations and (ii) the “Effective Date Report”), ~~determined~~ and such Effective Date Certificate and Effective Date Report indicates satisfaction of the S&P CDO Monitor Test as of the Effective Date, ~~containing~~ (Ay) the ~~information required~~ Collateral Manager certifies to S&P (which may be in ~~a Monthly Report, (B~~the form of an e-mail) ~~a calculation of the Aggregate Principal Balance~~ that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), and (z) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result, a written confirmation from S&P of its Initial Ratings of the Secured Notes rated by it shall be deemed to have been provided (the "Effective Date Condition"). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants~~’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ ' Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ ' Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will ~~post~~ forward for posting such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the ~~17g-5~~ Issuer's Website. Copies of the Accountants’ ' Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating ~~Agency~~ Agencies or posted on the Issuer's Website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured Notes rated by ~~S&P by the date thirty (30) days following the Effective Date,~~ it then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured Notes rated by it (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A A-1 Notes or the Class A-2 Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Notes rated by it. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$9,404,187.39 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Golub Capital Private Credit Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~July 6, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered ~~in connection thereto~~ pursuant to Section 2.4(e) as an attachment, will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$258,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued ~~Interest, if any,~~ Interest from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~January 4, ~~2021~~2023, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$0 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Technology Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~April 6, 2021, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating, Fitch Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “"Accountants’ Effective Date Comparison AUP Report”") and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “"Accountants’ Effective Date Recalculation AUP Report”"), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating ~~Agency~~ Agencies (in the case of delivery to S&P, via email ~~to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~to) a report (the “"Effective Date Report”"), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date -146- Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating ~~Agency~~Agencies. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating ~~Agency~~ Agencies (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from ~~S&P.~~S&P. The Issuer shall provide notice to Fitch if the Effective Date S&P Conditions have not been satisfied. (f) ~~U.S.$29,549,508.80~~ U.S.$62,869,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~July 6, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the -108- procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered ~~in connection thereto~~ pursuant to Section 2.4(e) as an attachment, will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$258,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued ~~Interest, if any,~~ Interest from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the second Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to the ~~Issuer~~ Rating Agency (via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), Benchmark floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Notes; (ii) to the Trustee and the Rating Agency (via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report, prepared by the Collateral Administrator pursuant to the Collateral ~~Manager~~ Administration Agreement (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the ~~Trustee~~Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”),~~ Reports; and (iv) to the Trustee and ~~(ii) the Issuer shall cause the Collateral Administrator to compile and deliver to~~ the Rating Agency (~~in the case of delivery to S&P,~~ via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . (Ad) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will ~~post~~ forward such Form 15-~~E, except~~ E for ~~the redaction of any sensitive information,~~ posting on the ~~17g-5~~ Issuer’s Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating Agency or posted on the Issuer’s Website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (e) If If, by the Determination Date relating to the second Payment Date, (1~~) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2~~) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured Notes ~~rated by~~ or (2) there has occurred no S&P ~~by the date thirty~~ Deemed Rating Confirmation as described below (~~30) days following the Effective Date~~an “S&P Rating Confirmation Failure”), then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Notes. (f) If S&P has not provided written confirmation of its initial ratings of the Secured Notes within 30 calendar days after the Effective Date and (w) the Issuer causes the Collateral Manager to provide to S&P the Effective Date Report and the Effective Date Report confirms satisfaction of the S&P CDO Monitor Test as of the Effective Date, (x) the Collateral Manager certifies to S&P (which confirmation may be in the form of an email) that as of the Effective Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments described below) and (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result, then a written confirmation from S&P of its initial ratings of the Secured Notes will be deemed to have been provided (an “S&P Deemed Rating Confirmation”); provided that, for purposes of determining compliance with the S&P CDO Monitor Test in connection with such Effective Date Report, the Aggregate Funded Spread will be calculated without giving effect to the proviso to clause (a) of the definition of “Aggregate Funded Spread” and by assuming that any Collateral Obligation subject to a Benchmark floor bears interest at a rate equal to the stated interest rate spread over the Benchmark-based index for such Collateral Obligation (the “S&P CDO Monitor Non-Model Adjustments”). (g) The failure of the Issuer to satisfy the requirements of this Section 7.19 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations purchased by the Issuer on or before the Closing Date (including, without limitation, repayment of any amounts borrowed by the Issuer in connection with the purchase of Collateral Obligations prior to the Closing Date) or to pay other applicable fees and expenses, funds will be deposited in the Ramp-Up Account on the Closing ~~Date~~Date in the amounts specified in writing to the Trustee by the Issuer. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (MidCap Financial Investment Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, spread/coupon, Libor floor (if applicable), LoanX identification number (if applicable), purchase price for any unsettled assets, legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate and identification of any First-Lien Last-Out Loans. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately prior to the first Payment Date), the Issuer shall provide, or cause the Collateral Manager (or, in the case of clause (ii), the Collateral Administrator) to provide, the following documents: (i) ~~the Issuer shall provide~~ to ~~the Collateral Manager and~~ each Rating Agency, the Trustee, the Collateral Agent and the Loan Agent, a report identifying the Collateral Obligations; (ii) to each Rating Agency, the Effective Date Report and (iii) to the Trustee, the Collateral Agent and the Loan Agent, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~Obligor, ~~principal balance~~Principal Balance, spread/coupon~~/spread~~, stated maturity, ~~S&P Rating and~~ country of Domicile and S&P Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test); and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) If ~~(1)~~ neither the Effective Date Condition nor the S&P ~~Conditions have not been~~ Rating Condition is satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (~~2) S&P has not provided written confirmation (which may take~~ but in no event later than the ~~form of a press release or other written communication) of its Initial Rating of~~ Determination Date immediately preceding the ~~Secured Notes rated by S&P by the date thirty (30) days following the Effective~~ first Payment Date), then (A) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) cause the S&P Deemed Rating Confirmation to occur or (ii) request S&P to ~~provide written confirmation of~~ confirm, on or before the first Determination Date, that it will not reduce or withdraw its Initial Rating of the Secured ~~Notes rated~~ Debt and (B) if, by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first ~~Payment~~ Determination Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not caused the S&P Deemed Rating Confirmation to occur or obtained the confirmation from S&P, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the ~~Trustee~~ Collateral Agent to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as~~ in an amount sufficient to enable the Co-Issuers (or the Collateral Manager on the Co-Issuers’ behalf) to (i) cause the S&P ~~has provided~~ Deemed Rating Confirmation to occur or (ii) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Debt; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) cause the S&P Deemed Rating Confirmation to occur or (2) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes from S&P.~~Debt. (f) ~~U.S.$29,549,508.80~~ An S&P Deemed Rating Confirmation (“S&P Deemed Rating Confirmation”) shall occur, and a written confirmation from S&P of its initial ratings of the ~~net proceeds~~ Secured Debt will be deemed to have been provided, if (x) the Issuer causes the Collateral Manager to provide to S&P the Effective Date Report and the Effective Date Report confirms satisfaction of the ~~issuance~~ S&P CDO Monitor Test as of the Effective Date, (y) the Collateral Manager certifies to S&P (which confirmation may be in the form of an email) that as of the Effective Date the S&P CDO Monitor Test is satisfied (testing as though the S&P CDO Monitor Switchover Date has occurred and taking into account the S&P CDO Monitor Non-Model Adjustments described below) and (z) the Collateral Manager provides to S&P a report identifying the Collateral Obligations used to generate the passing test result; provided that, for purposes of determining compliance with the S&P CDO Monitor Test in connection with such Effective Date Report, the Aggregate Funded Spread will be calculated without giving effect to the proviso to clause (a) of the definition of “Aggregate Funded Spread” and by assuming that any Collateral Obligation subject to a LIBOR floor bears interest at a rate equal to the stated interest rate spread over the LIBOR-based index for such Collateral Obligation (the “S&P CDO Monitor Non-Model Adjustments”). Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Secured Debt pursuant to clause (e) above, the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from S&P its written confirmation of its Initial Ratings of the Secured Debt. Payments made in respect of the Notes in connection with such Special Redemption shall be paid in accordance with the Debt Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount pursuant to clause (e) above if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Secured Debt on such next succeeding Payment Date. (g) The amount specified in Section 3.1(k)(i) will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee~~ Collateral Agent shall apply the remaining amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c). (h) [Reserved].

Appears in 1 contract

Samples: Indenture (PennantPark Floating Rate Capital Ltd.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and ~~the Coverage Tests~~each Overcollateralization Ratio Test. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account at (including proceeds deposited as a result of a failure to meet the ~~discretion of the Collateral Manager~~ Interest Diversion Test) and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection Account at (including proceeds deposited as a result of a failure to meet the ~~discretion of~~ Interest Diversion Test). In addition, the Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and the Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), the LoanX Mxxx-It Partners identifier (if any), name of Obligor, coupon, spread (if applicable), legal final maturity date, average life, outstanding principal balance, Principal Balance, LIBOR floor (if applicable), identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification and S&P Recovery Rate. (d) Unless clause (e) below is applicable, on or before the Effective Date Reporting Due Date, the Issuer shall provide, or cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency, a report identifying the Collateral Obligations and requesting that S&P reaffirm its Initial Ratings of the Secured Notes; (ii) to the Trustee and each Rating Agency, (x) a report (which the Issuer shall ~~provide~~ cause the Collateral Administrator to prepare on its behalf in accordance with, and subject to the terms of, the Collateral ~~Manager and~~ Administration Agreement) stating the ~~Trustee~~following information (the “Effective Date Report”): (1) the Obligor, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balancePrincipal Balance, coupon/spread, stated maturity, country of Domicile, Mxxxx’x Default Probability Rating, Mxxxx’x Industry Classification and S&P Rating ~~and country of Domicile~~ with respect to each Collateral Obligation as of the Effective Date and ~~the~~ substantially similar information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein (such report~~therein, ~~the “Accountants’ Effective Date Comparison AUP Report”)~~ and (y2) ~~recalculating and comparing~~ calculating as of the Effective ~~Date~~ Date, the level of compliance with, or and satisfaction or non-satisfaction of, (A) the Target Initial Par Condition, (B) each Overcollateralization Ratio Test, (C) the Concentration Limitations and (D) the Collateral Quality Test (excluding the S&P CDO Monitor Test) (the tests reflected in the foregoing clauses (A) through (D) above, the “Effective Date Tests”); and (y) a certificate of the Issuer (such certificate, the “Effective Date Issuer Certificate”) notifying that the Issuer has received an Accountants' Report that recalculates and compares the information set forth in the Effective Date Report (such Accountants' Report, the “Effective Date Accountants' Report”); and (iii) to the Trustee, the Effective Date Accountants' Report. Upon receipt of the Effective Date ~~Tested Items~~ Report, the Trustee and ~~specifying~~ the ~~procedures undertaken by them to review data and computations relating to~~ Collateral Manager shall each compare the information contained in such ~~report (the “Accountants’~~ Effective Date ~~Recalculation AUP~~ Report to the information contained in their respective records with respect to the Assets and shall, within three Business Days after receipt of such Effective Date Report”), notify such other party and ~~(ii)~~ the ~~Issuer shall cause~~ Issuer, the Collateral Administrator ~~to compile~~ and ~~deliver~~ each Rating Agency if the information contained in the Effective Date Report does not conform to the ~~Rating Agency (in~~ information maintained by the Trustee or the Collateral Manager, as the case ~~of delivery~~ may be, with respect to ~~S&P~~the Assets. In the event that any discrepancy exists, ~~via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (~~the ~~“Effective Date Report”)~~Trustee and the Issuer, ~~determined as~~ or the Collateral Manager on behalf of the ~~Effective Date~~Issuer, ~~containing (A)~~ shall attempt to resolve the ~~information required in~~ discrepancy. If such discrepancy cannot be resolved within five Business Days after the delivery of such a ~~Monthly Report~~notice of discrepancy, ~~(B) a calculation of~~ the ~~Aggregate Principal Balance~~ Collateral Manager shall request that ~~indicates whether~~ the ~~Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held~~ Independent accountants selected by the Issuer ~~as of~~ pursuant to Section 10.8 perform agreed-upon procedures on the Effective ~~Date~~Date Report and the Collateral Manager's and Trustee's records to determine the cause of such discrepancy. If such procedures reveal an error in the Effective Date Report or the Collateral Manager's or Trustee's records, the Effective Date Report or the Collateral Manager's or Trustee's records shall be revised accordingly and notice of any error in the Effective Date Report shall be sent as soon as practicable by the Issuer to all recipients of such report. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Effective Date Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Report. (e) (x) If (1) the Issuer or the Collateral Manager, as the case may be, has not provided to Moody’s both (A) an Effective Date Report that shows that the Target Initial Par Condition was satisfied, each Overcollateralization Ratio Test was satisfied, the Concentration Limitations were complied with and the Collateral Quality Test (excluding the S&P ~~Conditions have not been~~ CDO Monitor Test) was satisfied ~~prior~~ and (B) the Effective Date Issuer Certificate that (i) indicates the Issuer has received an Effective Date Accountants’ Report that recalculates information set forth on the Effective Date Report, (ii) certifies, based on the information in such Effective Date Accountants’ Report and the comparisons performed by the Trustee and the Collateral Manager in accordance with Section 7.18(d), that the information in the Effective Date Report is accurate in all material respects and (iii) attributes such conclusions from the foregoing review to the ~~date that is thirty~~ Issuer (30such Effective Date Report described in clause (A) ~~days after~~ above, together with such Effective Date Issuer Certificate described in clause (B) above, a “Passing Report”) on or before the Effective Date Reporting Due Date or (2) ~~S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating~~ any of the ~~Secured Notes rated by S&P by the date thirty~~ Effective Date Tests are not satisfied (30(1) ~~days following the Effective Date~~or (2) constituting a (“Moody’s Ramp-Up Failure”), then (A) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall ~~request S&P~~ either (i) provide a Passing Report to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes Moody's on or ~~prior to~~ before the Determination Date occurring immediately ~~preceding~~ after the ~~first Payment~~ Effective Date or (ii) satisfy the Mxxxx'x Rating Condition on or before the Determination Date occurring immediately after the Effective Date and (B) if, on or before the Determination Date occurring immediately after the Effective Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not provided a Passing Report to Moody's or satisfied the Mxxxx’x Rating Condition, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the ~~first~~ Payment Date occurring immediately after the Effective Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as S&P has provided written confirmation of its Initial~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer's behalf) to (i) provide a Passing Report to Moody's or (ii) satisfy the Mxxxx'x Rating ~~of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Condition; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption~~ Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer's behalf) to ~~acquire~~ (1) provide to Moody's a Passing Report or (2) satisfy the Mxxxx'x Rating Condition; and (y) if S&P (which must receive Effective Date Report to provide written confirmation of its Initial Rating of the Secured Notes) does not provide written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes (such event, an “S&P Rating Confirmation Failure”) on or before the Determination Date occurring immediately after the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the Payment Date occurring immediately after the Effective Date, use such funds on behalf of the Issuer for the purchase of additional Collateral ~~Obligations~~Obligations until such time as S&P has provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes; provided that, in lieu of complying with this clause (y), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation (which may take the form of a press release or other written communication) from S&P of its Initial Rating of the Secured Notes; it being understood that, if the events specified in both of clauses (x) and (y) occur, the Issuer (or the Collateral Manager on the Issuer’s behalf) will be required to satisfy the requirements of both clause (x) and clause (y); provided, further, that, in the case of each of the foregoing clauses (x) and (y), amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount if, after giving effect to such transfer, (I) the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay in full the amount of the accrued and unpaid interest on any Class of Secured Notes ~~from S&P.~~on such next succeeding Payment Date, or (II) such transfer would result in a deferral of interest with respect to the Class C-1 Notes or Class D-1 Notes on the next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ The failure of the ~~net~~ Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith. Of the proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date (including, without limitation, the acquisition of the initial Collateral Obligations from the Depositor on the Closing Date) U.S.$93,865,946 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied (or earmarked for settlement of a binding commitment entered into prior to that date) to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (KCAP Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~March 15, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “"Accountants’ Effective Date Comparison AUP Report”") and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “"Accountants’ Effective Date Recalculation AUP Report”"), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “"Effective Date Report”"), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$385,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (MSD Investment Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty~~ 30 Business Days after the Effective Date (30but in any event, prior to the Determination Date relating to the first Payment Date after the Closing Date), the Issuer shall provide, or (at the Issuer's expense) ~~days after~~ cause the Collateral Manager to provide, the following documents: (i) to the Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file ("Excel Default Model Input File") that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), Floating Rate Floor Obligation (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Debt rated by it; (ii) to the Collateral Trustee and the Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the "Effective Date Report"), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Collateral Trustee and the Collateral Manager, (A) an Accountants' Report comparing, as of the Effective Date, ~~(i)~~ the ~~Issuer shall provide to the Collateral Manager and the Trustee~~issuer, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balancePrincipal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “"Accountants’ ' Effective Date Comparison AUP Report”") and (yB) ~~recalculating and comparing~~ an Accountants' Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the "Accountants' Effective Date Recalculation AUP Report" and together with the Accountants' Effective Date Comparison AUP Report, the "Accountants' Effective Date AUP Reports"), with both Accountants' Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report~~ Accountants' Effective Date AUP Reports; and (iv) to the Collateral Trustee and the Rating Agency (via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) an Officer's certificate of the Issuer (the ~~“Accountants’~~ "Effective Date ~~Recalculation AUP Report”~~Certificate") certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date. If (1) the Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants' Effective Date AUP Reports to the Collateral Trustee with the results of the items set forth in subclause (ii)(B) above, and such results do not indicate any failure of any such tested item, (2) the Issuer delivers the Effective Date Certificate to the Collateral Trustee and the Rating Agency and causes the Collateral Administrator to make available to the Rating Agency (i) a report identifying the Collateral Obligations and (ii) the ~~Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “~~Effective Date Report”), ~~determined~~ and such Effective Date Certificate and Effective Date Report indicates satisfaction of the S&P CDO Monitor Test as of the Effective Date, ~~containing~~ (A3) the ~~information required~~ Collateral Manager certifies to S&P (which may be in ~~a Monthly Report, (B~~the form of an email) ~~a calculation of the Aggregate Principal Balance~~ that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (4) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (5) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Secured Debt rated by it shall be deemed to have been provided (the "Effective Date Condition"). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants~~’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ ' Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ ' Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will ~~post~~ forward for posting such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the ~~17g-5~~ Information Agent's Website. Copies of the Accountants’ ' Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating Agency or posted on the Information Agent's Website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date after the Closing Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured ~~Notes~~ Debt rated by ~~S&P by the date thirty (30) days following the Effective Date~~it, then the ~~Issuer (or~~ Collateral Manager, on behalf of the Issuer, shall instruct the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes~~ Debt rated by it (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Debt rated by it. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance and incurrence of the ~~Notes~~ Debt which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$72,032,688.89 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Golub Capital BDC 3, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~December 15, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating ~~Agency~~ Agencies (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating ~~Agency~~Agencies. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating ~~Agency~~ Agencies (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A A-1 Notes, the Class A-2 Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from ~~S&P.~~S&P. The Issuer shall provide notice to Fitch if the Effective Date S&P Conditions have not been satisfied. (f) ~~U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date.~~ At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Blue Owl Credit Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (ia) such that the Target Initial Par Condition is satisfied and (iib) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) To each Rating Agency (in the ~~Issuer shall provide~~ case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxx@xxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and ~~the Trustee~~S&P Recovery Rate, ~~an Accountants’ Report: (x) confirming the identity~~ and requesting that S&P reaffirm its Initial Ratings of the ~~issuer~~ Notes; (~~it being understood that the same issuer may be referred to differently due~~ ii) to the ~~use~~ Trustee and each Rating Agency (in the case of ~~abbreviations or shorthand references~~ delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxx@xxxxxx.xxx), a report, prepared by ~~different record keepers~~the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, ~~stated maturity~~Stated Maturity, S&P Rating, Moody’s Default Probability Rating, Mxxxx’x Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and ~~the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein~~ (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition, in each case, as of the Effective Date; (iii) to the Trustee and the Collateral Manager, an Accountants’ Certificate (A) comparing the issuer, Principal Balance, coupon/spread, stated maturity, Moody’s Default Probability Rating, Mxxxx’x Rating, S&P Rating and country of Domicile with respect to each Collateral Obligation by reference to such sources as shall be specified therein and (B) performing agreed upon procedures as of the Effective Date ~~Tested Items~~ including recalculating and comparing the following items in the Effective Date Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied, together with a statement specifying the procedures undertaken by them to review data and computations relating to ~~such report (~~the “Accountants’ ~~Effective Date Recalculation AUP Report”), and~~ Certificate; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxx@xxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . If (Ax) the ~~information required~~ Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Certificate to the Trustee with the results of (1) the items set forth in ~~a Monthly Report,~~ subclause (Biii)(B)(1) ~~a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds~~ above and (2) the Target Initial Par ~~Amount in~~ Condition, and such results do not indicate any failure of any such tested item, and (y) the Issuer delivers the Effective Date Certificate to Moody’s and causes the Collateral Administrator to make available to Moody’s the Effective Date Report, and such Effective Date Certificate and Effective Date Report indicates satisfaction of (1) the items set forth in the subclause (iii)(B)(1) above and (2) the Target Initial Par ~~Condition and (C)~~ Condition, a ~~list~~ written confirmation from Moody’s of ~~any Closing Date Participation Interests held by the Issuer as~~ its Initial Rating of the Notes shall be deemed to have been provided (a “Moody’s Effective ~~Date~~Date Deemed Rating Confirmation”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency~~Certificate. (d) ~~In accordance with SEC Release No. 34-72936~~If, ~~Form 15-E~~by the Determination Date relating to the first Payment Date, ~~only in its complete and unedited form which includes the Accountants’~~ either (x)(1) there has occurred no Moody’s Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Deemed Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date Confirmation or (2) Moody’s has not provided written confirmation of its Initial Ratings of each Class of the Notes (an “Moody’s Ramp-Up Failure”) or (y) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Class A Notes ~~rated by~~ and the Class B Notes (an “S&P ~~by the date thirty (30~~Rating Confirmation Failure”) ~~days following the Effective Date,~~ then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as S&P has provided written~~ Obligations) in an amount sufficient to obtain from Moody’s or S&P, respectively, a confirmation of its Initial ~~Rating~~ Ratings of each Class of the ~~Secured~~ Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from Moody’s or S&P, respectively, a confirmation of its Initial Ratings of each Class of the Notes. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date approximately U.S.$159,285,750 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Golub Capital BDC, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) ~~Within thirty~~ [Intentionally omitted]. (30d) ~~days~~ Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer will provide, or cause the Collateral Manager to provide, the following documents: (i) to each of the ~~Issuer shall provide to the Collateral Manager~~ Rating Agencies and the Trustee, a report identifying the Collateral Obligations, (ii) to each of the Rating Agencies, the Effective Date Report and (iii) to the Trustee, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~obligor, outstanding principal balance, coupon/spread, stated maturity, ~~S&P Rating and~~ country of ~~Domicile~~ Domicile, Xxxxx’x Rating, Moody’s Default Probability Rating, and Fitch Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test; and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) ~~If (1) the Effective Date S&P Conditions have not been satisfied~~ If, prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), (x) the Trustee has not been provided with an Accountants’ Certificate indicating the level of compliance with, or satisfaction or non-satisfaction of Effective Date Specified Tested Items and each of the Rating Agencies has not been provided with (i) a report identifying the Collateral Obligations and (ii) an Effective Date Report or (2y) ~~S&P has~~ the Xxxxx’x Rating Condition is not ~~provided written confirmation~~ satisfied (~~which may take the form of~~ such occurrence constituting a ~~press release or other written communication~~“Moody’s Ramp-Up Failure”) ~~of its Initial Rating of the Secured Notes rated by S&P by the date thirty~~ then (30A) ~~days following the Effective Date, then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) notify Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report on or before the first Determination Date or (ii) request ~~S&P~~ Moody’s to ~~provide written confirmation of~~ confirm on or before the first Determination Date that Moody’s will not reduce or withdraw its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes ~~rated~~ and (B) if, by ~~S&P~~ the first Determination Date, the Issuer (~~which may take~~ or the ~~form of a press release or other written communication). In~~ Collateral Manager on the Issuer’s behalf) has not confirmed to Moody’s that the Trustee has been provided with such ~~case, if S&P does not provide written confirmation of its Initial Rating~~ Accountants’ Certificate and each of the ~~Secured Notes on~~ Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or ~~prior to~~ obtained the ~~Determination Date immediately~~ confirmation from Moody’s, each as described in the preceding ~~the first Payment Date~~clause (A) of this paragraph, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) confirm to Moody’s that the Trustee has been provided with such ~~time as S&P~~ Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (ii) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A~~ Notes); provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) confirm to Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (2) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). The Collateral Manager shall provide Fitch with written notice if a Moody’s Ramp-Up Failure has occurred. Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Notes pursuant to this clause (e), the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from ~~S&P.~~Moody’s its written confirmation of its Initial Ratings of the Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). Payments made in respect of the Notes in connection with such Special Redemption shall be paid in accordance with the Note Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount in connection with such a Special Redemption on a Business Day other than a Payment Date if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Notes on such next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ U.S.$102,067,596.90 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, coupon, spread (if applicable), legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate, LoanX IDs (if any), settled versus unsettled information (and purchase price of any unsettled assets), an indication of whether cash is being held against each unsettled trade and, for any Collateral Obligation that is a LIBOR Floor Obligation, the related LIBOR floor. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than 30 days prior to the first Payment Date), the Issuer will provide, or cause the Collateral Manager to provide, the following documents: (i) ~~the Issuer shall provide~~ to each Rating Agency, a report identifying the Collateral ~~Manager~~ Obligations and, to S&P, a request that S&P reaffirm its Initial Ratings of the Notes; and (ii) to the Trustee, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing, with respect to each Collateral Obligation acquired by the ~~identity of~~ Issuer after the ~~issuer (it being understood that~~ Closing Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, outstanding principal balance, coupon/spread, stated maturity, country of Domicile, Xxxxx’x Rating, Moody’s Default Probability Rating and S&P Rating ~~and country of Domicile with respect to each Collateral Obligation~~ as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test), and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ ~~Effective Date Recalculation AUP Report”), and (ii) the Issuer~~ Certificate. Information provided to S&P pursuant to this Section 7.18 shall ~~cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P,~~ be delivered via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx. (e) If ~~(1)~~ neither the Effective Date ~~S&P Conditions have not been~~ Moody’s Condition nor the Xxxxx’x Rating Condition is satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (2but in no event later than the Determination Date immediately preceding the first Payment Date) ~~S&P has not provided written confirmation~~ (~~which may take the form of~~ such occurrence constituting a ~~press release or other written communication~~“Moody’s Ramp-Up Failure”) ~~of its Initial Rating of the Secured Notes rated by S&P by the date thirty~~ then (30A) ~~days following the Effective Date, then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) notify Moody’s that the Effective Date Moody’s Condition has been satisfied on or before the first Determination Date or (ii) request ~~S&P~~ Moody’s to ~~provide~~ confirm on or before the first Determination Date that Moody’s will not reduce or withdraw its Initial Rating of the Class A Notes and (B) if, by the first Determination Date, the Issuer (or the Collateral Manager on the Issuer’s behalf) has not confirmed to Moody’s that the Effective Date Moody’s Condition has been satisfied or obtained the confirmation from Moody’s, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, purchase additional Collateral Obligations in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) confirm to Moody’s that the Effective Date Moody’s Condition has been satisfied or (ii) obtain from Moody’s written confirmation of its Initial Rating of the ~~Secured Notes rated by S&P~~ Class A Notes; provided that, in lieu of complying with the preceding clauses (~~which~~ A) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the ~~form~~ Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) confirm to Moody’s that the Effective Date Moody’s Condition has been satisfied or (2) obtain from Moody’s written confirmation of ~~a press release or other written communication)~~its Initial Rating of the Class A Notes. ~~In such case~~Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Notes pursuant to this clause (e), the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from the applicable Rating Agency its written confirmation of its Initial Ratings of the Notes, provided, such confirmation from Xxxxx’x is not required if the Effective Date Moody’s Condition has been satisfied. Payments made in respect of the Notes in connection with such Special Redemption shall be paid in accordance with the Note Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount in connection with such a Special Redemption on a Business Day other than a Payment Date if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E Notes, the Class F Notes and the Class G Notes on such next succeeding Payment Date. (f) If S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the date 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A~~ Notes); provided that in lieu of complying with this clause (ef), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes from ~~S&P.~~ S&P. (fg) ~~U.S.$29,549,508.80~~ U.S.$119,368,315.75 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency (in the ~~Issuer shall provide~~ case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Notes; (ii) to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the ~~Trustee~~Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and~~ Reports; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to cxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . (Av) the ~~information required~~ Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Trustee with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (w) the Issuer delivers the Effective Date Certificate to the Trustee and causes the Collateral Administrator to make available to the Rating Agencies (i) a ~~Monthly~~ report identifying the Collateral Obligations and (ii) the Effective Date Report, (Bx) ~~a calculation~~ the Collateral Manager certifies to S&P (which may be in the form of ~~the Aggregate Principal Balance~~ an e-mail) that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (z) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Secured Notes shall be deemed to have been provided (the “Effective Date Condition”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 ~~Website~~website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating ~~Agency~~ Agencies or posted on the 17g-5 website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured Notes ~~rated by S&P by the date thirty (30) days following the Effective Date,~~ then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Notes. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$455,992,415.09 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, coupon, spread (if applicable), legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate, LoanX IDs (if any), settled versus unsettled information (and purchase price of any unsettled assets), an indication of whether cash is being held against each unsettled trade and, for any Collateral Obligation that is a LIBOR Floor Obligation, the related LIBOR floor. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer (or the Collateral Manager on the Issuer’s behalf) will provide the following documents: (i) to each Rating Agency, a report identifying the ~~Issuer shall provide~~ Collateral Obligations (which may be the Effective Date Report) and, to S&P, a request that S&P reaffirm its initial rating of the Class A Notes; (ii) to the Trustee, the Collateral Manager and ~~the Trustee~~each Rating Agency, ~~an Accountants’ Report:~~ (x) ~~confirming~~ a report stating the ~~identity of~~ following information (the ~~issuer~~ “Effective Date Report“): (~~it being understood that~~ A) the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, outstanding principal balance, coupon/spread, stated maturity, country of Domicile, Moody’s Default Probability Rating and S&P Rating ~~and country of Domicile~~ with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein (such report~~therein, ~~the “Accountants’ Effective Date Comparison AUP Report”)~~ and (yB) ~~recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items and specifying~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the ~~procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”),~~ Concentration Limitations and (ii4) the ~~Issuer shall cause~~ Collateral Quality Test (excluding the ~~Collateral Administrator to compile~~ S&P CDO Monitor Test); and ~~deliver to the Rating Agency~~ (~~in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~y) a ~~report~~ certificate of the Issuer (such certificate, the “Effective Date ~~Report”)~~Issuer Certificate“) certifying as to the level of compliance with, ~~determined as~~ or satisfaction or non-satisfaction of ~~the Effective Date, containing~~ (A1) ~~the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds~~ the Target Initial Par ~~Amount in satisfaction of~~ Condition, (2) each Overcollateralization Ratio Test, (3) the ~~Target Initial Par Condition~~ Concentration Limitations and (C4) ~~a list of any Closing Date Participation Interests held by~~ the ~~Issuer as of~~ Collateral Quality Test (excluding the S&P CDO Monitor Test); and (iii) to the Trustee, an accountants’ report that recalculates the information set forth in the Effective ~~Date~~Date Report (such accountants’ report, the “Effective Date Accountants’ Report“). Information sent to Moody’s shall be delivered via email to xxxxxxxxxxxxx@xxxxxx.xxx and information and requests sent to S&P shall be delivered via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx. For the avoidance of doubt, the Effective Date Issuer Certificate and the Effective Date Report shall not include or refer to the Effective Date Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No~~Report. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction Upon receipt of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date ~~S&P Conditions have not been satisfied prior to~~ Report, the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or Trustee and the Collateral Manager on shall each compare the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In information contained in such ~~case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior~~ Effective Date Report to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result information contained in ~~a default in the payment of interest~~ their respective records with respect to the ~~Class A Notes); provided that in lieu~~ Collateral and shall, within three Business Days after receipt of ~~complying with this clause (e)~~such Effective Date Report, notify such other party, the Issuer (and the Rating Agencies if the information contained in the Effective Date Report does not conform to the information maintained by the Trustee or the Collateral ~~Manager on~~ Manager, as the ~~Issuer’s behalf)~~ case may ~~take such action~~be, ~~including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount~~ with respect to the ~~Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations)~~Collateral. In the event that any discrepancy exists, ~~sufficient to enable~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of Trustee and the Issuer (or the Collateral Manager on behalf of the Issuer)) shall attempt to resolve the discrepancy. If such discrepancy cannot be resolved within five Business Days after the delivery of such a notice of discrepancy, the ~~Trustee~~ Collateral Manager shall ~~apply amounts held in~~ request that the ~~Ramp~~Independent accountants selected by the Issuer pursuant to this Indenture perform agreed-~~Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including~~ upon procedures on the Effective Date Report and the Collateral Manager’s and Trustee’s records to determine the cause of such discrepancy. If such procedures reveal an error in the Effective Date Report or the Collateral Manager’s or Trustee’s records, the Effective Date Report or the Collateral Manager’s or Trustee’s records shall be revised accordingly and notice of any error in the Effective Date Report shall be sent as ~~described~~ soon as practicable by the Issuer to all recipients of such report. (e) With respect to Moody’s, (x) if prior to the date 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date) (1) the Issuer (or the Collateral Manager on behalf of the Issuer) has not provided to Moody’s both (A) an Effective Date Report that shows that the Target Initial Par Condition was satisfied, each Overcollateralization Ratio Test was satisfied, the Concentration Limitations were complied with and the Collateral Quality Test (excluding the S&P CDO Monitor Test) was satisfied and (B) the Effective Date Issuer Certificate (such Effective Date Report, together with such Effective Date Issuer Certificate, a “Passing Report“), (2) the Issuer (or the Collateral Manager on behalf of the Issuer) has not provided to the Trustee an Effective Date Accountants’ Certificate or (3) any of the tests referred to in (ii)(x)(B) of the foregoing clause (bd) ~~above. If on the Effective Date~~are not satisfied (any such event pursuant to clause (1), ~~any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).~~clause (2) or clause (3) constituting a “

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 328, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$247,552,950 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase (or enter into commitments to purchase~~, on or before September 3, 2021,~~ ) Collateral Obligations ~~(i)~~ such that the Target Initial Par Condition is satisfied on or before the date specified in clause (i) of the definition of “Effective Date.” (b) [Reserved]. (c) Up to (and including) the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations in the following order: (i) to pay for the principal portion of any Collateral Obligation, first, any amounts on deposit in the Ramp-Up Account, and second, any Principal Proceeds on deposit in the Collection Account, and (ii) to pay for accrued interest on any such Collateral Obligation, any amounts on deposit in the Ramp-Up Account. In addition, the Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that ~~satisfy~~will satisfy or comply with, ~~as of~~ on the Effective Date, the Concentration Limitations, the Collateral Quality Test and the ~~Coverage Tests~~Overcollateralization Ratio Test. (bd) ~~During the period from the Closing Date to and including~~ Unless clause (e) below is applicable, within 10 Business Days after the Effective Date, the Issuer ~~will use funds~~ (or the Collateral Manager on its behalf) shall provide, or cause the Collateral Manager to ~~purchase additional Collateral Obligations as follows~~provide, the following documents: (i) to ~~pay for~~ the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective DateRating Agency, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such a report (~~the “Accountants’ Effective Date Recalculation AUP Report”), and (ii)~~ that the Issuer shall cause the Collateral Administrator to ~~compile~~ prepare on its behalf in accordance with, and ~~deliver~~ subject to the terms of, the Collateral Administration Agreement) identifying the Collateral Obligations; (ii) to the Rating ~~Agency~~ Agency, the Trustee and the Collateral Manager, (~~in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~x) a report (~~the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance~~ that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer ~~as of~~ shall cause the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator ~~will not be provided~~ to ~~any other party including the Rating Agency (other than as provided~~ prepare on its behalf in ~~an access letter between the accountants and such party).~~accordance with, and (e) If (1) the Issuer or the Collateral Manager, as the case may be, has not provided to Moody’s both (A) an Effective Date ~~S&P Conditions have not been~~ Report in Section 7.18(d)(ii) above that shows that the Effective Date Tested Items were satisfied and (B) the Effective Date Issuer Certificate (such an Effective Date Report, together with such Effective Date Issuer Certificate, a “Passing Report”) prior to the date ~~that is thirty (30) days~~ 10 Business Days after the Effective Date or (2) ~~S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating~~ any of the ~~Secured Notes rated by S&P by the date thirty~~ Effective Date Tested Items are not satisfied (30(1) ~~days following the Effective Date~~or (2) constituting a “Moody’s Ramp-Up Failure”), then (I) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall ~~request S&P~~ either (i) provide a Passing Report to ~~provide written confirmation of its Initial~~ Moody’s within 30 calendar days following the Effective Date or (ii) satisfy the Xxxxx’x Rating of Condition within 30 calendar days following the ~~Secured Notes rated~~ Effective Date and (II) if, by ~~S&P (which may take~~ the ~~form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of~~ 30th calendar day following the ~~Secured Notes on or prior to the Determination Date immediately preceding the first Payment~~ Effective Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not provided a Passing Report to Moody’s or satisfied the Xxxxx’x Rating Condition, each as described in the preceding clause (I) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as S&P has provided written confirmation of its Initial~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) provide a Passing Report to Moody’s or (ii) satisfy the Xxxxx’x Rating ~~of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Condition; ~~provided that~~ provided, that, in lieu of complying with ~~this clause~~ the preceding clauses (eI) and (II), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to ~~obtain written confirmation of its Initial~~ (1) provide to Moody’s a Passing Report or (2) satisfy the Xxxxx’x Rating ~~of the Secured Notes from S&P.~~Condition. (f) ~~U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction~~ The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure otherwise constitutes an Event of Default under Section 5.1(e) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer), ~~the Trustee shall apply amounts held~~ has acted in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) abovebad faith. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts ~~shall~~ will be applied as described in Section 10.3(c). (g) For purposes of the Initial Ratings of the Secured Notes as of the Closing Date, the Collateral Manager has elected, for the “row/column combination” of the Minimum Diversity Score/Maximum Rating/Minimum Spread Matrix (Unfunded), the row that lists a “Minimum Weighted Average Spread” of 3.3% and column that lists a Diversity Score of 50 from the definition of “Minimum Diversity Score/Maximum Rating/Minimum Spread Matrix (Unfunded).” On or prior to the Effective Date, the Collateral Manager shall elect the “row/column combination” of the applicable Minimum Diversity Score/Maximum Rating/Minimum Spread Matrix that will, on and after the Effective Date, apply to the Collateral Obligations for purposes of determining compliance with the Moody’s Diversity Test, the Maximum Xxxxx’x Rating Factor Test and the Minimum Floating Spread Test, and if such “row/column” combination differs from the “row/column” combination chosen to apply as of the Closing Date, the Collateral Manager will so notify the Trustee. Thereafter, at any time on written notice of one Business Day to the Trustee, the Collateral Administrator and each Rating Agency, the Collateral Manager may elect a different “row/column combination” from the applicable Minimum Diversity Score/Maximum Rating/Minimum Spread Matrix to apply to the Collateral Obligations; provided, that if: (i) the Collateral Obligations are currently in compliance with the Minimum Diversity Score/Maximum Rating/Minimum Spread Matrix case then applicable to the Collateral

Appears in 1 contract

Samples: Indenture (Blackstone Private Credit Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency (in the ~~Issuer shall provide~~ case of delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxxx@xxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and ~~the Trustee~~S&P Recovery Rate, ~~an Accountants’ Report: (x) confirming the identity~~ and requesting that S&P reaffirm its Initial Ratings of the ~~issuer~~ Notes; (~~it being understood that the same issuer may be referred to differently due~~ ii) to the ~~use~~ Trustee and each Rating Agency (in the case of ~~abbreviations or shorthand references~~ delivery to S&P, via email to CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxxx@xxxxxx.xxx), a report, prepared by ~~different record keepers~~the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, ~~stated maturity~~Stated Maturity, S&P Rating, Moody’s Default Probability Rating, Mxxxx’x Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the ~~information provided by~~ Effective Date the ~~Issuer~~ level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition, in each case, as of the Effective Date; (iii) to the Trustee and the Collateral Manager, an Accountants’ Report (A) comparing, as of the Effective Date, the issuer, Principal Balance, coupon/spread, stated maturity, Moody’s Default Probability Rating, Mxxxx’x Rating, S&P Rating and country of Domicile with respect to ~~every other asset included in the Assets,~~ each Collateral Obligation by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and, together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and~~ Reports; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Moody’s, via email to cxxxxxxxxxxxx@xxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . If (Ax) the ~~information required~~ Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Trustee with the results of (1) the items set forth in ~~a Monthly Report,~~ subclause (Biii)(B)(1) ~~a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds~~ above and (2) the Target Initial Par ~~Amount in~~ Condition, and such results do not indicate any failure of any such tested item, and (y) the Issuer delivers the Effective Date Certificate to Moody’s and causes the Collateral Administrator to make available to Moody’s the Effective Date Report, and such Effective Date Certificate and Effective Date Report indicates satisfaction of (1) the items set forth in the subclause (iii)(B)(1) above and (2) the Target Initial Par ~~Condition and (C)~~ Condition, a ~~list~~ written confirmation from Moody’s of ~~any Closing Date Participation Interests held by the Issuer as~~ its Initial Rating of the Notes shall be deemed to have been provided (a “Moody’s Effective ~~Date~~Date Deemed Rating Confirmation”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)website. (ed) If If, by the Determination Date relating to the first Payment Date, either (1x)(1) ~~the~~ there has occurred no Moody’s Effective Date ~~S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date~~ Deemed Rating Confirmation or (2) the Mxxxx’x Rating Condition is not satisfied (such occurrence a “Moody’s Ramp-Up Failure”) or (y) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Class A Notes ~~rated by~~ (an “S&P ~~(which may take~~ Rating Confirmation Failure”) then the ~~form of a press release or other written communication). In such case~~Collateral Manager, ~~if S&P does not provide written confirmation of its Initial Rating~~ on behalf of the ~~Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date~~Issuer, ~~then the Issuer (or the Collateral Manager on the Issuer’s behalf) will~~ shall instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to (i) satisfy the Mxxxx’x Rating Condition and (ii) obtain from S&P ~~has provided written~~ a confirmation of its Initial Rating of the ~~Secured~~ Class A Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ (i) satisfy the ~~Issuer~~ Mxxxx’x Rating Condition and (~~or the Collateral Manager on the Issuer’s behalf~~ii) to obtain ~~written~~ from S&P a confirmation of its Initial Rating of the ~~Secured Notes from S&P.~~Class A Notes. (fe) ~~U.S.$29,549,508.80~~ The failure of the ~~net~~ Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith. Of the proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date approximately U.S.$108,200,000 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Golub Capital Investment Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event, prior to the Determination Date relating to the first Payment Date), the Issuer shall provide, or (at the Issuer’s expense) cause the Collateral Manager to provide, the following documents: (i) to each Rating Agency (in the ~~Issuer shall provide~~ case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to xxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx), a report identifying Collateral Obligations and a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: LoanX identification number, CUSIP number (if any), name of Obligor, coupon, spread (if applicable), LIBOR floor (if any), legal final maturity date, average life, outstanding principal balance, Principal Balance, identification as a Cov-Lite Loan or otherwise, identification as a First-Lien Last-Out Loan or otherwise, settlement date, the purchase price with respect to any Collateral Obligation the purchase of which has not settled, S&P Industry Classification and S&P Recovery Rate, and requesting that S&P reaffirm its Initial Ratings of the Secured Notes; (ii) to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to xxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) a report, prepared by the Collateral Administrator (the “Effective Date Report”), (A) setting forth the issuer, principal balance, coupon/spread, Stated Maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and (B) calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), (3) the Concentration Limitations and (4) the Target Initial Par Condition; (iii) to the Trustee and the ~~Trustee~~Collateral Manager, (A) an Accountants’ ~~Report: (x) confirming the identity~~ Report comparing, as of the ~~issuer (it being understood that~~ Effective Date, the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, ~~principal balance~~Principal Balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation ~~as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets,~~ by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (yB) ~~recalculating and comparing~~ an Accountants’ Report performing agreed upon procedures as of the Effective Date including recalculating and comparing the ~~level of compliance with, or satisfaction or non-satisfaction of~~ following items in the Effective Date ~~Tested Items~~ Report: (1) each Overcollateralization Ratio Test, the Collateral Quality Tests (excluding the S&P CDO Monitor Test) and the Concentration Limitations, and (2) whether the Target Initial Par Condition is satisfied (such report, the “Accountants’ Effective Date Recalculation AUP Report” and together with the Accountants’ Effective Date Comparison AUP Report, the “Accountants’ Effective Date AUP Reports”), with both Accountants’ Effective Date AUP Reports containing a statement specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and~~ Reports; and (iiiv) ~~the Issuer shall cause the Collateral Administrator to compile and deliver~~ to the Trustee and each Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx, and in the case of delivery to Fitch, via email to xxx.xxxxxxxxxxxx@xxxxxxxxxxxx.xxx) ~~a report~~ an Officer’s certificate of the Issuer (the “Effective Date ~~Report~~Certificate”) certifying as to the level of compliance with, or satisfaction or non-satisfaction of, (1) each Overcollateralization Ratio Test, (2) the Collateral Quality Tests (excluding the S&P CDO Monitor Test), ~~determined~~ (3) the Concentration Limitations, and (4) the Target Initial Par Condition, in each case, as of the Effective Date~~, containing~~ . (Av) the ~~information required~~ Issuer or the Collateral Manager, as the case may be, provides the foregoing Accountants’ Effective Date AUP Reports to the Trustee with the results of the items set forth in subclause (iii)(B) above, and such results do not indicate any failure of any such tested item, (w) the Issuer delivers the Effective Date Certificate to the Trustee and causes the Collateral Administrator to make available to the Rating Agencies (i) a ~~Monthly~~ report identifying the Collateral Obligations and (ii) the Effective Date Report, (Bx) ~~a calculation~~ the Collateral Manager certifies to S&P (which may be in the form of ~~the Aggregate Principal Balance~~ an e-mail) that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective ~~Date~~Date the S&P CDO Monitor Test is satisfied (testing as though an S&P CDO Formula Election Period were in effect and taking into account the S&P CDO Monitor Non-Model Adjustments), (y) the Collateral Manager provides to S&P an electronic copy of the Current Portfolio used to generate the passing test result and (z) the Collateral Manager certifies that the Closing Date Participation Condition is satisfied, a written confirmation from S&P of its Initial Ratings of the Secured Notes shall be deemed to have been provided (the “Effective Date Condition”). For the avoidance of doubt, the Effective Date Certificate and the Effective Date Report shall not include or refer to the Accountants’ ~~Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d)~~ Effective Date AUP Reports. In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer and Information Agent who will post such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 ~~Website~~website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed upon procedures report provided by the Independent accountants to the ~~Issuer, Trustee, Collateral Manager or Collateral Administrator~~ Issuer will not be provided to any other party including the Rating ~~Agency~~ Agencies or posted on the 17g-5 website (other than as provided in an any access letter between such Person and the ~~accountants and such party~~accountants). (ed) If If, by the Determination Date relating to the first Payment Date (1) unless the Effective Date ~~S&P Conditions have not been satisfied prior to the date that~~ Condition is ~~thirty (30) days after the Effective Date or (2~~satisfied) S&P has not provided written confirmation ~~(which may take the form of a press release or other written communication)~~ of its Initial ~~Rating~~ Ratings of the Secured Notes ~~rated by S&P by the date thirty (30) days following the Effective Date,~~ then the ~~Issuer (or the~~ Collateral ~~Manager~~ Manager, on behalf of the Issuer~~’s behalf)~~ , shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee in writing to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount (and ~~may, prior to the first Payment Date, use~~ with such funds ~~on behalf of~~ the Issuer ~~for the~~ shall purchase of additional Collateral ~~Obligations until such time as~~ Obligations) in an amount sufficient to obtain from S&P ~~has provided written~~ a confirmation of its Initial ~~Rating~~ Ratings of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided ~~that~~ that, in ~~lieu of complying with this clause (e)~~the alternative, ~~the Issuer (or~~ the Collateral Manager on behalf of the ~~Issuer’s behalf)~~ Issuer may take such other action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to ~~enable~~ obtain from S&P a confirmation of its Initial Ratings of the Secured Notes. (e) The failure of the Issuer (to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer~~’s behalf) to obtain written confirmation of its Initial Rating of~~ , has acted in bad faith. Of the ~~Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net~~ proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations acquired by the Issuer on the Closing Date an amount equal to U.S.$11,359,703.08 will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Supplemental Indenture (GOLUB CAPITAL BDC, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~January 20, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional ~~Securities~~ Debt are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A A-1 Debt, the Class A-2 Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt from S&P. (f) ~~U.S.$29,549,508.80~~ Approximately $394,555,000 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-1L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 30 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, spread/coupon, Benchmark floor (if applicable), LoanX identification number (if applicable), purchase price for any unsettled assets, legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate and identification of any First-Lien Last-Out Loans. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately prior to the first Payment Date), the Issuer shall provide, or cause the Collateral Manager (or, in the case of clause (ii), the Collateral Administrator) to provide, the following documents: (i) to each Rating Agency, the ~~Issuer shall provide~~ Collateral Trustee and the Loan Agent, a report identifying the Collateral Obligations; (ii) to each Rating Agency, the Effective Date Report and (iii) to the Collateral ~~Manager~~ Trustee and the ~~Trustee~~Loan Agent, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~Obligor, ~~principal balance~~Principal Balance, spread/coupon~~/spread~~, stated maturity, ~~S&P Rating and~~ country of Domicile and S&P Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test); and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) If ~~(1)~~ the ~~Effective Date~~ S&P ~~Conditions have~~ Deemed Rating Confirmation has not ~~been~~ occurred and the S&P Rating Condition is not satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (~~2) S&P has not provided written confirmation (which may take~~ but in no event later than the ~~form of a press release or other written communication) of its Initial Rating of~~ Determination Date immediately preceding the ~~Secured Notes rated by S&P by the date thirty (30) days following the Effective~~ first Payment Date), then (A) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) cause the S&P Deemed Rating Confirmation to occur or (ii) request S&P to ~~provide written confirmation of~~ confirm, on or before the first Determination Date, that it will not reduce or withdraw its Initial Rating of the Secured ~~Notes rated~~ Debt and (B) if, by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first ~~Payment~~ Determination Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not caused the S&P Deemed Rating Confirmation to occur or obtained the confirmation from S&P, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) cause the S&P ~~has provided~~ Deemed Rating Confirmation to occur or (ii) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Debt; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) cause the S&P Deemed Rating Confirmation to occur or (2) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the Secured ~~Notes from S&P.~~Debt. (f) ~~U.S.$29,549,508.80~~ An S&P Deemed Rating Confirmation (“S&P Deemed Rating Confirmation”) shall occur, and a written confirmation from S&P of its initial ratings of the ~~net proceeds~~ Secured Debt will be deemed to have been provided, if (x) the Issuer causes the Collateral Manager to provide to S&P the Effective Date Report and the Effective Date Report confirms satisfaction of the ~~issuance~~ S&P CDO Monitor Test as of the ~~Notes~~ Effective Date, (y) the Collateral Manager certifies to S&P (which confirmation may be in the form of an email) that as of the Effective Date the S&P CDO Monitor Test is satisfied (testing as though the S&P CDO Monitor Switchover Date has occurred and taking into account the S&P CDO Monitor Non-Model Adjustments described below) and (z) the Collateral Manager provides to S&P a report identifying the Collateral Obligations used to generate the passing test result; provided that, for purposes of determining compliance with the S&P CDO Monitor Test in connection with such Effective Date Report, (i) the Aggregate Funded Spread will be calculated without giving effect to the proviso to clause (a) of the definition of “Aggregate Funded Spread” and by assuming that any Collateral Obligation subject to a Benchmark floor bears interest at a rate equal to the stated interest rate spread over the Benchmark-based index for such Collateral Obligation and (ii) for the purposes of calculating the S&P CDO Monitor Adjusted BDR, the Collateral Principal Amount will exclude any amounts that may be transferred from the Principal Collection Subaccount or the Ramp-Up Account into the Interest Collection Subaccount as Interest Proceeds subject to the Effective Date Interest Deposit Condition (the “S&P CDO Monitor Non-Model Adjustments”). Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Secured Debt pursuant to clause (e) above, the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from S&P its written confirmation of its Initial Ratings of the Secured Debt. Payments made in respect of the Secured Debt in connection with such Special Redemption shall be paid in accordance with the Debt Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount pursuant to clause (e) above if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Secured Debt on such next succeeding Payment Date. (g) The amount specified in Section 3.1(j)(i) will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply the remaining amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c). (h) [Reserved].

Appears in 1 contract

Samples: Indenture and Security Agreement (PennantPark Floating Rate Capital Ltd.)

Effective Date; Purchase of Additional Collateral Obligations. (a) ~~The Issuer will~~ If (and only if) Moody’s has provided an Initial Rating prior to the Determination Date in June, 2019 (the “Interim Date”), the Borrower shall use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations ~~(i)~~ such that the Target ~~Initial~~ Facility Par Condition is ~~satisfied~~ satisfied. In addition, if (and only if) the Initial Rating has been provided by Moody’s prior to the Interim Date, the Borrower (or the Collateral Manager on its behalf) shall prepare a written report, determined as of the Interim Date, setting forth the Aggregate Principal Balance of the Collateral Obligations, the Diversity Score, the Weighted Average Mxxxx’x Rating Factor, the Weighted Average Spread and the Weighted Average Moody’s Recovery Rate. Such written report must be delivered to the Collateral Custodian and Moody’s within ten Business Days following the Interim Date; provided that no such report will be required if the Initial Rating has not been provided prior to the Interim Date. If Moody’s has provided an Initial Rating prior to the Interim Date, the Borrower shall also use commercially reasonable efforts to meet the following measures as of the Interim Date: (i) the Aggregate Principal Balance of the Collateral Obligations is greater than or equal to $40,000,000, (ii) ~~that satisfy~~the Diversity Score is greater than or equal to 0, ~~as of~~ (iii) the Weighted Average Mxxxx’x Rating Factor is less than or equal to 2800, (iv) the Weighted Average Spread is greater than or equal to 3.00% and (v) the Weighted Average Moody’s Recovery Rate greater than or equal to 45.00%. (b) Unless clause (c) below is applicable, and only if Moody’s has provided an Initial Rating at any time prior to the Effective Date, within 30 Business Days after the Effective Date, the ~~Concentration Limitations~~Borrower shall provide, or cause the Collateral ~~Quality Test and~~ Manager to provide the ~~Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows~~following documents: (i) to ~~pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of~~ Moody’s, a report prepared by the Collateral ~~Manager~~ Administrator in accordance with, and subject to the terms of, the Collateral Administration Agreement identifying the Collateral Obligations and, with respect to each Collateral Obligation, specifying (A) its identification number, LIBOR floor (if any) and classification as a First Lien Loan (or a Participation Interest therein), Second Lien Loan (or a Participation Interest therein), Senior Unsecured Loan (or a Participation Interest therein) or Subordinated Loan (or a Participation Interest therein), (B) its Principal Balance, (C) its Mxxxx’x Market Value, (D) its Market Value and (E) the balance of each Account and (ii) to ~~pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of~~ the Collateral ~~Manager. (c) Within thirty (30) days after the Effective Date~~Custodian, ~~(i) the Issuer shall provide to~~ the Collateral Manager and Moody’s, a report (prepared by the ~~Trustee~~Collateral Administrator in accordance with, ~~an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due~~ and subject to the ~~use of abbreviations or shorthand references by different record keepers)~~terms of, ~~principal balance~~the Collateral Administration Agreement) stating the following information (the “Effective Date Report”): (1) the Obligor, Principal Balance, coupon/spread, stated maturity, ~~S&P Rating~~ Moody’s Default Probability Rating, Moody’s Industry Classification Group and country of ~~Domicile~~ domicile with respect to each Collateral Obligation as of the Effective ~~Date~~ Date, and ~~the~~ substantially similar information provided by the ~~Issuer~~ Borrower with respect to every other asset included in the ~~Assets~~Collateral (to the extent such asset is a security or a Loan), by reference to such sources ~~as shall be~~ specified ~~therein (such report~~therein, ~~the “Accountants’ Effective Date Comparison AUP Report”)~~ and (y2) ~~recalculating and comparing~~ as of the Effective ~~Date~~ Date, the level of compliance with, or and satisfaction or non-satisfaction of, (A) the Target Facility Par Condition, (B) each Coverage Test, (C) the Concentration Limits, (D) the Transaction Concentration Requirements, (E) the Collateral Quality Test, (F) the Advance Rate Test, (G) the Required Equity Investment and (H) the Market Value Ratio Test and (I) the Market Value Ratio Supplemental Margin Test (the tests reflected in the foregoing clauses (A) through (I) above, the “Effective Date Tests”). In connection with the Collateral Administrator’s preparation of the Effective Date ~~Tested Items and specifying~~ Report, the ~~procedures undertaken by them~~ Borrower (or the Collateral Manager on behalf of the Borrower) shall provide to ~~review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause~~ the Collateral Administrator ~~to compile and deliver to~~ (upon its execution of an acknowledgment letter) an Accountants’ Report that recalculates the ~~Rating Agency (~~information set forth in the ~~case of delivery to S&P~~Effective Date Report (such Accountants’ Report, ~~via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (~~the “Effective Date Accountants’ Report”)~~, determined as~~ . Upon receipt of the Effective ~~Date~~Date Report, ~~containing (A)~~ the Collateral Custodian and the Collateral Manager shall each compare the information ~~required~~ contained in ~~a Monthly~~ such Effective Date Report to the information contained in their respective records with respect to the Collateral and shall, within three Business Days after receipt of such Effective Date Report, ~~(B) a calculation~~ notify such other party and the Borrower, the Collateral Administrator and Moody’s if the information contained in the Effective Date Report does not conform to the information maintained by the Collateral Custodian or the Collateral Manager, as the case may be. If any discrepancy exists, the Collateral Custodian and the Borrower, or the Collateral Manager on behalf of the ~~Aggregate Principal Balance~~ Borrower, shall attempt to resolve the discrepancy. If such discrepancy cannot be resolved within five Business Days after the delivery of such a notice of discrepancy, the Collateral Manager shall request that ~~indicates whether~~ the ~~Aggregate Principal Balance equals~~ Independent accountants selected by the Borrower pursuant to Section 5.1(g) perform agreed-upon procedures on the Effective Date Report and the Collateral Manager’s and Collateral Custodian’s records to determine the cause of such discrepancy. If such procedures reveal an error in the Effective Date Report or ~~exceeds~~ the ~~Target Initial Par Amount in satisfaction of~~ Collateral Manager’s or Collateral Custodian’s records, the ~~Target Initial Par Condition~~ Effective Date Report or the Collateral Manager’s or Collateral Custodian’s records will be revised accordingly and ~~(C) a list~~ notice of any ~~Closing~~ error in the Effective Date ~~Participation Interests held~~ Report shall be sent as soon as practicable by the ~~Issuer as~~ Borrower to all recipients of ~~the Effective Date~~such report. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Effective Date Accountants’ Report. (c) If Moody’s has provided an Initial Rating, and if (1) the Borrower or the Collateral Manager, as the case may be, has not provided to Moody’s both (A) an Effective Date Report that also confirms satisfaction of or compliance with the Target Facility Par Condition, each Coverage Test, the Concentration Limits, the Transaction Concentration Requirements and the Collateral Quality Test and (B) a certificate the “Effective Date Borrower Certificate” and together with the Effective Date report described in clause (A) above, a “Passing Report”) that (i) indicates the Borrower has received an Accountants’ Report that recalculates information set forth on the Effective Date Report, (ii) certifies, based on the information in such Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date ~~S&P Conditions have not been satisfied~~ Report, that the information in the Effective Date Report is accurate in all material respects and (iii) attributes such conclusions from the foregoing review to the Borrower prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (2) ~~S&P~~ the Rating Condition has not ~~provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days~~ been satisfied within 30 Business Days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such casethen, if ~~S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to~~ by the Determination Date immediately preceding the first Payment Date to occur more than 30 Business Days after the Effective Date, ~~then~~ the ~~Issuer~~ Borrower (or the Collateral Manager on the ~~Issuer~~Borrower’s behalf) ~~will~~ has not provided a Passing Report to Moody’s or satisfied the Rating Condition, each as described in the preceding clauses (1) and (2) of this paragraph, the Borrower (or the Collateral Manager on the Borrower’s behalf) shall instruct the ~~Trustee~~ Collateral Custodian to transfer amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account and may, prior to the first Payment Date to occur more than 30 Business Days after the Effective Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as S&P has provided written confirmation of its Initial Rating of~~ in an amount sufficient to enable the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer Borrower (or the Collateral Manager on the ~~Issuer~~Borrower’s behalf) to (i) provide a Passing Report to Moody’s or (ii) satisfy the Rating Condition; provided that, in lieu of complying with this Section 2.16(c), the Borrower (or the Collateral Manager on the Borrower’s behalf) may take such action, including ~~but not limited to,~~ a Special Redemption and/or transferring amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account as Principal ~~Proceeds~~ Collections (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the ~~Issuer~~ Borrower (or the Collateral Manager on the ~~Issuer~~Borrower’s behalf) to ~~obtain written confirmation of its Initial~~ (1) provide to Moody’s a Passing Report or (2) satisfy the Rating of Condition; provided, further, that amounts may not be transferred from the Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Interest Collection Account to ~~purchase additional Collateral Obligations and~~ the Principal ~~Financed Accrued Interest~~Collection Account if, ~~if any, from the Closing Date~~ after giving effect to ~~and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations~~such transfer, such ~~amounts shall be applied as described~~ transfer would result in ~~Section 10.3(c)~~a shortfall of interest with respect to the Funded Loans.

Appears in 1 contract

Samples: Revolving Loan Agreement (TP Flexible Income Fund, Inc.)

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~November 15, ~~2021~~2023, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt from ~~S&P.~~ S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$41,232,767 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-1L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Core Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality ~~Test~~ Tests and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Tests and each Overcollateralization Ratio Test. (c) Within ~~thirty (30)~~ 30 calendar days after the Effective Date (but in any event prior to the Determination Date relating to the first Payment Date), the Issuer will provide, or cause the Collateral Manager (or, in the case of clause (ii)(y) below, the Collateral Administrator) to provide, (i) to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the ~~Issuer shall provide~~ inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, coupon, spread (if applicable), Benchmark floor (if applicable), LoanX identification number (if applicable), purchase price for any unsettled assets, legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate and identification of any First-Lien Last-Out Loans and (ii) (x) to the Rating Agency and the Trustee, a report identifying the Collateral Obligations, (y) to the Rating Agency, the Effective Date Report and the Effective Date Certificate, and (z) to the Trustee and the Collateral Administrator, (A) an Accountants’ Report (the “Accountants’ Effective Date Comparison AUP Report~~: (x~~”) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~obligor, outstanding principal balance, coupon/spread, stated ~~maturity,~~ maturity and S&P Rating ~~and country of Domicile~~ with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report,~~ B) an Accountants’ Report (the “Accountants’ Effective Date ~~Comparison~~ Recalculation AUP Report”) ~~and (y)~~ recalculating ~~and comparing~~ as of the Effective Date the level of compliance with, or and satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test); and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective DateReports. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer who will post (or cause to be posted) such Form 15-~~E, except for the redaction of any sensitive information,~~ E on the 17g-5 ~~Website~~website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other ~~accountants’~~ agreed-upon procedures report provided by the Independent accountants to the Issuer, ~~Trustee, Collateral Manager~~ the Trustee or the Collateral Administrator will not be provided to any other party including the Rating ~~Agency (other than as provided in an access letter between the accountants and such party)~~Agency. (ed) If ~~(1)~~ the ~~Effective Date~~ S&P ~~Conditions have~~ Rating Condition is not ~~been~~ satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (2but in no event later than the Determination Date immediately preceding the first Payment Date) ~~S&P has not provided written confirmation~~ then (~~which may take the form of a press release or other written communication~~A) ~~of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to ~~provide written confirmation of~~ confirm on or before the first Determination Date, that S&P will not reduce or withdraw its ~~Initial Rating~~ initial ratings of the Secured ~~Notes rated~~ Debt and (B) if, by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first ~~Payment~~ Determination Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) has not obtained the confirmation from S&P as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain from S&P ~~has provided~~ written confirmation of its ~~Initial Rating~~ initial ratings of the Secured ~~Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Debt; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection ~~Subaccount~~ Account to the Principal Collection ~~Subaccount~~ Account as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain from S&P written confirmation of its ~~Initial Rating~~ initial ratings of the Secured ~~Notes~~ Debt. (e) Notwithstanding anything herein to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Secured Debt pursuant to clause (d) above, the Issuer may use amounts on deposit in the Principal Collection Account to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from ~~S&P.~~S&P its written confirmation of its initial ratings of the Secured Debt. Payments made in respect of the Secured Debt in connection with such Special Redemption shall be paid in accordance with the Debt Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Account to the Principal Collection Account pursuant to clause (d) above if, after giving effect to such transfer, the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Secured Debt on such next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ The failure of the ~~net~~ Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith. Of the proceeds of the issuance of the ~~Notes~~ Secured Debt which are not applied to pay for the purchase of Collateral Obligations purchased by the Issuer on or before the Closing Date (including, without limitation, repayment of any amounts borrowed by the Issuer in connection with the purchase of Collateral Obligations prior to the Closing Date) or to pay other applicable fees and expenses, funds will be deposited in the Ramp-Up Account on the Closing ~~Date~~Date in the amounts specified in writing to the Trustee by the Issuer. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (AG Twin Brook Capital Income Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~January 31, ~~2021~~2023, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$131,423,190.19 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Core Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~July 20, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from S&P. (f) ~~U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date.~~ At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Blue Owl Credit Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~June 20, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to ~~XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx~~CDOEffectiveDatePortfolios@spglobal.com) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from S&P. (f) ~~U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date.~~ At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~April 6, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$394,400,000 of the net proceeds of the issuance of the ~~Notes~~ Securities will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Second Supplemental Indenture (Blue Owl Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 320, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer (or the Collateral Manager on its behalf) shall provide, or cause the Collateral Manager to provide, the following documents (i) to the Rating Agency, a report (that the Issuer shall ~~provide~~ cause the Collateral Administrator to prepare on its behalf in accordance with, and subject to the terms of, the Collateral ~~Manager~~ Administration Agreement) identifying the Collateral Obligation; (ii) to the Rating Agency, the Trustee and the ~~Trustee~~Collateral Manager, ~~an Accountants’ Report:~~ (x) ~~confirming the identity of the issuer~~ a report (~~it being understood~~ that the ~~same issuer may be referred~~ Issuer shall cause the Collateral Administrator to ~~differently due~~ prepare on its behalf in accordance with, and subject to the ~~use of abbreviations or shorthand references by different record keepers)~~terms of, the Collateral Administration Agreement) stating the following information (the “Effective Date Report”): (A) the Obligor, principal balance, coupon/spread, stated maturity, S&P ~~Rating~~ Rating, S&P Industry Classification Group and country of Domicile with respect to each Collateral Obligation as of the Effective Date and ~~the~~ substantially similar information provided by the Issuer with respect to every other asset included in the ~~Assets~~Assets (to the extent such asset is a security or a loan), by reference to such sources as shall be specified therein and (B) as of the Effective Date, the level of compliance with, and satisfaction or non-satisfaction of, (1) the Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test) (the “Effective Date Tested Items”) and (y) a certificate of the Issuer (such ~~report~~certificate, the “Effective Date Issuer Certificate”), certifying that the Issuer has received (A) an Accountants’ Report (the “Accountants’ Effective Date Comparison AUP Report”) recalculating and confirming the following items from the Effective Date Report: the Obligor, principal balance, coupon/spread, stated maturity, S&P Rating, S&P Industry Classification Group and country of Domicile with respect to each Collateral Obligation as of the Effective Date and substantially similar information provided by the Issuer with respect to every other asset included in the Assets (to the extent such asset is a security or a loan), by reference to such sources as will be specified therein and (yB) an Accountants’ Report (the “Accountants’ Effective Date Recalculation AUP Report”) recalculating ~~and comparing~~ as of the Effective Date the level of compliance with, or and satisfaction or non-satisfaction of of, the Effective Date Tested ~~Items~~ Items; and ~~specifying~~ (iii) to the ~~procedures undertaken by them to review data~~ Trustee and ~~computations relating to such report (~~the “Collateral Manager, the Accountants’ Effective Date ~~Recalculation~~ AUP ~~Report”), and (ii)~~ Reports. If the ~~Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “~~S&P Effective Date ~~Report”)~~Condition is satisfied, ~~determined as~~ written confirmation from S&P of its Initial Rating of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report Secured Debt shall be ~~provided~~ deemed to ~~or otherwise shared with the Rating Agency~~have been provided. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). Upon receipt of the Effective Date Report, the Collateral Manager shall compare the information contained in such Effective Date Report to the information contained in its records with respect to the Assets and shall, within three Business Days after receipt of such Effective Date Report, notify the Issuer, the Collateral Administrator, the Rating Agency and the Trustee if the information contained in the Effective Date Report does not conform to the information maintained by the Trustee with respect to the Assets. In the event that any discrepancy exists, the Trustee and the Issuer, or the Collateral Manager on behalf of the Issuer, shall attempt to resolve the discrepancy. If such discrepancy cannot be promptly resolved, the Trustee shall within five Business Days notify the Collateral Manager who shall, on behalf of the Issuer, request that the Independent accountants selected by the Issuer pursuant to Section 10.10 perform agreed-upon procedures on the Effective Date Report, the Collateral Manager’s records and the Trustee’s and/or the Collateral Administrator’s records to assist the Collateral Manager and the Trustee in determining the cause of such discrepancy. If such procedures reveal an error in the Effective Date Report, the Collateral Manager’s records or the Trustee’s and/or the Collateral Administrator’s records, the Effective Date Report, the Collateral Manager’s records, the Trustee’s records and/or the Collateral Administrator’s records, as applicable, will be revised accordingly and notice of any error in the Effective Date Report shall be sent as soon as practicable by the Issuer to all recipients of such report. (e) If If, within 30 Business Days after the Effective Date, (1) the S&P Effective Date ~~S&P Conditions have~~ Condition has not been satisfied ~~prior to the date that is thirty (30) days after the Effective Date or~~ and (2) S&P has not provided written confirmation (which may take the form of a press release or other written ~~communication~~communication or may be deemed provided under Section 7.18 above) of its Initial Rating assigned by it on the Closing Date to each Class of ~~the~~ Secured ~~Notes~~ Debt rated by it (the failure to satisfy clauses (1) and (2), an “S&P ~~by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial~~ Rating ~~of the Secured Notes rated by S&P (which may take the form of a press release or other written communication~~Confirmation Failure”)~~. In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date~~, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and ~~may~~the Issuer (or the Collateral Manager on its behalf) may direct the Trustee, prior to the first Payment Date, to use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation (which may take the form of a press release or other written communication) of its Initial ~~Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Rating; provided that in lieu of complying with ~~this clause (e)~~the foregoing, the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation (which may take the form of a press release or other written communication) from S&P of its Initial ~~Rating~~ Rating; provided further that amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount if, after giving effect to such transfer, (I) the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay in the full amount of the accrued and unpaid interest on any Class of Secured ~~Notes from S&P.~~Debt on such next succeeding Payment Date or (II) such transfer would result in a deferral of interest with respect to the Deferrable Debt on the next succeeding Payment Date. (f) ~~U.S.$29,549,508.80 of~~ The Issuer hereby directs the ~~net proceeds of~~ Trustee to deposit the ~~issuance of~~ amount specified in the ~~Notes will be deposited in~~ Closing Date Certificate to the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee shall apply~~ amounts held in the Ramp-Up Account shall be used to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c). (g) Within 30 Business Days after the Effective Date, the Issuer (or the Collateral Manager on its behalf) shall provide, or cause the Collateral Administrator to provide, to S&P, a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Administrator shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), LoanX ID (if any), name of Obligor, coupon, spread (if applicable), Reference Rate floor (if any), legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, trade date and settlement date, S&P Industry Classification Group, S&P Rating, S&P Recovery Rate and the purchase price of assets purchased by the Issuer that have not settled as of such date. (h) If, following the Effective Date, either (i) S&P provides written confirmation of its Initial Rating or (ii) during an S&P CDO Monitor Formula Election Period (if the Issuer has satisfied the S&P Effective Date Condition), the S&P CDO Monitor Test is satisfied, then the Issuer shall be under no obligation to transfer (or cause the transfer of) Interest Proceeds to the Collection Account as Principal Proceeds or to effect a Special Redemption (subject to satisfaction of the S&P Effective Date Condition). (i) On or prior to the Effective Date, the Collateral Manager shall elect the Weighted Average S&P Recovery Rate that will apply during an S&P CDO Monitor Model Election Period for purposes of determining compliance with the Minimum Weighted Average S&P Recovery Rate Test, by written notice to the Trustee, the Collateral Administrator and S&P. Thereafter, at any time during any S&P CDO Monitor Model Election Period, by written notice to the Trustee, the Collateral Administrator and S&P, the Collateral Manager may elect a different Weighted Average S&P Recovery Rate to apply to the Collateral Obligations; provided, that, if: (i) the Collateral Obligations are currently in compliance with the Weighted Average S&P Recovery Rate case then applicable to the Collateral Obligations, but the Collateral Obligations would not be in compliance with the Weighted Average S&P Recovery Rate case to which the Collateral Manager desires to change, then such changed case will not apply or (ii) the Collateral Obligations are not currently in compliance with the Weighted Average S&P Recovery Rate case then applicable to the Collateral Obligations and would not be in compliance with any other Weighted Average S&P Recovery Rate case, the Weighted Average S&P Recovery Rate to apply to the Collateral Obligations shall be the lowest Weighted Average S&P Recovery Rate in Section 2 of Schedule 6. If the Collateral Manager does not so notify the Trustee and the Collateral Administrator that it will alter the Weighted Average S&P Recovery Rate in the manner set forth above, the Weighted Average S&P Recovery Rate chosen on or prior to the Effective Date will continue to apply. (j) Compliance with the S&P CDO Monitor Test will be measured only during the Reinvestment Period and shall be measured by the Collateral Manager on each Measurement Date; provided that on each Measurement Date after the Effective Date and after receipt by the Issuer of the S&P CDO Monitor Input File, the Collateral Manager shall provide to the Trustee and the Collateral Administrator a report on the portfolio of Collateral Obligations containing such information as is reasonably necessary to permit the Collateral Administrator to calculate the Class Default Differential with respect to the Highest Ranking Class on such Measurement Date. In the event that the Collateral Manager’s measurement of compliance and the Collateral Administrator’s measurement of compliance show different results, the Collateral Manager and the Collateral Administrator shall cooperate promptly in order to reconcile such discrepancy. (k) The failure of the Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith.

Appears in 1 contract

Samples: Indenture (HPS Corporate Lending Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 328, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) U.S.$29,549,508.80 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).-108-

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) ~~Within thirty~~ [Intentionally omitted]. (30d) ~~days~~ Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), the Issuer will provide, or cause the Collateral Manager to provide, the following documents: (i) to each of the ~~Issuer shall provide to the Collateral Manager~~ Rating Agencies and the Trustee, a report identifying the Collateral Obligations, (ii) to each of the Rating Agencies, the Effective Date Report and (iii) to the Trustee, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~obligor, outstanding principal balance, coupon/spread, stated maturity, ~~S&P Rating and~~ country of ~~Domicile~~ Domicile, Xxxxx’x Rating, Moody’s Default Probability Rating, and Fitch Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test; and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) ~~If (1) the Effective Date S&P Conditions have not been satisfied~~ If, prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately preceding the first Payment Date), (x) the Trustee has not been provided with an Accountants’ Certificate indicating the level of compliance with, or satisfaction or non-satisfaction of Effective Date Specified Tested Items and each of the Rating Agencies has not been provided with (i) a report identifying the Collateral Obligations and (ii) an Effective Date Report or (2y) ~~S&P has~~ the Xxxxx’x Rating Condition is not ~~provided written confirmation~~ satisfied (~~which may take the form of~~ such occurrence constituting a ~~press release or other written communication~~“Moody’s Ramp-Up Failure”) ~~of its Initial Rating of the Secured Notes rated by S&P by the date thirty~~ then (30A) ~~days following the Effective Date, then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) shall either (i) notify Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report on or before the first Determination Date or (ii) request ~~S&P~~ Moody’s to ~~provide written confirmation of~~ confirm on or before the first Determination Date that Moody’s will not reduce or withdraw its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes ~~rated~~ and (B) if, by ~~S&P~~ the first Determination Date, the Issuer (~~which may take~~ or the ~~form of a press release or other written communication). In~~ Collateral Manager on the Issuer’s behalf) has not confirmed to Moody’s that the Trustee has been provided with such ~~case, if S&P does not provide written confirmation of its Initial Rating~~ Accountants’ Certificate and each of the ~~Secured Notes on~~ Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or ~~prior to~~ obtained the ~~Determination Date immediately~~ confirmation from Moody’s, each as described in the preceding ~~the first Payment Date~~clause (A) of this paragraph, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until~~ in an amount sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (i) confirm to Moody’s that the Trustee has been provided with such ~~time as S&P~~ Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (ii) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A~~ Notes); provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (1) confirm to Moody’s that the Trustee has been provided with such Accountants’ Certificate and each of the Rating Agencies has been provided with a report identifying the Collateral Obligations and an Effective Date Report or (2) obtain from Moody’s written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured~~ Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). The Collateral Manager shall provide Fitch written notice if a Moody’s Ramp-Up Failure has occurred. Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Notes pursuant to this clause (e), the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from ~~S&P.~~Moody’s its written confirmation of its Initial Ratings of the Notes (provided such confirmation is not required if the Effective Date Condition has been satisfied). Payments made in respect of the Notes in connection with such Special Redemption shall be paid in accordance with the Note Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount in connection with such a Special Redemption on a Business Day other than a Payment Date if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Notes on such next succeeding Payment Date. (f) ~~U.S.$29,549,508.80~~ U.S.$162,559,208.96 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations ~~as follows:~~ in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up ~~Account or~~ Account, and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the Ramp-Up Account or and second, any Principal Proceeds on deposit in the Collection ~~Account at~~ Account. In addition, the ~~discretion of~~ Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral ~~Manager~~Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 10 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), name of Obligor, spread/coupon, Libor floor (if applicable), LoanX identification number (if applicable), purchase price for any unsettled assets, legal final maturity date, average life, Principal Balance, identification as a Cov-Lite Loan or otherwise, settlement date, S&P Industry Classification, S&P Recovery Rate and identification of any First-Lien Last-Out Loans. (d) Unless clause (e) below is applicable, within 30 Business Days after the Effective Date (but in no event later than the Determination Date immediately prior to the first Payment Date), the Issuer shall provide, or cause the Collateral Manager (or, in the case of clause (ii), the Collateral Administrator) to provide, the following documents: (i) ~~the Issuer shall provide~~ to the ~~Collateral Manager~~ Rating Agency, the Trustee and the ~~Trustee~~Collateral Agent, a report identifying the Collateral Obligations; (ii) to the Rating Agency, the Effective Date Report, and (iii) to the Trustee and the Collateral Agent, an accountants’ certificate (the “Accountants’ ~~Report:~~ Certificate”) (xA) ~~confirming~~ recalculating and comparing the ~~identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~Obligor, ~~principal balance~~Principal Balance, spread/coupon~~/spread~~, stated maturity, ~~S&P Rating and~~ country of Domicile and S&P Rating with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified ~~therein~~ therein, (~~such report, the “Accountants’ Effective Date Comparison AUP Report”~~B) ~~and (y) recalculating and comparing~~ calculating as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of (1) the ~~Effective Date Tested Items~~ Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Test (excluding the S&P CDO Monitor Test); and (C) specifying the procedures undertaken by them to review data and computations relating to such ~~report (the “~~Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party)Certificate. (e) If ~~(1)~~ neither the Effective Date Condition nor the S&P ~~Conditions have not been~~ Rating Condition is satisfied prior to the date ~~that is thirty (30) days~~ 30 Business Days after the Effective Date or (~~2) S&P has not provided written confirmation (which may take~~ but in no event later than the ~~form of a press release or other written communication) of its Initial Rating of~~ Determination Date immediately preceding the ~~Secured Notes rated by S&P by the date thirty (30) days following the Effective~~ first Payment Date), then (A) the Issuer (or the Collateral Manager on the Issuer’s behalf) shall (x) either (i) cause the S&P Deemed Rating Confirmation to occur or (ii) request S&P to ~~provide written confirmation of~~ confirm, on or before the first Determination Date, that it will not reduce or withdraw its Initial Rating of the ~~Secured Notes~~ Debt it rated and (B) if, by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first ~~Payment~~ Determination Date, ~~then~~ the Issuer (or the Collateral Manager on the Issuer’s behalf) ~~will~~ has not caused the S&P Deemed Rating Confirmation to occur or obtained the confirmation from S&P, each as described in the preceding clause (A) of this paragraph, the Issuer (or the Collateral Manager on the Issuer’s behalf) shall instruct the ~~Trustee~~ Collateral Agent to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, ~~use such funds on behalf of the Issuer for the~~ purchase of additional Collateral Obligations ~~until such time as~~ in an amount sufficient to enable the Co-Issuers (or the Collateral Manager on the Co-Issuers’ behalf) to (x) cause the S&P ~~has provided~~ Deemed Rating Confirmation to occur or (y) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes)~~Debt it rated; provided ~~that~~ that, in lieu of complying with ~~this clause~~ the preceding clauses (eA) and (B), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to (x) cause the S&P Deemed Rating Confirmation to occur or (y) obtain from S&P written confirmation of its Initial ~~Rating~~ Ratings of the ~~Secured Notes from S&P.~~Debt it rated. (f) ~~U.S.$29,549,508.80~~ An S&P Deemed Rating Confirmation (“S&P Deemed Rating Confirmation”) shall occur, and a written confirmation from S&P of its initial ratings of the ~~net proceeds~~ Secured Debt will be deemed to have been provided, if (x) the Issuer causes the Collateral Manager to provide to S&P the Effective Date Report and the Effective Date Report confirms satisfaction of the ~~issuance~~ S&P CDO Monitor Test as of the ~~Notes~~ Effective Date, (y) the Collateral Manager certifies to S&P (which confirmation may be in the form of an email) that as of the Effective Date the S&P CDO Monitor Test is satisfied (testing as though the S&P CDO Monitor Switchover Date has occurred and taking into account the S&P CDO Monitor Non-Model Adjustments described below) and (z) the Collateral Manager provides to S&P a report identifying the Collateral Obligations used to generate the passing test result; provided that, for purposes of determining compliance with the S&P CDO Monitor Test in connection with such Effective Date Report, the Aggregate Funded Spread will be calculated without giving effect to the proviso to clause (a) of the definition of “Aggregate Funded Spread” and by assuming that any Collateral Obligation subject to a Libor floor bears interest at a rate equal to the stated interest rate spread over the Libor-based index for such Collateral Obligation (the “S&P CDO Monitor Non-Model Adjustments”). Notwithstanding anything in this Indenture to the contrary, if the Issuer (or the Collateral Manager on the Issuer’s behalf) elects to direct a Special Redemption of the Debt pursuant to clause (e) above, the Issuer may use amounts on deposit in the Principal Collection Subaccount to make such Special Redemption on any Business Day (other than a Payment Date) to the extent necessary to obtain from S&P, its written confirmation of its Initial Ratings of the Debt it rated. Payments made in respect of the Debt in connection with such Special Redemption shall be paid in accordance with the Debt Payment Sequence. For the avoidance of doubt, such payments will be made without regard to the Priority of Payments. Amounts may not be transferred from the Interest Collection Subaccount to the Principal Collection Subaccount pursuant to clause (e) above if, after giving effect to such transfer the amounts available pursuant to the Priority of Payments on the next succeeding Payment Date would be insufficient to pay the full amount of the accrued and unpaid interest on any Class of Debt on such next succeeding Payment Date. (g) The amount specified in Section 3.1(k)(i) will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the ~~Trustee~~ Collateral Agent shall apply the remaining amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Silver Point Specialty Lending Fund)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~April 4, ~~2021~~2024, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional ~~Securities are~~ Debt is issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured ~~Notes~~ Debt from ~~S&P.~~ S&P. (f) ~~U.S.$29,549,508.80~~ Approximately $52,000,000 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-L Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Capital Corp III)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Cayman Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~July 6, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Cayman Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Cayman Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Cayman Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Cayman Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Cayman Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered ~~in connection thereto~~ pursuant to Section 2.4(e) as an attachment, will be provided by the Independent accountants to the Cayman Issuer or the Issuer, as applicable, who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Cayman Issuer, the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Cayman Issuer (or the Collateral Manager on the Cayman Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Cayman Issuer (or the Collateral Manager on the Cayman Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Cayman Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Cayman Issuer (or the Collateral Manager on the Cayman Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Cayman Issuer (or the Collateral Manager on the Cayman Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$258,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Cayman Issuer (or the Collateral Manager on behalf of the Cayman Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued ~~Interest, if any,~~ Interest from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~April 22, ~~2021~~2025, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Collateral Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Collateral Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Collateral Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Debt or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured Notes~~ Debt from ~~S&P.~~ S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$43,230,598.15 of the net proceeds of the issuance of the Notes and the incurrence of the Class A-1L-1 Loans and the Class A-1L-2 Loans will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Collateral Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before September 328, ~~2021~~2020, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the Secured Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$247,552,950 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Second Supplemental Indenture (Blue Owl Capital Corp)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3~~August 15, ~~2021~~2023, Collateral Obligations (i) such that the Target Initial Par Condition is satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use funds to purchase additional Collateral Obligations as follows: (i) to pay for the principal portion of any Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager and (ii) to pay for accrued interest on any such Collateral Obligation from any amounts on deposit in the Ramp-Up Account or any Principal Proceeds on deposit in the Collection Account at the discretion of the Collateral Manager. (c) Within thirty (30) days after the Effective Date, (i) the Issuer shall provide to the Collateral Manager and the Trustee, an Accountants’ Report: (x) confirming the identity of the issuer (it being understood that the same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers), principal balance, coupon/spread, stated maturity, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Accountants’ Effective Date Comparison AUP Report”) and (y) recalculating and comparing as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of the Effective Date Tested Items and specifying the procedures undertaken by them to review data and computations relating to such report (the “Accountants’ Effective Date Recalculation AUP Report”), and (ii) the Issuer shall cause the Collateral Administrator to compile and deliver to the Rating Agency (in the case of delivery to S&P, via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (the “Effective Date Report”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Accountants’ Report and no Accountants’ Report shall be provided to or otherwise shared with the Rating Agency. (d) In accordance with SEC Release No. 34-72936, Form 15-E, only in its complete and unedited form which includes the Accountants’ Effective Date Comparison AUP Report as an attachment and, if Additional Securities are issued, any Accountants’ Report delivered in connection thereto will be provided by the Independent accountants to the Issuer who will post such Form 15-E, except for the redaction of any sensitive information, on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency (other than as provided in an access letter between the accountants and such party). (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the ~~Secured~~ Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the ~~Secured~~ Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the ~~Secured~~ Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the ~~Secured~~ Notes (~~provided~~ provided, that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes or the Class B Notes); provided that in lieu of complying with this clause (e), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special Redemption or to acquire additional Collateral Obligations), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain written confirmation of its Initial Rating of the ~~Secured~~ Notes from S&P. (f) ~~U.S.$29,549,508.80~~ U.S.$394,000,000 of the net proceeds of the issuance of the Notes will be deposited in the Ramp-Up Account on the Closing Date. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations and Principal Financed Accrued Interest, if any, from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c).

Appears in 1 contract

Samples: Indenture (Owl Rock Capital Corp)

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II)

Effective Date; Purchase of Additional Collateral Obligations. (a) The Issuer will use commercially reasonable efforts to purchase, on or before ~~September 3, 2021~~the Effective Date, Collateral Obligations ~~(i)~~ such that the Target Initial Par Condition is ~~satisfied and (ii) that satisfy, as of the Effective Date, the Concentration Limitations, the Collateral Quality Test and the Coverage Tests~~satisfied. (b) During the period from the Closing Date to and including the Effective Date, the Issuer will use the following funds to purchase additional Collateral Obligations ~~as follows~~in the following order: (i) to pay for the principal portion of any Collateral ~~Obligation from~~ Obligation, first, any amounts on deposit in the interest subaccount or the principal subaccount of the Ramp-Up Account or (at the discretion of the Collateral Manager), and second, any Principal Proceeds on deposit in the Collection Account ~~at the discretion of the Collateral Manager~~ and (ii) to pay for accrued interest on any such Collateral ~~Obligation from~~ Obligation, any amounts on deposit in the interest subaccount or the principal subaccount of the Ramp-Up Account ~~or any Principal Proceeds on deposit in the Collection Account~~ (at the discretion of the Collateral Manager). In addition, the Issuer will use commercially reasonable efforts to acquire such Collateral Obligations that will satisfy, on the Effective Date, the Concentration Limitations, the Collateral Quality Test and each Overcollateralization Ratio Test. (c) Within ~~thirty (30) days~~ 30 Business Days after the Effective Date, (i) the Issuer shall cause the Collateral Administrator to compile and provide to each Rating Agency, the Trustee, the Collateral Manager and the ~~Trustee~~Holders (which report shall be provided to Holders in the same manner as Monthly Reports) a report (the “Effective Date Report”) determined as of the Effective Date, ~~an Accountants’ Report:~~ containing (A) the information required in a Monthly Report and (B) a calculation with respect to whether the Target Initial Par Condition is satisfied and (ii) the Trustee shall have received (x) ~~confirming~~ an accountants’ agreed upon procedures report comparing the ~~identity of~~ following items in the ~~issuer (it being understood that~~ Effective Date Report: the ~~same issuer may be referred to differently due to the use of abbreviations or shorthand references by different record keepers)~~issuer, principal balance, coupon/spread, stated maturity, Xxxxx’x Rating, Xxxxx’x Default Probability Rating, Xxxxx’x Industry Classification, S&P Industry Classification, S&P Rating and country of Domicile with respect to each Collateral Obligation as of the Effective Date and the information provided by the Issuer with respect to every other asset included in the Assets, by reference to such sources as shall be specified therein (such report, the “Effective Date Accountants’ ~~Effective Date~~ Comparison ~~AUP~~ Report”) and (y) an accountants’ agreed upon procedures report recalculating ~~and comparing~~ as of the Effective Date the level of compliance with, or satisfaction or non-satisfaction of of, (1) the Target Initial Par Condition, (2) each Overcollateralization Ratio Test, (3) the Concentration Limitations and (4) the Collateral Quality Tests (excluding the S&P CDO Monitor Test) (the items in this clause (y), collectively, the “Specified Tested Items”) (such report, the “Effective Date Accountants’ Recalculation Report” and, together with the Effective Date ~~Tested Items and specifying~~ Accountants’ Comparison Report, the “Effective Date Accountants’ Reports”). Each Effective Date Accountants’ Report shall specify the procedures undertaken by them to review data and computations relating to such ~~report~~ report. If (~~the “Accountants’ Effective Date Recalculation AUP Report”), and (ii~~x) the Issuer ~~shall cause~~ provides the Effective Date Accountants’ Reports to the Trustee with the results of the Specified Tested Items, (y) the Issuer causes the Collateral Administrator to ~~compile~~ provide to Xxxxx’x the Effective Date Report and ~~deliver to~~ the Effective Date Report confirms satisfaction of the Specified Tested Items and (z) the S&P Effective Date Condition has been satisfied, then each Rating Agency shall be deemed to have confirmed its Initial Ratings of the Secured Notes (~~in the case of delivery to S&P~~such deemed confirmation, ~~via email to XXXXxxxxxxxxXxxxXxxxxxxxxx@xxxxxxxx.xxx) a report (~~the “Effective Date ~~Report~~Ratings Confirmation”), determined as of the Effective Date, containing (A) the information required in a Monthly Report, (B) a calculation of the Aggregate Principal Balance that indicates whether the Aggregate Principal Balance equals or exceeds the Target Initial Par Amount in satisfaction of the Target Initial Par Condition and (C) a list of any Closing Date Participation Interests held by the Issuer as of the Effective Date. For the avoidance of doubt, the Effective Date Report shall not include or refer to the Effective Date Accountants’ ~~Report and no~~ Reports. The Trustee shall not disclose any information or documents provided to it by such firm of Independent accountants unless compelled by legal process (of which the Issuer shall promptly inform the Independent accountants). Copies of the Effective Date Accountants’ Recalculation Report ~~shall~~ or any other agreed-upon procedures report provided by the Independent accountants to the Issuer or Trustee will not be provided to ~~or otherwise shared with~~ any other party (other than the Collateral Manager), including a Rating Agency~~. (d) In~~ , except that in accordance with SEC Release No. 34-72936, Form ~~15-E~~ABS Due Diligence-15E, only in its complete and unedited form which includes the Effective Date Accountants’ ~~Effective Date~~ Comparison ~~AUP~~ Report as an ~~attachment and~~attachment, ~~if Additional Securities are issued, any Accountants’ Report delivered in connection thereto~~ will be provided by the Independent accountants to the Issuer who will ~~post such Form 15-E, except for the redaction of any sensitive information,~~ cause it to be posted on the 17g-5 Website. Copies of the Accountants’ Effective Date Recalculation AUP Report or any other accountants’ report provided by the Independent accountants to the Issuer, Trustee, Collateral Manager or Collateral Administrator will not be provided to any other party including the Rating Agency . (~~other than as provided in an access letter between the accountants and such party)~~d) [Reserved]. (e) If (1) the Effective Date S&P Conditions have not been satisfied prior to the date that is thirty (30) days after the Effective Date or (2) S&P has not provided written confirmation (which may take the form of a press release or other written communication) of its Initial Rating of the Secured Notes rated by S&P by the date thirty (30) days following the Effective Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) shall request S&P to provide written confirmation of its Initial Rating of the Secured Notes rated by S&P (which may take the form of a press release or other written communication). In such case, if S&P does not provide written confirmation of its Initial Rating of the Secured Notes on or prior to the Determination Date immediately preceding the first Payment Date, then the Issuer (or the Collateral Manager on the Issuer’s behalf) will instruct the Trustee to transfer amounts from the Interest Collection Subaccount to the Principal Collection Subaccount and may, prior to the first Payment Date, use such funds on behalf of the Issuer for the purchase of additional Collateral Obligations until such time as S&P has provided written confirmation of its Initial Rating of the Secured Notes (provided that the amount of such transfer would not result in a default in the payment of interest with respect to the Class A Notes); provided that in lieu of complying with ~~this clause (e~~Section 7.18(c), the Issuer (or the Collateral Manager on the Issuer’s behalf) may take such action, including but not limited to, a Special Redemption and/or transferring amounts from the Interest Collection Subaccount to the Principal Collection Subaccount as Principal Proceeds (for use in a Special ~~Redemption or to acquire additional Collateral Obligations~~Redemption), sufficient to enable the Issuer (or the Collateral Manager on the Issuer’s behalf) to obtain ~~written confirmation of its Initial Rating of the Secured Notes from S&P.~~Effective Date Ratings Confirmation. (f) ~~U.S.$29,549,508.80~~ The failure of the ~~net~~ Issuer to satisfy the requirements of this Section 7.18 will not constitute an Event of Default unless such failure constitutes an Event of Default under Section 5.1(d) hereof and the Issuer, or the Collateral Manager acting on behalf of the Issuer, has acted in bad faith. Of the proceeds of the issuance of the Notes which are not applied to pay for the purchase of Collateral Obligations purchased by the Issuer on or before the Closing Date (including, without limitation, repayment of any amounts borrowed by the Issuer in connection with the purchase of Collateral Obligations prior to the Closing Date) or to pay other applicable fees and expenses, funds will be deposited in the Ramp-Up Account on the Closing ~~Date~~Date in the amounts specified in writing to the Trustee by the Issuer. At the direction of the Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall apply amounts held in the Ramp-Up Account to purchase additional Collateral Obligations ~~and Principal Financed Accrued Interest, if any,~~ from the Closing Date to and including the Effective Date as described in clause (b) above. If on the Effective Date, any amounts on deposit in the Ramp-Up Account have not been applied to purchase Collateral Obligations, such amounts shall be applied as described in Section 10.3(c), and the Issuer, or the Collateral Manager on behalf of the Issuer, shall notify the Rating Agencies in writing (such notice to S&P to be delivered with the Excel Default Model Input File) of any amounts transferred to the Interest Collection Subaccount from the Ramp-Up Account on the Effective Date. Within 30 Business Days after the Effective Date, the Issuer shall provide, or cause the Collateral Manager to provide, to S&P a Microsoft Excel file (“Excel Default Model Input File”) that provides all of the inputs required to determine whether the S&P CDO Monitor Test has been satisfied and the Collateral Manager shall provide a Microsoft Excel file including, at a minimum, the following data with respect to each Collateral Obligation: CUSIP number (if any), the LoanX identifier (if any), name of Obligor, coupon, spread (if applicable), legal final maturity date, average life, Principal Balance, the reference rate floor with respect to any Reference Rate Floor Obligation, identifying such Collateral Obligation with a trade date and settlement date, the purchase price thereof, identification as a Cov Lite Loan or otherwise, S&P Industry Classification, S&P Rating and S&P Recovery Rate.

Appears in 1 contract

Samples: Indenture (Apollo Debt Solutions BDC)

Common use of Effective Date; Purchase of Additional Collateral Obligations Clause in Contracts